Chapter 3
USING
EVIDENCE
TO
DETERMINE
GUILT OR
INNOCENCE
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Learning Objectives
 Outline the criminal court process.
 List the pleas a defendant may enter to a
criminal charge.
 Evaluate the pros and cons of plea
bargaining.
 Compare the use of evidence at various
stages of a criminal trial.
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Evaluation and Review of Evidence
 The rules of evidence ultimately decide what evidence
will be presented to the judge and jury for evaluation.

Evidence may be evaluated in a variety of settings at
various stages of the investigatory and criminal court
process.
 There are many settings where the rules of evidence do
not apply.
 In the process of review and evaluation of evidence,
weaker cases are filtered out of the system or lesser
charges are used.
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Evaluation and Review of Evidence
 A motion to suppress evidence is a written or oral
request to a judge to keep out evidence at a trial or
hearing.
 Motions to suppress are often made when a party
believes the evidence was unlawfully obtained.
 To rule on a motion to suppress, the judge must review
the evidence.
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 The defendant’s appeal argued
Lee v.
State
59 Md. App.,
28, 474 A.2d
537, 35 CrL
2147 (1984).
that a shoplifter had to leave a
store in order to be convicted of
larceny (theft).
 The Maryland Court of Special
Appeals affirmed the conviction,
holding that once “a customer …
crosses the threshold into the
realm of behavior inconsistent
with the owner’s expectations, the
circumstances may be such that a
larcenous intent can be inferred.”
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Team Review of Evidence
 A 2008 FBI article on best practices in
homicide investigations concluded that
police departments that use the practice of
team review of evidence have a higher
clearance rate than the national average.
 Team review allows for better
communication and exchange of
information between investigating officers.
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Team Review of Evidence
 Methods and questions raised in a team
review can include:






What physical evidence is available?
Was the evidence obtained in a manner that can be attacked or
suppressed?
What witnesses are available, and how reliable and dependable
are they?
What are some likely ways that witnesses may be attacked on
cross-examination?
Is there a suspect or suspects?
Are confessions or incriminating statements available?
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Goals of the Criminal Justice System
 The generally recognized overall goals of the
criminal justice system are to:
 Discourage
and deter people from committing
crimes;
 Protect society from dangerous and harmful
people;
 Punish people who have committed crimes; and
 Rehabilitate and reform people who have
committed crimes.
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The Criminal Court Process
 The filing of a criminal complaint with a
magistrate or other judicial official is how a
typical misdemeanor case begins.
 The complaint can be filed with the court
before or after the defendant is placed
under arrest, depending on the case.
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The Criminal Court Process
 The magistrate determines only whether
probable cause exists to believe a crime has
been committed and that the named
defendant committed it.
 The defendant appears before the judge at
the initial appearance (arraignment)
where the charges are read, a plea is entered,
and bail is set.
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The Criminal Court Process
 If a felony is charged in the criminal complaint, a
preliminary hearing will be held.

The judge can also dismiss the charges if the
prosecution’s case is weak.
 In many states and in federal courts, the
indictment system is used for felonies instead of
public prosecutors issuing criminal complaints.
 If sufficient evidence is introduced to show
probable cause, the defendant is bound over for
trial.
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The Criminal Court Process
 A criminal indictment is a list of criminal
charges issued by a grand jury, which has
heard evidence presented by a U.S. Attorney or
a state prosecuting attorney.

States that do not use the grand jury system may begin
a criminal case with an information.
 The defendant enters a plea at the
arraignment and the case is bound over to
the appropriate criminal court for trial.
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Pleas a Defendant May Enter to a
Criminal Charge l
 The following pleas are available to defendants:
 Not guilty plea.

Guilty plea: This may be a regular guilty plea or an Alford
guilty plea in states that permit them.

An insanity plea (or defense): Usually this plea is not
guilty by reason of mental disease or defect.

No contest plea (nolo contendere plea) : Permitted if
the statutes of the state and the court allow it.

Standing mute or refusing to enter a plea: This plea
ordinarily causes the court to enter a plea of not guilty.
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Purposes of the Rules of Evidence
 Rules of evidence that assist the judge or jury:
 Requirement for relevant, reliable, and competent evidence.
 Opinion evidence rule.
 Hearsay rules.
 Rules of evidence that expedite trials:
 Rules concerning judicial notice.
 Rules concerning presumptions and inferences.
 Rules of evidence that have other purposes:
 Testimonial privilege rules.
 Exclusionary rule.
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The Not Guilty Plea
 All defendants in criminal cases are presumed
innocent until proven guilty through the use of
evidence and witnesses presented during a trial.
 The burden of proof is always on the state or
government to prove the elements of the crime
charged.
 The level of proof required in all criminal cases is
proof beyond a reasonable doubt.

This means that the evidence presented during the trial must
convince the fact finder of the defendant’s guilt to a moral
certitude.
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The Not Guilty Plea
 The defendant can remain silent, appear as a
witness on his or her own behalf, or actively
attack or seek to hinder and minimize the
state’s evidence and case.
 The defendant can deny performing the acts
charged or assert an affirmative defense.
 To
assert an affirmative defense, the defendant
must come forward with evidence showing a basis
for it, e.g., entrapment.
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The Guilty Plea
 In the United States, most people charged with felonies
plead guilty.
 Most guilty pleas are entered because defendants realize
the evidence against them will result in a conviction.

It is a standard practice to reward a defendant who acknowledges
guilt in open court with a lighter sentence.
 The foundations of a valid guilty plea are:

the defendant’s voluntary admission that he or she committed the
acts charged; and

the defendant’s knowing consent to the judgment of guilt without
trial.
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The Guilty Plea
 Defendants who offer a guilty plea must admit that he or
she committed the crime charged.
 It must be shown that the defendant entered a guilty
plea voluntarily and intelligently.
 The trial judge must be convinced by the evidence
presented that the defendant did in fact commit the
criminal act.
 There is no constitutional right to plead guilty, but a
state may create a statutory right to do so.
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The Guilty Plea
 Rule 11 of the Federal Rules of Criminal Procedure lists
fourteen specific topics that the trial judge must address,
including:

The right to plead not guilty;

The right to have an attorney appointed;

The right to a jury trial; and

The right to information about the possible sentence.
 Rule 11 specifically states that the trial judge “must
address the defendant personally in open court” to
provide this information.
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 The Court defined the nature and
Boykin
v.
Alabama
395 U.S. 238
(1969)
consequences of a guilty plea in
criminal prosecutions.
 The guilty plea is more than a
confession; it is a conviction.
 When defendants plead guilty,
they waive the following rights:
the privilege against compulsory
self-incrimination;
 the right to a trial by jury; and
 the right to confront one’s accusers.

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The Alford Guilty Plea
 The Alford guilty plea permits a
defendant to enter a guilty plea while at the
same time asserting his or her innocence.
 Most state courts hold that an Alford pleas is
the “functional equivalent” of a regular plea
of guilty.

There may be different consequences of a regular guilty plea
and an Alford plea.
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 The Court held that a defendant can
North
Carolina
v. Alford
400 U.S. 25,
37, 91 S. Ct.
160, 167
(1970)
voluntarily and knowingly consent
to the imposition of a prison
sentence even if the defendant is
unwilling or unable to admit his or
her participation in the acts
constituting the crime.

The Alford plea permits a defendant to
enter a guilty plea while at the same
time protest his innocence.
 The Alford plea is not mandatory
for states but many have adopted
the concept.
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The No Contest Plea
 Most states also have statutes permitting a
no contest plea, sometimes referred to as a
nolo contendere plea.
 In most states and in the federal courts, this
plea may be made only with the consent of
the trial judge.
 Some states limit this plea to misdemeanor
and local ordinance violations.
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Conditional Guilty Plea
 The defendant does not have the constitutional
right to have his or her guilty plea accepted by the
court.
 Under the laws of all states, trial judges have the
discretion to refuse to accept a plea of guilty.
 Defendants who enter a guilty plea in any form to a
criminal charge lost most of their right to appeal.

The defendant can enter a guilty plea conditioned upon
the defendant’s right to appeal the trial judge’s ruling.
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 Under federal rules a
U. S. v.
MendezSantana
645 F.3d 822
(6th Cir. 2011)
defendant has an absolute
right to withdraw a guilty
plea before the trial judge
accepts the plea.


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The Federal Rules of Criminal
Procedure permits a defendant to
withdraw a guilty plea before
sentencing for “fair and just” reasons.
In federal prosecutions, there is no
jurisdiction in the trial court to grant a
motion to withdraw a guilty plea after
sentence has been imposed.
The Insanity Plea
 The insanity plea is found in the criminal codes of
most states.
 The insanity plea is used by defendants primarily in
murder cases, for which sentences are severe.
 If an insanity plea were entered in a minor criminal
matter, the state may agree and join the defendant in
requesting the court to find the defendant legally
insane.

The defendant would very likely then be held for mental
observations and treatment for a much longer period than
would have been the case had he or she been convicted of
the crime charged.
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The Insanity Plea
 If a defendant decides to use an insanity defense, most
defendants will enter a not guilty plea and proceed to trial.
 The trial will then be bifurcated, with the first part of the
trial determining guilt or innocence of the charge and the
second part determining whether the defendant was
legally insane when the criminal act was committed.
 Most states place the burden on a defendant using the
insanity plea to come forward with evidence showing that
he or she was so mentally diseased or defective that he or
she was unable to formulate the mental intent to commit
the crime charged.
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Is the Insanity Plea an Effective Defense?
 Studies suggest that the insanity defense is the last resort
for most defendants.
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The defense is used in only about 1 percent of prosecuted felony cases
and has a success rate of just over 20 percent.
The defense is risky and usually leads to longer sentences if the
defense is unsuccessful.
Among defendants who are successful in raising the defense, only 1
percent are released after being found not guilty by reason of insanity.
For defendants found not guilty in violent crimes other than murder,
the period of confinement in a mental hospital is twice as long as those
convicted without making an insanity plea.
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The Guilty Plea System, Plea Bargaining,
and Victim’s Rights Laws
 Plea bargaining is when a defendant agrees
to enter a guilty plea guilty in return for a
reduction in the charge or sentence.
 Prosecutors often charge defendants with
multiple offenses; as part of the plea bargain,
the lesser offenses are dropped in exchange
for a guilty plea to the principal criminal
charge.
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The Guilty Plea System, Plea Bargaining,
and Victim’s Rights Laws
 In all guilty plea hearings, the defendant is
entitled to an attorney unless that right has
been waived.
 The trial judge questions the defendant to
establish that the defendant knowingly and
voluntarily is pleading guilty to the charge.
 The state must introduce sufficient evidence
to show beyond a reasonable doubt that the
defendant committed the crime.
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The Guilty Plea System, Plea Bargaining,
and Victim’s Rights Laws
 Victim’s rights laws have been enacted in
every state to give victims rights during the
court process.



Crime victims must be informed of times, dates, and details for
all court proceedings in their case.
Victims have the right to make a “victim impact statement”
during sentencing.
In many states, victims may voice objections with a plea bargain
agreement.
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The Guilty Plea System, Plea Bargaining,
and Victim’s Rights Laws
 Plea bargaining, negotiated pleas, and
sentence pleading have become standard
practice in most American communities.





It clears the court calendar of cases by providing a rapid trial
and punishment.
Defendants participate and admit their guilt.
The practice eliminates many appeals.
The practice provides a certainty of adjudication.
A guilty plea could be the first step toward genuine
rehabilitation.
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The Guilty Plea System, Plea Bargaining,
and Victim’s Rights Laws
 The main danger in the present system of nontrial
dispositions is that it is so informal and invisible
that it gives rise to fears that it does not operate
fairly, or that it does not accurately identify those
who should be prosecuted and what disposition
should be made in their cases.
 The very informality and flexibility of the
procedures are sources of both potential
usefulness and abuse.
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Fast-Track Trials and Plea Bargains
 Defendants in “fast track” trials must prepare for a
speedy trial or have the choice of “fast-tracking” plea
bargaining.
 The ability of defendants to receive reduced
sentences in federal districts that have fast-track
programs has caused problems for judges sentencing
defendants in other districts, where fast track plea
bargains are not available.
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Use of a Guilty Plea Offer as Evidence
 To encourage guilty pleas, the federal government
and many states have statutes that forbid the use of
any of the following as evidence:

Evidence of a plea of guilty, later withdrawn;

A plea of nolo contendere, or of an offer to plead guilty or nolo
contendere to the crime charged or any other crime; or

Statements made in connection with any of the foregoing pleas
or offers.
 States with similar statutes also prohibit evidence of
pleas offered in plea negotiations.
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To encourage guilty pleas, the federal government and many states have statutes
such as Rule 410 of the Federal Rules of Evidence and Rule 11(6) of the Federal
Rules of Criminal Procedure, which forbid the use of any of the following as
evidence:
Quantums of Proof and Standards of Proof
Required in Criminal Cases
evidence of a plea of guilty, later withdrawn, or a plea of nolo contendere, or of an offer
to plead guilty or nolo contendere to the crime charged or any other crime, or of statements made in connection with any of the foregoing pleas or offers.
States with similar statutes also prohibit evidence of pleas offered in plea negotiations, including incriminating statements made in the offer, as the following cases
illustrate:
•
After a sex crime had occurred, M uniz (the defendant) offered to pay some of
the victim’s medical expenses. The State of California then charged M uniz
Absolute
certainty
of fact
A hunch, mere suspicion,
or gut reaction would not
justify any inter ference with
a person’s freedom of
movement by an officer.
Area Within
Which Reasonable
Suspicion Exists
Reasonable suspicion is
necessary to authorize an
investigative stop.
Reasonable suspicion is
“well-founded suspicion
justifying an investigative
stop.”
a
d
se
rea
c
In
o
nt
ou
m
A
e
vid
dE
n
na
tio
ma
r
fo
f In
e
nc
Area Within
Which Probable
Cause Exists
Probable Cause is:
• necessary in preliminary
hearing to bind the
defendant over for trial
of the felony charge.
• necessary to make
an arrest.
• necessary for the
issuance of a search
warrant or an arrest
Guilt
warrant.
beyond a
• necessary to make a
reasonable
“probable cause sear ch”
doubt
under the Carroll Rule.
No evidence
or information
available
Quantums (Amounts) of Proof and Standards of Proof Required in Criminal Cases
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Amount of
Evidence
Necessary for
a Finding
of Guilt
Absolute
certainty of the
defendant’s
guilt
The Use of Evidence at a Bail Hearing
 The purpose of bail is to assure the defendant’s
appearance at trial.

During bail hearings, evidence of prior convictions and
failures to appear in court are admissible.
 Historically, about 60 percent of persons charged
with felony crimes are released on bail.
 Bench warrants are issued in approximately one-
fourth of the cases of persons released on bail who
fail to appear in court for trial.
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United
States v.
Salerno
481 U.S. 739,
752 (1987)
 The Court held that pretrial
detention is permissible in
some circumstances under
the Bail Reform Act, and
does not violate the Eighth
Amendment.
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The Trial
 Only about 8 percent of criminal cases in the
United States actually go to trial.

About 20 percent of those are tried before a judge, and
80 percent are tried before a jury.
 Prior to the trial, the discovery process takes
place; both the prosecution and the defense gather
evidence through formal questions put to the other
side, depositions of witnesses, and examination of
documents and records.
 Various motions can be filed by the parties as a
result of the discovery process.
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The Trial
 Jurors are selected from the community in which the
court sits (the venue) from lists maintained by the
court.
 Jurors are summoned and selected, and subpoenas
are issued to compel witnesses to attend and testify
at the trial.
 Depending on the seriousness of the crime charged
and state rules, the jury may consist of six to twelve
people.
 The prosecution presents evidence first and must
establish a prima facie case.
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The Trial
 If the judge concludes the evidence is insufficient to
support a reasonable jury verdict of guilty beyond a
reasonable doubt, the case will be dismissed.
 If the case is not dismissed, the defendant may
present evidence to either cast doubt on the
prosecution’s case or to prove an affirmative
defense such as insanity, immunity, entrapment,
or double jeopardy.
 The prosecution may then offer rebuttal evidence to
such defense and other new matters brought out in
the defendant’s case.
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Use
Evidence
PROCEof
DUR
ES&PROCESSin
ES the Stages of the Criminal
Use of Evidence in the StagesProcess
of the Criminal Process
Investigative Stage
Charging Stage
Felony charges are
determined (or
refused) by a grand
jury in states using the
grand jury system (the
grand jury system is
used by the federal
government).
Investigation of
criminal incident
Criminal charges are
determined (or refused) by a prosecutor
(district attorney,
state’s attorney, city
attorney, etc.) in
states using this
system.
If it is known (or
If it is determined that
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Learning. All
Rights Reserved.
suspected)
that a crime
probable
cause exists to
Discovery and
Motion Stage
Trial Stage (Determining
Guilt or Innocence)
Jury trial
After indictment or
complaint is issued,
defense lawyers may
seek dismissal, discovery, or suppression
of use of evidence.
Bench trial
before a judge
Plea bargain
(negotiated plea)
or sentence
bargain
Guilty plea
is entered
The defense lawyer seeks
to discover and obtain
The defense’s decision on
whether to try the case
The Trial
 After all evidence is in and both sides have
delivered closing arguments to the jury, the trial
judge issues jury instructions and jury
deliberations begin.
 With a not guilty verdict, the case is over and the
defendant is discharged from custody.
 With a guilty verdict, the defendant may file posttrial motions in the trial court such as judgment
notwithstanding the verdict (sometimes called
judgment NOV) or a motion for a new trial.
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The Trial
 If the defendant’s motions are overruled, the
defendant may appeal the criminal conviction
and/or the sentence imposed upon the defendant.

In state cases, the defendant’s initial appeals go through the
state appellate process.
 The state appellate court does not conduct a new
trial. Rather, it looks at the evidence to see whether
it supports the conviction and determines whether
the judge made any reversible errors.
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The Trial
 The state appellate court also rules on other claims
the defendant may make, such as a constitutional
violation.
 Appellate courts give deference to decisions made
by the trial court on most questions.

Such decisions are reversible only if they constitute an
“abuse of discretion.”
 Appellate courts generally will review only those
issues raised by the defendant at the trial.

The “plain error” rule is an exception to this general rule.
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The Trial
 After the defendant has exhausted his or her state
court appeals, the defendant may seek review in the
federal courts but only for violation of federal
constitutional rights.


Writs of certiorari are filed in the U.S. Supreme Court.
Writs of habeas corpus are filed in U.S. district courts.
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The Appellate Process
 Writs of certiorari are limited to a review of state court
rulings that violate the defendant’s rights under the
Constitution.

Writs of certiorari are very rarely granted.
 Habeas corpus writs are filed with a federal district court to
ask the court to determine whether the defendant is being
held in violation of his constitutional rights.

The denial of a writ is itself appeal- able by the defendant through the
federal appellate system.
 Filing successive habeas corpus writs is possible.
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Review of Sentencing
 Imposed sentences may be reviewed by the
following authorities:





Trial judge
Appellate courts
Federal courts
State parole board or parole authorities
The President of the United States and state governors
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 States the meaning of the
U.S. v.
Marcus
130 S.Ct. 1259
(2010)
“plain error” rule in federal
appeals of criminal
convictions.
 Error
was clear and obvious,
and
 There is a “reasonable
probability” the error affected
the outcome of the trial.
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