Law and Evidence : A Primer for Criminal Justice, Criminology, Law, and Legal Studies

by Nemeth, Charles P.

• ISBN13: 9780130308115
• ISBN10: 0130308110
• Format: Hardcover
• Copyright: 2001-01-01
• Publisher: Prentice Hall

Summary

Any career in the justice system will require a fundamental understanding of evidence law. Exactly how does the criminal and civil justice system utilize evidence? Why is evidence the cornerstone of a free society? What rules and case laws guide the use of evidence in the courtroom? How do police, investigators, lawyers, and judges use evidence in their day to day operations? For what purposes is evidence necessary? Law and Evidence is a primer for those yearning to master them any complexities of evidence law in the American justice system. Join this evidentiary journey of discovery, witnessing evidence at street level during the investigative process; discern and fathom the various forms of evidence types (e.g. real, forensic, testimonial, documentary and the like); employ evidence in the litigation arena with exhibits, witnesses, and proof and become comfortable with the principles that guide and manifest innocence or guilt, liability or exoneration, and truth or falsity in the courtroom. Become familiar with the culture of trial combat and evidence advocacy and the tools that seasoned litigators and investigators utilize in civil and criminal litigation. In "Evidence," the case comes to fruition and those entrusted with the maintenance of law and order see the results of their labor.

Table of Contents

Preface	xiii
Acknowledgments	xvii
Overview of Evidence	1	(40)
Introduction: The Nature of Evidence	1	(1)
Justice Practitioners and Evidence Law	2	(2)
Suggested Readings on Evidence Law	4	(1)
Sources of Evidence Law	5	(1)
The Content and Quality of Good Evidence	6	(5)
The Nature of Relevancy	6	(3)
The Nature of Materiality	9	(1)
Relevant and Material, Yet Inadmissible Evidence	9	(2)
Types and Forms of Evidence	11	(15)
Judicially Noticed Evidence	11	(4)
Direct Evidence	15	(1)
Circumstantial Evidence	15	(1)
Testimonial Evidence	15	(1)
Personal Knowledge	16	(1)
Opinion Evidence	17	(1)
Character Evidence	17	(3)
Documentary Evidence	20	(1)
Hearsay Evidence	20	(2)
Exceptions to the Hearsay Rule	22	(4)
The Weight of Evidence	26	(4)
Presumptions	27	(3)
Burdens of Proof	30	(5)
Types of Burdens	30	(5)
Summary	35	(6)
Real Evidence	41	(30)
The Nature of Real Evidence	41	(9)
The Relevancy of Real Evidence	50	(3)
The Authentication of Real Evidence	53	(3)
Real Evidence in the Chain of Custody	56	(9)
Packaging and Preservation of Evidence	59	(6)
Practice Pointers on Real Evidence	65	(3)
Summary	68	(3)
Demonstrative Evidence	71	(50)
The Nature of Demonstrative Evidence	71	(3)
Photographic Evidence	74	(14)
Laying the Foundation for a Photograph: Authentication	77	(3)
Legal Challenges to Photographic Evidence	80	(8)
Videotapes and Motion Pictures	88	(5)
Tactical uses of Videotapes	89	(1)
The Day-in-the-Life Videotape	89	(4)
X-Rays	93	(1)
Models	94	(5)
Accuracy	95	(1)
Acquiring Models	96	(1)
Acquiring Models	96	(2)
Models and Litigation	98	(1)
Charts, Maps, Diagrams, Illustrations, and Other Drawings	99	(8)
Computer Graphics and Animation	107	(4)
Miscellaneous Demonstrative Evidence	111	(4)
Recordings/Tapes/Voiceprints	111	(1)
Experiments and Reconstructions	111	(1)
Transparencies	112	(1)
Thermograph/MRI Results	112	(3)
Practice Pointers on Demonstrative Evidence	115	(2)
Prepare Early	115	(1)
Deal with Reputable People/Reputable Companies	115	(1)
Organize the Evidence	115	(1)
Don't Overdo It!	115	(1)
Prepare the Witnesses	115	(1)
Obtain Admissions/Stipulations	116	(1)
Prepare Exhibit Lists	116	(1)
Be Sure to Lay a Foundation	117	(1)
Authenticate, Authenticate, Authenticate	117	(1)
Make Sure the Evidence Accomplishes Its Purpose	117	(1)
Summary	117	(4)
Documentary Evidence	121	(30)
Introduction	121	(1)
Rules of Admissibility	121	(10)
The Best Evidence Rule	124	(3)
The Best Evidence Rule: Exceptions	127	(4)
Authentication and Identification	131	(11)
Authentication by Author	133	(1)
Authentication of Business/Medical Records	134	(1)
Authentication by Handwriting Analysis: Lay Witnesses	135	(1)
Authentication by Handwriting Analysis: Expert Witness	136	(1)
Process of Comparison	137	(5)
Practice Pointers on Documentary Evidence	142	(4)
Summary	146	(5)
Lay Witnesses	151	(22)
Introduction	151	(1)
Lay Witness Competency	152	(2)
The Scope of Lay Testimony	154	(2)
Identifying and Interviewing	156	(5)
Identification and Screening	156	(2)
Witness Interviews and Information Gathering	158	(3)
Preparing Witnesses for Litigation	161	(8)
The Human Elements	161	(6)
Cross-Examination	167	(2)
Summary	169	(4)
Expert Evidence	173	(38)
Introduction: The Nature of an Expert	173	(4)
The Admissibility of Expert Evidence	177	(6)
Crossing ``the Barrier of Judicial Acceptability'' or Being ``Helpful'' --The Threshold of Expert Evidence	177	(2)
Expert Opinion	179	(2)
Science or Junk	181	(2)
The Ultimate Issue Doctrine	183	(2)
Qualifications of the Expert	185	(6)
Experience	185	(1)
Education and Training	186	(1)
Professional Associations and Other Memberships	186	(1)
Publications, Conferences, and Presentations	187	(2)
Human Traits and Characteristics of the Expert	189	(2)
Locating Experts	191	(3)
Advertisements	192	(1)
Academic Experts	192	(1)
Directories	192	(1)
Private Consulting Services	193	(1)
Expert Service Contracts	194	(2)
Preparing an Expert for Trial	196	(2)
Testimonial Suggestions	196	(1)
Personality and Demeanor	197	(1)
Cross-Examination and Impeachment	198	(7)
Bias or Conflict of Interest	201	(1)
Qualifications	201	(1)
Experience and Employment	202	(1)
Contrary Authority	203	(1)
Attacking the Expert's Opinion	204	(1)
Character	204	(1)
Summary	205	(6)
Admissions and Stipulations	211	(20)
Introduction: Pretrial Evidentiary Requests	211	(1)
Admissions: Purpose and Effect	212	(4)
Procedural Aspects of Requests for Admissions	213	(1)
Responding to Requests for Admissions	214	(2)
Drafting Requests for Admissions	216	(4)
Drafting Responsive Pleadings to the Requests	220	(5)
Stipulations	225	(1)
Stipulation Pleadings	226	(4)
Summary	230	(1)
Motion Practice and Evidence	231	(24)
Introduction: Motions and Evidence Law	231	(4)
Motions on the Production of Evidence	235	(7)
Motion for a Physical or Mental Examination	236	(1)
Motion for a Compel Production	236	(3)
Motion for a Compel Discovery	239	(2)
Motion to Inspect or View a Premises	241	(1)
Motions in Limine	242	(5)
Motion as to the Quality and Content of Evidence	244	(2)
Motion to Strike	246	(1)
Motion for Summary Judgment	247	(1)
Motions to Exclude on Constitutional Theories	247	(6)
Motions for Post-trial Relief	248	(5)
Summary	253	(2)
Trial Evidence	255	(20)
Introduction: Evidence at Trial	255	(3)
Exhibits: Rules of Admissibility	258	(5)
Making for Identification	258	(1)
Laying the Foundation	258	(1)
Exhibit Examination by Opposing Counsel	258	(1)
Offering the Exhibit into Evidence	258	(1)
Judge's Inspection of the Exhibit	259	(1)
Opposing counsel's Questioning of Authenticator	259	(1)
Ruling on Admissibility	260	(1)
Testimony Relative to the Exhibit	260	(1)
Exhibit Goes to the Jury	260	(3)
Practice Pointers on Trial Evidence	263	(9)
Importance of a Trial Notebook	263	(2)
Preparing Exhibits for Trial	265	(1)
Copies and Reproductions	265	(2)
Labeling Exhibits	267	(5)
Summary	272	(3)
Appendix A Evidence Supply Companies	275	(2)
Appendix B Trial Preparation Checklist for Medical Experts	277	(4)
Appendix C Sample Plaintiffs' Request for Admissions	281	(4)
Appendix D Plan of Proof--Air Negligence Case	285	(2)
Index	287

Excerpts

Preface The study of evidence is often a forgotten component injustice studies. For some, evidence law is the province of lawyers and judges alone. For others, its technical and statutory nature makes it too complex for the average undergraduate. There are even those who fail to appreciate the relevance of evidence analysis. These perceptions are flawed for a host of good reasons. In evidence law, the justice system reaches its fruition, its ending point, and its ultimate aim. Evidence is the stuff of conviction and judgment. Without it, the functions and roles of criminal justice are meaningless. Evidence is what drives the machinery of the justice system. Evidence convicts people. Evidence leads to verifiable damage claims in civil actions. Evidence provides the basis for the injunction, the protective order, or the restraining order. Evidence serves as the underpinning in judicial case law and analysis. Evidence is what guides jurors as they carry out their profound responsibilities. Evidence opens up improper convictions, serves as the basis for appeals, and triggers judicial intervention. In short, why students and practitioners should be shortchanged in evidentiary analysis is a mysterious phenomenon injustice education. It is my hope that this text will change some of these erroneous preconceptions. It is an overview of evidence law, not a compendium or treatise. Readers will soon discover that its overall approach is primarily litigation driven. Why? Because evidence law lives, for the most part, in the environs of courthouses, not the theoretical think-tanks of justice policy-makers. Evidence law commences its life on the street, as police and investigators toil in the collection. It then leaps to those entrusted with its evaluation and advocacy, whether it be private lawyers, prosecutors, public defenders, or judges and magistrates. Put another way, this text hopes to take you on a trip filled not only with concepts, but also with action--the action of litigation. This is the best place for evidence law to come to life. For more than two decades, I have instructed hundreds of students in evidence analysis, and it is clear that theoretical evidence alone cannot convey the richness of these principles. Within this text, I have attempted to infuse energy, to vivify often very dull concepts, and to show how the lawyer, the investigator, and the judge contend with evidence principles. In addition, I have made a concerted effort to portray evidence law in a realistic light, not as detached principles left to the intelligentsia to determine. How evidence is argued, how it is evaluated, how it is included or excluded, and how trials depend on its content are a few of the many topics this work covers. In this way, it is very different from its competition. I want you to finish this journey with a feel for how evidence law works in the place it lives--the courthouse. Chapter 1 commences the journey with definitional parameters. Exactly what is evidence, and how many types are there? Where does evidence law come from? How can we find the basis for an evidentiary principle? Is it custom, habit, common law, or statute, or has a court defined it? How much weight is given particular types of evidence? Are some things presumed to be true? Who has the evidentiary burden to prove or disprove a case? Other introductory questions are sprinkled throughout this first chapter. Chapter 2 zeroes in on the most fundamental evidence form--real evidence.If it is real, what is not? What types of evidence are real--guns, blood, fingerprints, paint chips, physical injuries, and the like? Is real evidence the best type of evidence? When is it relevant and irrelevant? How does one ensure its reliability and integrity? How can an advocate challenge it? When will police be on the defensive about its content? Who is responsible for its preservation? The illustra