A Series of Processes That Must Be Correctly Carried Out by the Government in Order to Prosecute Someone for a Crime

• Pre-arrest to Post-arrest

1. Filing of a complaint
2. Arrest
3. With a warrant
4. Without a warrant
5. Booking
6. Initial appearance

• Gather evidence
• Interview witnesses
• Crime scene search
• Forensic science lab analysis

• Grand jury or preliminary hearing
• Indictment or information
• Arraignment and defendant plea

1. Guilty
2. Not guilty
3. Nolo contendre
4. Stand mute

• Jury selection
• Opening statements
• Prosecutor’s case
• Defendant’s case
• Rebuttal
• Closing arguments
• Judge’s instructions
• Jury deliberation
• Verdict

    Fundamental Questions About Evidence

1. What matters and materials should be admitted into evidence
2. What use can properly be made by fact finder of these matters
3. Most rules of evidence apply to admissibility

• Major concerns:

1. Waste of time
2. Jury protection-misleading or prejudicial evidence
3. Confidentially
4. Need to cross examine

• Evidence must be probative of a material issue, and otherwise competent
• Relevance = probativeness + materiality
• Materiality - toward what issue is the evidence being directed?
• Probativeness - does the evidence tend to establish a material fact-proposition, or make it more true or false than without the evidence?

• Relevance

• Covers exclusionary rules that make relevant evidence otherwise inadmissible
• Reliability - hearsay
• Disruptive - surprise witness
• Prejudicial - inflammatory, outweighs probativeness
• Confidentiality - privileges
• Search and seizure
• Self incrimination
• Best evidence rule

• 4th amendment
• 5th amendment
• 6th amendment
• 8th amendment

• Marital
• Spouse doesn’t want to testify against mate
• Mate can prevent spouse testimony
• Cleric-penitent
• Lawyer-client
• Physician-patient

• General rule: defendant not, as a matter of right, entitled to inspection or disclosure of evidence in possession of prosecutor
• Exceptions

1. Rule 16 - results or reports of tests
2. Jenks - statements by witnesses
3. Brady - potentially exculpatory evidence (level playing field)

    Introduction

• Expert must be qualified by judge
• Usually offered as expert by one side
• Can be cross-examined by other side
• May give opinions
• Sometimes must give opinions
• Hypotheticals may be used

• Oath requirement (FRE 602)
• Perjury can be charged for false recitation of credentials
• FRE 403 - Probative value must outweigh prejudice. Can’t mislead jury. Total reliance on expert opinion dangerous
• Subject matter (FRE 702)

• Qualifications of expert (FRE 702)
• Novel scientific evidence (Frye, Daubert)

• Fundamental right in criminal cases
• Impeachment
• Learned treatises - reliance or recognition
• Pretrial discovery
• Traditional arguments for limiting don’t apply to expert matters
• Scientific reports - many are inadequate
• Witness lists
• Pretrial discovery
• Inspection and retesting
• Depositions

• Easy for prosecution
• Much more difficult for defense
• Some assistance for indigent defendants
• Courts recognize constitutional right to experts for defense (effective assistance of counsel, equal protection, due process, compulsory process)

• Rule on witnesses
• Offer of expert
• Expert offered by one side
• Other side may voir dire
• Must be accepted by court
• Direct testimony
• Usually brief (but not always)
• Admit lab report
• Ultimate issue
• Formerly not permitted
• Modern practice is to allow in certain cases
• Cross examination
• Hypotheticals
• Badgering allowed (to an extent)