Law and evidence in legal proceedings

Federal Rules of Evidence

The issue here is whether the suspension of the license should be overturned because the police report was inadmissible. The second issue is whether the finding that Walker was drunk should be overturned because there was not enough evidence to prove, beyond a reasonable doubt ("BARD"), that Walker was drunk.

Rule: Hearsay is an out-of-court statement offered to prove the truth of the matter asserted. (FRE 801). Such statements may be admissible if they are a Recorded Recollection: "A memorandum or record concerning a matter about which a witness once had knowledge but now has insufficient recollection to enable the witness to testify fully and accurately, shown to have been made or adopted by the witness when the admitted matter was fresh in the witness' memory and to reflect that knowledge correctly. if, the memorandum or record may be read into evidence but may not itself be received as an exhibit unless offered by an adverse party." (803(5)).

In an administrative hearing, the evidentiary standard is not "BARD," but is "Substantial Evidence," which is lower than "BARD." (5 U.S.C. § 706 (1966)).

Application: Here, the witness would not be the police officer, as the police officer did not actually hear Walker make the statement. Rather, the witness would be the man who related Walker's alleged comments to the police officer. As that witness is not present to testify, it is impossible to use the police report to refresh his memory, thereby precluding its use to refresh the recollection of a witness. The police report is inadmissible.

The DMV hearing was an administrative hearing where the findings must only be supported by "Substantial Evidence," no "BARD."

Conclusion: Walker's claim that the inadmissibility of the police report should result in the overturning of the hearing officer's ruling is correct. Walker's complaint about the insufficiency of evidence to prove his drunkenness "BARD" is false.

2. The admission of circumstantial evidence is B. Subject to the wide discretion of the trial judge.

A. Always allowed

B. Subject to the wide discretion of the trial judge

C. is never allowed because it is not the best evidence

D. Is only allowed in criminal cases and never in civil cases.

3. Reputation of a victim may a. In some cases be relevant when a defendant is charged with homicide of the victim.

A. In some cases

B. never

C. always

D. None of the above

4.

1. Materiality -- a fact is material if it will affect the result of a trial. For example, in a homicide case, the fact that the defendant owned a gun of the same type that was used in the murder is a material fact. The fact that the defendant is diabetic is not a material fact. Courts choose to remove issues of immaterial fact in order to prevent undue delay and confusion.

2. Relevant - Any evidence tending to make any issue of material fact more or less likely. (401). An example would be conduct suggesting guilt or liability or similar accidents or injuries. Relevant evidence, however, will be not admitted if its probative value outweighs its prejudicial effects, e.g. when similar accidents or injuries appear indicated through criminal history.

3. Competent - Every person is competent to be a witness unless these rules provide otherwise. (601). For instance, persons without: personal knowledge, of unsound mind, under the influence of alcohol or drugs at time of trial, and spouses are generally considered incompetent. (602; 601). Children are generally considered competent unless there is an objection and/or the Court determines that the child does not possess the ability to relate facts accurately or to understand the significance of the oath to testify truthfully. (601; 603).

5.

Issue: The Issue is whether Ms. Meehan's expertise qualified her to conclude that the bullet from Sneade's head was shot from a .38 caliber gun and that the bullet came from Jones' gun.

Rule: "A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if: (a) the expert's scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue; (b) the testimony is based on sufficient facts or data; (c) the testimony is the product of reliable principles and methods; and (d) the expert has reliably applied the principles and methods to the facts of the case." (702).

Also, experts cannot make conclusions as to an ultimate issue in the case, though testimony is not on an ultimate issue merely because it embraces the issue. (704).

Application: Here, Meehan, as a firearms examiner with expertise in identifying firearms is qualified to testify as to the identity of firearms and bullets shot from firearms. She is qualified to make the determination that the bullet came from the gun of Jones because she has expertise and experience identifying bullets and the source of those bullets.

Also, Meehan's conclusion as to the source of the bullet embraces an ultimate issue, but is not testimony on an ultimate issue because it does not in itself prove Jones' guilt, as the parties may still show that someone else used Jones' gun. An example of testimony as to an ultimate issue would be "Jones shot Sneade in the head," because this conclusion would be sufficient to prove guilt.

Conclusion: Here, the Prosecution should ask the Judge to overrule the objection on the grounds that Meehan was qualified as a firearms expert to conclude that the bullet removed from Sneade's head was a .38 caliber bullet and that the bullet removed from Sneade's head was fired from Jones' gun specifically.

6.

Issue: Whether the new Ballistics identifier provides a sufficient basis for Meehan's expert testimony.

Rule: To be considered expert testimony, the testimony must be "…the product of reliable principles and methods…"(702). Under the Dauber Test, the court, in determining reliable principles and methods, the court may consider any of the following factors: i) whether the theory or technique must be falsifiable, refutable, and testable; ii) subjected to peer review and publication; iii) known or potential error rate; iv) the existence and maintenance of standards and controls concerning its operation; and/or v) the degree to which the theory and technique is generally accepted by a relevant scientific community.

Application: The prosecutor can show that "the theory and technique is generally accepted by a relevant scientific community by showing that 10 forensic laboratories use the ballistics machine throughout the United States. However, the presence of this factor is not certain to be sufficient to prove reliability. Thus, the prosecutor will need to present peer-reviewed scientific publications evaluating the theory and technique of the ballistics identifier and others which contain empirical studies of the ballistics machine, preferably demonstrating their known or potential rate of error.

Conclusion: The prosecutor may be able to show that the Ballistics identifier is reliable as a basis for expert testimony just by showing that 10 forensics laboratories use the ballistics identifier. However, the prosecutor will very likely be able to prove reliability by presenting peer-reviewed scientific publications evaluating the theory and technique, empirical performance, and known or potential error rate of the machine.

7.

Issue: Whether evidence regarding Sally's sexual predisposition should be admitted for the purpose of supporting Joe's main defense argument that Sally consented to sex as a prostitute.

Rule: Evidence offered to prove any alleged victim's sexual predisposition is not admissible in any civil or criminal proceeding involving alleged sexual misconduct. (412(a)(1)(b)). However, evidence of specific instances of a victim's sexual behavior, if offered to prove that someone other than the defendant was the source of semen, injury, or other physical evidence. (412(b)(1)(a). Also evidence of specific instances of a victim's sexual behavior with respect to the person accused of the sexual misconduct, if offered by the defendant to prove consent. (412(b)(1)(b)).

Application: Here, Joe is attempting to bring evidence of Sally's vocation as a prostitute to support his defense that his sexual intercourse was actually consensual, that Sally willingly exchanged sex for cocaine. Although evidence of the victim's sexual predisposition is generally prohibited by (412(a)(1)(b)), here, evidence that Sally was a prostitute, had sex with another man just hours before having sex with Joe, and evidence of cocaine in Sally's system would serve to prove consent under the (412(b)(1)(b)) exception by corroborating Joe's defense that Sally was a prostitute that he had paid for sex. Evidence of another man's DNA on Sally's underwear along with Joe's DNA would prove that some of the DNA came from another man, as (412(b)(1)(a)) allows, would serve to corroborate the witness' testimony that he had sex with Sally hours before the alleged rape.

Conclusion: Therefore the Prosecution's objection to the use of the victim's sexual predisposition will fail because of the (412(b)(1) exceptions allowing the defendant to offer evidence of sexual predisposition to prove consent and an alternate source of DNA.

8.

Issue: Whether Trooper Jones may offer Sam's last words, which is hearsay, under the dying declaration exception.

Rule: Any out-of-court statement offered to prove the truth of the matter asserted is generally inadmissible as hearsay. (801-802) However, hearsay may be admitted, in a prosecution for homicide or in a civil case, if the declarant, while believing the declarant's death to be imminent, made the statement about its cause or circumstances. (804(b)(2).

Application: Here, the defense attorney's objection is premised on the fact that the deceased Sam's statements are I inadmissible as hearsay, as an out-of-court statement by a person unavailable for trial, offered to prove that the other driver was driving on the wrong side of the road. However, Trooper Jones may offer this statement because it falls under the (804(b)(2) hearsay exception, as a statement in a civil case that the declarant made while his death was imminent.

Conclusion: The basis for the defense attorney's objection is hearsay because the deceased Sam's statement is an out-of-court statement made by a person unavailable for trial to prove the truth of the matter asserted. Trooper Jones will be able to testify as to Sam's statement objection under the dying declaration hearsay exception.

9.

Issue: Is Mahoney's conversation with Goody in the presence of Mullberger considered a custodial interrogation?

Rule: The prosecution may not use statements stemming from custodial interrogation of the defendant unless it demonstrates the use of procedural safeguards effective to secure the privilege against self-incrimination, guaranteed by the 5th Amendment. (Miranda v. Arizona). Custodial interrogation is any 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. 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 Exclusionary rule prevents the introduction of evidence against a criminal that was illegally obtained by an agent of the government. (Weeks v. United States, 232 U.S. 383 (1914)).

Application: Here, the Officer Mahoney and Goody were talking amongst themselves and, though their did conversation did prompt Mullberger's confession, they never actually questioned Mullberger directly, so it was not a custodial interrogation.

Conclusion: The prosecutor can respond that the obtainment of the evidence did not violate Mullberger's privilege against self-incrimination because they did not make a custodial interrogation. The court will likely deny the motion to suppress the evidence because the basis for the motion, that it violated the privilege against self-incrimination, is invalid.

10.

Issue: Is evidence of Mullberger's conviction for similar acts admissible as evidence of habit or routine practice.

Rule: Relevant evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury. (403). Evidence of the habit of a person or the routine practice of an organization, whether corroborated or not and regardless of the presence of eyewitnesses, is relevant to prove the conduct of the person or organization was in conformity with the habit or routine practice. (406). Habit/Routine evidence-refers to a course of conduct that is fixed invariable, unthinking, and generally refers to a very specific set of repetitive circumstances. (Tait's Handbook of Connecticut Evidence.)