Legal aspects of evidencePDF电子书下载

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Ⅰ. EVOLUTIONOFEVIDENCE 1

A. What is Evidence? 1

1. Facts that Tend to Persuade 1

2. Some Evidence Not Admissible 1

3. Rules of Evidence 1

4. Four Kinds of Evidence 1

B. Historical Evolution of Evidence 1

1. Introduction 1

2. Methods for Determining Guilt 1

3. The Adversary System 3

C. Finding the Rules of Evidence 4

1. Where are the Rules of Evidence Found? 4

2. Derivation of Rules of Evidence 4

3. Confusion Caused the Creation of Evidence Codes 5

4. Rules of Evidence More Lenient in Administrative Law 5

D. Application of the Rules of Evidence 6

1. Rules are Applied to Prevent Mistakes 6

2. Criminal Justice Personnel Must Know the Rules of Evidence 6

3. Criminal Justice Personnel Must Apply the Rules of Evidence 7

4. Exclusionary Rule Regulates Police Misconduct 8

E. Proof and Burden of Proof 9

1. Proving the Case 9

2. Law Does Not Require Conclusive Proof 9

3. Prosecution Generally has the Burden of Proof 9

4. Allocating the Burden of Proof 10

5. Using the Burden of Proof Rule 10

6. Amount of Proof Required 11

a. Three basic tests determine degree of proof 11

F. Summary 12

Ⅱ. HOWEVIDENCEISADMITTEDINTOCOURTPROCEEDINGS 14

A. Evidence Must be Relevant 14

1. Concept of Relevancy 14

a. Test of relevancy 14

2. Concept of Materiality 14

B. Evidence is Offered Through Witnesses 14

1. Testimony 14

2. Competency 15

a. Background 15

b. Requirements for competency 15

c. Procedure for disqualifying a witness 15

3. Testimony Must be Given in Court 16

a. Transcripts of reported testimony 16

b. Business and official records 17

4. Expert Witnesses 18

C. Evidence is Taken by Stipulation 18

1. Definition 18

D. Evidence is Taken by Judicial Notice 19

1. Definition 19

2. Procedure 19

3. Judicial Notice May be Mandatory or Discretionary 19

Ⅲ. TYPESOFEVIDENCE 22

A. Real Evidence 22

1. Definition 22

2. Direct Evidence 22

3. Circumstantial Evidence 22

B. Documentary Evidence 24

1. Definition 24

2. General Foundational Requirements 25

a. Document must be relevant 25

b. Document must not violate a privilege or the Constitution 25

c. Foundational requirement may be avoided by stipulation 25

3. Specific Foundational Requirements 26

a. Authentication 26

b. Best Evidence Rule 30

C. Demonstrative Evidence 31

1. Definition 31

2. Foundational Requirements for Using Demonstrative Evidence 32

3. Forms and Uses of Demonstrative Evidence 33

a. Visual aids 33

b. Photographs 33

c. Movies 34

d. Bodily demonstrations 34

e. Jury view 35

D. Scientific and Experimental Evidence 35

1. Definition 35

2. Nature of Scientific Evidence 35

3. Foundational Requirements 35

4. Specific Scientific and Experimental Tests 38

a. Chemical tests for intoxication 38

b. Detection devices 38

c. Truth detection devices 39

E. Hearsay Evidence 40

1. Definition 40

2. Purpose of the Hearsay Rule 40

F. Character Evidence 41

1. Use of Character Evidence in Criminal Proceedings 41

2. Defendant "Opens Door" by Introducing Character Evidence 42

3. Victim's Character May be at Issue 44

G. Habit and Custom Evidence 45

1. Definition 45

2. Laying the Foundation 45

H. Evidence of Similar or Related Acts and Circumstances 46

1. Similar Acts as Evidence of Predisposition 46

2. Similar Acts as Evidence of Intent, Motive and Knowledge 46

3. Similar Acts as Evidence of Common Scheme and Design 47

4. Related Acts as Evidence of Interconnected Offenses 47

I. Evidence of Special Circumstances 47

1. Possession of Recently Stolen Property 47

2. Sudden Affluence 48

3. Flight or Evasion 48

4. Recent Complaints in Sex Cases 49

5. Threats of Prior Difficulties 49

a. Threats by defendant 49

b. Threats by victim 50

Ⅳ. PRIVILEGES 52

A. Privileges Exist to Protect Certain Relationships 52

1. "Privilege" Defined 52

2. Need to Protect Relationship More Important Than Evidence 52

3. Privilege Has Three Forms 52

B. Origin--Common Law and Statutes 52

1. Source of Today's Rules--Common Law 52

2. Recent Legislation Emphasizes "Communications" Rather than Competency 53

3. Legislation has Expanded Privilege to Other Areas 53

C. General Principles Applicable to All Privileges 54

1. Who May Assert the Privilege 54

2. Requirement of Confidentiality 54

3. Waiver of Privileges 55

D. Attorney-Client Privilege 56

1. Nature of Privilege 56

2. Requirements for Valid Claim of Privilege 57

3. Exceptions to Attorney-Client Privilege 59

E. Husband and Wife--Privilege Not to Testify Against Spouse 60

1. Scope of Privilege 60

2. Purpose 61

3. Requirements for Assertion 61

4. Exceptions 61

F. Husband and Wife Privilege for Confidential Marital Communications 63

1. Scope of Privilege 63

2. Requirements 63

3. Exceptions 64

4. Approach by Investigator 65

G. Physician-Patient Privilege 65

1. Nature and Origin of Privilege 65

2. Purpose--More Information Means Better Treatment 65

3. Who May Assert the Privilege? 66

4. Requirements for Assertion 66

5. Exceptions 67

6. Privilege May be Waived 68

H. Psychotherapist-Patient Privilege 69

1. Nature and Requirements 69

2. Exceptions 70

I. Clergyman-Penitent Privilege 70

1. Origin of Privilege 70

2. Information Told to Clergyman is Confidential 70

3. Scope of Privilege 70

4. Usually Both Clergyman and Confessor Hold Privilege 71

J. Newsman's Privilege 71

1. Nature of Privilege 71

2. Exceptions and Qualifications 71

3. *1st Amendment--Freedom of the Press 72

K. Identity of Informer 72

1. Privilege Not to Identify an Informant 72

2. Who May Assert the Privilege 73

3. Contents of the Informant's Statement May Not be Privileged 73

4. Disclosure May be Necessary for a Fair Trial 73

Ⅴ. PRIVILEGE AGAINST SELF-INCRIMINATION AND FORCED TESTIMONY 78

A. Background and Distinctions 78

1. Privilege Overlaps with Rules Regarding Confessions 78

2. Privilege Against Self-Incrimination Differs from Other Privileges 78

3. Historical Struggle--Government Against the Individual 78

B. Framework of the Privilege 79

1. United States Constitution Controls Both Federal and State Courts 79

a. 5th Amendment 79

b. 14th Amendment 79

2. Overview--Two Basic Privileges Against Self-Incrimination 79

3. Privilege of an Accused Person Not to Take the Witness Stand 80

4. Privilege of All Witnesses Not to Answer Incriminating Questions 84

5. Discovery of Evidence to be Used by the Other Side 87

Ⅵ. OPINION RULE MAY KEEP EVIDENCE OUT 90

A. General Rule 90

1. Opinion Defined 90

2. Drawing of Inferences and Conclusions is the Function of the Judge or Jury 90

B. Opinion Evidence by Lay Witnesses 90

1. Opinion Based on Personal Observation May be Allowed 90

2. Requirements 90

3. Application of Opinion Rule--Common Situations 91

C. Opinion Evidence by Expert Witnesses 93

1. Requirements of an Expert Witness 93

a. Subject matter must require special knowledge 93

b. Witness must be specially qualified 93

c. Proper basis for opinion 93

d. Qualifications to be shown 94

2. Preliminary Fact Question for Judge 95

3. Expert Testimony Occasionally Mandatory 95

4. Limitations on Expert Testimony 95

5. Opinions on Matters as to Which Jurors are Competent 96

6. Basis for Expert's Opinion 96

7. Effect of Expert Opinion 98

8. Cross-Examination and Impeachment of Expert Witnesses 99

Ⅶ. HEARSAY 102

A. Definition of Hearsay 102

1. Out-of-Court Statement Offered for Its Truth 102

2. Oral Statements, Words or Conduct by Someone Else 102

3. What is Not Hearsay 102

4. Rationale for the Hearsay Rule 104

5. Failure to Object to Hearsay 104

6. Use of Hearsay in Administrative Proceedings 104

B. Exceptions to the Hearsay Rule 104

1. In General 104

2. Dying Declarations 104

3. Spontaneous Declarations or Excited Utterances 105

4. Declarations Against Interest 106

5. Party Admissions 106

6. State of Mind 106

7. Business Records 107

8. Official Records 109

9. Declarations Concerning Family History 109

Ⅷ. CONFESSIONS AND ADMISSIONS WILL BE EXCLUDED UNLESS OBTAINEDPROPERLY 112

A. Definitions 112

1. Confession is a Complete Admission of Guilt 112

2. Admission is a Partial Admission of Guilt 112

3. Exception to the Hearsay Ruled 112

B. The Problem--Coercion 112

1. Almost Any Confession, Even if Tortured, Could Originally be Used 112

2. Improper Pressure to Obtain Confessions 112

3. Pressured Confessions May Result in Conviction of the Innocent 113

4. Development of Confession Rules 113

C. The Tool--The Constitution 113

1. The Bill of Rights is Used to Control Undesirable Police Pressure 113

2. The 5th Amendment Prohibits Involuntary Confessions 113

3. Possible Methods for Enforcing the Constitution and Bill of Rights 114

4. Exclusionary Rule Applies to States Through 14th Amendment 115

5. Promises, Threats and Unfair Tactics Cannot be Used 115

6. Confession is Involuntary if "Inherently Coercive" 116

7. Totality of Circumstances Must be Examined by the Judge 117

8. Summary 117

D. Confession Following Illegal Arrest May Not be Allowed in Evidence 117

1. Fruit of the Poisonous Tree 117

E. Lengthy Detention Before Arraignment 117

1. Suspects Must be Arraigned Quickly 117

2. Federal Rules Prohibit "Unnecessary Delay" 118

3. State Courts Have Not Adopted the Federal Rule 118

F. Right to Remain Silent and to Have an Attorney 118

1. Confessions Will be Excluded if Suspect's Right to Have an Attorney is Violated 118

2. Development of Rules Safeguarding the Suspect's Right to an Attorney 118

G. Corpus Delicti Must be Proved Before Confessions Can be Used 122

1. Defining the Rule 122

2. Rationale 122

3. Application 123

Ⅸ. EXCLUSIONOF EVIDENCE OBTAINED BYILLEGAL SEARCH AND SEIZURE 125

A. The Exclusionary Rule 125

1. Source of the Exclusionary Rule 125

2. History 125

B. How Evidence is Legally Seized--Search Warrants 126

1. The Search Warrant 126

2. Acquiring the Search Warrant 127

3. Execution of Search Warrant 128

4. Attack on the Validity of a Search Warrant after the Search 130

C. How Evidence is Legally Seized--Consent Search 132

1. Burden to Show Search was Reasonable on the Prosecution 132

2. What is Consent--Voluntariness 132

3. Voluntariness is Determined by the Totality of Circumstances 133

a. Custody 133

b. Circumstances showing coercion 133

c. Conduct inconsistent with consent 134

d. Condition of consenting party 135

e. Other voluntariness factors 136

4. Authority to Consent 136

5. Consent Must be Specific and Unequivocal 139

6. Advice of Constitutional Rights 140

a. Miranda warnings 140

b. Right to refuse consent 140

D. How Evidence is Legally Seized--Incident to a Valid Arrest 141

1. Background 141

2. The Arrest Requirement 141

3. Proper Scope of the Search 142

4. Proper Objects of a Search Incident to a Lawful Arrest 142

5. What May be Seized 143

6. Who May Make the Search 143

E. Other Circumstances that Permit Search and Seizure Without a Warrant 144

1. Emergency Situations 144

2. Evidence Obtained During a "Stop and Frisk" May be Admissible 144

3. Emergency Searches of Automobiles 145

4. Search of the Body 145

F. Products of an Unlawful Search are Excluded 146

1. Scope of Exclusion 146

2. "Fruit of the Poisonous Tree" 146

Appendices to Chapter Ⅸ 151

Appendix A--Peace Officer's Telephonic Search Warrant Guide 151

Appendix B--Deputy District Attorney's Telephonic Search Warrant Guide 156

Ⅹ. PREPARINGANDMAINTAININGEVIDENCEFORUSEATTRIAL 161

A. Proper Preservation and Handling of Evidence 161

1. Officers Must be Thorough in Their Approach 161

2. Preparation of Witness Statements 162

3. Preserving the Scene 162

4. Preserving and Presenting Items of Evidence 163

5. Maintaining the Chain of Possession 165

B. Police Must Not Obstruct the Defense's Efforts to Present Evidence 166

1. Due Process of Law 166

2. Common Problem Areas 167

C. Officers Must Use Good Sense to Avoid Losing Case 168

1. Police Error May Forfeit Conviction 168

2. Common Errors to Avoid 169

3. Negligent Investigations 169

Ⅺ. THE TRIAL PROCESS--HOW TRUTH IS DETERMINED 170

A. The Format of the Trial 170

1. Plaintiff Presents his Basic Case 170

2. The Accused Person Defends 171

3. The Prosecution May Rebut the Defense Case 171

4. The Defense May Rebut New Evidence 171

5. The Trial Concludes 172

a. Defendant motion to dismiss 172

b. Final arguments 172

c. Jury instructions and deliberations 172

B. The Questioning Process 172

1. Direct Examination 173

2. Cross-Examination 172

3. Redirect and Recross-Examination 175

C. Role of Judge in Examination of Witnesses 176

1. Judge can Interrogate Witnesses 176

2. Judge's Control and Direct Witnesses 176

D. Impeaching a Witness' Testimony 178

1. Right to Impeach 178

2. Specific Methods of Impeachment 178

a. Poor character for truthfulness 178

b. Bias and interest 181

c. Lack of knowledge or perceptive capacity 181

d. Poor memory 182

e. Prior inconsistent statements 182

3. Witnesses Cannot be Impeached on "Collateral Matters" 185

4. Rehabilitating a Witness 185

a. Biased witness 185

b. Witness with poor reputation for truthfulness 185

c. Witness with record of criminal conviction 185

d. Witness impeached by prior inconsistent statements 186

e. Witness' identification of defendant is challenged 186

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