11

Chapter Two Chapter Two

Important Aspects of the Important Aspects of the American Criminal Justice American Criminal Justice

SystemSystem

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FEDERALISM IN THE UNITED FEDERALISM IN THE UNITED STATESSTATES

THE UNITED STATES USES A FORM OFTHE UNITED STATES USES A FORM OF GOVERNMENT CALLEDGOVERNMENT CALLED FEDERALISMFEDERALISM, , WHICH WAS CREATED WHICH WAS CREATED AT THE 1787 CONSTITUTIONAL AT THE 1787 CONSTITUTIONAL CONVENTION IN PHILADELPHIACONVENTION IN PHILADELPHIA

What this means is that What this means is that the Central the Central Government has the power and Government has the power and authority to handle national authority to handle national problems and the STATES have the problems and the STATES have the power to regulate local needs.power to regulate local needs.

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FEDERALISM IN THE UNITED STATES (Cont.)FEDERALISM IN THE UNITED STATES (Cont.)

FEDERALISM ALLOWS FOR DIVERSTIY AND FEDERALISM ALLOWS FOR DIVERSTIY AND FLEXABILITY AT STATE AND LOCAL LEVELS OF FLEXABILITY AT STATE AND LOCAL LEVELS OF GOVERNMENTGOVERNMENT

UNDER AMERICAN FEDERALISM, STATES ARE UNDER AMERICAN FEDERALISM, STATES ARE RESPONSIBLE FOR PUBLIC SAFETY AND CAN RESPONSIBLE FOR PUBLIC SAFETY AND CAN ENACT LAWS THAT THEY BELIEVE ARE MOST ENACT LAWS THAT THEY BELIEVE ARE MOST EFFECTIVE IN PROVIDING FOR PUBLIC ORDER EFFECTIVE IN PROVIDING FOR PUBLIC ORDER AND AN EFFICIENT, EFFECTIVE CRIMINAL AND AN EFFICIENT, EFFECTIVE CRIMINAL JUSTICE SYSTEMJUSTICE SYSTEM

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FEDERALISM AND THE LAW OF FEDERALISM AND THE LAW OF EVIDENCEEVIDENCE

THE POWERS OF THE U.S. CONGRESS, THE POWERS OF THE U.S. CONGRESS, THE PRESIDENT AND THE U.S. SUPREME THE PRESIDENT AND THE U.S. SUPREME COURT ARE LIMITED TO THOSE POWERS COURT ARE LIMITED TO THOSE POWERS GRANTED IN THE CONSTITUTIONGRANTED IN THE CONSTITUTION

EACH STATE IS SOVEREIGN, AND THE EACH STATE IS SOVEREIGN, AND THE OFFICIALS OF EACH STATE HAVE THE OFFICIALS OF EACH STATE HAVE THE POWERS GRANTED TO THEM BY THE POWERS GRANTED TO THEM BY THE CONSTITUTION OF THAT STATECONSTITUTION OF THAT STATE

EACH STATE HAS ITS OWN CRIMINAL EACH STATE HAS ITS OWN CRIMINAL CODES, AND EACH HAS ENACTED A CODE CODES, AND EACH HAS ENACTED A CODE OF CRIMINAL PROCEDURE AND EVIDENCEOF CRIMINAL PROCEDURE AND EVIDENCE

55

FEDERALISM AND THE LAW OF EVIDENCE FEDERALISM AND THE LAW OF EVIDENCE (Cont.)(Cont.)

THESE CODES AND THE RULINGS OF STATE THESE CODES AND THE RULINGS OF STATE COURTS MUST CONFORM TO THE COURTS MUST CONFORM TO THE REQUIREMENTS OF THE U.S. CONSTITUTIONREQUIREMENTS OF THE U.S. CONSTITUTION

STATE LAWS AND STATE COURT RULINGS MAY STATE LAWS AND STATE COURT RULINGS MAY PROVIDE ADDITIONAL RIGHTS TO THE PEOPLE PROVIDE ADDITIONAL RIGHTS TO THE PEOPLE OF THE STATE AND TO CRIMINAL OF THE STATE AND TO CRIMINAL DEFENDANTS WITHIN THE STATE, BEYOND DEFENDANTS WITHIN THE STATE, BEYOND THOSE EXTENDED BY THE CONSTITUTIONTHOSE EXTENDED BY THE CONSTITUTION

THETHE FEDERAL RULES OF EVIDENCEFEDERAL RULES OF EVIDENCE WAS WAS ENACTED IN 1975 BY CONGRESSENACTED IN 1975 BY CONGRESS

MOST STATES HAVE ADOPTED RULES OF MOST STATES HAVE ADOPTED RULES OF EVIDENCE ALMOST IDENTICAL TO THE EVIDENCE ALMOST IDENTICAL TO THE FEDERAL RULES, WITH LOCAL MODIFICATIONSFEDERAL RULES, WITH LOCAL MODIFICATIONS

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FEDERALISM AND THE LAW OF EVIDENCE FEDERALISM AND THE LAW OF EVIDENCE (Cont.)(Cont.)

EACH STATE RETAINS THE POWER TO EACH STATE RETAINS THE POWER TO INTERPRET AND MODIFY THOSE RULES OF INTERPRET AND MODIFY THOSE RULES OF EVIDENCEEVIDENCE

THE MEANING AND APPLICATION OF THE THE MEANING AND APPLICATION OF THE FEDERAL RULES OF EVIDENCE CAN VARY FEDERAL RULES OF EVIDENCE CAN VARY BETWEEN FEDERAL COURTS AND STATE BETWEEN FEDERAL COURTS AND STATE COURTS AND BETWEEN THE STATESCOURTS AND BETWEEN THE STATES

THE FEDERAL RULES OF EVIDENCE AND THE FEDERAL RULES OF EVIDENCE AND MOST STATE RULES OF EVIDENCE APPLY IN MOST STATE RULES OF EVIDENCE APPLY IN BOTH CIVIL AND CRIMINAL TRIALSBOTH CIVIL AND CRIMINAL TRIALS

SOME RULES OR PARTS OF RULES MAY APPLY SOME RULES OR PARTS OF RULES MAY APPLY DIFFERENTLY IN CRIMINAL CASESDIFFERENTLY IN CRIMINAL CASES

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STATE AND FEDERAL STATE AND FEDERAL JURISDICTION OVER CRIMES IN JURISDICTION OVER CRIMES IN

THE UNITED STATESTHE UNITED STATES THE GREAT MAJORITY OF CRIMES COMMITTED THE GREAT MAJORITY OF CRIMES COMMITTED

IN THE UNITED STATES ARE VIOLATIONS OF IN THE UNITED STATES ARE VIOLATIONS OF STATE CRIMINAL CODESSTATE CRIMINAL CODES

SOME CRIMES ARE FEDERAL OFFENSES IN SOME CRIMES ARE FEDERAL OFFENSES IN VIOLATION OF THE FEDERAL CRIMINAL CODEVIOLATION OF THE FEDERAL CRIMINAL CODE

A SMALL PERCENTAGE OF CRIMINAL OFFENSES A SMALL PERCENTAGE OF CRIMINAL OFFENSES ARE VIOLATIONS OF BOTH THE FEDERAL ARE VIOLATIONS OF BOTH THE FEDERAL CRIMINAL CODE AND A STATE CRIMINAL CODECRIMINAL CODE AND A STATE CRIMINAL CODE

THE U.S. CONSTITUTION DOES NOT GRANT TO THE U.S. CONSTITUTION DOES NOT GRANT TO THE FEDERAL GOVERNMENT A GENERAL THE FEDERAL GOVERNMENT A GENERAL POLICE POWER, NOR HAS THERE EVER BEEN POLICE POWER, NOR HAS THERE EVER BEEN FEDERAL CRIMINAL COMMON LAWFEDERAL CRIMINAL COMMON LAW

88

STATE AND FEDERAL JURISDICTION OVER STATE AND FEDERAL JURISDICTION OVER CRIMES IN THE UNITED STATES (Cont.)CRIMES IN THE UNITED STATES (Cont.)

ALL FEDERAL CRIMES HAVE TO BE ALL FEDERAL CRIMES HAVE TO BE STATUTORY CRIMES ENACTED BY CONGRESSSTATUTORY CRIMES ENACTED BY CONGRESS

STATES HAVE GENERAL POLICE POWER TO STATES HAVE GENERAL POLICE POWER TO REGULATE IN PROVIDING FOR DOMESTIC REGULATE IN PROVIDING FOR DOMESTIC TRANQUILITYTRANQUILITY

COMMON LAWCOMMON LAW REFERS TO THE RULES REFERS TO THE RULES DEVELOPED OVER YEARS BY COURTS AND DEVELOPED OVER YEARS BY COURTS AND JUDGESJUDGES

CRIMINAL LAWS MAY BE ENACTED BY THE CRIMINAL LAWS MAY BE ENACTED BY THE FEDERAL GOVERNMENT IN THE FOLLOWING FEDERAL GOVERNMENT IN THE FOLLOWING AREAS:AREAS:

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STATE AND FEDERAL JURISDICTION OVER STATE AND FEDERAL JURISDICTION OVER CRIMES IN THE UNITED STATES (Cont.)CRIMES IN THE UNITED STATES (Cont.)

TO PROTECT ITSELF, ITS OFFICIALS AND TO PROTECT ITSELF, ITS OFFICIALS AND EMPLOYEES, ITS PROPERTY AND THE EMPLOYEES, ITS PROPERTY AND THE ADMINISTRATION OF ITS AUTHORIZED ADMINISTRATION OF ITS AUTHORIZED FUNCTIONSFUNCTIONS

TO REGULATE INTERSTATE AND FOREIGN TO REGULATE INTERSTATE AND FOREIGN COMMERCECOMMERCE

TO PROTECT CIVIL RIGHTSTO PROTECT CIVIL RIGHTS TO ENACT CRIMINAL LAWS FOR PLACES TO ENACT CRIMINAL LAWS FOR PLACES

BEYOND THE JURISDICTION OF ANY STATE, BEYOND THE JURISDICTION OF ANY STATE, SUCH AS THE DISTRICT OF COLUMBIA, SUCH AS THE DISTRICT OF COLUMBIA, FEDERAL TERRITORIES, AND FEDERAL FEDERAL TERRITORIES, AND FEDERAL ENCLAVES SUCH AS MILITARY BASES AND ENCLAVES SUCH AS MILITARY BASES AND NATIONAL PARKSNATIONAL PARKS

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LAW ENFORCEMENT IN THE LAW ENFORCEMENT IN THE AMERICAN FEDERAL SYSTEMAMERICAN FEDERAL SYSTEM

IN THE UNITED STATES, THERE ARE 17,000 LAW IN THE UNITED STATES, THERE ARE 17,000 LAW ENFORCEMENT AGENCIESENFORCEMENT AGENCIES

MOST ARE AT THE LOCAL LEVELS OF MOST ARE AT THE LOCAL LEVELS OF GOVERNMENT (CITIES, COUNTIES, TOWNS, GOVERNMENT (CITIES, COUNTIES, TOWNS, ETC.)ETC.)

LOCAL LAW ENFORCEMENT AGENCIES ENFORCE LOCAL LAW ENFORCEMENT AGENCIES ENFORCE CITY AND COUNTY ORDINANCES IN ADDITION CITY AND COUNTY ORDINANCES IN ADDITION TO THE CRIMINAL LAWS OF THEIR STATETO THE CRIMINAL LAWS OF THEIR STATE

STATE RULES OF EVIDENCE ARE USED IN BOTH STATE RULES OF EVIDENCE ARE USED IN BOTH MUNICIPAL AND STATE COURTSMUNICIPAL AND STATE COURTS

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LAW ENFORCEMENT IN THE AMERICAN LAW ENFORCEMENT IN THE AMERICAN FEDERAL SYSTEM (Cont.)FEDERAL SYSTEM (Cont.)

LAW ENFORCEMENT AGENCIES LAW ENFORCEMENT AGENCIES WORKING AT THE STATE LEVEL OF WORKING AT THE STATE LEVEL OF GOVERNMENT ARE GENERALLY GOVERNMENT ARE GENERALLY CREATED BY STATE LAW TO ENFORCE CREATED BY STATE LAW TO ENFORCE STATE CRIMINAL LAWS OR TO ENFORCE STATE CRIMINAL LAWS OR TO ENFORCE HUNTING, FISHING, HEALTH, HUNTING, FISHING, HEALTH, SANITITATION, FIRE AND OTHER STATE SANITITATION, FIRE AND OTHER STATE CODESCODES

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THE ADVERSARIAL SYSTEMTHE ADVERSARIAL SYSTEM

THE FUNCTION OF THE CRIMINAL TRIAL, IN THE FUNCTION OF THE CRIMINAL TRIAL, IN THE AMERICAN COURT SYSTE, IS TO PROVIDE THE AMERICAN COURT SYSTE, IS TO PROVIDE A VENUE (Location) FOR DETERMINING THE A VENUE (Location) FOR DETERMINING THE FACTS UPON WHICH THE GUILT OR FACTS UPON WHICH THE GUILT OR INNOCENCE OF THE ACCUSED IS BASEDINNOCENCE OF THE ACCUSED IS BASED

THE MAIN ACTORS AT THE TRIAL ARE THE THE MAIN ACTORS AT THE TRIAL ARE THE JUDGE, THE JURY, THE PROSECUTOR AND JUDGE, THE JURY, THE PROSECUTOR AND THE DEFENSE ATTORNEYTHE DEFENSE ATTORNEY

IN THE AMERICANIN THE AMERICAN ADVERSARY SYSTEMADVERSARY SYSTEM, THE , THE PROSECUTOR AND THE DEFENSE ATTORNEY PROSECUTOR AND THE DEFENSE ATTORNEY ASSUME AN ADVERSARIAL ROLEASSUME AN ADVERSARIAL ROLE

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THE AMERICAN ADVERSARY SYSTEM (Cont.)THE AMERICAN ADVERSARY SYSTEM (Cont.)

EACH ADVERSARY (Prosecutor or Defense) EACH ADVERSARY (Prosecutor or Defense) HAS TWO GOALS:HAS TWO GOALS: TO PRESENT THE FACTS MOST TO PRESENT THE FACTS MOST

ADVANTAGEOUS TO THEIR POSITIONADVANTAGEOUS TO THEIR POSITION TO PREVENT AND MAKE IT DIFFICULT FOR TO PREVENT AND MAKE IT DIFFICULT FOR

THEIR OPPONENT TO DO THE SAMETHEIR OPPONENT TO DO THE SAME THE PROSECUTOR ATTEMPTS TO HAVE THE THE PROSECUTOR ATTEMPTS TO HAVE THE

DEFENDANT FOUND GUILTY BEYOND A DEFENDANT FOUND GUILTY BEYOND A REASONABLE DOUBT BY A UNANIMOUS JURYREASONABLE DOUBT BY A UNANIMOUS JURY

THE DEFENSE COUNSEL’S DUTY IS TO THE DEFENSE COUNSEL’S DUTY IS TO REPRESENT HIS CLIENT ZEALOUSLY WITHIN REPRESENT HIS CLIENT ZEALOUSLY WITHIN THE BOUNDS OF LAWTHE BOUNDS OF LAW

THE TRIAL JUDGE AND THE JURY COME TO THE TRIAL JUDGE AND THE JURY COME TO THE TRIAL UNCOMMITTED and UNBIASEDTHE TRIAL UNCOMMITTED and UNBIASED

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THE AMERICAN THE AMERICAN ADVERSARYADVERSARY SYSTEM (Cont.) SYSTEM (Cont.)

WITNESSES AND EVIDENCE ARE PRESENTED WITNESSES AND EVIDENCE ARE PRESENTED WITHING THE FRAMEWORK OF THE RULES WITHING THE FRAMEWORK OF THE RULES OF EVIDENCE AND THE RULES OF COURT OF EVIDENCE AND THE RULES OF COURT PROCEDUREPROCEDURE

WITNESSES ARE CROSS-EXAMINED AND WITNESSES ARE CROSS-EXAMINED AND EVIDENCE IS CHALLENGEDEVIDENCE IS CHALLENGED

THE TRIAL JUDGE PRESIDES NEUTRALLY AT THE TRIAL JUDGE PRESIDES NEUTRALLY AT THE CRIMINALTRIAL AND HAS THE THE CRIMINALTRIAL AND HAS THE RESPONSIBILITY FOR SAFEGUARDING BOTH RESPONSIBILITY FOR SAFEGUARDING BOTH THE RIGHTS OF THE ACCUSED AND THE THE RIGHTS OF THE ACCUSED AND THE INTERESTS OF THE PUBLIC IN THE INTERESTS OF THE PUBLIC IN THE ADMINISTRATION OF CRIMINAL JUSTICEADMINISTRATION OF CRIMINAL JUSTICE

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THE AMERICAN THE AMERICAN ADVERSARYADVERSARY SYSTEM (Cont.) SYSTEM (Cont.)

THE THE DETERMINATION OF TRUTHDETERMINATION OF TRUTH IS THE FUCTION OF THE IS THE FUCTION OF THE JURYJURY

THE PURPOSE OF THE RULES OF THE PURPOSE OF THE RULES OF EVIDENCE ARE TO ENSURE THAT EVIDENCE ARE TO ENSURE THAT EACH ADVERSARY’S VERSION OF EACH ADVERSARY’S VERSION OF THE TRUTH IS PUT BEFORE THE THE TRUTH IS PUT BEFORE THE JURY BY JURY BY RELEVENT, RELIABLE RELEVENT, RELIABLE AND COMPETENT EVIDENCEAND COMPETENT EVIDENCE

1616

EACH ADVERSARY SEEKS TO EACH ADVERSARY SEEKS TO PRESENT THE FACTS THAT ARE PRESENT THE FACTS THAT ARE MOST ADVANTAGEOUS TO THEIR MOST ADVANTAGEOUS TO THEIR POSITION WHILE MAKING IT POSITION WHILE MAKING IT DIFFICULT FOR THEIR OPPONENT DIFFICULT FOR THEIR OPPONENT TO DO THE SAMETO DO THE SAME

TO BE ADMISSIBLE IN COURTTO BE ADMISSIBLE IN COURT, , EVIDENCE MUST BE:EVIDENCE MUST BE:

RELEVANT, RELIABLE AND RELEVANT, RELIABLE AND COMPETENTCOMPETENT

1717

RELEVANTRELEVANT EVIDENCEEVIDENCE

RELEVANT EVIDENCERELEVANT EVIDENCE IS DIRECTED OR IS DIRECTED OR CIRCUMSTANTIAL EVIDENCE THAT HAS IS OF CIRCUMSTANTIAL EVIDENCE THAT HAS IS OF CONSEQUENCE TO THE DETERMINATION OF CONSEQUENCE TO THE DETERMINATION OF THE ACTION MORE PROBATIVE OR LESS THE ACTION MORE PROBATIVE OR LESS PROBATIVE THAN IT WOULD BE WITHOUT THE PROBATIVE THAN IT WOULD BE WITHOUT THE EVIDENCEEVIDENCE

RULE 403RULE 403 OF THE FEDERAL RULES, OF THE FEDERAL RULES, SOMETIMES REFERRED TO AS THE SOMETIMES REFERRED TO AS THE LEGALLY LEGALLY RELEVANT TESTRELEVANT TEST, ALLOWS FOR RELEVANT , ALLOWS FOR RELEVANT EVIDENCE TO BE EXCLUDED IF IT MAY EVIDENCE TO BE EXCLUDED IF IT MAY (1) (1) UNFAIRLY PREJUDICE A PARTY, (2) UNFAIRLY PREJUDICE A PARTY, (2) CONFUSE THE JURY OR (3) WASTE THE CONFUSE THE JURY OR (3) WASTE THE COURT’S TIMECOURT’S TIME

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RELIABLE EVIDENCERELIABLE EVIDENCE

RELIABLE EVIDENCERELIABLE EVIDENCE IS EVIDENCE THAT IS EVIDENCE THAT POSSESSES A SUFFICIENT DEGREE OF POSSESSES A SUFFICIENT DEGREE OF BELIEVABILITYBELIEVABILITY

UNRELIABLE EVIDENCE IS INADMISSIBLEUNRELIABLE EVIDENCE IS INADMISSIBLE RELIABLE AND ADMISSIBLE EVIDENCE IS RELIABLE AND ADMISSIBLE EVIDENCE IS

NEEDED TO JUSTIFY CHARGING A PERSON NEEDED TO JUSTIFY CHARGING A PERSON WITH A CRIMEWITH A CRIME

EACH STATE HAS AUTHORITY TO EACH STATE HAS AUTHORITY TO COMMENCE A CRIMINAL PROSECUTION IF COMMENCE A CRIMINAL PROSECUTION IF SUFFICIENT EVIDENCE IS AVAILABLE TO SUFFICIENT EVIDENCE IS AVAILABLE TO JUSTIFY THE CRIMINAL CHARGEJUSTIFY THE CRIMINAL CHARGE

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RELIABLE EVIDENCE (Cont.)RELIABLE EVIDENCE (Cont.)

EACH STATE HAS THE POWER TO EACH STATE HAS THE POWER TO DETERMINE WHAT SHALL BE AN DETERMINE WHAT SHALL BE AN OFFENSE AGAINST ITS AUTHORITY AND OFFENSE AGAINST ITS AUTHORITY AND TO PUNISH SUCH OFFENSESTO PUNISH SUCH OFFENSES

EACH STATE HAS ITS OWN EACH STATE HAS ITS OWN CONSTITUTION, COURT SYSTEM AND CONSTITUTION, COURT SYSTEM AND OTHER GOVERNAMENTAL UNITSOTHER GOVERNAMENTAL UNITS

STATES HAVE THE PRINCIPAL STATES HAVE THE PRINCIPAL RESPONSIBILITY OF MAINTAINING RESPONSIBILITY OF MAINTAINING PUBLIC ORDER WITHIN THEIR PUBLIC ORDER WITHIN THEIR BOUNDARIESBOUNDARIES

2020

COMPETENT EVIDENCECOMPETENT EVIDENCE

COMPETENT EVIDENCE INCLUDES RELEVANT, COMPETENT EVIDENCE INCLUDES RELEVANT, RELIABLE EVIDENCE THAT IS NOT RELIABLE EVIDENCE THAT IS NOT OTHERWISE RENDERED INADMISSIBLEOTHERWISE RENDERED INADMISSIBLE

THE RULES OF EVIDENCE ARE DESIGNED AS THE RULES OF EVIDENCE ARE DESIGNED AS COMPLEMENTS TO THE ADVERSARY SYSTEMCOMPLEMENTS TO THE ADVERSARY SYSTEM

THE RULES OF EVIDENCE LIMITS THE THE RULES OF EVIDENCE LIMITS THE TACTICS IN THE ADVERSARY SYSTEM SO TACTICS IN THE ADVERSARY SYSTEM SO THAT THE THAT THE JURY WILL SEE AND HEAR JURY WILL SEE AND HEAR ONLY THAT EVIDENCE WHICH ONLY THAT EVIDENCE WHICH PROPERLY SHOULD INFLUENCE ITS PROPERLY SHOULD INFLUENCE ITS DELIBERATIONSDELIBERATIONS

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THE AMERICAN ACCUSATORIAL THE AMERICAN ACCUSATORIAL SYSTEMSYSTEM

THE UNITED STATES AND MOST OF THE THE UNITED STATES AND MOST OF THE ENGLISH-SPEAKING DEMOCRACIES IN THEENGLISH-SPEAKING DEMOCRACIES IN THE WORLD USE THEWORLD USE THE ACCUSATORIAL SYSTEMACCUSATORIAL SYSTEM IN IN CRIMINAL INVESTIGATIONS AND IN CRIMINAL INVESTIGATIONS AND IN CRIMINAL TRIALSCRIMINAL TRIALS

UNDER THE UNDER THE ACCUSATORIAL SYSTEMACCUSATORIAL SYSTEM, , SUSPECTS AND DEFENDANTS HAVE AN SUSPECTS AND DEFENDANTS HAVE AN ABSOLUTE RIGHT TO REMAIN SILENT ABSOLUTE RIGHT TO REMAIN SILENT ABOUT MATTERS THAT COULD ABOUT MATTERS THAT COULD INCRIMINATE THEMINCRIMINATE THEM

MOST EUROPEAN COUNTRIES AND OTHER MOST EUROPEAN COUNTRIES AND OTHER DEMOCRACIES OF THE WORLD USE THEDEMOCRACIES OF THE WORLD USE THE INQUISITORIAL SYSTEMINQUISITORIAL SYSTEM

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THE INQUISITION!THE INQUISITION!

UNDER THE INQUISITORIAL SYSTEM, UNDER THE INQUISITORIAL SYSTEM, DEFENDANTS DO NOT HAVE AN DEFENDANTS DO NOT HAVE AN ABSOLUTE RIGHT TO REMAIN SILENTABSOLUTE RIGHT TO REMAIN SILENT

CONTRIES USING THE INQUISITORIAL CONTRIES USING THE INQUISITORIAL SYSTEM RELY MORE HEAVILY ON THE SYSTEM RELY MORE HEAVILY ON THE OBTAINING OF CONFESSIONS IN THE OBTAINING OF CONFESSIONS IN THE SOLVING OF CRIMESSOLVING OF CRIMES

In the past, as well as in some countries In the past, as well as in some countries even today, the use of torture was used even today, the use of torture was used to induce confessions! to induce confessions!

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DISCLOSING INFORMATION IN DISCLOSING INFORMATION IN THE ADVERSARY SYSTEMTHE ADVERSARY SYSTEM

WHEN A CRIMINAL CHARGE HAS BEEN MADE, WHEN A CRIMINAL CHARGE HAS BEEN MADE, THE PROSECUTION AND THE DEFENSE BEGIN THE PROSECUTION AND THE DEFENSE BEGIN SEPARATE INVESTIGATIONSSEPARATE INVESTIGATIONS OF THE FACTS OF THE FACTS

NEITHER THE PROSECUTION NOR THE DEFENSE NEITHER THE PROSECUTION NOR THE DEFENSE IS INCLINED TO SHARE INFORMATION WITH IS INCLINED TO SHARE INFORMATION WITH THE OTHER SIDE DUE TO THEIR ADVERSARY THE OTHER SIDE DUE TO THEIR ADVERSARY POSITIONSPOSITIONS

THE U.S. SUPREME COURT HAS PLACED LIMITS THE U.S. SUPREME COURT HAS PLACED LIMITS ON THIS UNWILLINGNESS TO SHARE ON THIS UNWILLINGNESS TO SHARE INFORMATIONINFORMATION

MANY OF THE RULES COMPELLINGMANY OF THE RULES COMPELLING DISCLOSURE DISCLOSURE APPLY TO THE PROSECUTION, APPLY TO THE PROSECUTION, BUT SOME COMPEL A DEFENDANT TO BUT SOME COMPEL A DEFENDANT TO DISCLOSE INFORMATION TO THE PROSECUTION DISCLOSE INFORMATION TO THE PROSECUTION – – This is referred to as “Discovery” This is referred to as “Discovery”

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NOTICE OF ALIBI STATUTESNOTICE OF ALIBI STATUTES

BY USING THEBY USING THE ALIBI DEFENSEALIBI DEFENSE, THE , THE DEFENDANT IS ALLEGING THAT HE OR SHE DEFENDANT IS ALLEGING THAT HE OR SHE PHYSICALLY COULD NOT HAVE COMMITTED PHYSICALLY COULD NOT HAVE COMMITTED THE CRIME THAT IS CHARGED BECAUSE THE THE CRIME THAT IS CHARGED BECAUSE THE DEFENDANT WAS AT ANOTHER PLACE AT THE DEFENDANT WAS AT ANOTHER PLACE AT THE TIME THE CRIME WAS COMMITTEDTIME THE CRIME WAS COMMITTED

MOST LIKELY ALL STATES HAVE NOTICE OF MOST LIKELY ALL STATES HAVE NOTICE OF ALIBI STATUTES THAT REQUIRE DEFENDANTS ALIBI STATUTES THAT REQUIRE DEFENDANTS WHO PLAN TO USE AN ALIBI DEFENSE TO WHO PLAN TO USE AN ALIBI DEFENSE TO SERVE NOTICE ON THE PROSECUTOR BEFORE SERVE NOTICE ON THE PROSECUTOR BEFORE TRIALTRIAL

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NOTICE OF ALIBI STATUTES (Cont.)NOTICE OF ALIBI STATUTES (Cont.)

IN 1973 THE U.S. SUPREME COURT HELD THAT IN 1973 THE U.S. SUPREME COURT HELD THAT IF A DEFENDANT IS COMPELLED TO DISCLOSE IF A DEFENDANT IS COMPELLED TO DISCLOSE INFORMATION, THE STATE MUST MAKE SIMILAR INFORMATION, THE STATE MUST MAKE SIMILAR DISCLOSURES SO THAT THE DISCOVERY IS A DISCLOSURES SO THAT THE DISCOVERY IS A “TWO-WAY STREET.” “TWO-WAY STREET.” (WARDIUS V. OREGON)(WARDIUS V. OREGON)

This is referred to also as This is referred to also as “reciprocal “reciprocal Discovery” Discovery”

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EXCULPATORY EXCULPATORY EVIDENCEEVIDENCE

IS EVIDENCE THAT TENDS TO SHOW IS EVIDENCE THAT TENDS TO SHOW INNOCENCEINNOCENCE

This is THE DUTY TO DISCLOSE EVIDENCE TENDING This is THE DUTY TO DISCLOSE EVIDENCE TENDING TO SHOW THE INNOCENCE OF AN ACCUSEDTO SHOW THE INNOCENCE OF AN ACCUSED

A PROSECUTOR HAS A DUTY TO DISCLOSE A PROSECUTOR HAS A DUTY TO DISCLOSE EVIDENCE FAVORABLE TO AN ACCUSED EVIDENCE FAVORABLE TO AN ACCUSED UPON REQUEST, WHERE THE EVIDENCE IS UPON REQUEST, WHERE THE EVIDENCE IS MATERIAL TO GUILT OR INNOCENCEMATERIAL TO GUILT OR INNOCENCE

LAW ENFORCEMENT OFFICERS ARE LAW ENFORCEMENT OFFICERS ARE PART OF THE PROSECUTION AND ALSO PART OF THE PROSECUTION AND ALSO HAVE A DUTY OF DISCLOSUREHAVE A DUTY OF DISCLOSURE

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THE DUTY TO DISCLOSE EVIDENCE TENDING THE DUTY TO DISCLOSE EVIDENCE TENDING TO SHOW THE INNOCENCE OF AN ACCUSED TO SHOW THE INNOCENCE OF AN ACCUSED

(Cont.)(Cont.)

ALL STATES HAVE ENACTED STATUTES ALL STATES HAVE ENACTED STATUTES PROVIDING FOR THE DISCOVERY OF PROVIDING FOR THE DISCOVERY OF INFORMATION AND EVIDENCE BY INFORMATION AND EVIDENCE BY DEFENSE LAWYERSDEFENSE LAWYERS

THE ACCUSED THE ACCUSED DOES DOES NOT NOT HAVE A HAVE A RIGHT TO ALL INFORMATION RIGHT TO ALL INFORMATION AVAILABLE TO THE PROSECUTORAVAILABLE TO THE PROSECUTOR BUT BUT DOES HAVE THE RIGHT TO INFORMATION DOES HAVE THE RIGHT TO INFORMATION AS PROVIDED BY THE STATUTES OF THE AS PROVIDED BY THE STATUTES OF THE STATE AND TO INFORMATION REQUIRED STATE AND TO INFORMATION REQUIRED UNDER THE UNDER THE BRADY RULEBRADY RULE

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The BRADY RULEThe BRADY RULE This defines the This defines the DUTYDUTY of the of the

Prosecution and Police to Prosecution and Police to DISCLOSE…DISCLOSE…

ANY EVIDENCE THAT WOULD ANY EVIDENCE THAT WOULD TEND TO SHOW THE TEND TO SHOW THE “INNOCENCE” of an Accused“INNOCENCE” of an Accused..

This is referred to as…This is referred to as… EXCULPATORY EVIDENCEEXCULPATORY EVIDENCE

2929

Impact of the Brady RuleImpact of the Brady Rule Brady v. MarylandBrady v. Maryland United States Supreme Court, 373, U.S. 83United States Supreme Court, 373, U.S. 83 83 S. Ct. 1194 (1963) 83 S. Ct. 1194 (1963) Despite a “discovery” request from the Despite a “discovery” request from the

defense, the prosecution withheld a defense, the prosecution withheld a statement by an accomplice admitting the statement by an accomplice admitting the killing of the victim, claiming that the killing of the victim, claiming that the defendant wanted to strangle the victim, defendant wanted to strangle the victim, and the accomplice wanted to shoot him. and the accomplice wanted to shoot him.

The real issue was the The real issue was the “suppression”“suppression” of of the statement favorable to the accused the statement favorable to the accused upon request that information, upon request that information, violated violated due processdue process since the evidence was since the evidence was material either to guilt or punishmentmaterial either to guilt or punishment

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LOST, MISPLACED AND LOST, MISPLACED AND DESTROYED EVIDENCEDESTROYED EVIDENCE

SOMETIMES EVIDENCE IS LOST, MISPLACED OR SOMETIMES EVIDENCE IS LOST, MISPLACED OR ACCIDENTALLY DESTROYEDACCIDENTALLY DESTROYED

For Example: AN ITEM OF CLOTHING OR OTHER For Example: AN ITEM OF CLOTHING OR OTHER POTENTIAL EVIDENCE CAN BE OVERLOOKED IN THE POTENTIAL EVIDENCE CAN BE OVERLOOKED IN THE CONCERN TO RENDER MEDICAL ASSISTANCE TO CONCERN TO RENDER MEDICAL ASSISTANCE TO THE VICTIM OR TO APPREHEND THE OFFENDERTHE VICTIM OR TO APPREHEND THE OFFENDER

THE U.S. SUPREME COURT ESTABLISHED THE U.S. SUPREME COURT ESTABLISHED RULES CONCERNING THE RULES CONCERNING THE GOVERNMENT’S GOVERNMENT’S DUTYDUTY TO PRESERVE TO PRESERVE EVIDENCEEVIDENCE

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LOST, MISPLACED AND DESTROYED EVIDENCE LOST, MISPLACED AND DESTROYED EVIDENCE (Cont.)(Cont.)

THE SUPREME COURT HELD THAT A VIOLATIONTHE SUPREME COURT HELD THAT A VIOLATION OFOF DUE PROCESSDUE PROCESS HAS NOT OCCURRED HAS NOT OCCURRED UNLESS THE FOLLOWING IS SHOWN:UNLESS THE FOLLOWING IS SHOWN: BAD FAITH ON THE PART OF THE BAD FAITH ON THE PART OF THE

POLICE OR OTHER LAW ENFORCEMENT POLICE OR OTHER LAW ENFORCEMENT OFFICIALOFFICIAL

THE EVIDENCE ALSO WOULD BE OF THE EVIDENCE ALSO WOULD BE OF LIKELY SIGNIFICANCE TO THE LIKELY SIGNIFICANCE TO THE DEFENDANT’S DEFENSEDEFENDANT’S DEFENSE

IF A IF A BRADYBRADY VIOLATION OCCURS, THE VIOLATION OCCURS, THE PENALTY WILL BE MORE SEVERE AND PENALTY WILL BE MORE SEVERE AND WILL PROBABLY LEAD TO A NEW TRIAL WILL PROBABLY LEAD TO A NEW TRIAL OR TO COMPLETE DISMISSAL OF THE OR TO COMPLETE DISMISSAL OF THE CRIMINAL CHARGESCRIMINAL CHARGES

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USE OF FALSE OR PERJURED USE OF FALSE OR PERJURED EVIDENCEEVIDENCE

THE DELIBERATE USE OFTHE DELIBERATE USE OF FALSEFALSE OROR PERJUREDPERJURED EVIDENCEEVIDENCE IN AN ATTEMPT TO OBTAIN A IN AN ATTEMPT TO OBTAIN A CRIMINAL CONVICTION IS A CRIME IN ITSELFCRIMINAL CONVICTION IS A CRIME IN ITSELF

THIS CONDUCT COULD ALSO BE THE BASIS FOR A THIS CONDUCT COULD ALSO BE THE BASIS FOR A CIVIL LAWSUIT IN WHICH LARGE COMPENSATORY CIVIL LAWSUIT IN WHICH LARGE COMPENSATORY AND PUNITIVE DAMAGES COULD BE AWARDEDAND PUNITIVE DAMAGES COULD BE AWARDED

Mooney v Holohan 294 U.S. 103 (1935) Mooney v Holohan 294 U.S. 103 (1935) Miller v Pate 386 U.S. 1 (1967)Miller v Pate 386 U.S. 1 (1967)