CRIMINAL

EVIDENCE

12th Edition

Students

Case Studies

Please read the scenario and answer the question yourself, and then reveal the correct answer to see how well you did.

Chapter 1: History and Development of Rules of Evidence

Overview — Based on: Trammel v. United States, 445 U.S. 40, 1980 U.S. LEXIS 84 (1980).

Otis and Elizabeth Trammel, a married couple, were involved in activities that transgressed federal law. Otis Trammel had been indicted, but his wife, Elizabeth, had not and was listed as an unindicted co-conspirator. The prosecution planned to have Elizabeth Trammel testify against Otis Trammel, over his objection that he should be able to prevent his wife from testifying against him. He claimed that he was a holder of the spousal testimonial privilege and could assert it to prevent the adverse testimony of his wife. Otis Trammel cited an earlier Supreme Court decision, Hawkins v. United States, 358 U.S. 74 (1958), which held that a wife could not be compelled to testify against her husband over his objection. The modern justification for the privilege against adverse spousal testimony is its perceived role in fostering the harmony and sanctity of the marriage relationship. While the Court, in Hawkins, reaffirmed the vitality of the common-law privilege in the federal courts, it made clear that its decision was not meant to “foreclose whatever changes in the rule may eventually be dictated by ‘reason and experience.’” 358 U.S., at 79. The trial court permitted Elizabeth Trammel to testify against her husband over his objection. In the Trammel prosecution, Elizabeth Trammel was willing to testify against her husband in exchange for leniency from the federal government. The federal prosecutor contended that where a wife was to testify against a husband about non-confidential matters, the old rationale about protecting marriages should have no application in the modern world. The Supreme Court of the United States noted that the Federal Rules of Evidence acknowledged the authority of the federal courts to continue the evolutionary development of testimonial privileges in federal courts. The Court emphasized that since its decision in Hawkins, a number of states had abolished the spousal privilege when the spouse wished to testify about non-confidential matters, and the Court noted that the privilege had been subject to much criticism.

Questions

  1. Are the rules of evidence and their interpretations in the federal courts and in state courts generally fixed and not capable of development and adjustment by courts as needs and society changes?

Answer  

No. The Federal Rules of Evidence contemplated that courts would have to interpret the rules of evidence in light of changing conditions, especially in the area of privileges. Rules of evidence cannot be frozen and become immovable, because society changes. Judicial interpretations change, and adjustments must be made to assure fairness and logic. Legislatures as well as courts may change rules of evidence. Neither the legislative nor the judicial branches of government have complete control over the changes that might be implemented by the other branch. See Chapter 1, Section 1.7, Hawkins v. United States, 358 U.S. 74 (1958), and Trammel v. United States, 445 U.S. 40 (1980).
  1. Under the facts of the Trammel case, where Elizabeth Trammel was willing to testify against her husband in exchange for leniency, did the trial court act properly in recognizing that times had changed and that a spouse should be permitted to testify against the other spouse about non-confidential matters if the witness spouse wished?

Answer  

Yes. The old rule that allowed a defendant’s spouse to prevent the other spouse from testifying against the defendant’s spouse no longer made sense. The original rule prohibiting such testimony was designed to ensure marital harmony, but when a spouse’s interests radically diverge from the other’s interests, and one spouse is willing to testify against the other, there is little marital harmony to preserve and the witness spouse should be allowed to testify concerning non-confidential matters. See Chapter 1, Section 1.7.

Chapter 2: Approach to the Study of Criminal Evidence

Overview — Based on: Holmes v. State, 923 N.E.2d 479, 2010 Ind. App. LEXIS 504 (2010).

After being granted probation, Defendant Holmes was charged with operating a vehicle while under the influence of alcohol and public intoxication. He had been incarcerated for possession of cocaine and two counts of theft. After a hearing, his probation was revoked and the trial court ordered that he serve the remainder of his sentence, 98 weeks, on home detention. He was not to consume alcohol. About a month later, he submitted a urine sample that tested positive for alcohol.

The trial court held a hearing to determine the facts and whether Holmes had violated provisions of this probation. At the conclusion of the proceeding, the trial court determined that the evidence supported a finding that Holmes had violated the terms of his home detention. The trial court revoked Holmes’s placement on home detention and ordered that he serve the remainder of his previously suspended sentence in the custody of the Department of Corrections. Holmes appealed, contending that the evidence was insufficient to establish that he had consumed alcohol in violation of the conditions of his home detention.

As the basis for his appeal, Holmes contended that the trial court abused its discretion in admitting the urinalysis report into evidence during the home detention revocation hearing. Holmes argued that the urinalysis report was unreliable hearsay because neither the toxicologist nor the certifying scientist testified during the home detention revocation hearing, resulting in the admission of hearsay evidence.

Based on prior cases, trial courts generally followed the guidelines ordered by the Indiana Supreme Court. The state supreme court previously adopted the substantial trustworthiness test as the means for determining whether hearsay evidence should be admitted during a hearing relating to the revocation of an individual’s probation or community corrections placement. The substantial trustworthiness test requires that the trial court evaluate the reliability of the hearsay evidence. A corrections field officer testified concerning the details of how the urine sample was collected, stored, and transmitted to the testing laboratory and how he followed department procedures. With respect to the urinalysis report of tests of Holmes’s urine, a laboratory toxicologist affirmed under the penalties of perjury that Holmes’s urine sample “was received under sealed and controlled conditions and was properly Identified, Accessioned, and Tested in accordance to the Standard Operating Procedures of [the laboratory].”

Defendant Holmes contended on appeal that the evidence of intoxication was not properly presented to the court and that the evidence was not sufficient to revoke his conditional release.

Questions

  1. As a general rule, in most jurisdictions, are the rules of evidence that are applicable in a trial on the merits followed in parole and probation revocation hearings and in hearings to revoke community corrections placements?

Answer  

No. The hearing to revoke parole or probation is not a trial on the merits of the original case but is an inquiry concerning whether the defendant has complied with requirements for conditional release or whether a defendant should be returned to full criminal justice custody. Therefore, a judge may consider any source of reliable evidence, including hearsay evidence, in making a determination of whether to revoke parole or probation or community control. Due process requires fairness, not a particular process that mirrors a criminal trial. See Chapter 2, Section 2.9.
  1. In this particular case, was fundamental fairness or due process followed by the correctional officials and by the judge in the case to properly revoke the probation and community control that had previously been granted to the defendant?

Answer  

Yes. The correctional officials used a routine process that met the prescribed standards to collect the defendant’s urine, to have it tested, and to have the results reported to the trial judge. While the process might not have produced results that would have been admitted in an original trial on the merits, fundamental fairness was preserved and the substantial rights of the defendant were not violated. The court noted that. although a revocation hearing has certain due process requirements, it is not to be equated with an adversarial criminal proceeding and is a more narrow inquiry, and its procedures are to be more flexible.

Chapter 3: Burden of Proof

Overview — Based on: State v. Soto, 262 P.3d 670, 2011 Haw. App. LEXIS 1174 (2011).

At the time that this criminal case arose, the alleged victim, Chasare Soto, was the girlfriend of Nicholas Soto; Crystal was Nicholas’s ex-wife; and Chris Orozco was Crystal’s current boyfriend. Nicholas and Crystal had been in a in a legal battle concerning custody of their two children. The harassment charge arose out of an altercation in which Nicholas and Chasare went to Crystal’s residence to pick-up the children for visitation. At this point, Nicholas got into a dispute with Crystal over whether Nicholas would be allowed to take the children, in which both Chris and Chasare also became involved. At some point, Chasare aggressively ran toward Crystal. At this point, Crystal put her arm up vertically to fend off bodily contact initiated by Chasare and made contact with Chasare’s chest. In Hawai’i, the crime of harassment exists where a person, with intent to harass, annoy, or alarm any other person, strikes, shoves, kicks, or otherwise touches another person in an offensive manner or subjects the other person to offensive physical contact.

Chasare claimed to be the victim, although she could have been labeled as the aggressor. Crystal Soto testified that she felt the need to protect herself from the aggression of Chasare and put her hand and arm up in a defense position. The trial court stated, “The defense that is raised to the touching is that of self-defense. The defendant has the burden to establish that and has failed to do that.”

Under the Hawai’i Penal Code, the justification defense of self-defense or the use of force in self-protection is not an affirmative defense. Thus, once a defendant puts forth credible evidence to support the defense, it became the prosecution’s burden to disprove the defense beyond a reasonable doubt. In this case, on appeal, Crystal contended that she had introduced sufficient evidence to raise a claim of self-defense that the judge did not require the prosecution to negate. Crystal demanded a new trial.

Questions

  1. In most jurisdictions, since a claim of self-defense is considered an affirmative defense, is the burden of proving that defense normally placed on the defendant who asserts the defense?

Answer  

Yes. Although a defendant generally has no burden of proof concerning anything in a criminal case, when a defendant asserts an affirmative defense, because the defendant is in the position of having access to most of the evidence concerning the defense, most jurisdictions place the burden of proving an affirmative defense upon the defendant. Some jurisdictions, although in the minority, require that the defendant raise the affirmative defense issue by introducing proof of an affirmative defense, and once that issue has been raised, the burden of disproving that defense rests with the prosecution beyond a reasonable doubt. Some jurisdictions would require that the prosecution negate the affirmative defense only by a preponderance of evidence. See Chapter 3, Section 3.12.
  1. In a jurisdiction where self-defense is not deemed to be an affirmative defense, and when the defendant has introduced some evidence in support of self-defense, does the burden of disproving self-defense rest with the prosecution?

Answer  

Yes. The defendant claimed self-defense and introduced some evidence that helped support her claim. Because the District Court indicated that it did not believe that the defendant had proven self-defense, such comment indicated that the trial court believed that the defendant had a burden of proof concerning self-defense. The District Court’s decision had the effect of shifting the burden of proof on self-defense to the defendant, contrary to Hawai’i law. The conviction had to be reversed and the case set for a new trial. See Chapter 3, Section 3.9.

Chapter 4: Proof via Evidence

Overview— Based on: State v. Seagraves, 2010 Ohio 308, 2010 Ohio App. LEXIS 246 (2010).

The prosecutor brought charges against Defendant Seagraves along with two others, for committing larceny of diesel fuel from a Speedway fuel filling station on three separate dates. For its main evidence against defendants, the government presented primarily a circumstantial evidence case. The company surveillance video indicated that, on three occasions, codefendant Amorine’s white van displaying magnetic signs reading “Service Vehicle” was parked on top of the diesel fill cap that connected to the storage tanks. During the investigation of the filling station complaint, a detective reviewed the video and identified a Buick motor vehicle, owned by codefendant Amorine, that he determined to be a blocker for the van. On one occasion, a male resembling Defendant Seagraves was present in the station’s parking lot and seen entering the store from the direction where the van was parked. A “Crime Stoppers” tip identified Seagraves as being the male in the still photo made from one of the video recordings. A video on another occasion when diesel fuel was stolen revealed substantially the same picture. The prosecutor presented evidence that co-defendant Amorine purchased three “Service Vehicle” magnetic signs around March 6, 2008, prior to the thefts alleged in this case. In addition, on the three occasions when the white van was parked over the diesel fill cap, the store’s computer issued alarm reports showing a large loss of fuel. Police also found the white van belonging to the co-defendant, Amorine, that had been impounded in Columbus, Ohio. An inspection of the van revealed that it had been modified with additional wiring, batteries, a power inverter, and air shocks. Police also discovered that a hole had been cut in the van’s floor that would allow access to the filing station’s diesel cap.

Seagraves contended that there was no direct evidence that the filling station did not consent to the taking of the fuel, and there was only circumstantial evidence that the station had not consented to the fuel removal. Although the defendant presented an alibi defense for some of the days in question and offered evidence that he might have been present at a different Speedway on one of the dates, the jury evidently did not believe the defendant’s story and rendered a verdict of guilty for the crimes as charged.

Questions

  1. From an academic perspective, is circumstantial evidence considered to have the same weight and believability as would be given to direct evidence?

Answer  

Yes. As a strong general rule, courts hold that circumstantial evidence and direct evidence inherently possess the same weight and value and therefore should be subjected to the same standards of proof. When the state relies on circumstantial evidence to prove an essential element of the offense charged, there is no need for such evidence to be irreconcilable with any reasonable theory of innocence in order to support a conviction. See Chapter 4, Section 4.11.
  1. Under the circumstances of this case and the way a fuel filling station would normally operate, does circumstantial evidence exist that there was no consent to the taking of the diesel fuel?

Answer  

Yes. The store clerk, when faced with the fact of diesel fuel losses that were not explained by sales, contacted the sheriff’s office to report the missing fuel. This conduct by the store clerk serves as circumstantial evidence that the store and the clerk were not consenting to the removal of diesel fuel without having been compensated for its value.
  1. Consistent with the above facts that were presented by the prosecution involving circumstantial evidence that the defendant, Seagraves, and his codefendants were removing diesel fuel, does the body of circumstantial evidence that was presented sufficiently prove beyond a reasonable doubt that the proper defendants were convicted of larceny of the fuel?

Answer  

Yes. Since circumstantial evidence has the same weight as direct evidence, a case that contained only circumstantial evidence would support a conviction. In this case, there was primarily circumstantial evidence that the defendant and his friend were responsible for the removal of the fuel. There was some direct evidence that the defendant was present on one of the occasions, but the fact that his van was present at all of the thefts and that his friend purchased the magnetic signs that went on the van point toward the guilt of the defendant beyond a reasonable doubt. See Chapter 4, Section 4.11(B).

Chapter 5: Judicial Notice

Overview —Based on: DeLong v. State, 310 Ga. App. 518, 2011 Ga. App. LEXIS 605 (2011).

Defendant DeLong challenged a judgment of the trial court, which convicted him of child molestation, violating the Georgia’s Controlled Substances Act by distributing a Schedule IV drug, Zolpidem, commonly known as Ambien, and influencing witnesses. The appellate court reviewed the case and determined that the convictions for drug distribution and influencing witnesses could not be sustained. The prosecution failed to prove that the Georgia statute regulated the drug, Ambien. There was no testimony or physical evidence presented by the prosecution that Ambien was the trade name for Zolpidem. Although the prosecution offered evidence that the defendant admitted to distributing Ambien and introduced testimony that Ambien was a Schedule IV controlled substance, the defendant contended that the government was required to identify “Ambien” as a trade name for Zolpidem through admissible evidence and that taking judicial notice that Ambien was a trade name for Zolpidem was not appropriate. In essence, defendant DeLong contended that the prosecution failed to prove that he violated the Controlled Substances Act because while Zolpidem was listed as a controlled substance, Ambien was not, and there was no testimony or physical evidence presented by the prosecutor at trial linking Ambien to Zolpidem.

Questions

  1. Under circumstances in which a controlled substance has a trade name and a generic scientific name, is it appropriate to take judicial notice that the two names are for one drug, one of which is listed as a controlled substance?

Answer  

No. The fact that a generic scientific name may also indicate an identical formulation produced in a trade name drug is not considered an appropriate topic for the taking of judicial notice. In Georgia, courts have previously held that the trade name of a statutorily designated controlled substance is not the proper subject of judicial notice. The Georgia prosecutor could have easily avoided the reversal of this conviction by simply asking one more question of the investigator who identified Ambien as a Schedule IV Controlled Substance or by introducing physical evidence linking the trade name “Ambien” to its statutorily listed equivalent, Zolpidem.
  1. Under the facts of this case, could it be argued that, since it is a well-known fact and beyond dispute that Zolpidem is the scientific/generic name for Ambien, the trial judge and the appellate judges should have taken judicial notice that the two names describe the same drug that is a controlled substance?

Answer  

Yes. Scientific facts that are readily verifiable or are beyond reasonable dispute can be the subject of judicial notice either at the trial court level or at any appellate level. Since there seems to be virtually no dispute that Ambien and Zolpidem are the same chemical composition, and resort to a standard reference work would have confirmed this undisputed fact, judicial notice could arguably be appropriate in this case, although the Georgia courts disagreed. See Chapter 5, Sections 5.4 and 5.7.

Chapter 6: Presumptions, Inferences, and Stipulations

Overview — Based on: Williams v. State, 210 Ark. App. 759 (2010).

An Arkansas trial court convicted Thelma Williams Jr. of the offense of theft by receiving [stolen property]. Due to his status as a habitual offender, he was sentenced to five years in the Arkansas Department of Correction. Williams argues that there was insufficient evidence to support his conviction. At trial, the evidence revealed that four electric saws, valued at $1,300, were stolen from Leonard Johnson’s home on the morning of October 8, 2009. Shortly thereafter, Johnson learned from a neighbor that the saws were probably located about a block and a half away at a neighboring house. About 45 minutes later, when Johnson went to the named house to investigate, he found his saws in a shopping cart located only inches from the appellant, Williams, who was asleep on the front porch. The cart was in the yard right next to a low porch next to Williams. Only appellant Williams was present with the stolen property when Johnson, the owner, discovered the saws.

Appellant denied having any connection to the stolen property and testified that he went to sleep on the porch the night before and that the cart full of stolen saws was not there at that time. He contended that the police officer and the owner of the saws, Leonard Johnson, were both lying about his location being next to the stolen property. According to Arkansas law, an individual commits the offense of theft by receiving [stolen property] if he or she receives, retains, or disposes of stolen property of another person knowing that the property was stolen or having good reason to believe the property was stolen. Under Arkansas law, the unexplained possession of recently stolen property gives rise to a presumption that the possessor has knowledge that the property was stolen, but the presumption is rebuttable and a jury or judge is free to ignore if it would choose to do so. The prosecutor must introduce proof of the “basic fact,” the exclusive possession of recently stolen property, and the “inferred or presumed fact” that the defendant had knowledge that the property was stolen arises. What this Arkansas presumption suggests is that it operates primarily as an inference that the defendant had knowledge that the property was stolen.

Questions

  1. As a general rule, does the exclusive possession of recently stolen property give rise to a presumption or inference that the possessor had knowledge that the property was stolen?

Answer  

Yes. Although some courts would not call the possession of recently stolen property presumptive evidence that the possessor knew the property was stolen, many courts still adhere to this concept. One must keep in mind that conclusive presumptions are virtually unconstitutional and that a presumption such as this really operates as an inference because the finder of fact is not bound to infer or presume that the property was stolen. See Chapter 6, Section 6.11.
  1. Under the facts of this case, where the defendant appeared to be in exclusive control of personal property that had clearly been recently stolen, is it permissible to infer from this situation that the defendant knew the property was stolen recently?

Answer  

Yes. According to the trial court, the stolen saws were recovered approximately 45 minutes after the owner discovered that they had been stolen, and they were found in the possession of the defendant who had no credible explanation for their presence. The trial court did not consider him believable, and it was not required to believe his testimony concerning his lack of knowledge of the source of the saws.
  1. Would some courts determine that the presumption or inference in this case would be insufficient without some corroboration to support a guilty verdict?

Answer  

Yes. California courts take the position that proof of the possession of recently stolen property does not give rise to a sufficient inference or a presumption that would be sufficient to prove guilt beyond a reasonable doubt. California would require some level of corroboration concerning the fact that the property was recently stolen and that the defendant could be charged with knowledge of that fact. See Chapter 6. Section 6.11.

Chapter 7: Relevancy and Materiality

Overview — Based on: Hudson v. State, 2011 Ala. Crim. App. LEXIS 63 (2011).

An Alabama trial court convicted Keokie Hudson of two counts of attempted murder and one count of discharging a firearm into an occupied vehicle. The court originally sentenced him, as a habitual felony offender, to concurrent sentences of life in prison for the attempted murder convictions and a term of 20 years for the vehicle shooting conviction. Unhappy with his criminal convictions, Hudson raised an appeal that, among other things, alleged that the trial court improperly admitted collateral criminal acts that he allegedly committed both before and after the events for which he stood convicted. The essence of the defendant’s legal theory was that the evidence of prior criminal activity created unfair prejudice to the merits of his case, and such evidence outweighed any probative value and, therefore, should have been excluded from his trial as legally irrelevant.

Hudson’s convictions were based on two separate criminal incidents that the evidence showed that he committed. The first incident occurred on January 17, 2009, and formed the basis for the first attempted murder charge and a count of discharging a firearm into an occupied vehicle. Hudson approached the vehicle occupied by a man named Miles and fired five shots into the car. No one in the vehicle was hit. The second incident, which was the basis for the second attempted-murder charge, occurred on June 28, 2009, at which time victim, Miles, was attending an outdoor party when Hudson appeared and fired two shots at him, one of which hit Miles in the back, damaging his lungs and heart.

The prosecutor also presented evidence relating to three collateral activities that involved Hudson and the original victim, Miles, and some other individuals. The prosecutor gave advance notice to Hudson of the government’s intent to introduce prior bad acts during the prosecution’s case in chief. The court allowed the prosecutor to introduce evidence that Miles drove into an alley in February 2008 where the victim Miles was located. One of the other victims who was present that day testified that Hudson pulled a gun on some of them and pointed it into the vehicle in which they were sitting, in an attempt at robbery. Hudson fired a handgun that went through the clothing of one of the victims. The second act attributed to Hudson occurred in November 2008 when Hudson showed up at a house where Miles was attending a party and fired two shots, one of which hit Miles in the ankle. The third criminal activity of a collateral nature that the court allowed the prosecutor to introduce involved to a man named Bates who was sitting on his girlfriend’s front porch. Hudson drove past in a motor vehicle, firing four shots, one of which hit Bates in the leg.

Following a pretrial hearing, the judge allowed evidence of the first two collateral crimes to be admitted in court on the basis of Rule 404(b) because the first two events helped prove Hudson’s intent as well as his identity. The judge allowed evidence of the third shooting to be admitted on the basis that Hudson’s identity was still at issue because, in one of the prior shootings, Hudson had alleged that he was not present. The general rule dealing with the collateral and prior evidence of crime that a defendant has committed prevents the prosecutor from introducing evidence of the defendant’s bad activities for the purpose of showing the defendant’s bad character. Also, as a general rule, evidence of an accused defendant’s collateral and prior activities is not admissible if the only reason is to prove the defendant’s bad character and that he acted in conformity with such bad character in the case for which he is presently on trial.

In his argument at trial that the judge should not have admitted prior acts evidence, Hudson contended that the collateral acts were not similar enough to the charged crimes, that is, that they lack a peculiarly distinctive modus operandi, showing that the present crimes were the work of the same person and should have been excluded from evidence.

Questions

  1. As a general rule, may the prosecution introduce evidence of a defendant’s prior difficulties with the law or his prior activities involving illegal conduct that occurred before the date of the trial?

Answer  

No. Whether a defendant has been convicted of his earlier acts that would be considered criminal is generally not permitted to be introduced in evidence because the fact that the person acted in a particular way on one occasion does not mean that he or she acted the same way on a different occasion. Under Federal Rule of Evidence 404 and under state adaptations, evidence of other crimes or wrongs is not admissible to prove someone’s character or that he or she acted in conformity with that character in the case for which the person is presently being prosecuted. See Chapter 7, Section 7.12.
  1. Assuming that a prosecutor gave the defendant advance notice of the intention to use evidence of prior crimes or wrongful activities, if the prior acts or crimes help establish the defendant's identity and/or his criminal intent, may the prosecution introduce evidence in the of those prior activities?

Answer  

Yes. The answer in this case is a qualified “yes” because the judge must determine that the probative value of the prior crimes evidence will outweigh the danger of unfair prejudice to the defendant’s case. There is a chance that a jury might convict, in a close case, based on the evidence in the case, coupled with their dislike of the defendant for having done prior bad deeds. If a judge determines that that the prior bad deeds evidence does not unfairly prejudice the defendant and involves something the prosecution must prove, the judge will allow the evidence to be admitted.
  1. In this case, did the trial judge properly admit evidence that the defendant, prior to trial, shot at the victim on two occasions and shot and hit a different individual on another occasion?

Answer  

Yes. Because the defendant denied being present at one of the shootings for which he was being tried, his identity was placed at issue. One of the methods of proving identity involves a demonstration that the defendant has committed similar activities in the past. Additionally, since the prosecution had to prove a specific intent to kill for attempted murder, demonstrating that the defendant had shot at the victim and another man on another occasion tends to indicate his intent to kill for the occasion for which he was on trial. See Chapter 7, Section 7.6 and Section 7.12.

Chapter 8: Competency of Evidence and Witnesses

Overview — Based on: State v. Armstrong, 2011 Ohio 6265, 2011 Ohio App. LEXIS 5173 (2011).

The defendant appealed his criminal convictions for kidnapping, three counts of rape, and two counts of gross sexual imposition. He contended that the trial court committed reversible error when it allowed the seven-year-old victim to testify against him because he alleged that she was incompetent as a witness because of her age. The facts offered at trial indicated that the defendant lifted the seven-year-old girl over a common fence separating two neighboring properties and managed to get her inside his home where he took sexual liberties with her and took pictures of her with his cell phone. The prosecution planned to call the complaining victim as a witness for the state.

Prior to the actual trial, the presiding judge questioned the minor child to determine her level of competency. Ohio law does not conclusively presume that children under the age of 10 years are incompetent, but will allow such children to testify where a judge determines that the individual is competent as a witness. Under Ohio law, the competency of witnesses under the age of 10 must be established to the satisfaction of the trial judge according to Evid.R. 601. In making a determination concerning whether a child under 10 is competent to testify, the court must take into consideration (1) the child’s ability to receive accurate impressions of fact or to observe acts about which he or she will testify, (2) the child’s ability to recollect those impressions or observations, (3) the child’s ability to communicate what was observed, (4) the child’s understanding of truth and falsity, and (5) the child’s appreciation of his or her responsibility to be truthful. Reviewing courts reconsider the trial court’s determination of a witness’s competency under an abuse-of-discretion standard and do not reverse unless the error would have made a difference in the outcome of the case.

In this case, during a pretrial judicial examination of the child, the child-victim was able to answer questions that related to her age, dealt with the facts considering her school situation, indicated who her favorite teacher was, and was able to tell the judge about her favorite book. From the questions asked by the judge, the child was able to the judge the difference between the concepts of being truthful and lying. From these pretrial questions, the judge determined that the child met the elements of competency. Although a child does not have to take the oath to tell the truth, a child must have original perception, recollection, and an ability to communicate as well as an understanding of the importance of telling the truth and its consequences.

Questions

  1. As a strong general rule, do children of tender years have to meet the elements of competency, except for the requirement of taking an oath to tell the truth?

Answer  

Yes. In order to testify at criminal trials, children must meet most of the requirements that are applied to adults. They must know the difference between lying and telling the truth, as a substitute for the oath. In addition, original perception is required, just like for adults, as is recollection and an ability to convey this information to the judge or jury. Where an issue concerning competency of young witnesses arises, judges normally conduct an inquiry in the presence of both attorneys and the parties or their representatives. The decision of the judge concerning competency is reviewed based on the concept of “abuse of discretion.” See Chapter 8, Section 8.12.
  1. Although the child-witness in this case was only seven years old at the time of this alleged offense, did the judge pursue the proper technique in determining whether she was competent as a witness despite her tender years of age?

Answer  

Yes. The trial court conducted an examination of the child prior to trial to determine her competency as a witness. The judge asked questions of the child that, through her answers, indicated that she understood the duty to tell the truth and that she remembered what happened to her based on her original experiences and that she had sufficient verbal communication skills to tell the jury what happened to her while she was with the defendant. The reviewing court in this case did not disturb the judge’s determination of the child’s competency because it found that the judge had not abused his discretion in determining the competency of the child. See Chapter 8, Section 8.12.

Chapter 9: Examination of Witnesses

Overview — Based on: People v. Clark, 131 Cal. Rptr. 3d 225, 2011 Cal. LEXIS 8769 (2011).

A California trial jury convicted the descendent of first-degree murder, premeditated attempted murder, two counts of robbery, attempted rape, assault with force likely to produce great bodily injury, false imprisonment, and kidnapping. Pursuant to California law, the jury found three special circumstances that permitted the jury to give the defendant the penalty of death. During the trial, the judge allowed the prosecutor to impeach the defendant’s testimony by offering evidence that on two prior occasions the defendant had committed robbery for which he was convicted, two misdemeanor offenses, and his out-of-court admission of deceitful conduct.

The appeal by the defendant, Clark, involved, among other things, an allegation that the prosecution’s use of the above impeachment evidence deprived him of a fair trial and his contention that in the absence of such evidence he might not have been convicted or have been given the death penalty. According to California law, any witness, including a defendant, may be impeached by the use of any prior conduct that evidences moral turpitude, whether or not it resulted in a felony conviction. A California trial judge has broad discretion in admitting any evidence of prior convictions and should consider whether it reflects on the witness’s veracity, whether it is near or remote in time to the accused crime for which the defendant is on trial, whether it is for the same or similar conduct as the charged offenses, and what effect the admission of the impeachment evidence would have on a defendant’s decision to testify in his or her own defense. California law notes that a series of crimes may be more probative of credibility than a single conviction, and the trial judge may take these factors into consideration in allowing evidence of prior criminal activity.

At the close of the prosecution's case in chief, the trial judge conducted a hearing on the admissibility of various impeachment evidence in case the defendant decided to take the witness stand in his own defense. Over defense objection, the court ruled that it would admit, as impeachment evidence, proof that the defendant had committed a 1985 California robbery for which he was convicted and that he also had a 1981 Texas robbery conviction. The trial judge observed that the prior robbery convictions were for the same crimes as two of the charged offenses, presenting a risk that the jury would infer that the defendant was an individual who commits robberies. However, the judge determined that the prior convictions’ probative value in showing dishonesty and moral turpitude substantially outweighed the potential unfair prejudicial effect of that evidence.

Since the defendant realized that the judge would allow the above impeachment evidence, when the defendant took the stand in his own defense, he admitted on direct examination to committing the robberies in 1981 and in 1985, and that in 1984 he had pleaded guilty to joyriding and had stolen tools from someone’s garage. He also admitted that when he was in a juvenile lockup, he cut his own wrists not for the purpose of killing himself but to get transferred to a mental facility. The court ruled that the prosecutor could not impeach the defendant with any crimes he committed as a juvenile or with two acts of misdemeanor battery committed in 1985, because, in admitting the evidence, the judge considered that such evidence would be more unfairly prejudicial than probative of honesty or lack thereof.

According to the appellate court, the similarity between the prior robbery convictions and one of the charged offenses in this capital case was a factor for the trial court to consider when balancing probative value against the risk of unfair prejudice, but it found that the similarity was not necessarily a determining reason to exclude the evidence. In this case, the intermediate reviewing court found that the evidence of prior crimes have been properly admitted and was not a reason to overturn either the convictions or the judgment of death for the murder.

Questions

  1. As a general rule, should a trial judge allow evidence of prior crimes committed by a defendant as impeachment evidence where the crimes reflect on moral turpitude or dishonesty when the defendant has taken the witness stand in his or her own defense?

Answer  

Yes. The fact that a defendant-witness or any other witness has engaged in felony criminal activity in the fairly recent past, which sheds light on that individual’s lack of honesty, is a factor in allowing the admission of evidence of prior criminal felony convictions. The theory is that where an individual has been dishonest in the past, that trait may continue to the present and be relevant to whether the defendant or witness is telling the truth while on the witness stand.
  1. According to Chapter 9, Section 9.16, was it fair to allow evidence of prior crimes against this California defendant that were the same types of crimes as the ones for which the defendant was currently on trial?

Answer  

Yes. The general rule is that a witness, even a defendant, may be impeached by a showing of prior conduct involving moral turpitude, whether it resulted in a felony conviction or not. In this case there was a similarity between prior robbery convictions and the charges for which he was on trial, and there was a danger that the jury might convict him, in a close case, because he had been a robber in the past. Even though the defendant argued that admitting only one of the prior robbery convictions would have been sufficient to have impeached him, the trial judge properly ruled that both prior convictions were admissible for impeachment as well as testimony on other crimes that reflected on his honesty or lack thereof.
  1. Under the rules of impeachment, did the trial judge correctly rule that the misdemeanor battery convictions not be admitted?

Answer  

Yes. Although the actual court case did not directly address the reasons why the trial judge ruled that the misdemeanor battery convictions could not be used against the defendant as impeachment, the fact that they were misdemeanors would tend to indicate that they should not be used as impeachment evidence, and the crime of battery does not necessarily involve dishonesty or moral turpitude, as it is often the described.

Chapter 10: Privileges

Overview — Based on: United States v. Chandler, 2011 U.S. Dist. LEXIS 52665 (Dist. Nev. 2011).

The defendant, Tavaras Chandler, has been charged with one count of being a felon in possession of a firearm in violation of federal law. The defendant filed a pretrial motion to exclude statements that might be made by his wife, Kimberly Valley. The prosecution would like to offer the statements against Chandler at his trial. On February 12, 2010, Valley, who was accompanied by her mother and 15-year-old daughter (“AC”), telephoned the Las Vegas Metropolitan Police Department (“LVMPD”) from a convenience store to report that she and her daughter had been beaten by defendant, Chandler, at their apartment earlier that day. When LVMPD officers arrived, Valley told them that the defendant had punched her in the head and chest with a closed fist and had been beating her repeatedly for approximately three days, sometimes with a wooden stick. Valley also explained that the defendant, Chandler, held her against her will and kept her from leaving the apartment by taking the phones away and grabbing her by the hair when she attempted to escape. She signed a statement corroborating her oral statements. Her statement also contained the following: “He also pulled a gun on me. It was black. He pulled it on me. And told me he would kill me if I ever cheat on him.... The gun that the police got. Tavaras has pulled that gun on me before. Last week he put it up to me. And told me he would kill me.”

Subsequently, LVMPD officers searched the apartment that Kimberly Valley shared with her husband, the defendant, and her daughter after receiving Valley’s consent to do so. The officers recovered a 40-caliber handgun in the location where Valley had predicted. Later, in May of 2010, LVMPD officers again responded to the apartment of Valley and Tavaras after receiving a 911 call from Valley’s mother indicating that the defendant was beating Valley on that date. Valley then spoke with police and signed another voluntary statement explaining that the defendant had been beating her. The officers also learned that the defendant had hit his daughter, AC.

The defendant filed a motion requesting that all of Valley’s statements, both oral and written, be excluded from the defendant’s trial because he anticipated that his wife would be claiming both of her marital privileges not to testify against Chandler and, therefore, she would be unavailable for cross-examination.

Questions

  1. Evaluate this case from the perspective of the marital testimonial privilege. Under the circumstances, should the wife be able to assert a marital testimonial privilege? Should the trial judge rule that the defendant’s wife can be prevented from testifying against the defendant due to the marital testimonial privilege?

Answer  

No. The wife, here, possesses a common law marital testimonial privilege not to testify against her husband, if she wishes. However as an exception to this privilege, she may testify where she has been the victim of criminal acts of her husband. Under the modern view, the defendant spouse is not a holder of the marital testimonial privilege and generally may not assert it in a criminal trial.
  1. If no privilege exists, should the trial judge order the wife to testify against the defendant?

Answer  

Yes. The judge would not commit error by ordering a victim spouse to testify against the battering spouse because an exception to the marital testimonial privilege exists when the spouse or a child of the marriage has been injured intentionally by the criminal acts of a defendant spouse.
  1. Should the trial judge rule that the defendant’s wife can be prevented by the defendant from testifying against the defendant due to the marital testimonial privilege?

Answer  

No. Prior to the Supreme Court’s decision in Trammel, a defendant-spouse could invoke the anti-marital facts privilege to bar his or her spouse from testifying. See Trammel, 445 U.S. at 51-52. After this case, the defendant no longer retained status as a holder of the privilege. See Trammel v. United States, Part II, Chapter 2.

Chapter 11: Opinion and Expert Testimony

Overview — Based on: People v. Valencia, 257 P.3d 1203, 2011 Colo. App. LEXIS 494 (2011).

The trial court convicted the defendant of sexual assault [rape], first-degree assault, burglary, and false imprisonment arising from a course of conduct involving his former girlfriend. The defendant broke into and entered her home and hid in the clothes closet until she returned. He attacked her, cut her lip, chin, and neck. He dragged her by the hair and placed her in a shower and raped her the next morning, once she regained consciousness. The hospital staff took samples as per the rape kit protocol and transmitted them to a state laboratory. Blood evidence taken from the defendant’s ear matched the victim, and his DNA from a saliva swab was found to match DNA samples taken from the victim.

During the trial, the prosecution called an expert witness who testified that the blood on the defendant’s ear belonged to the victim and that sperm found in the victim’s vagina matched the defendant’s DNA profile. The expert witness based her testimony on an examination of laboratory items that she had received from an analyst at the state’s bureau of identification. She did not describe the source of the items themselves, the packaging in which they were contained, or otherwise identify the source of her information. The items that she described were not introduced into evidence, and the defendant objected to her testimony because there had been an insufficient foundation for the expert to offer any sort of opinion.

As a general rule, witnesses must have firsthand personal knowledge of facts in order to be permitted to testify concerning those facts. Expert witnesses are not precisely limited to personal knowledge of the facts and may be permitted to rely upon facts presented to them if it is customary and reasonable to do so in the field of their expertise. The general rule is that expert witnesses may give testimony concerning firsthand observation, through facts presented at trial either by means of a hypothetical question or through other evidence received at the hearing, or through facts that are outside of the record, although not personally observed by the expert, if they are of the type recently relied on by experts in the same field. The expert in this case personally received the rape kit evidence and personally performed tests upon a blood sample, a saliva swab, and certain items in the rape kit. She personally perceived the results of those tests, but she did not testify concerning the source of the samples, indicate how they were handled between collection and her receipt of the items, or offer them for introduction into evidence. The items tested by the expert were not introduced, and the expert did not describe how the items she tested were marked or identified. In addition, there was no proper evidence establishing that the tested items came from either the defendant or victim, save for the expert’s unexplained conclusory statements.

Questions

  1. Must an expert witness have personal knowledge concerning every item of evidence about which he or she offers testimony?

Answer  

No. Expert witnesses may actually have personal knowledge of what they may be offering testimony about, but they are permitted to offer testimony from evidence or facts that are outside of the court record where experts would normally use such facts as a basis for their testimony. For example, an expert might offer an estimate of the time of death of a victim based on facts that had been presented by other witnesses in court or from an examination of a coroner’s report that was not generated by the expert who is testifying.
  1. In this case, there was no objection concerning the credentials of the expert witness and no objection concerning her ability to conduct the scientific tests properly. Under the circumstances, has the expert testimony been properly received by the trial court?

Answer  

No. A properly qualified expert witness may give testimony within the area covered by the individual’s expertise. There was no question in this case that the expert was qualified and no suggestion that the tests were improperly performed. The error in this case concerned the fact that the expert had no personal knowledge of the origin of any of the objects or samples that she tested. There was no indication from her testimony that she knew whether the samples came from the victim or the defendant other than her recitations concerning the source of the samples and over which she was ignorant. Some proof must be presented of a connection between the object tested and the defendant, the victim, or the crime. See Chapter 11, Section 11.5.

Chapter 12: Hearsay Rules and Exceptions

Overview — Based on: Sanford v. State, 287 Ga. 351, 2010 Ga. LEXIS 395 (2010).

Otis Sanford had been indicted for malice murder, felony murder, aggravated assault, and possession of a firearm during a felony in connection with a fatal shooting. The trial jury found him guilty of these crimes.

Defendant Sanford had lived with Veronica Corbett for a period of time, but at the time of her killing, she was currently living with one Marhna Smith, who was the father of one of her children. Sanford had arrived at the home of Smith to retrieve his keys and a cell phone from Corbett and wanted to chat with her, but she declined. At some point about 10 minutes later, Sanford ran into the home, chased Corbett to the basement, and shot her twice. Smith ran away, not wanting a deeper involvement in the situation. Corbett phoned 911 and gave details of the shooting and asked the operator if she was going to die. Police officers arrived on the scene and found Corbett with a gunshot wound to the chest, but still alive and conscious. She was observed holding a pillow to her abdomen and was clearly suffering from significant pain. She told the officer that Sanford had gone down into the basement and shot her. Subsequently, Smith identified Sanford from a photographic lineup as the man at his house when Corbett was shot. Corbett died at the hospital several hours after the shooting, as a result of the gunshot wound.

At Sanford’s murder trial, the court allowed one of the officers who had conversed with the decedent to tell the court what she told him concerning her receipt of final injuries. The evidence showed that Corbett was conscious of her critical condition at the time she made the statements naming Sanford as the shooter. She understood that her wounds were extremely serious; she was hugging a pillow close to her abdomen for comfort; and her breathing was difficult. Observers indicated that she appeared to be in great pain and she seemed to be overwhelmed with fear. Because she understood the serious nature of her injuries, Corbett called 911 immediately after being shot and asked if she was going to die. The evidence showed that her friend, Smith, who had returned to the crime scene, urged her not to die. Corbett died several hours later in a local hospital. The trial court indicated that the above factors made a strong showing that Corbett’s statements could qualify as dying declaration statements, despite Sanford’s contention that she was not near death when she made her statements.

Questions

  1. Are hearsay statements known as dying declarations admissible in criminal cases?

Answer  

Yes. As a general rule, for a statement to qualify as a dying declaration, the victim uttering the statement must have made the statement concerning the cause and circumstances of his or her own impending death, and the statement must have been made with a clear understanding that death was near. The victim must have given up all hope of living for any significant length of time. Dying declarations in homicide cases have been admitted in evidence either: (1) because of the solemnity of the occasion and the fear that one would not want to meet one’s “Maker” with a lie on one’s lips, or (2) because of necessity—because the victim of the homicide cannot testify, it is necessary to protect the public against homicidal criminals and prevent a miscarriage of justice. Under the common law, the person making the dying declaration must actually die, but some states and the federal courts do not require death, just unavailability.
  1. Under the circumstances of this case, did the trial court properly allow the officer to testify concerning Corbett’s dying declaration?

Answer  

Yes. According to one court, to be admissible as a dying declaration: (1) the declarant must be dead at the time of the trial; (2) the statement is admissible only in the prosecution of a criminal homicide; (3) the declarant must be the victim of the homicide; (4) the statement must concern the cause or the circumstances of the death; and (5) the declarant must have made the statement under the belief that death was imminent. Here, Corbett worried about death from the time of her 911 call; her friend urged her not to die; she was breathing heavily; she was in great pain; she clutched the pillow to dull severe pain; and she identified who shot her to the officer. It was clear that she had no real hope of living very long and she was conscious of what she was saying. The dying declaration was properly admitted. See Chapter 12, Section 12.9.

Chapter 13: Documentary Evidence

Overview — Based on: Vanpelt v. State, 74 So.3d 32, 2009 Ala. Crim. App. LEXIS 166 (2009); Rehearing denied by: Vanpelt v. State, 2010 Ala. Crim. App. LEXIS 686 (2010).

A trial court convicted defendant Kim Vanpelt of capital murder for killing his wife, Sandra Vanpelt, for pecuniary gain. The defendant was the beneficiary of a $300,000 life insurance policy on his wife that had been in force for about two weeks. One of the elements that the prosecution had to prove involved the fact that the defendant had structured his personal life in a way that he would benefit financially from the death of his new bride. The policy had “conditional coverage,” a provision that meant that it was in force unless a pre-existing condition of health was uncovered. One insurance agent testified that Vanpelt gave her a check for the amount of the first month’s premium for the policies that ensured that both spouses’ policies were in force. She testified that the agent’s normal practice was to have the insurance purchaser sign a receipt and the agent would give the purchaser the original receipt. Neither the agent nor the company typically retained a copy of the conditional receipt, and only the purchaser would have that document. The company did retain an exact copy of the policy and its terms and conditions. The insurance agent testified that after Vanpelt gave her the check for the premiums, he called her several times to verify that the policies were in effect.

The trial judge allowed the prosecution to question two insurance agents who had dealings with the Vanpelts concerning the recent life insurance purchases. However, Kim Vanpelt’s counsel objected to the testimony about the insurance contracts on the ground that the testimony violated the best evidence rule.

Kim Vanpelt argued that the testimony regarding the terms of Sandra's life insurance policy violated the rules of evidence. Specifically, the defendant argued on appeal that testimony concerning the fact that Sandra had “conditional coverage” and evidence concerning the terms of the life insurance policy was admitted in error because the State should have introduced the original written document signed by Kim Vanpelt containing the policy terms and the terms of the conditional coverage.

According to Alabama’s version of the best evidence rule, a party wishing to prove the contents of a writing must produce the original writing, subject to exceptions that it has been lost or stolen or destroyed through no culpable responsibility of the offering party. Only when the contents of writing are at issue does Alabama law require proof of the original. In addition, a witness does not run afoul of the best evidence rule simply because there happens to be a writing memorializing the matter to which the witness has testified. The testimony of two witnesses who testified concerning the insurance company’s agreement with the defendant, which was memorialized by a writing, was not admitted to prove the contents of the writing, but was admitted only to prove that the written document existed. Therefore, since the contents of the document were not at issue, the trial court held that the best evidence rule should not be applied.

Questions

  1. As a general rule, when one party to a lawsuit wants to introduce evidence that is contained within a writing, must the original writing be produced in court, unless there are appropriate excuses for non-production of the original?

Answer  

Yes. To prove the contents of a writing, the general rule is that the original writing is required and must be introduced in court. The rule is designed to reduce the chances of fraud or misunderstanding concerning the contents of a document. If the contents of the writing are not at issue and the issue concerns the existence of the document, the original need not be produced. For example, an event that has occurred may be proved by oral testimony even if a writing has memorialized the existence of the event. A marriage may be proven to have happened by oral testimony even though a marriage certificate exists. See Chapter 13, Section 13.4 and Section 13.6.
  1. Was the trial judge correct in ruling that the insurance company witnesses could testify concerning some contents and other details of the insurance policies without violating the best evidence rule?

Answer  

Yes. The trial judge ruled properly concerning the testimony of the insurance agents because the issue was not to explain the details of the actual policies but whether the policies existed and were in force. Here, the contents of the written policies were not relevant to the case that the prosecutor needed to prove (in order to find the defendant guilty of killing for pecuniary gain), and the best evidence rule has no application. See Chapter 13, Section 13.6.
  1. If the terms and conditions of the policy were important to this case, would the best evidence rule be considered applicable?

Answer  

Yes. If, for some reason the minute details of the policy became important for the prosecution to prove, generally the prosecution would have to produce the original policy. However, since the policy was written in duplicate and the defendant allegedly signed the duplicate copies, all the duplicate copies would qualify as duplicate originals and would be admissible even if the original were not introduced. Also, if the original were in the hands of the defendant and could not be obtained by the prosecution, secondary evidence would generally be admissible in court. See Chapter 13, Section 13.6 and Section 13.7.

Chapter 14: Real Evidence

Overview — Based on: State v. Johnson, 47 So. 3d 449, 210 La. App. LEXIS 971 (2010).

The defendant and other individuals had been shooting dice at the apartment of an associate until the party broke up and the men headed for their automobiles. At this point, the defendant allegedly attempted to rob one of the dice game participants and shot him with a handgun while a different associate also inflicted gunshot wounds upon the soon-to-be decedent. After a short investigation, Jefferson Parish Sheriff’s officers identified the defendant and another perpetrator. The coroner’s office conducted an investigation of the decedent’s body to determine identity, cause of death, and the trajectory of the bullets that caused the demise of the decedent. The coroner concluded that two different firearms inflicted wounds that were individually fatal or potentially fatal. At the trial, the prosecution introduced testimony using expert testimony offered by an assistant coroner. The coroner introduced autopsy photographs that showed the dead body, entrance and exit wounds, and the trajectory of some of the bullets. In demonstrating the bullet trajectories, prior to taking some of the photographs, the coroner had inserted rods to graphically depict the way the bullets entered the body of the decedent. The coroner’s evidence helped convict the defendant of second-degree murder. The defendant then brought an appeal limited to the issue of whether the photographs introduced by the coroner should have been admitted.

In his only assignment of error, the defendant argued that the trial court committed reversible error in allowing the photographs of the coroner to be admitted in evidence. The defendant contended that the probative value of the photographs was clearly outweighed by unfair prejudicial effect to his case. He asserted that close-up photographs of the dead victim and the photograph of the victim with a rod protruding from his head, which established the bullet trajectory, constituted photographs that were so gruesome that they overwhelmed the jurors’ sense of reason and fairness. According to the defendant-appellant’s contentions, this unfair prejudice caused the jury to convict the defendant without sufficient other evidence. The defendant alleged that diagrams offered by the coroner would have been sufficient to establish trajectory and the photographs were completely unnecessary.

The prosecution contended that the trial court ruled properly and that the photographs were properly used by the assistant coroner in conjunction with her testimony to establish entry and exit wounds, the cause of death, and the identity of the victim. Additionally, the state contended that the photographs were not particularly gruesome and that their probative value most assuredly outweighed any prejudicial effect to the defendant.

According to Louisiana law, evidence is relevant if it has any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence. All relevant evidence is admissible, except as otherwise provided by law, and irrelevant evidence is not admissible. However, 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, or by considerations of undue delay or waste of time. The prosecutor is entitled to the moral force of its evidence, and postmortem photographs of murder victims are admissible to prove corpus delicti, to provide positive identification of victim, and to corroborate other evidence establishing cause of death, the manner in which the death occurred, and the location, severity, number, and placement of the wounds. The general rule is that the mere fact that a photo is gruesome does not, in itself, make the photograph excludable from evidence.

Questions

  1. As a general proposition, are photographs excludable from evidence in homicide cases merely because they may be less than pleasant or actually gruesome in nature?

Answer  

No. As a general principle, autopsy photographs may be admissible in evidence, especially in homicide cases. The mere fact that a photograph may be gruesome does not mean that it may not be admitted. Only where a photograph is so gruesome and so outrageous as to overwhelm the jurors’ collective reason to the point that there is a danger the jury might convict on less than sufficient evidence may such photographs be excluded. See Chapter 14, Section 14.6.
  1. In this particular case, where the photographs of the deceased were taken shortly after his death, and where photographs indicated that rods were inserted into the deceased’s head to indicate the trajectory of the fatal bullets, did such use of photographs by the prosecution constitute reversible error because their prejudicial value overwhelmed any probative effect that the photographs might have had?

Answer  

No. The photographs were not repetitive or cumulative according to the appellate court, and they were clearly used to demonstrate the wounds to the deceased and the trajectories of the fatal bullets. The photographs helped corroborate the coroner’s testimony concerning identity, cause of death, and bullet trajectory. Even though the coroner’s diagrams could properly indicate bullet trajectory, the photographs were admissible at trial. Even though the photographs indicated that the defendant had been rolled in some blood and the photos might not be pleasant to observe, their probative value clearly existed, and the reviewing court considered that they were not unduly prejudicial. See Chapter 14, Section 14.6.
  1. In this case, additional photographs were admitted that depicted fresh blood, the full face of the deceased, the full body, removed organs, internal organs, surgically gloved hands, and tools of the coroner’s trade. Do these extra factors make the photographs excludable from evidence?

Answer  

No. The trial judge ruled that the photographs that depicted wounds that had been inflicted on the victim’s body and the photographs that depicted the angles with which the wounds were inflicted were probative of issues in the case and were not repetitive or unnecessarily gory. Even though the photographs were clearly unpleasant, they did not unnecessarily prejudice the defendant’s case and were properly admitted against him.

Chapter 15: Results of Examinations and Tests

Overview — Based on: People v. Gordon, 379 Ill. App. 3d 626, 2007 Ill. App. LEXIS 1371 (2007) and partially based on State v. Popeleski, 291 Conn. 769, 2009 LEXIS 114 (2009)

Following a bench trial, the trial judge convicted defendant Gordon for driving under the influence of alcohol [DUI] along with several automobile-related felonies. He appealed the convictions and sentences, contending that the prosecution did not prove guilt beyond reasonable doubt and that a horizontal gaze nystagmus [HGN] sobriety test had not been properly administered and therefore should not have been admitted in evidence against him at his bench trial. Pursuant to a radio call from his dispatcher on the report of an impaired driver, police officer Panizo encountered the defendant in an automobile stopped at a traffic light. The defendant refused the officer’s order to exit the car and drove away, obeying the speed limit and traffic signals as indicated. With the assistance of a backup officer, the defendant’s vehicle was cornered and the defendant was dragged from the driver position when he refused to exit the car. Officer Panizo noticed that defendant’s eyes were bloodshot and watery, that he had a strong odor of alcoholic beverage about him, that he swayed back and forth when he tried to walk toward the squad car, and that his speech was mumbled when he talked to the officers. Officer Panizo then noticed empty beer cans on the floor of the defendant’s car. Officer Panizo then took defendant to the Skokie police station and performed an HGN test.

As a general rule, state courts admit evidence of the horizontal gaze nystagmus test when it has been properly administered by a trained officer who can understand the results and testify concerning those results in open court. One Connecticut court emphasized the requirements for admissibility that horizontal gaze nystagmus [HGN] evidence requires. The court enunciated a three-part test that must be satisfied before such evidence is admissible. That test requires that the state (1) satisfy the criteria for admission of scientific evidence, (2) lay a proper foundation with regard to the qualifications of the individual administering the test, and (3) demonstrate that the test was conducted in accordance with relevant procedures. In addition, the Connecticut court concluded that because the horizontal gaze nystagmus evidence satisfied the requirements for admissibility of scientific evidence, as a general rule, the results are admissible. Trial courts in Connecticut are not required to hold a hearing concerning the scientific theoretical basis of the HGN test in every case in which horizontal gaze nystagmus evidence is offered. The state still must lay a proper foundation with regard to the qualifications of the individual administering the test and demonstrate that the test was conducted in accordance with generally accepted standards. See State v. Popeleski, 291 Conn. 769, 2009 LEXIS 114 (2009).

In this case, Officer Pinizo testified that he had administered the HGN test around 30 times after receiving hands-on training on the proper method to follow when administering the test in the field. He indicated that the test requires that the suspect focus on a stimulus, usually a pen, positioned 12 to 15 inches in front of the suspect’s face. The process then involves moving the stimulus pen in different directions within the suspect’s range of vision and having the suspect following the pen’s movement with his or her eyes. The object of this test is to detect nystagmus, or jerking of the eyes, and whether the eyes track equally. A suspect is regarded as failing the test if he or she receives a score of four or more decision points, which are nystagmus or jerking points. The defendant objected to the scientific validity of the HGN test and suggested that a Frye v. United States (1923) [See Chapter 15, Section 15.1] hearing was necessary prior to admitting the test results and that judicial notice should not have been taken concerning the validity of the HGN test. [See Chapter 5, Judicial Notice, Section 5.7]

The defendant scored six decision points and refused to take any additional field sobriety tests. Officer Panizo testified that he had observed between 50 and 100 people who were under the influence of alcohol and that he had made between 10 and 15 arrest for driving under the influence of alcohol. The officer noted that the defendant’s appearance, speech, conduct, and the odor of alcoholic beverages indicated that he could be intoxicated. Based on the physical factors, the above HGN test, and the officer’s experience with impaired individuals, the officer determined that probable cause existed to arrest the defendant for driving under the influence of alcohol.

Defendant Gordon contended that the HGN test results should not have been admitted in the absence of a Frye hearing; that the evidence indicated that he violated no traffic law; and that there was not sufficient evidence to prove him guilty beyond a reasonable doubt.

Questions

  1. From the facts referenced above, should the trial court have held a Frye hearing to determine the scientific basis for the horizontal gaze nystagmus test prior to allowing any evidence into court concerning the results of that test?

Answer  

Yes. Although the horizontal gaze nystagmus test has been in use for several years and its scientific validity appears to be genuine and not contestable in serious scientific circles, many courts still require that proof of its scientific validity be offered in each case. The scientific principle that human eyes cannot follow an object without jerking when sufficient alcohol has been consumed is a proven fact such that many courts would not require proof of the scientific principle. This answer depends on the jurisdiction, but many court jurisdictions would not require proof of the HGN principles and would accept judicial notice of the validity of the principle behind HGN. See Chapter 15, Section 15.1.
  1. Did the arresting officer, in this case, have a sufficient basis or training to properly administer the horizontal gaze nystagmus test to the subject?

Answer  

Yes. In order to administer the horizontal gaze nystagmus test correctly, a police officer must have sufficient training concerning how to administer the test and how to interpret the results. In this case, the arresting officer testified that he had administered the HGN test between 25 and 30 times and had received hands-on training concerning the appropriate method for administering the test. Additionally, the officer was able to explain this methodology and evidenced an understanding of the correct way to apply the test. See Chapter 15, Section 15.3 (D).

Chapter 16: Evidence: Unconstitutionally Obtained

Overview — Based on: Tolbert v. State, 2011 Ala. Crim. App. LEXIS 98 (2011).

Richard Tolbert pleaded guilty to the unlawful possession of a controlled substance, namely dihydrocodeinone (brand name Lortab), in violation of § 13A-12-212, Ala. Code 1975. Tolbert was sentenced to 15 years’ imprisonment pursuant to the Alabama Habitual Felony Offender Act. Two police officers, in unmarked cars and plain-clothed, observed a man, later determined to be Tolbert, sitting in a black Cadillac. Random individuals repeatedly visited the Cadillac and offered something to the people in the Cadillac while individuals within the vehicle returned some object to the individuals who had approached the vehicle. To a trained officer’s eye, this conduct appeared to offer evidence that drugs were being sold from the particular motor vehicle by the individuals who were sitting within it. One of the police officers, Harris, testified that he witnessed numerous vehicles pull beside the passenger side of the Cadillac and stated that he observed hand-to-hand transactions between those vehicles and the front passenger window of the Cadillac. According to Officer Harris, someone from the other vehicles “would hand an unknown amount of cash, and somebody out of the front passenger position in the Cadillac would hand an unknown object back.” The area was known to be a high-crime area where drugs were often bought and sold. Officer Harris stated that based on his narcotics training and field experience, he suspected illegal drug deals were being conducted from the Cadillac, giving him what he thought was probable cause to arrest those involved. Other officers observed the identical conduct from different vantage points.

The vehicle left the area but, pursuant to a radio call by the undercover officers, it was stopped by a uniformed officer in a marked car. One of these officers ordered Tolbert from the vehicle and conducted a “patdown,” wherein he discovered plastic bags in Tolbert’s pants pocket. The officer placed his hands inside Tolbert’s clothing and removed the plastic bags. Upon the officer’s observation of the plastic bags, he believed that illegal drugs were contained within them. Prior to the pat-down, the officer had probable cause to arrest Tolbert but had not communicated this fact to Tolbert.

The prosecution initially argued that the controlled substances were discovered during a valid stop and frisk where the object may be seized if its illegal quality is immediately known to the officer by the sense of touch. The officer who initially patted down Tolbert did not believe that what he felt was a weapon. The appellate court ruled that a stop-and-frisk theory did not permit the seizure of the recreational pharmaceuticals but was willing to consider other legal theories.

Questions

  1. From the facts referenced above and from what the police officers collectively knew about the men in the Cadillac, did they have probable cause to arrest Tolbert and the others?

Answer  

Yes. Based on prior experience, the police officers collectively knew that the behavior of the men sitting inside the Cadillac was consistent with drug dealing and drug activity. This conduct was sufficient to give the police probable cause to stop the car, to arrest the occupants, and to search them as incident to the lawful arrests. See Chapter 16, Section 16.3.
  1. If the arrest of Tolbert had been illegal and not supported by the evidence, would the controlled substances have been admissible in court against Tolbert?

Answer  

No. In order to correctly conduct a search incident to an arrest that will produce admissible evidence, the arrest itself must be based on probable cause and, therefore, must be a lawful arrest. Without the lawful arrest the search incident to the arrest will be deemed illegal and the evidence suppressed.
  1. Under the facts of this problem, did the searches of Tolbert and the others conform to the concept of a search incident to an arrest?

Answer  

Yes. A warrantless search preceding arrest is reasonable under the Fourth Amendment, so long as probable cause to arrest existed before the search and if the arrest and search are substantially contemporaneous with each other, even if the arrest came immediately after the search. See Chapter 16, Section 16.3 (A).