Law and Society

1. Law and Society CJUS/POLS 102 Chapter 4: Procedure and Evidence

2. Criminal Procedure • Criminal trial process - investigation complete - arrest made a. Information / indictment filed - prosecutor reviews - determine charges (1) Information - charging document - prosecutor’s office

3. Procedure - Washington state (2) Indictment - originates with grand jury - prosecutor presents evidence - grand jury: sufficient evidence - “true bill”: prosecutor charges - “no bill”: no charges b. Arraignment - first appearance / enters plea

4. Procedure (1) Pleas - not guilty / guilty / insanity / standing mute / nolo contendere / statute of limitations / Alford / double jeopardy c. Pre-trial Hearing (preliminary) - minimal evidence presented - bind over to superior court - not used in Washington state - prosecutor files in superior court

5. Procedure d. Pre-trial motions - before trial judge - prosecutor or defense - issues addressed before trial (1) Types of motions: - discovery / bill of particulars / dismissal / continuance / change of venue / suppress / severance / exclusion

6. Procedure • Jury selection -”motor voter” registration - jury pool a. Potential jurors - selected randomly - seated in jury box (1) Attorneys question - “voir dire” - two methods to excuse juror

7. Procedure (a) “For cause” - illness / work / care - judge determines (b) “Peremptory challenge” - excuse without reason - 2 to 3 challenges (2) Jury empanelled - judge swears in - jeopardy attaches

8. Procedure - cannot be tried twice b. Opening arguments - prosecutor - defense attorney (may wait / waive) c. Prosecution case - witnesses / evidence - defense can object - defense can cross-examine - prosecution rests

9. Procedure d. Defense case - witnesses / evidence - defendant can take stand - prosecution can object - prosecution can cross-examine - defense rests e. Rebuttal - can recall witnesses to “rebut” - surrebuttal - ends case presentation

10. Procedure f. Closing arguments / summation - prosecutor states position - defense states position - prosecutor (burden of proof) g. Jury admonished - judge advises jury of duty - what they can / cannot consider - court rules read to jury h. Jury deliberation

11. Procedure - moved to deliberation room - jury foreperson - discuss case - testimony read in court - reach a verdict / “hung jury” i. Verdict read - judge reviews - asks jury if reached verdict - foreperson answers - jury excused

12. Procedure j. Guilty verdict - sentence imposed - 30 / 45 days after trial - not guilty = judge releases k. Sentencing - probation prepares report - witnesses can testify - defendant can speak (allocution) - judge imposes sentence - death penalty = jury sentencing

13. Procedure l. Reasons for appeal (a) Error: - prosecutor / judge / defense - reversible - harmless (b) Violates constitutional rights (c) Just because

14. Civil Procedure • Civil trial - plaintiff / defendant a. Process - civil complaint prepared - lists facts / basis for filing - file with court administrator (1) Cause of action - show reasons for filing - why suing

15. Procedure (2) General damages - asking for / why - file with court administrator (a) District court - $75,000 or less - judge or commissioner (b) Superior court - more than $75,000 - judge or commissioner

16. Procedure (c) Federal court - federal agencies / agents - constitutional issue (3) Punitive damages - damages from mental distress - seek reimbursement b. Summons issued - plaintiff’s attorney - signed by judge

17. Procedure (1) Defendant served (service) - 30 days to respond (2) Process server - sheriff’s deputy / private person (a) Served: court has jurisdiction (b) Personal service - “in personam” - fail to appear: default win

18. Procedure c. Defense response - files “answer” with court (1) Why not liable for damages - “pleading” (2) Motion to dismiss - “demurrer” (3) Court can “sustain” - no sufficient claim

19. Procedure (a) Suing several defendants - company / airline / Boeing (b) Release one or more (4) Discovery - deposition / interrogatory - subpoena deuces takem (a) Deposition - question parties / witnesses

20. Procedure (b) Interrogatory - written questions - answer truthfully - asked in court - contempt (c) Subpoena deuces takem - court order - produce physical evidence (d) Summary judgment

21. Procedure - prima facie case - no liability d. Alternative dispute resolution - utilize 3rd party - some courts can require (1) Mediation - neutral person - settlement between litigants - persuade to settle

22. Procedure (2) Arbitration - litigants agree in advance - abide by decision - binding - unless “trial de novo” e. Civil trial - jury selection - “voir dire” (peremptory / for cause) (1) Jury trial

23. Procedure - plaintiff begins (burden) - preponderance of evidence (2) Opening statements - plaintiff / defense (a) Plaintiff’s case-in-chief - call witnesses - present evidence - defense can object - cross-examine

24. Procedure (b) Defense case-in-chief - witnesses - evidence - object / cross-examine (i) Contributory negligence - injury fault of plaintiff - no liability (ii) Comparative negligence - portion plaintiff fault

25. Procedure - not liable for that part (3) Rebuttal / surrebuttal - rebut earlier testimony (4) Closing statements - plaintiff / defense - attorney’s rest (5) Jury instructions - consider / not consider

26. Procedure (a) Directed verdict - return specific verdict (b) Jury decides - deliberation - verdict (i) General - held liable / not liable (ii) Special issues

27. Procedure - judge questions (6) Sentencing - court issues judgment (a) Writ of execution - sheriff seizes property (b) Garnishment of wages - place lien against person - income / property

28. Procedure (7) Reasons for appeal (a) Judge made error - reversible error - harmless error (b) Remittitur - determines award excessive

29. Rules of Evidence • Evidence - “anything presented in court to prove the existence or nonexistence of a fact.” a. Legal evidence - presented in court legally (1) Follow legal procedure - evidentiary system - presented to prove a point

30. Evidence (2) Prove guilt / innocence - groundwork of system - all parties present evidence (3) Probative value - must be relevant b. History / development - two main sources of evidence law - Romanesque / Anglican

31. Evidence (1) Romanesque - Roman legal system - most well developed (a) 400 BC – evidentiary law - courts of law - courts of fact - tribunals: no appeals (b) Spread from Rome - most extensive system

32. Evidence (2) Anglican - England rejected Romanesque - developed “common law” - judge determined what to allow (a) United States - Constitution / congress - law more restrictive (b) States set own rules

33. Evidence c. Sources of evidence law (1) Federal system - Constitution / congress / courts (a) Rules of evidence - established by attorneys (b) Comprehensive procedures - established by attorneys

34. Evidence (2) State rules - cannot violate federal rules - can be more restrictive (3) Rules can change - court decisions / legislation (a) Uniform Rules of Evidence - adopted by federal / states - Washington state (1983)

35. Evidence d. Review of evidentiary matters - on appeal (1) Issues raised at trial - admissibility - how judge rules (2) Harmless error rule - can refuse appeal - found guilty anyway

36. Evidence • Rules of evidence - terminology a. Two primary categories (1) Direct evidence - five senses - DNA / fingerprints / eyewitness - reliability depends on source (2) Circumstantial evidence - derived from association

37. Evidence - believe certain act occurred b. Other types : (1) Tangible evidence - physical objects - used in court (2) Real evidence - gun / fingerprints - tire marks / bite marks

38. Evidence (3) Demonstrative evidence - visual / audiovisual aid - illustrates / helps to explain (police drawing) (4) Judicial notice - commonly known facts - dates / hour / weather / etc. (5) Oral / testimonial evidence - sworn statements

39. Evidence - victim / suspect / expert / lay - subpoena into court (6) Cumulative evidence - new evidence - prove what has been established (7) Corroborative evidence - supplemental evidence - strengthens that already given - can be of different character

40. Evidence (8) Documentary evidence - documents / records / writings (extortion note) (9) Hearsay evidence - what someone else told them • Presentation of evidence - must lay the foundation - relevant / material / necessary

41. Evidence a. Evidence can be excluded - based on law - court interpretation (1) Privileges - communication (a) Attorney-client / husband-wife (b) Clergy-penitent / doctor-patient

42. Evidence (2) Illegally seized - right to remain silent - illegal search - Weeks vs. US / Mapp vs. Ohio (3) Scientific advances - left to court to accept - polygraph / DNA / fingerprints (4) Unreliable - hearsay / opinion

43. Evidence (5) Undue prejudice - relevant, but prejudicial - criminal record / photographs (6) Waste of time - cumulative evidence - 30 witnesses • Types of evidence - two factors must be met

44. Evidence a. Admissibility - accepted by court - admitted into evidence (1) All evidence admissible - unless upon objection - it is excluded (2) Judge can rule - rules of evidence = exclusion - what cannot be used in court

45. Evidence b. Value - how important proving a significant point - proof is the effect of evidence c. Evidence must: - have probative value - material / relevant / competent (1) Probative value

46. Evidence - means value to the case - fact probably occurred - might have some impact (2) Relevant - prove / disprove disputed fact (a) Relevant evidence - admissible in court - decided by the judge

47. Evidence (b) Example: statement gun overheard purchase the suspect played golf witness saw together drive away

48. Evidence (3) Material - importance of evidence - significant effect - logically connected (4) Competent - legally adequate - legally sufficient (a) Seized / presented legally

49. Evidence (b) Competency - “catch all” - how evidence obtained (c) Legal incompetence - legal inadequacy - seized illegally - violates court rules d. Remember:

50. Evidence (1) Having probative value - necessary part (2) Being relevant - relates to issue / connects case (3) Being material - likely to influence jury (4) Being competent - legally obtained / presented