CJ 608 Law and Evidence Study Guide
Created by CLR Graduate Criminal Justice Peer Tutor Lanmeng Ma
1
Law and Evidence
1. Development of the Rules of Evidence
The Rules of Evidence are the collection of rules and principles that regulate the admissibility,
relevancy, weight, and sufficiency of evidence in legal proceedings.
Common law: build up by the decisions of judges in Anglo-Saxon and American courts. It is the
basic foundation of the law of evidence. (Its Latin name is “Stare decisis”, which means to abide
by, or adhere to, decided cases.)
Statutory Law: an act of the legislature declaring, commanding, or prohibiting something; a
particular law enacted and established by the will of the legislative branch of government.
State Rules of Evidence: (the 10th Amendment) Each state may have its own rules of evidence,
but the rules tend to be substantially the same in each state that bases its rule on the common law.
The Federal Rules of Evidence: In 1974, Congress enacted the Federal Rules of Evidence in
order to alleviate confusion, and in some cases unjust resolution of court cases. (The rules were
developed by a group of judges, members of Congress, lawyers, and others interested in the
administration of justice in federal courts.)
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CJ 608 Law and Evidence Study Guide
Created by CLR Graduate Criminal Justice Peer Tutor Lanmeng Ma
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2. Types of evidence
Evidence: is any species of proof, or probative matter, legally presented at the trial of an issue,
by the act of parties through the medium of witnesses, records, documents, concrete objects etc.
Direct Evidence: Something the witness can testify to, something he/she saw, smelled, tasted,
heard, or felt that is directly related to the issue between the litigants.
Circumstantial Evidence: is evidence that dose not directly prove the existence of a fact but
merely gives rise to a logical inference that it exists; such evidence is admissible if it affords a
basis for a reasonable inference of the existence of the fact.
An ultimate fact may be by circumstantial evident, but the circumstances must have probative
force sufficient to constitute a basis of legal inference. It is not enough that the facts raise a mere
surmise or suspicion of the existence of the fact or permit a purely speculative conclusion. The
circumstances must NOT be equally consistent with the nonexistence of the ultimate fact.
Real Evidence: is furnished by things themselves on view or inspection. (i.e. instruments of the
crime)
Testimonial Evidence: Evidence that comes through living witnesses speaking under oath or
affirmation in the presence of the court.
Reputation Evidence: consists of the general statements of members of the community with
relation to a particular fact and hence may be regarded as a species of composite hearsay.
Reputation is what other persons believe a person to be.
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CJ 608 Law and Evidence Study Guide
Created by CLR Graduate Criminal Justice Peer Tutor Lanmeng Ma
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3．Important Definitions and Rules
Motion in Limine: is a pretrial motion filed by either the prosecution or defense to try
requesting a ruling from the trial judge that evidence either be admitted or excluded.
Motion to Suppress Evidence: are filed by the defense to try and exclude evidence on the
grounds that the evidence was seized in violation of a defendant’s constitutional rights.
Trier of Fact: in a jury trial is the jury; in a court trial is the judge.
Burden of Proof: The party who is making the charge has the burden of proving his/her case
before the trier of fact. In a criminal proceeding, the State or the government has the burden of
proving the defendant guilty. In a civil proceeding, the plaintiff has the burden of proof.
Preponderance of the Evidence -- this standard applies in civil court actions.
In order to obtain a verdict for plaintiff, she/he must produce evidence sufficient to up the scale
of justice in her/his favor, or show that the facts sought to be proved are more probable than not.
Proof beyond a Reasonable Doubt -- is the highest burden of proof in the U.S. judicial system.
The law requires that, after hearing all the evidence, if there is something in the evidence or lack
of evidence that leaves in your mind, as reasonable men and woman, a reasonable doubt as to
the guilty of the accused, then the accused must be given the benefit of that doubt and acquitted.
Probable Cause: a set of fact and circumstances within their (police) knowledge and of which
they had reasonable trustworthy information were sufficient to warrant a prudent man in
believing that the defendant had committed or was committing an offense. (Brinegar v. U.S. 338
U.S. 160 (1949))
Admissible Evidence: It is logically relevant unless it is barred by a logically relevant, metrical,
and competent.
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CJ 608 Law and Evidence Study Guide
Created by CLR Graduate Criminal Justice Peer Tutor Lanmeng Ma
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Exclusionary Rules are an instrument used by the court to ensure fairness to each party in a
legal dispute. Therefore, relevant evidence may be excluded for following reasons.
Unfair prejudice:
1. When the facts offered may unduly arouse the jury’s emotions (hostility/sympathy)
2. When the proof and answering evidence it provokes may create a side issue that will unduly
distract the jury from main issue
3. When the evidence offered will consume an undue amount of time
4. When the evidence causes the defendant unfairly surprised
Exclusion of Relevant Evidence on Grounds of Prejudice, Confusion, or/and waste of time
Hearsay: is a statement, other than one made by the declarant while testifying at the trial or
hearing, offered in evidence to prove the truth of the matter asserted.
Hearsay is made out of court that is offered in the trial to proof the fact, provides no opportunity
for cross-examination. (It applies to words spoken and written statements)
Hearsay evidence is considered unreliable: 1. No cross-examination
2. Not under oath
Exceptions to the Hearsay Rule:
The hearsay rule is not absolute in that exceptions to the rule have always existed and are
recognized. Many times these exceptions to the rule are allowed by authority of a state or federal
statute. At other times, the common law has provided these exceptions because of:
1. Necessity and great probability of reliability
2. Public policy
3. The trustworthiness that experience has taught
4. The circumstance indicate
5. The probability of veracity
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CJ 608 Law and Evidence Study Guide
Created by CLR Graduate Criminal Justice Peer Tutor Lanmeng Ma
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4. Witnesses
Competency of a Witness: General Rule of Competency (Federal Rule 601) states that every
person is competent to be a witness except as otherwise provided in these rules.
Federal Rule 603 requires before testifying, every witness shall declare that the witness will
testify truthfully, by oath or affirmation administered in a form calculated to awaken the witness’
conscience and impress the witness’ mind with the duty to do so.
Types of testimony will be excluded:
1. untruths (even there is no motive or intent of the witness to testify falsely)
2. may be relevant, but unfair to the opposing party
Impeachment of Witnesses:
Impeachment is a term used when attempting to attack the credibility of a witness by convincing
the trier of the facts that the testimony may not be truthful.
There are various methods of impeachment, some of which are as follows:
1. showing that the witness has been convicted of a crime after his or her denial of such
conviction (recent law limits this method ;see federal Rule of Evidence 609.)
2. surprising the witness-showing that the witness had made other statements to the interrogator
on previous occasion.
3. Interrogating the witness regarding an immoral, vicious, or criminal act by the witness that
may affect his or her character and tend to show that he or she is not worthy of belief
4. Introducing extrinsic evidence
5. Showing the witness’s bias against the cross-examiner or the party he or she represents
6. Showing that either at the time of the occurrence to which the witness has testified or at the
time of giving the testimony, he or she was under the influence of drugs or alcohol, or was
sick, or was mentally incompetent, or was incompetent to testify because of a lack of
appreciation of the solemnity of an oath or because of other physical or mental incapacity
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CJ 608 Law and Evidence Study Guide
Created by CLR Graduate Criminal Justice Peer Tutor Lanmeng Ma
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7. showing the witness’s general bad reputation with respect to truth and veracity
8. showing that the witness was in an improper position or location to make the observation that
he or she testified to
9. impeaching experts using literature in the field of knowledge
10. impeaching experts by questioning their qualifications
11. showing specific instances of misconduct
12. showing a defect in perception
13. showing other, similar acts that the witness has done to negate the defense of mistake or
accident , to infer motive, to show intent, to prove identity, or to show a common scheme or
plan.
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CJ 608 Law and Evidence Study Guide
Created by CLR Graduate Criminal Justice Peer Tutor Lanmeng Ma
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5. Unconstitutionally Obtained Evidence
Exclusionary Rule: is a remedy established by the court to prevent the introduction of evidence
against a criminal that was illegally seized by an agent of the government. The purpose behind
the exclusionary rule is to deter police misconduct. The Exclusionary Rule was established in
Weeks v. United States, 232 U.S. 383 (1914).
Amendment IV – The right of the people to be secure in their persons, houses, papers, and
effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall
issue, but upon probable cause, supported by oath or affirmation, and particularly describing the
place to be searched, and the persons or things to be seized.
Government intrusions without a warrant are per se unreasonable.
A “Search” is defined for Fourth Amendment purposes when:
1. Government action
2. Intrudes into an area in which an individual has a reasonable expectation of privacy, with
the specific intent of discovering evidence of a crime.
3. The Fourth Amendment protects persons not places.
4. What a person knowingly exposes to the public, even in his own home or office is not
subject to the 4th Amendment protection.
5. What a person seeks to preserve as private, even in an area accessible to the public, may
be constitutionally protected by the 4th Amendment. Katz v. U.S., 389 U.S. 347 (1967).
Exceptions to Search Warrant Requirement:
1. Search incident to a lawful arrest.
2. Consent to search- Person must be able to consent- the burden is on the state to prove it.
3. Plainview Doctrine- Officer must be in a position to view the subject. The item must be
clearly identifiable as contraband.
4. Private actors
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CJ 608 Law and Evidence Study Guide
Created by CLR Graduate Criminal Justice Peer Tutor Lanmeng Ma
5. Stop and Frisk-Terry v. Ohio = “The Terry Doctrine”
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6. Exigent Circumstances
7. Public Safety
8. Inevitable Discovery Doctrine (Nix v. Williams 467 U.S. 431 1984)
9. Independent Source
10. Automobile Search
Highly mobile
Inventory Search
Amendment V – No person shall be held to answer for a capital, or otherwise infamous crime,
unless on a presentment or indictment of a Grand Jury, expert in case arising in the land or naval
forces, or in the Militia, when in actual service in time of War or Public Danger; no shall be
twice put in jeopardy of life or limb, no shall be compelled in any criminal case to be a witness
against himself, no be deprived of life, liberty, or property, without due process of law; nor shall
private property be taken for public use without just compensation.
Right Against Self-incrimination -- Miranda v. Arizona
Custodial interrogation- Means: Questioning initiated by law enforcement officers after a
person has been taken into custody or otherwise deprived of his freedom of action in any
significant way.
Procedural Safeguards- Unless fully effective means are devised to inform accused persons of
their right of silence and to assure a continuous opportunity to exercise it, the following measures
are required.
Prior to any questioning, the person must be warned that he has a right to remain silent, that any
statement he does make may be used as evidence against him, and that he has a right to the
presence of an attorney, either retained or appointed.
The defendant may waive effectuation of these rights, provided the waiver is made voluntarily,
knowingly, and intelligently.
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CJ 608 Law and Evidence Study Guide
Created by CLR Graduate Criminal Justice Peer Tutor Lanmeng Ma
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If, however, he indicates in any manner and at any stage of the process that he wishes to
consult with an attorney before speaking there can be no questioning.
Likewise, if the
individual is alone and indicates in any manner that he does not wish to be interrogated, the
police may not question him.
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CJ 608 Law and Evidence Study Guide
Created by CLR Graduate Criminal Justice Peer Tutor Lanmeng Ma
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6. Leading Cases
1. Illinois v. Gates, 462 U.S.213. Stands for the proposition that the state or Government
does not have to disclose the informant’s identity.
DISCLOSURE OF AN INFORMANT
6TH Amendment Right to confront witnesses against the accused.
A prosecutor can never be compelled to disclose the identity of an undercover officer or
informant. However failure to do so, in some cases may result in the charges against the
defendant being dismissed.
However, the more corroboration through independent police investigation, the less likey the
need for disclosure of the police informant.
Illinois v. Gates, 462 U.S.213.
FACTS: Police in Bloomingdale, Ill., received an anonymous letter regarding a husband and
wife drug dealing operation. The letter predicted that the wife would drive their car to Fla., on
May 3, and the husband would fly to Fla., a few days later and drive back to Illinois in a car
loaded with over $100,000. Police corroborated the information by learning the husband
purchased a one-way ticket to Fla., on the date predicted by the letter, and arrived at a Fla., hotel
registered in the wife’s name. A vehicle matching the description of the couple was observed
travelling north toward Illinois. Based on the letter, and the police investigation, a search warrant
was obtained for the residence to the husband and wife. When they arrived home they were
arrested.
ISSUE: Was the information supplied by anonymous letter enough to authorize the issuance of a
search and seizure warrant for the residence?
HOLDING OF THE COURT: The judge issuing the warrant had a substantial basis for
concluding that probable cause to search the respondent’s home and car existed. Under the
“totality of circumstances” analysis, corroboration by details of an informant’s tip by
independent police work is of significant value.
The court added, ”Here, even standing alone, the facts obtained through the independent
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CJ 608 Law and Evidence Study Guide
Created by CLR Graduate Criminal Justice Peer Tutor Lanmeng Ma
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investigation of the Bloomingdale police officer and the DEA at least suggested that
respondent’s were involved in drug trafficking. In addition, the judge could rely on the
anonymous letter, which had been corroborated in major part by the police officer’s efforts.
2. Terry v. Ohio, 392 U.S.1 (1968) -- Constitutional Basis for Arrest – Terry Stop
FACTS: 10/31/1963-Cleveland, Ohio 2:30 p.m., Det. McFadden testified he was a cop for 39
yrs., a detective for shoplifters and pickpockets.
He explained that he developed routine habits of observation over the years and that he
developed routine habits of observation over the years and that he would “stand and watch
people at many intervals of day.” On the above date he saw 2 individuals, Chilton and Terry,
standing on a corner and he had never see them before, He added:’ Now in this case when I
looked over they didn’t look right to me an the time.
He began to watch them and noticed one of the men leave the other one and walk southwest on
Huron Road past some stores. The man stopped and looked in a store window, then walked a
short distance, turned around and walked back toward the corner, and the two conferred briefly.
Then the second man went through the same series of motions, strolling down the road, looking
in the same window. Turned around and walked away, returned looked in the same window.
Then returned to the same corner with his companion and they conferred. The men repeated this
5-6 times. At one point a 3rd man, Katz, joined them in the conversation.
Det. McFadden testified after observing their elaborately casual and oft repeated reconnaissance
of the store window, he suspected the two men of casing a job, a stick-up, and that he considered
it his duty as a police officer to investigate further. He added he feared “they may have a gun” he
stopped them, identified himself and asked them for their names. They replied with mumbles. He
then spun Terry around patted down the outside of his clothing and located a handgun on Terry.
He placed Terry under arrest, and the patted down Chilton and located a gun on him.
They were all arrested, Chilton and Terry filed motions to suppress the evidence based on an
alleged 4th Amendment Violation.
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CJ 608 Law and Evidence Study Guide
Created by CLR Graduate Criminal Justice Peer Tutor Lanmeng Ma
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COURT HELD: It would be a stretching the facts to hold beyond reasonable comprehension
to find that officer McFadden had probable cause to arrest the men before he patted them down
for weapons. However, the court denied the defendant’s motion on the ground that officer
McFadden, on the basis of his experience, ‘had reasonable cause to believe the defendants’ were
conducting themselves suspiciously, and some interrogation should be made of their action.’
Purely for his own protection, the officer had the right to pat down the outer clothing of these
men, who he had reasonable cause to believe they might be armed. The court distinguished
between an investigatory ‘stop’ and an arrest.
3．Obermeier v. Nielsen, 158 Conn. 8 -- Silence as an admission
Admission by Silence -- A party who is under arrest need not deny an accusation made against
him and the fact that he failed to deny the accusation is not admissible as an admission.
If a statement is made by a person in the presence of a party to the action and the statement
contains accusations or assertions that, if untrue, the party would under all the circumstances be
expected to deny, his or her silence in the face of these charges is admissible as an admission.
FACTS: A motor vehicle accident occurred that involved four vehicles. The accident occurred
on a rain-slicked road and involved a read end collision. One of the drivers, Lamarche, told the
police officer in front of all of the involved parties that the defendant had tried to stop quickly
and slid into the plaintiff’s vehicle, and causing the plaintiff to strike the vehicle in front of her.
Lamarche made this statement in front of all parties involved in the accident. The defendant
never denied or refuted Lamarche’s statement.
The defendant appealed the trial court’s decision that allowed the officer to testify as to the
statement made by Lamarche.
ISSUE: Should the trial court have allowed the officer to testify regarding the statement made by
Lamarche?
COURT RULED: “The testimony of the police officer contains several extrajudicial statements
made by a person or persons unidentified, except for Lamarche, which were offered to prove the
truth of the matters asserted therein… The only exception to the hearsay rule which might be
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CJ 608 Law and Evidence Study Guide
Created by CLR Graduate Criminal Justice Peer Tutor Lanmeng Ma
13
applicable to the officer’s testimony is admission by silence predicated on a failure of the
defendant Nielsen to deny the statement made in the presence of all the other drivers.
“The failure of one person to contradict or reply to the statement of another person made in his
presence and hearing may amount to an admission by adoption of the other’s assertion, providing
the person remaining silent actually heard and understood the statement and was not disabled or
prevented form replying, and the statement, under the circumstances made, was such as would
naturally call for an answer. Under such circumstances evidence of the making of the statement
and the silence of the person in whose presence it was made is admissible under the exception to
the hearsay rule raised with respect to admissions.”
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