Chapter 1

1. Chapter 1 History of Rules of Evidence

2. Evidentiary Rules • Gates through which evidence flows in our criminal court system. • Originated in English law • Important to safeguard rights of accused persons in trial and to ensure the interests of the public in the proper functioning of the criminal justice system.

3. Early Methods of Determining Guilt or Innocence • Use of ordeals was common; i.e., duels where winners were considered innocent; losers were guilty. • Often, judgment was pronounced by the clergy through oaths and oath keepers (similar to witnesses today). • Presentment juries composed of community residents were also utilized.

4. Early Methods of Determining Guilt or Innocence • Rules were developed to control and direct tasks of juries. • Petit juries were soon charged with not only determining guilt or innocence but also with finding facts about this determination.

5. Witchcraft as a Crime • Numerous trials charging witchcraft were held in Europe as a method of controlling individuals. • In Salem, Massachusetts witchcraft trials were conducted and people were executed and imprisoned. • Witchcraft can no longer be a charge due to the rules of evidence guaranteed by the U.S. Constitution and the Bill of Rights.

6. Rules of Evidence Guaranteed • Evidence of crime must be relevant, reliable, and competent to be admitted in criminal trials as outlined in the Bill of Rights and the U.S. Constitution.

7. Magna Carta • Established minimum standards for arresting and imprisoning individuals accused of crimes. • Under the concept of the Magna Carta, there had to be probable cause or reasonable grounds for arrest and/or imprisonment.

8. Writ of Habeas Corpus • This writ serves as a safeguard against unlawful imprisonment. • The writ requires that an official must present himself to a court to show cause for holding a person in custody. • The right of Habeas Corpus is incorporated into the U.S. Constitution in Article I, Section 9.

9. Writ of Habeas Corpus • Habeas Corpus writs provide another form of review in criminal convictions and sentences in addition to the appeal process. • 28 U.S.C. § 2254 and 28 U.S.C. § 2255 authorize federal and state courts to hear petitions for post-conviction relief. • The petitioner must show the normal appeal process has been exhausted.

10. Habeas Petitions • Prior to 1996, federal courts heard habeas petitions under “de novo” review which gave little deference to state court decisions. • The Antiterrorism and Effective Death Penalty Act of 1996 changed how these petitions are reviewed in federal courts. • Post 1996, writs are limited to cases where the conviction or sentence was contrary to a clearly established federal law or based on “unreasonable determination of the facts.”

11. Illustrates limitations to habeas petitions. • The Federal Circuit Court of Appeals, which overturned a Texas homicide conviction, was reversed by the Supreme Court because the appellate court applied a legal principle that had “not be clearly established by the Supreme Court.” • This principle is now codified in 28 U.S.C. §2254. Thaler v. Haymes130 S.Ct 1171 (2010)

12. Declaration of Independence • In declaring independence from Great Britain, this U.S. document repudiated the doctrine of the divine right of kings. • Powers must now come from consent of the governed; all men are created equal and “endowed with the rights of life, liberty, and the pursuit of happiness.”

13. Habeas Corpus and Enemy Combatants • Since 2001, the U.S. has detained combatants at Guantanamo Naval Base in Cuba. Detainees have appealed detention based on habeas corpus. • In 2006, the U.S. Supreme Court held that detainees on U.S. military bases had habeas corpus rights. • Suspected enemy combatants can be tried in military tribunals as opposed to federal district court.

14. The American Declaration of Independence • British abuses abounded in the colonies prior to the creation and signing of the Declaration. Many of these abuses concerned liberty, freedom, and the judiciary. • The Declaration of Independence of 1776 rejected the doctrine of the divine right of kings, highlighting that personal freedoms do not stem from a government entity.

15. The U.S. Constitution • The delegates sought to write a Constitution which supported the new American democracy and would create a practical government to serve the people: • The concepts of habeas corpus and the right to a trial by jury were incorporated; • Bills of Attainder and Ex Post Facto laws were prohibited; and • Federal officials, including the U.S. President, could be impeached and convicted for crimes.

16. The Bill of Rights • The first ten Amendments to the Constitution were added to “embody certain guarantees and immunities which were inherited from our English ancestors” and were originally only applicable to the federal government. • The U.S. Supreme Court, through the 14th Amendment, applied these rights to the states.

17. Fifth and Sixth Amendments • Individual rights in criminal prosecution are present in various parts of the Constitution and Bill of Rights. • The Fifth and Sixth Amendments provide an extensive list of those rights.

18. Fifth Amendment • Provides protection against detention without a presentment or indictment by a grand jury, protection against double jeopardy, and guarantees the freedom against self-incrimination. • Self-incrimination means no person can be required to make statements that can be used against him or her in a criminal proceeding.

19. Sixth Amendment • Provides the rights of the accused to: • a fair, speedy and public trial, • an impartial jury, • information about the nature and cause of the accusation, • ability to confront and cross-examine witnesses, • and have counsel for assistance in defense.

20. Innocent Until Proven Guilty • In a crime prosecution, the accused is considered innocent until proven guilty beyond a reasonable doubt. • In Estelle (1976), Taylor (1978), and Pagano (2002), the courts have consistently held the accused is innocent until proven guilty. • This burden rests with the government and cannot be shifted to the defendant during trial.

21. The Right to a Public Trial • The Sixth Amendment provides that the “accused shall enjoy the right to a speedy and public trial.” • A public trial means all court sessions must be open to the public unless sufficient, specific reasons for closing the courtroom are given by the trial court.

22. Pursuant to the Sixth Amendment the accused shall enjoy the right to a speedy and public trial. • The Presley court held that “public trial” includes the voir dire (jury selection) portion of a trial. • Closing the courtroom to the public requires the trial court to provide “sufficient” reasons on the record. Presley v. Georgia130 S.Ct 721 (2010)

23. The Right to a Speedy Trial • The Six Amendment includes granting the defendant a speedy trial. • Courts are split as to whether this applies in situations where sentencing is delayed. • A defendant may waive the right to speedy trial with permission of the court. • There are still state and federal statutes which require a case go to trial within a prescribed period of time.

24. Right of Indictment • Fifty percent of the states use the Fifth Amendment requirement of a grand jury indictment; • Other states use the decisions of elected prosecutors (Informations) to determine whether to charge and what crimes to charge a defendant. • Defendants charged by a prosecutor have the right to a preliminary hearing if they are charged with a felony.

25. The Supreme Court held a suspect arrested without an arrest warrant must have a probable cause hearing before a judge “promptly.” • Promptly has been defined as within 48 hours. • If the hearing is delayed, the burden is on the government to demonstrate the existence of an actual emergency or extraordinary circumstances which created the delay. • Sanctions may include preclusion of evidence collected during this time period. County of Riverside v. McLaugh-lin500 U.S. 44 (1991)

26. Right to a Fair, Not Perfect Trial • Under the Due Process clauses of the Fifth and Fourteenth Amendments, the law does “not require a defendant receive a perfect trial, only a fair one.” • Even if a defendant is convicted in a trial where harmless error has occurred, he has received a fair trial and is not entitled to a new trial. • If an error during the trial is deemed harmful and contributed to the conviction, the appellate courts will reverse or remand for a new trial.

27. Courtroom conditions may have a prejudicial effect on the fairness of a trial. • Issues that might cause a reversal of a conviction include: • Forcing an defendant to wear identifiable prison clothing during the trial; • Allowing the presence of cameras and/or press in courtroom to distract the jurors; • Permitting disorder in and about the courtroom during the trial; and • Allowing public passion to influence the judge and jurors. Carey v. Musladin594 U.S. 70 (2006)

28. The Jury and Peremptory Challenges • In most cases, the prosecution does not have to explain the reasons for exercise of challenges to potential jury members. • In Batson v. Kentucky, If a defendant in a criminal case makes a prima facie case showing jurors were excluded because of their race, the prosecution must provide “race-neutral” reasons justifying the challenges.

29. Prohibited the use of peremptory challenges to exclude jurors based on race of juror. • Prosecution needs “race-neutral” reasons to justify the challenges during jury selection. • The U.S. Supreme Court has not extended the Batson holding to include peremptory strikes based on other factors such as religion. Batson v. Kentucky476 U.S. 79 (1986)

30. Right to Counsel, Extended • If charged with a crime, a person has the right to counsel. • If he cannot afford an attorney, one will be provided by the state or federal government. • Denial of this right is automatic grounds for reversing a conviction.

31. A defendant’s guilty plea must be knowingly and intelligently made in order to be valid. • Knowingly means the defendant must be informed of the charges against him. Bousley v. United States523 U.S. 614 (1998)

32. The Jury and Peremptory Challenges • During jury selection, both sides are given peremptory challenges to exclude potential jurors from being selected. Both sides are also given unlimited challenges for cause. • The number of preemptory challenges each side is given is determined by state law and is not required by the U.S. Constitution. • In Rivera v. Illinois, the Court held that if a judge erroneously refuses to exclude a juror based on a defendant’s challenge that is not a violation of due process as long as the jury is impartial and properly instructed.

33. U.S. Supreme Curt stated four principles must be used to determine if a juror has been properly excused for cause in capital cases: • The defendant has a right to have a jury that is not tilted in favor of capital punishment; therefore, the prosecution may not challenge for cause any juror who expresses doubt about capital punishment. Uttecht v. Brown127 S.Ct. 2218 (2007)

34. The state has a legitimate interest in having jurors who are willing to apply capital punishment where the law permits. • Unless a juror is “substantially impaired” in his ability to impose the death sentence, his excusal for cause is improper. • The trial judge is entitled to deference in the determination of when a prospective juror is “substantially impaired.” Uttecht v. Brown, cont.

35. Freedom from Unreasonable Searches and Seizures • The Fourth Amendment forbids searches without a warrant unless an exception can be made. • The historic foundation for the Fourth Amendment can be traced back to the Magna Carta and the “probable cause” requirement.

36. Right to an Impartial Jury • This right is guaranteed by the Sixth Amendment. • Juror challenges, either for cause or peremptory, are designed to help ensure an impartial jury. • Excusing jurors for cause has been an issue in death penalty cases.

37. The Right of a Defendant to be Present During Trial • Common law principles mandate a defendant has the right to be present during his criminal trial and cannot be trial in absentia. • The Supreme Court hasheld that federal rules require that in felony cases the defendant must be present at the beginning of the trial. • Many states have gone on to interpret Crosby to permit defendants to make a knowing waiver of this right if they are present at the beginning of the trial and then flee.

38. Court held that Rule 43 of the Federal Rules of Criminal Procedure requires a defendant be present at the beginning of any felony criminal trial, forbidding in absentia trials for defendants who were not “initially present.” Crosby v. United States506 U.S. 255 (1993)