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Criminal Evidence Principles And Cases International 8th Edition by Thomas J. Gardner – Test Bank

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CHAPTER 2

 

 

 

MULTIPLE CHOICE

 

1. The concept of federalism means that government power is shared between
2. the legislative, executive, and judicial branches.
3. state and federal governments.
4. the federal government and the United Nations.
5. state and local governments.

 

ANS: B          LO: 1          REF: p. 26

 

2. In 1975, Congress enacted the ____________, which had great influence on state rules of evidence.
3. National Standards of Evidence
4. Federal Code of Criminal Evidence
5. National Rules of Evidence
6. Federal Rules of Evidence

 

ANS: D          LO: 2          REF: p. 26

 

3. Most crimes committed in the U.S. are
4. state crimes.
5. federal crimes.
6. both state and federal crimes.
7. both federal and international crimes.

 

ANS: A           LO: 3          REF: p. 27

 

4. In our adversary system of justice, the defense and prosecution
5. cooperate to see that justice is done.
6. readily share evidence and information.
7. present their best case and challenge the opponent’s case.
8. rarely challenge the admissibility of the opponent’s evidence.

 

ANS: C          LO:  7          REF: p. 33

 

5. Competent evidence is reliable, relevant evidence that
6. is not excluded by additional rules of evidence.
7. is subject to the exclusionary rule.
8. cannot be heard by the jury.
9. is offered to impeach a witness.

 

ANS: A          LO: 4          REF: p. 37

6. In the American ____________ system of criminal prosecution, the government must prove its case by evidence freely and independently secured and may not coerce the defendant to provide evidence.
7. fact finding
8. accusatorial
9. inquisitorial
10. peremptory

 

ANS: B          LO: 4 | 5          REF: p. 39

 

7. Under the ____________ rule, the prosecution must disclose exculpatory evidence to the defense.
8. DeAngelis
9. Powell
10. Curtain
11. Brady

 

ANS: D          LO: 6          REF: p. 41

 

8. If the prosecution destroys evidence important to the defense, this violates a defendant’s rights only if the prosecution acted
9. in bad faith.
10. negligently.
11. with carelessness.
12. in violation of a court order.

 

ANS: A          LO: 7          REF: p. 42

 

9. The Constitution allows, and certain states require, that defendants
10. reveal incriminating evidence.
11. answer questions posed by the police.
12. give notice that they intend to use an alibi or insanity defense.
13. waive their privilege against self-incrimination.

 

ANS: C          LO: 2          REF: p. 41

 

10. The United States, as compared to other industrial democracies,
11. makes more use of the exclusionary rule.
12. gives prosecutors less discretion.
13. has shorter trials.
14. relies less on plea bargaining.

 

ANS: A           LO: 7          REF: p. 38

 

 

11. Reliable evidence is defined as evidence that is likely to be
12. true or accurate.
13. prejudicial to one side or the other.
14. subject to the exclusionary rule.
15. exculpatory.

 

ANS: A          LO: 4 | 6          REF: p. 36

 

12. Evidence is not relevant (irrelevant) if it is
13. not related to any fact or issue in the case.
14. subject to a privilege.
15. recognized by judicial notice.
16. exculpatory.

 

ANS: A           LO: 4          REF: p. 36

 

13. If reliable, relevant evidence is otherwise excludable (e.g. it is privileged or was obtained in violation of the Constitution), such evidence is said to be
14. precluded.
15. incompetent.
16. inconsequential.
17. indefatigable.

 

ANS: B           LO: 4          REF: p. 37

 

14. To validly enact federal statutes, Congress must be acting within
15. powers granted by the Constitution.
16. authority granted by the United Nations.
17. the scope of consent granted by the States.
18. the bounds of international law.

 

ANS: A           LO: 2          REF: p. 26

 

15. The states and federal government
16. all use the same rules of evidence.
17. all have created the same crimes.
18.        use the same court system.
19. have established 51 different legal systems.

 

ANS: D         LO: 1          REF: p. 26

 

 

16. The Tenth Amendment to the U.S. Constitution states that powers not delegated

to the United States are

1. reserved to the States or the people.
2. automatically delegated to the federal government.
3. under joint jurisdiction by federal and state governments.
4. ruled by common law.

 

ANS: A          LO: 2          REF: p. 26

 

17. The keystone of American federalism is the ________________.
18. U.S. Constitution
19. Bill of Rights
20. Magna Carta
21. separation of church and state

 

ANS: A          LO: 1          REF: p. 26

 

18. The Federal Rules of Evidence and most state rules of evidence apply in ___________ trials.
19. criminal
20. both civil and criminal
21. civil
22. administrative

 

ANS: B          LO: 2          REF: p. 27

 

19. At the federal level are the federal law enforcement agencies created by ________

to enforce specific federal laws.

1. the President
2. the Legislature
3. the Senate
4. Congress

 

ANS: D          LO: 2          REF: p. 28

 

20. The main actors at the trial are the judge, the _____, the prosecutor, and the defense attorney.
21. investigator
22. victim
23. jury
24. defendant

 

ANS: C          LO: 4          REF: p. 33

 

 

 

TRUE/FALSE

 

1. The United States was the first country in the world to utilize a federal form of government.

 

ANS: T          LO: 1                REF: p. 26

 

2. The U.S. Constitution is the supreme law of the land.

 

ANS: T          LO: 1               REF: p. 26

 

3. The U.S. Constitution provides that state judges are not bound by the U.S. Constitution, but by their state constitution.

 

ANS: F          LO: 1                REF: p. 26

 

4. The Federal Rules of Evidence must be followed in all state trials.

 

ANS: F          LO: 1                 REF: p. 26

 

5. The American system of justice is basically an adversary system.

 

ANS: T           LO: 1 | 5          REF: p. 33

 

6. In the adversary system, each side seeks to present evidence that is most favorable to its position.

 

ANS: T          LO: 5                REF: p. 33

 

7. Nonrelevant evidence is generally admissible.

 

ANS: F          LO: 4                REF: p. 35

 

8. “Competent evidence” is a catch-all term that included reliable and relevant evidence that is not rendered inadmissible by some other rule.

 

ANS: T           LO: 4               REF: p. 37

 

9. Most countries other than the U.S. utilize an inquisitorial system of justice.

 

ANS: T           LO:  5              REF: p. 40

 

10. In an adversary system of justice, each side generally conducts separate investigations and generally does not share advance information with the other side.

 

ANS: T          LO: 5                REF: p. 40

11. In our adversary system, the prosecution has no obligation to reveal any evidence to the defense.

 

ANS: F          LO: 5          REF: p. 40

 

12. In the U.S., no state ever requires that the defendant reveal information or possible defenses to the prosecution.

 

ANS: F          LO: 5          REF: p. 40

 

13. Any time the prosecution loses, displaces, or destroys important evidence in a criminal case, it is automatically a violation of due process.

 

ANS: F          LO: 7          REF: p. 42

 

14. The Brady rule requires that the defense disclose clearly exculpatory evidence to the prosecution.

 

ANS: F          LO: 6          REF: p. 42

 

15. If the prosecution deliberately uses false evidence or perjured testimony to obtain a conviction, the defendant will get a new trial.

 

ANS: T          LO: 6          REF: p. 43

 

16. The American criminal justice system is both accusatorial and adversarial in nature.

 

ANS: F          LO: 5          REF: p. 33

 

17. No jurisdiction requires that defendants reveal anything about their case to the prosecution.

 

ANS: F          LO: 6          REF: p. 41

 

18. A conviction obtained by the knowing use of false evidence or testimony violates due process and will be reversed.

 

ANS: T          LO: 4          REF: p. 44

 

19. All jurisdictions in the U.S. utilize the Federal Rules of Evidence.

 

ANS: F          LO: 2          REF: p. 28

 

20. If the defense loses or misplaces evidence important to the prosecution, it is a violation of due process.

 

ANS: F          LO: 7          REF: p. 42

 

FILL-IN-THE-BLANK

 

1. The system in which power is shared between state and federal governments is called ____________.

 

ANS: federalism                                 LO: 1               REF: p.26

 

2. The U.S. ____________ is the supreme law of the land.

 

ANS: Constitution                              LO: 2               REF: p. 26

 

3. In a/n ____________ system of justice, a trial is a battle between two opponents.

 

ANS: adversary                                              LO: 5               REF: p. 33

 

4. ___________ evidence is that which possesses a significant degree of believability.

 

ANS: Reliable                                     LO: 4               REF: p. 36

 

5. Relevant, reliable evidence may be inadmissible if it is _____________.

 

ANS: incompetent                              LO: 4               REF: p. 37

 

6. The American system of criminal justice is an adversarial one, not a/n ____________ one.

 

ANS: inquisitorial                               LO: 5               REF: p. 40

 

7. Under the ____________ rule, the prosecution must disclose to the accused any evidence which is favorable to the accused.

 

ANS: Brady                                        LO: 6               REF: p. 41

 

8. If evidence potentially favorable to the accused is lost, destroyed, or misplaced, this is a violation of due process only if the government acted in ____________.

 

ANS: bad faith                                    LO: 7              REF: p. 42

 

9. At a trial, the ___________ solves questions of law.

 

ANS: judge                                         LO: 5               REF: p. 34

 

10. At a jury trial, the ____________ determines the facts of the case.

 

ANS: jury                                            LO: 5               REF: p. 34

 

11. The legal and ethical obligation of the prosecutor is to seek ____________.

 

ANS: justice                                        LO: 5               REF: p. 34

 

12. If the judge or jury is not allowed to see or hear the evidence, the evidence is said to be ____________.

 

ANS: inadmissible                              LO:  4              REF: p. 35

 

13. The scope of federal criminal jurisdiction under the ____________ Clause is contentious.

 

ANS: Commerce                                 LO: 3               REF: p. 28

 

14. In the adversarial system, evidence that a third party committed the crime is likely to be challenged by the ____________.

 

ANS: prosecutor                                              LO: 4 | 5         REF: p. 33

 

15. Emergency procedures permit a law enforcement officer or a physician to place a person in a mental health facility who exhibits signs of a mental illness for an initial period of no longer than ______ hours.

 

ANS: 48                                              LO: 5               REF: p. 45

 

 

ESSAY

 

1. Define and describe an adversary system of justice. What role do the rules of evidence play in such a system? Be sure to provide examples.

 

ANS: In the American adversary system, the prosecutor and the defense attorney assume adversarial roles; that is, they do not seek to establish the facts in cooperation with each other, but in opposition. Each side has two goals: to present the facts most advantageous to their position, and to seek to prevent and make it difficult for their opponent to do the same.

 

LO: 4 | 5          Ref: p. 33

 

2. What is the Brady rule? Provide an example of a violation of this rule. What are the consequences of a violation of the Brady rule?

 

ANS: The Brady rule requires that a prosecutor has a duty to disclose evidence favorable to an accused upon request, where the evidence is material to guilt or innocence.  Where such evidence is in the exclusive possession of the prosecution, it must be disclosed even when there is no request for disclosure by the defense if such evidence is “clearly supportive of a claim of innocence.”  An example of a violation of the Brady rule would be where the prosecution failed to notify the defense that a key witness was a paid informant.  If a Brady violation occurs, the penalty often will be more severe, and could be a new trial or even a complete dismissal of the criminal charges.

 

LO: 6          REF: p. 41

 

3. The jurisdiction of the federal government in interstate commerce issues is often challenged. Use Gonzales v. Rich as a foundation for your discussion. Discuss the situations in which you believe the federal government should become involved. Do you agree with the Gonzales decision?  Why or why not? (LO2, 23)

 

ANS: Examples may include where there is a perceived conflict between state and federal law, typically this would be in situations where state law was deemed to be more lenient or permissive of behaviors/actions that would be in violation of federal law.

 

LO: 3          REF: p. 28

 

4. Delineate and discuss the duties of law enforcement agencies at the local, state and federal levels.

 

ANS: Local law enforcement agencies such as police and sheriff departments enforce city and county ordinances in addition to the criminal laws of their state. They bring their cases to city attorneys and state attorneys (district attorneys) for charging and prosecution. Municipal police officers often spend more time in municipal courts on ordinance violations than they spend in state courts appearing in criminal cases.  Federal law enforcement officers work in the many federal law agencies created by Congress. They enforce specific federal laws assigned to their agencies and take most of their cases to federal prosecutors for trial in the federal court system.

 

LO: 1 | 2 | 5          REF: p. 30

 

5. Why are some states’ rules of evidence different from the federal rules of evidence?

 

ANS:  Most states have adopted rules of evidence almost identical to the Federal Rules, however, each state retains the power to interpret and modify those rules of evidence.  Thus, the meaning and application of the Federal Rules of Evidence can vary between federal courts and state courts and between the states.

 

LO: 4          REF: p. 26

 

6. What is the main function of a jury? Why is this duty imposed on the jury?

 

ANS: The determination of truth is the function of the jury. Because the jury must determine truth based only on the often-conflicting versions presented by the adversaries, however, the system has elaborate rules to control how those versions of the truth are presented. The purpose of the rules of evidence is to ensure each adversary’s version of the truth is put before the jury by relevant, reliable, and competent evidence.

 

LO: 4          REF: p. 33

 

7. What is an alibi defense, and if used by a defendant, what rules of evidence must be followed?

 

ANS: In using the alibi defense, a defendant is alleging that he or she physically could not have committed the crime that is charged because the defendant was at another place at the time the crime was committed.  Because an alibi can easily be fabricated, it must be carefully investigated. Most states have notice of alibi statutes that require defendants who plan to use an alibi defense to serve notice on the prosecutor before trial.

 

LO: 4 | 5          REF: p. 40

 

8. In terms of lost, misplaced, or destroyed evidence, the Supreme Court has held that a violation of due process has not occurred unless the following is shown:

 

ANS:  Bad faith on the part of the police or other law enforcement official: The Court held that “unless a criminal defendant can show bad faith on the part of the police, failure to preserve potentially useful evidence does not constitute a denial of due process of law.”  The evidence also would be of likely significance to the defendant’s defense: The Court held that “[the] evidence must both possess an exculpatory value that was apparent before the evidence was destroyed, and be of such a nature that the defendant would be unable to obtain comparable evidence by other reasonably available means.”

 

LO: 7          REF: p. 42

 

 

CHAPTER 4

 

 

 

MULTIPLE CHOICE

 

1. Proof is the result of
2. evidence.
3. deductions.
4. inductions.
5. jury instructions.

 

ANS: A           LO: 3               REF: p.78

 

2. Evidence consists of the materials presented to the trier of fact
3. pursuant to presumptions.
4. to convince them of the existence of a fact.
5. to explain the judge’s instructions.
6. to attempt to contradict inferences.

 

ANS: B           LO: 3               REF: p.78

 

3. The prosecution has to prove the defendant’s guilt
4. by a preponderance of the evidence.
5. by clear and convincing evidence.
6. beyond a reasonable doubt.
7. beyond probable cause.

 

ANS: C          LO: 4               REF: p.79

 

4. The burden of proof states the level of proof a part must meet to
5. defeat affirmative defenses.
6. ultimately win the case.
7. avoid a directed verdict against them.
8. get the case to the jury.

 

ANS: B          LO: 1               REF: p.79

 

5. Circumstantial evidence is evidence that proves a fact in issue
6. indirectly or by inference.
7. directly by eyewitness testimony.
8. only by the use of presumptions.
9. by contradicting other evidence.

 

ANS: A           LO: 4               REF: p.80

6. Direct evidence is evidence that proves a fact
7. without the need of inferences or presumptions.
8. by the drawing of inferences.
9. by the use of inductive or deductive reasoning.
10. by judicial notice.

 

ANS: A           LO: 5               REF: p.81

 

7. In Holland v. U.S. (1954), the U.S. Supreme Court upheld an income tax evasion conviction on the basis of circumstantial evidence in the form of
8. eyewitness testimony.
9. impression of neighbors about the defendant’s income.
10. the net worth method.
11. written confessions.

 

ANS: C          LO: 4               REF: p.83

 

8. Circumstantial evidence frequently takes the form of showing that the defendant had means, opportunity, and
9. the required tools.
10. sufficient criminal knowledge.
11. a prior criminal record.
12. motive.

 

ANS: D           LO: 3               REF: p.82

 

9. Evidence of flight from the scene of a crime is
10. sufficient by itself to establish guilt.
11. never admissible.
12. direct evidence of guilt.
13. never sufficient by itself to establish guilt.

 

ANS: D           LO: 3               REF: p.85

 

10. In court, similar crimes by the defendant
11. are never admissible.
12. are always admissible.
13. is always competent evidence.
14. may be admissible under some circumstances.

 

ANS: A           LO: 5               REF: p.86

 

11. A defendant does not testify at his or her criminal trial. The judge or jury
12. may use this as evidence of guilt.
13. may draw an inference of guilt from this.
14. is no longer required to give the defendant the presumption of innocence.
15. may not use this as evidence of guilt or draw an inference of guilt.

 

ANS: D           LO: 5              REF: p.85

 

12. A defendant is found in possession of a very large quantity of illegal drugs. It is permissible to draw the inference that the possession was
13. with intent to deliver.
14. due to insanity.
15. unknowing.
16. accidental.

 

ANS: A           LO: 4               REF: p.88

 

13. In general, presumptions are inferences that
14. the judge or jury may make if they so desire.
15. the judge or jury are required to make.
16. cannot be used to defeat a motion for a directed verdict.
17. cannot be used against the prosecution.

 

ANS: A           LO: 6               REF: p.104

 

14. Inferences are reasonable conclusions that judges or juries
15. are required to draw.
16. may draw if they so desire.
17. cannot be used against a defendant.
18. cannot be used against the prosecution.

 

ANS:   B         LO: 4               REF: p.104

 

15. In some instances, presumptions may operate against a defendant’s right to ____________ and thus be unconstitutional.
16. counsel
17. subpoena witnesses
18. a public trial
19. a trial by jury

 

ANS: D           LO: 6               REF: p.105

 

 

16. _____________are reasonable conclusions or deductions that fact finders (juries

or judges) may draw from the evidence presented to them.

1. convictions
2. deductions.
3. inferences
4. determinations

 

ANS: C           LO: 4               REF: p.105

 

17. _________ is ordinarily defined as the means of establishing and proving the truth

or untruth of any fact that is alleged.

1. evidence.
2. proof
3. presumption
4. Diligence

 

ANS: A           LO: 1               REF: p.106

 

18. The burden of ___________requires the party with the burden on a factual issue to introduce sufficient relevant evidence to prove the fact at issue.
19. evidence
20. proof
21. persuasion
22. production

 

ANS: D           LO: 1               REF: p.78

 

19. The burden of __________requires the party with the burden to produce sufficient evidence to persuade the fact finder that a fact exists.
20. evidence.
21. deductions.
22. persuasion
23. production

 

ANS: C           LO: 1               REF: p.78

 

20. Every essential element of the crime charged must be proved by the government beyond reasonable __________in order to convict and punish a defendant for the crime charged.
21. doubt
22. conclusion
23. presumption
24. assumption

 

ANS: A           LO: 1               REF: p.78

 

 

TRUE/FALSE

 

1. Evidence is derived from proof.

 

ANS:   F          LO:      1          REF: p.78

 

2. Due process requires that criminal guilt be proven by the government beyond a reasonable doubt.

 

ANS: T           LO:      2          REF: p.78

 

3. The U.S. Supreme Court has held that trial judges must give juries a definition of proof beyond a reasonable doubt.

 

ANS: F          LO:      2          REF: p.79

 

4. Direct evidence is evidence that proves a fact in issue by the use of inferences.

 

ANS:   F          LO:      3          REF: p.80

 

5. A conviction cannot be valid if it is based solely on circumstantial evidence.

 

ANS:   F          LO:      3          REF: p.80 | 81

 

6. A full confession about the crime would be an example of direct evidence.

 

ANS:   T          LO:      3          REF: p.81

 

7. Evidence that the defendant was seen running from the scene of the crime shortly after the crime occurred would be circumstantial evidence of guilt.

 

ANS:   T          LO:      4          REF: p.82

 

8. Direct evidence is generally more powerful and convincing than circumstantial evidence.

 

ANS:   T          LO:      4          REF: p.81

 

9. In the absence of a confession or admission, intent must usually be proven by circumstantial evidence.

 

ANS:   T          LO:      6          REF: p.82

 

10. In some circumstances, presumptions can interfere with the defendant’s right to have the jury decide the facts of the case.

 

ANS: T          LO:      6          REF: p.104

11. Threatening witnesses or discouraging others from cooperating with the police can sometimes be admissible circumstantial evidence of guilt.

 

ANS:   T          LO:      3          REF: p.84

 

12. If a defendant does not testify at trial, the jury may validly use this as circumstantial evidence of guilt.

 

ANS:   F          LO:      5          REF: p.91

 

13. Rape shield statutes can prevent the introduction of circumstantial evidence about the victim.

 

ANS:   T          LO:      6          REF: p.92

 

14. Motive is generally an element of most crimes.

 

ANS:   F          LO:      3          REF: p.93

 

15. Evidence of prior similar crimes or bad acts is never admissible against a criminal defendant.

 

ANS:   F          LO:      5          REF: p.91

 

16. Attempting to use evidence that the defendant contacted a lawyer after being charged with a crime is generally not admissible against the defendant.

 

ANS:   T          LO:      3          REF: p.93

 

17. The corpus delicti rule requires that circumstantial evidence be corroborated by direct evidence.

 

ANS:   F          LO:      6          REF: p.101

 

18. The term res ipsa loquitur means “the thing speaks for itself.”

 

ANS:   T          LO:      6          REF: p.107

 

19. The corpus delicti may be validly proven solely by circumstantial evidence.

 

ANS:   T          LO:      6          REF: p.101

 

20. The prosecution can overcome the presumption of innocence only by proving guilty beyond a reasonable doubt.

 

ANS:   T          LO:      1          REF: p.78

FILL-IN-THE-BLANK

 

1. Presenting _____________ is the means of proving the existence or non-existence of a disputed fact.

 

ANS: evidence                                    LO: 2               REF: p.78

 

2. ____________ is the result of evidence.

 

ANS: Proof                                         LO: 3               REF: p.80

 

3. The prosecution must prove the defendant’s guilt beyond a/n ____________.

 

ANS: reasonable doubt                       LO: 4               REF: p.79

 

4. ______________ evidence is evidence that proves a fact in issue indirectly.

 

ANS: Circumstantial                           LO: 3               REF: p.80

 

5. Means, opportunity, and _____________ are frequently used as circumstantial evidence of guilt.

 

ANS: motive                                       LO: 6               REF: p.80

 

6. Inferences of guilt cannot be drawn from the fact that the defendant exercises the _____________ Amendment privilege against self-incrimination.

 

ANS:   Fifth                                        LO: 5               REF: p.105

 

7. _____________ were designed to protect victims at sexual assault trials.

 

ANS: rape shield laws                        LO: 6               REF: p.92

 

8. A defendant who possesses large quantities of illegal drugs may, by inference, be convicted of possession with intent to ____________.

 

ANS: deliver                                       LO: 6               REF: p.105

 

9. In the case In Re _____________, the U.S. Supreme Court held that due process required proof of guilt beyond a reasonable doubt.

 

ANS: Winship                                     LO: 3               REF: p.79

 

10. Circumstantial evidence requires that the fact finder draw ______________.

 

ANS: inferences                                  LO: 3               REF: p.105

11. Fingerprint and shoe print evidence are generally examples of ______________ evidence.

 

ANS: circumstantial                            LO: 3               REF: p.80

 

12. The ____________ clause of the Constitution requires that guilt be proven beyond a reasonable doubt.

 

ANS: due process                                LO: 5              REF: p.78

 

13. Congress has passed laws making it a crime to receive or possess ____________________ from the Internet.

 

ANS: child pornography                     LO: 6               REF: p.96

 

14. _________________ indicates a crime has been committed.

 

ANS: corpus delicti                            LO: 6               REF: p.101

 

15. An inference of _____should not be drawn when a defendant or suspect asserts the Fifth Amendment privilege against self-incrimination.

 

ANS: guilt                                            LO: 5               REF: p.106

 

 

ESSAY

 

1. Discuss, describe, compare, and contrast direct and circumstantial evidence. Be sure to give examples of each.

 

ANS: Circumstantial evidence is evidence that indirectly proves a fact in issue. Testimony that the defendant was at the scene of the crime and ran from the scene with a pistol in his or her hand is circumstantial, or indirect evidence. Inferences have to be drawn for indirect evidence. If it were shown that no one other than the defendant had an opportunity to commit the crime and that the defendant and the victim were heard arguing angrily, the circumstantial evidence against the defendant would be stronger.  While direct evidence can be used to directly prove facts, circumstantial evidence requires the fact finder to draw inferences. An inference is a conclusion that can be drawn from a fact.  Direct and circumstantial evidence are used not only to prove criminal conduct but also to prove mental elements that are required essential factors in many crimes.¹⁰ Mental elements that must be proved in many crimes of violence include intent, recklessness, and criminal negligence.

 

LO: 3               REF: p.80 | 81

 

2. Describe three inferences that are permitted under the law of evidence. What fact is each of these inferences attempting to establish?

 

ANS:  In the proof of intent, recklessness, malice, or negligence, the law infers that people intend the reasonable, foreseeable consequences of their intentional and deliberate acts. The “probable consequences” inference is often used for finding criminal liability of persons who “aid or abet” the commission of an attempt crime. Attempted murder and assault with intent to cause serious bodily harm or death are examples of crimes that require proof of the defendant’s intent. This intent can be inferred from the defendant’s conduct and from the “deadly weapon” doctrine if the defendant uses an object likely to cause death or great bodily harm.

 

LO: 4              REF: p.105 | 106

 

3. Describe three inferences that judges and juries are not allowed to draw in criminal trials. What are the reasons these are not permitted?

 

ANS: Certain inferences are impermissible, and no inference of guilt or the victim’s role in the crime may be drawn from them. An inference of guilt should not be drawn when a defendant or suspect asserts the Fifth Amendment privilege against self-incrimination. The U.S. Supreme Court has held that the prosecution can use post-arrest, pre- warning silence for impeachment purposes. In some states, the prosecution may not use or comment on the fact that a defendant remained silent after arrest, whether or not Miranda warnings have been given.

 

LO: 5              REF: p.105 | 106 | 107

 

4. Discuss S. v. Williams’ PROTECT ACT section as it relates to child pornography and the internet. Does this provide enough protection? Why or why not?

 

ANS: In the 2008 case of United States v. Williams, the Supreme Court reversed  the Eleventh Circuit Court of Appeals and held the PROTECT Act constitutional. The PROTECT Act makes it a crime for a person to distribute information on the Internet in a manner that “reflects a belief” or is “intended to make another believe” the person was distributing child pornography. Charges of distributing child pornography over the Internet can be difficult to prove because the U.S. Supreme Court had held that persons distributing pictures alleged to contain images of actual children in sexual poses, but who are in reality young-looking actors or computer-created animations, cannot be prosecuted as child pornographers. As a result, it is difficult for a prosecution to prove that images depicted in an Internet posting are actual children. The PROTECT Act alleviates this problem by making it a violation to post images in such a manner that suggests the person posting the image either believes it to be of an actual child or posts it in a manner designed to make others believe the images are real children. The Supreme Court upheld the statute, stating it narrowly prohibited conduct that relates to the depiction of sexual poses involving actual children, and did not operate to prohibit conduct that does not involve actual children. The student responses should be grounded in their knowledge of the aforementioned act.

 

LO: 6              REF: p.96 | 97 | 98

 

5. Discuss corpus delicti in relation to circumstantial evidence.

 

ANS:  In all criminal cases, the state or government must prove that (1) a crime has been committed by someone (corpus delicti) and (2) the defendant(s) committed the offense. Most states have adopted a definition of corpus delicti similar to that used by the Supreme Court of California in the 1991 case of People v. Jennings: “The corpus delicti of a crime consists of two elements, the fact of the injury or loss or harm, and the existence of a criminal agency as its cause.” The corpus delicti of most crimes is ordinarily proved by direct evidence, as when the victim or a witness tells the police of the crime. The corpus delicti of other crimes is proved by physical evidence; for example, the corpus delicti of a burglary is shown by a broken window and missing valuables. The corpus delicti of a murder could be proved by a dead body with a knife in the chest.

 

LO: 3              REF: p.101 | 102

 

6. Discuss the sufficiency-of-evidence requirement in relation to a guilty verdict.

 

ANS:  One of the most common grounds for appeal of a jury verdict or a judge’s finding of guilty is insufficiency of evidence (sufficiency-of-evidence requirement). In this appeal, the defense argues that there was not sufficient evidence to support the verdict or finding of guilt beyond a reasonable doubt. While an appeals court does not make an independent determination of the facts but rather defers to the jury findings, the jury’s verdict or a judge’s finding must be supported and based on legal and substantial evidence. Mere possibilities, suspicion, or conjecture will not support a verdict or finding of guilt. If the evidence is inherently incredible or is contrary to common knowledge and experience or established physical facts, it will not support a finding of guilt. A defendant may move for a dismissal based on insufficient evidence after the prosecution rests its case, and the trial judge may enter such an order based on its own motion. However, after the jury returns a guilty verdict only the defendant may move for a judgment of dismissal. The trial may not on its own behalf make such an order. Either direct or circumstantial evidence will support a finding of guilt if the evidence is legally sufficient to prove all of the essential elements of  the crime charged.

 

LO: 1              REF: p.103 | 104 | 105

 

7. Differentiate a presumption from an inference.

 

ANS:  Inferences are reasonable conclusions or deductions that fact finders (juries or judges) may draw from the evidence presented to them. Fact finders should use common sense and their knowledge of everyday life in their reasoning process.

Whereas a presumption is an assumption that the law expressly directs that the trier of fact must make, an inference is a conclusion that a jury or judge may make based on the evidence presented. Many crimes require proof of facts that are not susceptible to direct evidence, but must be inferred by the jury. For example, first degree murder requires proof of a specific intent to kill. It is not common for witnesses to testify directly about the defendant’s stated intent. Juries may infer that a defendant intended “the ordinary consequences of his or her voluntary act,” but they cannot be told by a judge in a jury instruction that they have to presume this

 

LO: 4 | 6         REF: p.105 | 106

 

8. When eyewitness evidence is not available, it has often been stated that investigators and officers should ask, as guidelines in investigating crimes, these three questions in guiding their investigation; and secondly, why are those three key words critical to the findings of facts?

 

ANS:  Who had the means of committing the crime, who had the opportunity to commit the crime and lastly, who had the motive to commit the crime?  The students response to the second half of this question should related to burden of proof, being inclusive and using those key words (means, opportunity and motive) in directing their investigation.

 

LO: 3              REF: p.84 | 85 | 86