Term
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Definition
| The quality in a witness that renders the witness's evidence worthy of belief |
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Term
| Causes of False Testimony |
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Definition
1.Lying
2.Poor Memory
3.Mental Illness
4.Deficiency in perception
5.Interest in outcome
6.Sympathy fr one side
7.Prejudice for one side |
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Term
| What the Jury considerations |
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Definition
1.Intelligence
2.Motive to falsify
3.State of mind
4.Appearance
5.Manner
6.Inconsistencies
7.Bias
8.Relationship |
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Term
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Definition
| The process by which the credibility of a witness is attacked. When a lawyer successfully attacks the witnesses' credibility the witness has been impeached. |
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Term
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Definition
| Any evidence that tends to convince the jury that the witness's perception, memoty or narration is defective or that his or her veracity is questionable is considered relevant Impeachment evidence, but note it can not be outweighed by its prejudicial nature. |
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Term
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Definition
| Convince the jury that the witness is not credible and should not be believed, or in the alternative, should be believed less then some other witness. |
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Term
| Purpose of Impeachment Evidence |
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Definition
| The jury may consider impeachment evidence only in weighing the credibility of the witness. The jury must disregard impeachment evidence in determining guilt or innocents. |
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Term
| 5 standard Methods of Impeachment |
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Definition
1.Contradiction
2.Bad Character for Truthfulness
3.Prior Inconsistent Statement
4.Bias
5.Defects of Capacity |
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Term
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Definition
| The process of introducing extrinsic evidence to show that the witness prior testimony was not accurate. The goal is to highlight an inaccuracy, even a small one and use it to call into question the credibility of the entire statement. Very difficult to do, at least its very difficult to do well. |
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Term
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Definition
1. Artful Questioning gets witness to contradict self (rarely that this works)
2. Rebuttal witness. Call a witness, known as a rebuttal witness, to contradict the first witness. |
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Term
| Bad Character for Truthfulness |
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Definition
1. A witness may be impeached by showing that they have a bad character and are not worth believing.
2. Proof that the witness has prior convictions |
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Term
| Foundation for the Attack Reputation Evidence |
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Definition
1.He knows the witness
2.He knows the general reputation of the witness in the community
3.The witness has a bad reputation for telling the truth |
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Term
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Definition
| The impression which other have of him. These impressions are based on the collective experience of the impeaching witness, but the impeaching witness may not recount specific incidents that cause them to form this impression |
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Term
| Reputation for Truth and Veracity |
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Definition
| A witness may be impeached by showing they have a reputation for untruthfulness. They can not be impeached by other bad character traits like: Being a drunk, being a drug user, being a slut. |
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Term
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Definition
| The impeaching witness must know the reputation in the community where the impeached witness works or lives, not in a small area or small group. |
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Term
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Definition
| A witness may be asked about their prior convictions for: Felonies(any type), Misdemeanors involving: Perjury, Moral turpitude(cheating or stealing), false statements(on a written form) and embezzlement |
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Term
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Definition
| These is no time limit in VA for old convictions. |
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Term
| Prior Convictions (What Qualifies) |
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Definition
*Only convictions
*No indictments
*No Dismissed cases
*No juvenile adjudications |
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Term
| The Defendant as a Witness |
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Definition
| All of the the ways one would impeach a witness can be used to impeach the defendant with one exceptions. You many not inquire from a defendant witness the specific type of convictions he has, only the number and if they are felonies or misd. involving lying, cheating or stealing. |
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Term
| Prior Inconsistent Statements |
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Definition
| A witness may be impeached by proving that they made a prior statement that was inconsistent with their in court testimony |
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Term
| Proper Foundation for Prior Inconsistent Statements |
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Definition
1.The Cross- examiner must call the witnesses attention to the prior statement and must give specific enough detail to put the witness on notice and war him of the inconsistency
2.The witness must deny making the statement or advise that they do not remember making the statement.
3.If the witness admits making the statement they must be given an opportunity to explain it. |
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Term
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Definition
| A witness may be impeached by showing that there testimony has been tainted by bias wither for or against the Defendant. |
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Term
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Definition
1.Family relationship(brother, sister, mother, cousin)
2.Social or business relationship
3.Prior quarrels or prejudice
4.Financial interest
5.Party to the litigation
6.Sexual relationships
7.Deals with the gov. to testify |
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Term
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Definition
It is possible to impeach a witness by should that they have or had some physical impairment which would affect their ability to
1.Observe
2.Recall
3.Relate the icident |
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Term
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Definition
| Any party may impeach any witness not called by the impeaching party, but a party MAY NOT impeach their own witness, expect if the witness surprises you by changing their story you may impeach by prior inconsistent statement evidence |
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Term
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Definition
1.The recanting witness
2.A witness who testifies to something you didn't expect them to or want them to. |
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Term
| Two Concerns with Hearsay |
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Definition
1.Rules of evidence
2.The US Constitution- Confrontation Clause |
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Term
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Definition
| Evidence that is hearsay is inadmissible unless there is an exception that would allow it to be introduced into evidence. |
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Term
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Definition
| An out of court statement made by a declarant offered into evidence for the truth of the matter asserted. |
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Term
| 4 Parts of the Hearsay Definition |
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Definition
1.A statement
2.Made by a declarant
3.Offered/entered into evidence
4.For the truth of the matter asserted. |
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Term
| 3 Things you MUST Know to Understand Hearsay |
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Definition
1.What is considered an out of court statement?
2. Who is the declarant?
3. What is meant by "offered for the truth of the matter asserted? |
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Term
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Definition
| It is defined as any communication which is intended to assert something. The statement must be asserting something, i.e. intend to convey a message. If the statement is not intended to convey a message its not an assertion and the hearsay rule does not apply. |
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Term
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Definition
Oral communications- Spoken word
Written communication- Written word
Recorded words- tape,CD,computer
Non-verbal assertions- WTF?? :) |
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Term
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Definition
| Physical movement done with the intent to communicate a message and does communicate a message. Examples being a shoulder shrug, hands up, sticking tongue out and flipping the bird. |
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Term
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Definition
| A statement made out of court which the witness is in right now i.e. for this trial. So any statement spoke outside the courtroom in which the testimony is now being presented is an out of court statement. |
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Term
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Definition
| The person who made the hearsay statement in question not the person who heard it and not the person who is testifying to it. |
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Term
| Offered to Prove the Truth of the Matter Asserted |
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Definition
| If a statement is being offered to prove a fact at issue and in order to prove the fact the statement must be true then it is being offered for the truth of the matter asserted. |
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Term
| Not offered for the Truth |
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Definition
| If it is being offered solely to should that is was said without regard to the truth or falsity of the contents of the statement then it is not being offered for the truth of the matter asserted. |
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Term
| The Prove the truth of the matter asserted formula |
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Definition
1.Is it an out of court statement?
2.who is the declarant?
3.What is the main point trying to be proved?
4.Must the statement be true to prove the point? |
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Term
| The Exceptions for Hearsay |
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Definition
1.Admissions by a Party Opponent
2.Dying Declarations
3.Declaration Against Interest
4.Present Sense Impressions
5.Excited Utterance
6.Business Record |
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Term
| Unavailability of the Declarant |
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Definition
1.Dead
2.To sick to testify
3.Insane
4.Absent from the state
5.Unable to be located
6.The declarant has a privilege |
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Term
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Definition
1.A statement by the declarant in the face of HIS BELIEF of impending death
2.Pertain to the cause of his impending death
3.The death must have been caused by an attack by the defendant
4.Only admissible in VA in a trial for homicide
5.Declarant must be unavailable- i.e. dead as a post |
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Term
| Declaration Against Interest |
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Definition
1.The statement is against the financial or penal interest of the declarant at the time it was made
2.The declarant must have been aware at the time that it was made that it was against his interest
3.The declarant is not a party to the action-i.e. not the defendant
4.The declarant must be unavailable |
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Term
| Present Sense Impressions |
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Definition
1.A statement describing or explaining an event or condition
2.The statement must be spontaneous
3.The statement must be made at the time the condition is perceived or shortly there after
4. The event need not be startling or unusual but it must do more then just relate to the event, it must describe it. |
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Term
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Definition
1.The declarant statement must relate to a startling even or condition
2.No need to describe or explain the event only relate to it
3.The statement must be made when the declarant is still under the stress of the event or condition- not necessarily at or near in time to the event. |
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Term
| Business Records (Hearsay) |
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Definition
1.The record was made in the ordinary course and routine of a business
2.The record was made by or from information supplied by a person with knowledge of the matter recorded and who is working in the business
3.The record was made at or near the time of the matter recorded
4.The record was not created solely for prosecution |
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Term
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Definition
| This 6th Amendment clause guarantees a defendant in a criminal trial to confront the witnesses against them. For years and years dirty defense attorneys have been crying that hearsay exceptions violate this. The old anwser was no they don't as long as the hearsay evidence was admissible within one of the "firmly rooted hearsay exceptions" |
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Term
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Definition
In order to prove guilt the Commonwealth must establish beyond a criminal doubt that:
1. All the elements of the crime were committed
2. The defendant is the person who actually committed the crime |
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Term
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Definition
| Finger prints, DNA, fiber evidence, ect. |
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Term
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Definition
Defendant's statements- Confession or admissions
Witness identification- witness ay that's the guy |
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Term
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Definition
| A witness actually points the defendant out at trial and says that the defendant is the person who committed the offense. This is fine if the identity of the defendant is known to prior to the offense being committed, if the victim doesn't know the defendant they must identify that person before trial. |
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Term
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Definition
| This is done by the police, before the trial and hopefully while the victim's memory is still fresh. |
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Term
| 3 Forms of Pretrial Identification |
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Definition
1.Line up
2.Photo Array
3.Show Up |
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Term
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Definition
| This is the traditional TV Method that puts the victim behind a one way glass and brings in 8 people and asks the victim if they recognize anyone. This is rarely if ever done in VA anymore. |
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Term
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Definition
| This is the preferred and most often used method in VA. The officer collects 6-8 photos, on being the suspect. The officer shows each, one at a time to the witness who then tries to pick out the person they believe committed the crime. |
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Term
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Definition
| This is essentially a lineup with one person. It can either be done in person or with a photo. |
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Term
| Constitutional Considerations on Identification of a Suspect |
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Definition
| Regardless of which procedure is used, they can not violate the defendant's 6th or 14th Amendment rights. |
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Term
| Entitled to a lawyer (Identification) |
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Definition
A suspect is only entitled to a lawyer during a pretrial identification procedure if:
1.The identification is one in person with the suspect participating in someway AND
2.The identification procedure was done after the 6th amendment right to counsel has "attached" |
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Term
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Definition
| Begins at the initiation of adversarial judicial proceeding by way of formal charge, arraignment or preliminary hearing. |
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Term
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Definition
| If the pretrial identification is "overly suggestive" or is conducted in a way which suggests that the procedure used created a substantial risk of misidentification it is a substantial risk of misidentificaion it is a violation of the this and any pretrial identification will be suppressed |
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Term
| Overly Suggestive v. Suggestive |
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Definition
| This is a question of law for the court based on the totality of the circumstances. The court must determine if the identification was overly influenced by events during the investigative stage of the prosecution. |
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Term
| No per Say Exclusionary Rule |
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Definition
| The Supreme Court has allowed suggestive identifications when practical considerations required it. |
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Term
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Definition
| Stovall is stabbed and they think the victim is going to die and they do a show up with one guy and 5 cops and the suspect was handcuffed to one of the cops. Defense said it was overly suggested, but it was not over turned because the victim was going to die. |
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Term
| What the Police Cannot do in Identification |
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Definition
1.Repeat a photo of the same defendant
2.Use photos/people that don't look anything at all like the defendant
3.Some how highlight the defendant's photo. or the defendants person
4.Tell the witness that there is a photo of the suspect in the array of the suspect is in the lineup
5.Allow two witnesses to look at an array or line up together
6.Focus the witness on any one picture/person.
7.Tell the witness that a person has been arrested
8.Use different quality photos
9.Mix races or genders |
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Term
| Admissibility of Illegal Pretrial Identification |
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Definition
| If a pretrial identification violated the 6th or 14th amendment it will be suppressed and there will be no evidence introduced that the defendant was identified pretrial. Suppression of the pretrial identification does NOT automatically result in suppression of the in court identificaion. |
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Term
| Test for Admission of an in Court Identification |
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Definition
| The judge must determine if the in court identification is so influenced by the illegal out of court identification as to be a product or it. The test is whether or not the court identification is sufficiently free of taint from the out of court identification to be trust worthy. |
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Term
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Definition
| A suspects refusal to be in a lineup or show up is admissible and can be introduced against the Defendant as evidence of consciousness of his guilt. |
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Term
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Definition
The right of the people to be secure in their persons, house, papers and effects, against unreasonable searches and seizures, shall not be violated
and
no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the person or things to be seized |
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Term
| The Reasonableness Clause |
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Definition
1.What is protected: The people, houses and personal effects
2.What they are Protect from: Unreasonable searches and unreasonable seizures |
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Term
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Definition
| A search warrant is per se reasonable if it is supported by: A written affidavit stating a description of the place to be searched and a description of the person or things to be searched or seized. Probable cause to believe the person or things need to be searched or seized should be in the affidavit too. |
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Term
| To Violate the Fourth Amendment |
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Definition
You must have:
1.Government Actor/Agent
2.Unreasonably intrude
3.On a constitutionally protected area
4.Over the objection of a party with standing to object. |
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Term
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Definition
| Commonly refers to law enforcement or private citizens who are agents of law enforcement. It doesn't refer to private citizens with no affiliation to law enforcement, however private citizen acting on behalf of a state actor will be considered an agent of law enforcement. |
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Term
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Definition
| Searches of property or people are per se unreasonable unless: There is a search warrant based on probable cause. There is an exception to the warrant requirement. |
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Term
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Definition
| A legal document issued by a neutral and detached magistrate based on probable cause which authorizes agents of the government to search a particular are and seize particular evidence. |
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Term
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Definition
| The totality of facts and circumstances that would cause a reasonable police officer to conclude that a crime has been, is being or will be committed or that evidence of a crime is probably located in a particular place. |
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Term
| Katz v. United States 1967 |
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Definition
So long as an individual can justifiably expect that his conversation would remain private, his/her conversation is protected from "unreasonable search and seizure" by the Fourth Amendment.
The Fourth Amendment protects people, not places. Therefore, the rights of an individual may be violated by the government, regardless of whether or not there is physical intrusion into any given area. |
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Term
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Definition
| A citizen will only be protected from government action in an are which is considered private in both subjective and objective terms |
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Term
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Definition
| Does the citizen with an interest in the property expect privacy in this area? |
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Term
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Definition
| Does the society generally agree that this should remain private |
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Term
| No Expectation of Privacy |
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Definition
*Trash- once it is in its final resting place for pickup
*Open Fields
*Eaves-dropping- if it can be heard by the naked ear
*Anything you tell to another person
*Things seeable from public air space
*The scent coming out of an object
*Things exposed to public view, even if on private property |
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Term
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Definition
| The right to contest an illegal search or seizure. Only the person who had an expectation of privacy in an area may object to the violation of that privacy |
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Term
| Exception to the Search Warrant Requirement |
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Definition
| Over the years, the Courts have recognized that it is impractical, if not impossible, for police to obtain a search warrant for every situation in which an officer makes a search as a result we have the exceptions to the general search warrant requirement |
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Term
| The Exceptions to the Search Warrant |
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Definition
*Plain View
*Consent
*Search Incident to Arrest
*Exigent Circumstances
*Vehicle Searches |
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Term
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Definition
If a police officer sees evidence in a place that a person has an expectation of privacy in, he may seize that evidence without a search warrant if:
1. He/She Lawfully present
2. The evidence is immediately apparent as evidence of a crime |
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Term
| Rationale to the Plain View Doctrine |
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Definition
| Police officers who are lawfully present do not need to shut their eyes to obvious signs of crime. |
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Term
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Definition
A police officer may seize evidence if they find it as a result of a valid consensual search
1. Must be given knowingly
2. Must be given voluntarily
3. Must be given by a person with a right to equal access |
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Term
| Apparent Authority Doctrine |
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Definition
Even if it later turns out that the consenting party did not have authority to consent the search will be ruled valid if:
It was reasonable under the circumstance for the police to believe at the time the consenting party had authority and equal access to the property |
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Term
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Definition
Can be limited or withdrawn at any time
Police may only search in location that the consenting party has consented to
Can be limited by the officers own words |
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Term
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Definition
| A police officer may search a person and his belongings after the citizen is placed under a FULL CUSTODIAL ARREST. |
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Term
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Definition
Search Incident to Arrest is limited to those times when a suspect is taken into custody, transported and booked
Does not apply to :
1. Non-custodial arrests
2. Traffic summons
3. Investigative Detentions |
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Term
| Rationale for Search Incident to Arrest |
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Definition
It is necessary to:
1. Protect the officer
2. Prevent Destruction of Evidence |
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Term
| Where can you Search Incident to Arrest? |
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Definition
The scope is a full search of the person’s clothing, areas within the suspect’s reach (lunge area)
This includes all items within the suspects reach at the time of arrest |
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Term
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Definition
| Probable cause for a search exists, but an emergence situation prevents the officer from obtaining a search warrant. |
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Term
| Factors to Justify Exigency |
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Definition
Degree of urgency involved
Time required to obtain a warrant
Destruction of evidence
Danger to officers and public
Suspect’s knowledge of police presence
Possibility of escape
Belief that someone is in distress |
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Term
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Definition
| Carroll Doctrine = search warrants are not required to search a vehicle in a public place when probable cause exists to believe that there is contraband or evidence in the vehicle. |
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Term
| Scope of Vehicle Searches |
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Definition
Scope is defined by the object of the search, and places where there is probable cause to believe the object could be found.
Can search any where in the vehicle that the item you have P.C. to believe is there could be concealed. |
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Term
| Result of an Illegal Search or Seizure |
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Definition
Rule = any and all evidence seized pursuant to an illegal search or seizure MUST be suppressed
Also known as the exclusionary rule |
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Term
| Fruit of the Poisonous Tree |
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Definition
| This includes evidence that is directly seized from the violation and all derivative evidence seized as a result of the initial seizure |
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Term
| Five Facial Requirements of an Affidavit |
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Definition
Offense
Place or thing to be searched
Items being searched for
Probable cause
Reliability and credibility of the information or informant |
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Term
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Definition
Neutral magistrate
Judge
Clerk (elected official)
Affidavits must be submitted under oath, must be preserved verbatim, and must be obtained in the jurisdiction where the search is to be conducted |
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Term
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Definition
Statutory life is 15 days
If probable cause dies before the 15 days expires then the warrant dies as well.
Service should be done as soon as is practical
If service is delayed, articulate the reason for delay. Service can not be delayed to enhance probable cause |
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Term
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Definition
Time: Search must end when everything sought is found
Area: Only search in areas where the items could reasonably be located.
Curtilage
Vehicles |
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Term
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Definition
| Occurs when there is a formal arrest or some lesser restriction of a persons freedom |
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Term
| Forms of Having Your Freedom restricted |
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Definition
Formal Arrest
Lineup or show up
Auctorial Questioning
Investigative Questioning
Traffic stop
Disabled vehicle
Pursuit
Physical force
Chatting |
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Term
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Definition
Changed everything
The supreme Court added a second less intrusive type of seizure know as a investigative detention
An investigative detention needs only to be justified by reasonable suspicion |
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Term
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Definition
| that level of suspicion more then a hunch put less then probable cause which would cause a police officer to reasonable conclude in light of his training and experience that criminal activity MAY be afoot. |
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Term
|
Definition
| freedom of movement not effected |
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Term
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Definition
| freedom of movement is restricted but for a limited purpose and duration |
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Term
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Definition
| formal charges are brought – freedom of movement severally restricted |
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Term
| Scope of Investigative Detention |
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Definition
1. Limited in Duration
2. May not move the person unless it is for safety (Meaning pick the person up and take them to head quarters)
3. May use only the force necessary to make the detention
4. May pat down or frisk if you reasonably believe there is a weapon(Not lawful to pat them down ever time) |
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Term
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Definition
1. May only pat-down the subjects outer clothing or belongings.
2. May not go inside clothing or belongings
3. May not manipulate an object to determine what it is.
4. May only retrieve the object if you reasonably believe it is a weapon or you know it to be contraband |
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Term
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Definition
If the scope of the seizure is limited to the scope of an investigative detention then only RS is necessary
If the scope of the seizure extends that of a investigative detention then it is an arrest |
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Term
| Turning a detention into an arrest |
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Definition
1.Detaining people for more then a reasonable length of detention
2.Moving people
3.Searching people – more then a pat down
4.Manner of investigation utilized |
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