Law and Society
CJUS/POLS 102
Chapter 4: Procedure and
Evidence
Criminal Procedure
1.
Criminal trial process
- investigation complete
- arrest made
a. Information / indictment filed
- prosecutor reviews
- determine charges
(1) Information
- charging document
- prosecutor’s office
Procedure
- Washington state
(2) Indictment
- originates with grand jury
- prosecutor presents evidence
- grand jury: sufficient evidence
- “true bill”: prosecutor charges
- “no bill”: no charges
b. Arraignment
- first appearance / enters plea
Procedure
(1) Pleas
- not guilty / guilty / insanity /
standing mute / nolo contendere
/ statute of limitations / Alford /
double jeopardy
c. Pre-trial Hearing (preliminary)
- minimal evidence presented
- bind over to superior court
- not used in Washington state
- prosecutor files in superior court
Procedure
d. Pre-trial motions
- before trial judge
- prosecutor or defense
- issues addressed before trial
(1) Types of motions:
- discovery / bill of particulars /
dismissal / continuance / change
of venue / suppress / severance
/ exclusion
Procedure
2.
Jury selection
-”motor voter” registration
- jury pool
a. Potential jurors
- selected randomly
- seated in jury box
(1) Attorneys question
- “voir dire”
- two methods to excuse juror
Procedure
(a) “For cause”
- illness / work / care
- judge determines
(b) “Peremptory challenge”
- excuse without reason
- 2 to 3 challenges
(2) Jury empanelled
- judge swears in
- jeopardy attaches
Procedure
- cannot be tried twice
b. Opening arguments
- prosecutor
- defense attorney (may wait / waive)
c. Prosecution case
- witnesses / evidence
- defense can object
- defense can cross-examine
- prosecution rests
Procedure
d. Defense case
- witnesses / evidence
- defendant can take stand
- prosecution can object
- prosecution can cross-examine
- defense rests
e. Rebuttal
- can recall witnesses to “rebut”
- surrebuttal
- ends case presentation
Procedure
f. Closing arguments / summation
- prosecutor states position
- defense states position
- prosecutor (burden of proof)
g. Jury admonished
- judge advises jury of duty
- what they can / cannot consider
- court rules read to jury
h. Jury deliberation
Procedure
-
moved to deliberation room
jury foreperson
discuss case
testimony read in court
reach a verdict / “hung jury”
i. Verdict read
- judge reviews
- asks jury if reached verdict
- foreperson answers
- jury excused
Procedure
j. Guilty verdict
- sentence imposed
- 30 / 45 days after trial
- not guilty = judge releases
k. Sentencing
- probation prepares report
- witnesses can testify
- defendant can speak (allocution)
- judge imposes sentence
- death penalty = jury sentencing
Procedure
l. Reasons for appeal
(a) Error:
- prosecutor / judge / defense
- reversible
- harmless
(b) Violates constitutional rights
(c) Just because
Civil Procedure
3.
Civil trial
- plaintiff / defendant
a. Process
- civil complaint prepared
- lists facts / basis for filing
- file with court administrator
(1) Cause of action
- show reasons for filing
- why suing
Procedure
(2) General damages
- asking for / why
- file with court administrator
(a) District court
- $75,000 or less
- judge or commissioner
(b) Superior court
- more than $75,000
- judge or commissioner
Procedure
(c) Federal court
- federal agencies / agents
- constitutional issue
(3) Punitive damages
- damages from mental distress
- seek reimbursement
b. Summons issued
- plaintiff’s attorney
- signed by judge
Procedure
(1) Defendant served (service)
- 30 days to respond
(2) Process server
- sheriff’s deputy / private person
(a) Served: court has jurisdiction
(b) Personal service
- “in personam”
- fail to appear: default win
Procedure
c. Defense response
- files “answer” with court
(1) Why not liable for damages
- “pleading”
(2) Motion to dismiss
- “demurrer”
(3) Court can “sustain”
- no sufficient claim
Procedure
(a) Suing several defendants
- company / airline / Boeing
(b) Release one or more
(4) Discovery
- deposition / interrogatory
- subpoena deuces takem
(a) Deposition
- question parties / witnesses
Procedure
(b) Interrogatory
- written questions
- answer truthfully
- asked in court
- contempt
(c) Subpoena deuces takem
- court order
- produce physical evidence
(d) Summary judgment
Procedure
- prima facie case
- no liability
d. Alternative dispute resolution
- utilize 3rd party
- some courts can require
(1) Mediation
- neutral person
- settlement between litigants
- persuade to settle
Procedure
(2) Arbitration
- litigants agree in advance
- abide by decision
- binding
- unless “trial de novo”
e. Civil trial
- jury selection
- “voir dire” (peremptory / for cause)
(1) Jury trial
Procedure
- plaintiff begins (burden)
- preponderance of evidence
(2) Opening statements
- plaintiff / defense
(a) Plaintiff’s case-in-chief
- call witnesses
- present evidence
- defense can object
- cross-examine
Procedure
(b) Defense case-in-chief
- witnesses
- evidence
- object / cross-examine
(i) Contributory negligence
- injury fault of plaintiff
- no liability
(ii) Comparative negligence
- portion plaintiff fault
Procedure
- not liable for that part
(3) Rebuttal / surrebuttal
- rebut earlier testimony
(4) Closing statements
- plaintiff / defense
- attorney’s rest
(5) Jury instructions
- consider / not consider
Procedure
(a) Directed verdict
- return specific verdict
(b) Jury decides
- deliberation
- verdict
(i) General
- held liable / not liable
(ii) Special issues
Procedure
- judge questions
(6) Sentencing
- court issues judgment
(a) Writ of execution
- sheriff seizes property
(b) Garnishment of wages
- place lien against person
- income / property
Procedure
(7) Reasons for appeal
(a) Judge made error
- reversible error
- harmless error
(b) Remittitur
- determines award excessive
Rules of Evidence
1.
Evidence
- “anything presented in court to prove
the existence or nonexistence of a
fact.”
a. Legal evidence
- presented in court legally
(1) Follow legal procedure
- evidentiary system
- presented to prove a point
Evidence
(2) Prove guilt / innocence
- groundwork of system
- all parties present evidence
(3) Probative value
- must be relevant
b. History / development
- two main sources of evidence law
- Romanesque / Anglican
Evidence
(1) Romanesque
- Roman legal system
- most well developed
(a) 400 BC – evidentiary law
- courts of law
- courts of fact
- tribunals: no appeals
(b) Spread from Rome
- most extensive system
Evidence
(2) Anglican
- England rejected Romanesque
- developed “common law”
- judge determined what to allow
(a) United States
- Constitution / congress
- law more restrictive
(b) States set own rules
Evidence
c. Sources of evidence law
(1) Federal system
- Constitution / congress / courts
(a) Rules of evidence
- established by attorneys
(b) Comprehensive procedures
- established by attorneys
Evidence
(2) State rules
- cannot violate federal rules
- can be more restrictive
(3) Rules can change
- court decisions / legislation
(a) Uniform Rules of Evidence
- adopted by federal / states
- Washington state (1983)
Evidence
d. Review of evidentiary matters
- on appeal
(1) Issues raised at trial
- admissibility
- how judge rules
(2) Harmless error rule
- can refuse appeal
- found guilty anyway
Evidence
2.
Rules of evidence - terminology
a. Two primary categories
(1) Direct evidence
- five senses
- DNA / fingerprints / eyewitness
- reliability depends on source
(2) Circumstantial evidence
- derived from association
Evidence
- believe certain act occurred
b. Other types :
(1) Tangible evidence
- physical objects
- used in court
(2) Real evidence
- gun / fingerprints
- tire marks / bite marks
Evidence
(3) Demonstrative evidence
- visual / audiovisual aid
- illustrates / helps to explain
(police drawing)
(4) Judicial notice
- commonly known facts
- dates / hour / weather / etc.
(5) Oral / testimonial evidence
- sworn statements
Evidence
- victim / suspect / expert / lay
- subpoena into court
(6) Cumulative evidence
- new evidence
- prove what has been established
(7) Corroborative evidence
- supplemental evidence
- strengthens that already given
- can be of different character
Evidence
(8) Documentary evidence
- documents / records / writings
(extortion note)
(9) Hearsay evidence
- what someone else told them
2.
Presentation of evidence
- must lay the foundation
- relevant / material / necessary
Evidence
a. Evidence can be excluded
- based on law
- court interpretation
(1) Privileges
- communication
(a) Attorney-client / husband-wife
(b) Clergy-penitent / doctor-patient
Evidence
(2) Illegally seized
- right to remain silent
- illegal search
- Weeks vs. US / Mapp vs. Ohio
(3) Scientific advances
- left to court to accept
- polygraph / DNA / fingerprints
(4) Unreliable
- hearsay / opinion
Evidence
(5) Undue prejudice
- relevant, but prejudicial
- criminal record / photographs
(6) Waste of time
- cumulative evidence
- 30 witnesses
4.
Types of evidence
- two factors must be met
Evidence
a. Admissibility
- accepted by court
- admitted into evidence
(1) All evidence admissible
- unless upon objection
- it is excluded
(2) Judge can rule
- rules of evidence = exclusion
- what cannot be used in court
Evidence
b. Value
- how important proving a significant
point
- proof is the effect of evidence
c. Evidence must:
- have probative value
- material / relevant / competent
(1) Probative value
Evidence
- means value to the case
- fact probably occurred
- might have some impact
(2) Relevant
- prove / disprove disputed fact
(a) Relevant evidence
- admissible in court
- decided by the judge
Evidence
(b) Example:
statement
overheard
gun
purchase
the
suspect
played golf
together
witness saw
drive away
Evidence
(3) Material
- importance of evidence
- significant effect
- logically connected
(4) Competent
- legally adequate
- legally sufficient
(a) Seized / presented legally
Evidence
(b) Competency
- “catch all”
- how evidence obtained
(c) Legal incompetence
- legal inadequacy
- seized illegally
- violates court rules
d. Remember:
Evidence
(1) Having probative value
- necessary part
(2) Being relevant
- relates to issue / connects case
(3) Being material
- likely to influence jury
(4) Being competent
- legally obtained / presented
Evidence
5.
Facts presented / accepted
a. Stipulations
- facts agreed to
- no further proof needed
b. Judicial notice
- directs jury to accept as fact
- what judge knows to be true
(1) Facts
Evidence
(2) Matters of general knowledge
(3) History / historical facts
(4) Geography / geographical facts
(5) Facts of nature / science
(6) Language / abbreviation symbols
(7) Formalized law
Evidence
(8) Jurisdiction of courts
c. Presumption
- conclusion which law requires jury
to draw from one or more facts
6.
Legal services
- attorney services provided
a. In propria persona (pro per)
- individuals can represent self
Services
b. Private attorneys
- one individual practice
- large partnerships
c. Public interest attorneys
- ACLU
- pro bono publico
d. Public attorneys
- prosecutor / public defender
- city / county / state / federal
Services
e. Professional ethics
- disbarment / suspension / probation
- “reproval” (censure)
f. Hiring attorney
- retainer / contract / contingency fees
- percentage
g. Malpractice
- fails to adequately represent
- tort of negligence