Chapter 3
Evidence—Basic Concepts
Criminal Evidence
7th Edition
Norman M. Garland
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distribution without the prior written consent of McGraw-Hill Education.
Describing Evidence
The Four General Categories
o Testimony of witnesses
o Real, or physical, evidence
o Documents, or writings
o Demonstrative evidence, i.e., visual or
audiovisual aids for the jury
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Other ways of
Categorizing Evidence
o Direct evidence: witnesses’ testimony the
jury need not draw an inference from in
order to find the facts to exist.
o Circumstantial evidence: an inference must
be drawn for the jury to find the facts to exist.
o Competent (or incompetent) evidence.
o Some jurisdictions classify judicial notice and
presumptions as kinds of evidence, although
they are actually substitutions for evidence.
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Admissible Evidence
To be admissible in
court, evidence must
be:
o Relevant
o On balance, not
substantially more
unfairly prejudicial
than relevant
o Otherwise
competent or
admissible
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Relevant Evidence
o All evidence, in the first instance, must
relate to facts of consequence to the
case.
o If the evidence does not relate to such
facts, it should not be admitted.
o If the evidence is related, it is said to be
relevant.
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Relevant Evidence and the FRE
o Relevant evidence is defined by FRE 401
as that "evidence that has any
tendency to make a fact more or less
probable than it would be without the
evidence; and the fact is of
consequence in determining the action."
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The Exclusion of
Otherwise Relevant Evidence
Evidence may be excluded from trial for
reasons that have nothing to do with logical
relevance:
o It has a tendency to unduly prejudice or
inflame the minds of the jury.
o It would tend to cause confusion or create so
many side issues that trial time would be
wasted if it were admitted.
o It would needlessly present cumulative
evidence.
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The Balancing Test of Admissibility:
Just what do those scales mean?
FRE 403
o “its probative value is
substantially outweighed by
a danger of one or more of
the following: unfair
prejudice, confusing the
issues, misleading the jury,
undue delay, wasting time,
or needlessly presenting
cumulative evidence."
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Material Evidence
o Materiality refers to whether or not a fact
is one of consequence to the case.
o The issues of balancing and
competency are not included in the
definition of materiality.
o (It) is appropriate to speak of material or
immaterial facts as part of the formula
for relevance.
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Prima Facie Evidence
o Prima facie evidence is that evidence
that, standing alone, unexplained or
uncontradicted, is sufficient to establish
a given fact, or group of facts
constituting the party's claim or defense.
o In other words, it is the bare minimum of
evidence necessary to sustain a position
by the side offering the evidence.
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Three Confusing Cs of Evidence
o Corroborative Evidence
o Contradictory Evidence
o Cumulative Evidence
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Corroborative Evidence
o Corroborative evidence is evidence that
is supportive of other evidence already
given, tending to strengthen or confirm
the prior evidence introduced.
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Contradictory Evidence
o Contradictory evidence is evidence
used to prove a fact contrary to what
has been asserted by a party or witness.
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Cumulative Evidence
o Cumulative evidence is repetitious of
earlier testimonial or tangible evidence
and corroborative evidence is additional
evidence of a different character
supporting the same point.
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Judicial Notice
o Those facts, of which a judge may take
judicial notice, must first be "not subject
to reasonable dispute."
o Generally, such undisputed facts fall
within two categories. They are either:
(1) generally known within the territorial
jurisdiction of the trial court or
(2) capable of accurate and ready
determination by resort to sources whose
accuracy cannot reasonably be
questioned.
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Civil v. Criminal
Treatment of Judicial Notice
o Judicially noticed facts are treated differently
in civil and criminal trials.
o According to FRE 201(g),
o “In a civil case, the court must instruct the jury to
accept the noticed fact as conclusive. In a criminal
case, the court must instruct the jury that it may or
may not accept the noticed fact as conclusive."
o In a criminal case, the court shall instruct the
jury that it may, but is not required to, accept
as conclusive any fact judicially noticed.
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Notice of Public Statutes
o Most jurisdictions
permit judges to take
judicial notice of all
public statutes, or laws,
of the United States as
well as those of their
own state.
o Under the FRE most of
the states as well as
federal court judges
take judicial notice of
statutes of "sister
states."
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Notice of Geographical Facts
o There are many well-established
geographical facts that fall within the
category of judicial notice or knowledge
of the court.
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Notice of Words, Phrases,
and Abbreviations
The court will take judicial notice of
commonly known words, phrases, or
abbreviations.
o The words "whiskey" or "wine" will be
recognized as intoxicating beverages.
o The abbreviations “A.M." and “P.M." are well
known and will be accepted in court.
o Slang will be judicially noticed.
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Notice of Time, Days, and Dates
o Many facts about time are judicially
recognized, such as 24 hours make a
day, or 7 days make a week.
o January first is recognized as the
beginning of the new year and July 4th is
accepted as a national holiday in the
United States.
o However, because of differences in
religious beliefs, Sunday is not accepted
as being the Sabbath.
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Scientific and Medical Facts
o For a scientific or medical fact to fall
within the realm of judicial notice, it must
be an established fact.
o Scientific and medical theories progress
from the unknown to the debatable, to
the generally accepted, and then
become established facts.
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Scientific Judicial Notice:
Good for Law Enforcement
o Courts take judicial
notice of radar as a
means of determining
speed, although the
accuracy and
efficiency of the
apparatus will depend
upon the officer who
uses it; the officer must
convince the jury of his
or her ability.
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Additional Illustrations of Judicial
Notice and Law Enforcement
o The courts routinely accept the analysis of:
o fingerprints
o DNA
o bodily fluid secretions
o blood types
o hair structure to connect a suspect was to a crime
scene
o However, the issue of whether the questioned
fingerprints, secretions, blood, or other materials
match the criminal defendant is a fact the jury
will decide.
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Controversial Issues: Not all
Science is acceptable
o The polygraph, or lie detector
o The universal rule in the United States is that polygraph
results are inadmissible in court, even though many law
enforcement agencies and other organizations continue
to use them for investigative purposes.
o The effects of hypnosis to stimulate a person's
memory.
o Witnesses whose memories have been hypnotically
refreshed are not banned from testifying, but there are
severe restrictions upon the use of the portion of the
testimony that may have resulted from hypnosis. Most
courts refuse to recognize the validity of such memory
recall techniques.
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Presumptions of Law or Fact
o When allowed to operate, a presumption
permits the fact-finder (often the jury) to
conclude that, because a party has
introduced evidence that one fact exists
(called the "basic fact“), the jury may (or
must) conclude that another fact (called
the "presumed fact“) exists, even though
the party has not introduced any other
evidence of the existence of the
presumed fact.
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Inferences and "Conclusive"
Presumptions Distinguished
o An Inference is the drawing of a
conclusion from an observation or series
of observations.
o A conclusive presumption is one that the
law demands or directs be made from a
set of facts and cannot be refuted by
other evidence.
o Conclusive presumptions also sometimes
referred to as "irrebuttable" presumptions.
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Conclusive presumptions: A
Prohibition on their Usage
o Conclusive presumptions cannot be
used to prove an element of the crime
charged in criminal cases because, as
in the case of a court taking judicial
notice, imposing such conclusive
presumptions would relieve the
prosecution of the burden of proving the
defendant guilty beyond a reasonable
doubt.
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True Presumptions
o A true presumption applies in this way: if
the basic fact is found to exist, then the
jury must find the presumed fact to exist
in the absence of evidence to the
contrary being introduced.
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The Policy Behind Presumptions
o Presumptions are conclusions that the law requires
to be drawn from certain sets of facts.
o They are recognized because they follow in the
normal course of human experience.
o Experience has proven that each time a given set
of facts arises, the end results of the set are very
likely to be the same.
o Under these circumstances, it is logical to
presume that the same results will continue to take
place.
o The acceptance of presumptions is also based on
the social habits of human beings.
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The Supreme Court’s
Test for Presumptions
o The Court has
declared that, at a
minimum, the
presumed fact must
flow from the basic
fact measured by a
standard of a
preponderance of
evidence.
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The Effects of Presumptions:
Jury Instructions and Burden of Proof
A presumption has very limited, but significant,
effects.
o First, is what the jury is told about the
presumption.
o Second, is the effect on the burden of proof
in the case. The burden of proof has two
elements:
(1) the burden of producing evidence (production
burden) and
(2) the burden of persuading the trier of fact
(persuasion burden).
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The Shifting of the Burden
o A presumption usually affects just the
burden of production by shifting it to the
party against whom the presumption
operates.
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Distinguishing Mandatory From
Permissive Presumptions: Presumptions
in Criminal Cases
Presumptions may be incorrect.
o For this reason, the law usually provides for
rebuttable presumptions, which means the
opponent of the presumption may introduce
evidence to rebut the presumption's
conclusion.
A true presumption requires the jury to find
the presumed fact from the existence of
the basic fact and may be called a
mandatory presumption.
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Presumptions Not Evidence
o Today, in an overwhelming majority of
jurisdictions, a presumption is not
evidence.
o This is an important point, for if a
presumption is classified as evidence, it
may confuse the jury into giving the
presumption as much weight as
testimony of witnesses and tangible
evidence.
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Some Common Rebuttable
Presumptions and Their Status Under
the Law
PRESUMPTION OF INNOCENCE
o Perhaps there is no better known rebuttable
presumption than that "a person is presumed
innocent until proved guilty," or, as it is sometimes
stated, "a person is presumed innocent of a crime
or a wrong."
PRESUMPTION OF SANITY
o There is a general presumption that all persons
are sane. This presumption of sanity stems from
the fact that sanity is the normal human condition.
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Some Common Rebuttable
Presumptions and Their Status Under
the Law
o Children under a certain age are not
capable of committing crime.
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The Common Law Rule
o The common law rule "conclusively
presumed" that a child under the age of
seven was not capable of committing a
crime—a presumption of incapacity.
oNot all states in this country recognize
this presumption as conclusive; some
term it a rebuttable presumption.
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Miscellaneous Rebuttable
Presumptions
o People intend the ordinary
consequences of their voluntary acts.
o An unlawful intent is presumed from
doing an unlawful act.
o Evidence willfully suppressed would be
adverse if produced.
o Official duty has been regularly
performed.
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Knowledge of the Law
o There is a maxim
or rule of law
providing that
everyone is
assumed to know
the law and that
ignorance of the
law is no defense
for a criminal act.
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Miscellaneous Rebuttable
Presumptions
o The ordinary course of business, or routine
practice, has been followed.
o A date on a writing is correct.
o A man and a woman reporting themselves
as husband and wife are legally married.
o The law has been obeyed.
o A ceremonial marriage is valid.
o The identity of a person can be determined
by the person’s name.
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Stipulations
o There are other facts that may be
presented during a trial without formal
proof being required.
o These are facts upon which the parties
and their attorneys agree.
o This agreement may take place either
before or during the trial.
o Once agreement has been reached, it
will not be necessary to call witnesses to
present the facts.
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