Criminal EVIDENCE tenth edition Ingram Jefferson L. University of Dayton John C. Klotter Justice Administration Legal Series Criminal Evidence, Ninth Edition Copyright © 1971, 1975 W.H. Anderson Company 1980, 1987, 1992, 1996, 2000, 2004, 2007, 2009 Matthew Bender & Company, Inc., a member of the LexisNexis Group Phone 877-374-2919 Web Site www.lexisnexis.com/anderson/criminaljustice All rights reserved. No part of this book may be reproduced in any form or by any electronic or mechanical means, including information storage and retrieval systems, without permission in writing from the publisher. LexisNexis and the Knowledge Burst logo are trademarks of Reed Elsevier Properties, Inc. Anderson Publishing is a registered trademark of Anderson Publishing, a member of the LexisNexis Group Library of Congress Cataloging-in-Publication Data Ingram, Jefferson.. Criminal evidence / Jefferson L. Ingram. – 10th ed. p. cm. Includes index. ISBN 978-1-4224-6141-9 (softbound) 1. Evidence, Criminal–United States. I. Title. KF9660.K57 2009 345.73’06–dc22 2009038517 Cover design by Tin Box Studio, Inc. EDITOR Elisabeth Roszmann Ebben ACQUISITIONS EDITOR Michael C. Braswell Preface In revising Criminal Evidence, Tenth Edition, the author continued to honor John Klotter’s extensive work on criminal evidence and to continue the excellent approach he followed by updating evidentiary themes, trends, and cases, while remaining true to the original organization and presentation. The book remains primarily a textbook with illustrated cases for those involved in the study of criminal evidence and in the administration of justice. It should prove especially valuable to those who are preparing for careers in criminal justice or related areas of study. For those reasons, the emphasis continues to be placed on the rules and principles of evidence that primarily affect criminal cases. This book has been prepared as a textbook for individuals teaching or learning about the evidentiary framework in the administration of criminal justice. The materials presented cover general evidence law in use by the states and the federal justice system. The text makes frequent reference to the Federal Rules of Evidence as a benchmark of how the law of evidence applies in particular situations. Although differences exist in the way a rule of evidence is administered in the various American jurisdictions, there is signifi cant uniformity because many states have adopted versions of the Federal Rules of Evidence or the Uniform Rules of Evidence. As state courts follow their particular adaptations of the Federal Rules of Evidence, they place signifi cant emphasis and reliance on the way the federal courts interpret the Rules while occasionally recognizing an interpretation of a rule that refl ects a state’s individual needs. For the reader or instructor, the book retains its familiar organization with related ancillary materials, including the glossary, a current version of the Federal Rules of Evidence, and the table of contents of the Uniform Rules of Evidence. As a method of organization, the text portion of this book roughly follows the current organizational order of the Federal Rules of Evidence and includes portions of particular rules in box format within the chapters. In Part II, where cases demonstrate some of the evidentiary principles, the author has added several newer legal cases that explain the evolving principles of evidence in a contemporary case context. While several landmark cases are presented in Part II, this version of the book retained some older cases in which the judicial writers offered particularly excellent explanations of legal principles. After Part II, the glossary permits the reader to fi nd defi nitions and learn many principles that may be unique to the study of the law of evidence. Although the text portion of this book does not deal with every section of the Federal Rules of Evidence, Appendix I contains a copy of the Federal Rules of iii iv CRIMINAL EVIDENCE Evidence that incorporates all of the new rule changes that became effective in December 1, 2008. Constitutional reinterpretations by the Supreme Court of the United States often change the admissibility of evidence. Forty-three years ago, the Miranda revolution altered the way in which criminal justice professionals could obtain and use some types of evidence. A few terms ago, the Supreme Court of the United States reinterpreted the Sixth Amendment right of confrontation in a way that affected the admissibility of hearsay evidence by requiring more in court testimony. Just this year, the Supreme Court revised the admissibility of evidence seized from automobile searches in particular arrest contexts. Recognizing that the law of evidence evolves, the author made every effort to recognize changes in evidence law and to incorporate the new material into the text discussion of the principles. The study of criminal evidence involves some understanding of collateral legal subjects like constitutional law and criminal law. In this book, evidentiary principles are embedded in criminal cases and in textual references involving murder, robbery, assault, battery, and other crimes. Using a criminal prosecution context, this book presents the traditional rules of evidence that most often affect criminal cases that lawyers, police, and criminal justice professionals will encounter. To assist instructors, an Instructor’s Guide and a PowerPoint presentation covering the text section of this book are available. Jefferson Ingram, University of Dayton, August, 2009. Table of Contents Preface iii PART I 1 History and Approach to Study 3 Chapter 1 History and Development of Rules of Evidence 5 Section 1.1 Introduction 7 1.2 Early Attempts to Determine Guilt or Innocence 7 1.3 Modern Legal Systems—Romanesque System 11 1.4 —Anglican System 12 1.5 Development of the Rules of Evidence in the United States 14 1.6 Application of the Rules of Evidence in State and Federal Courts 16 1.7 Future Development of the Rules of Evidence 18 1.8 Summary 20 Chapter 2 Approach to the Study of Criminal Evidence 21 Section 2.1 Introduction 23 2.2 Defi nitions 24 2.3 Reasons for the Rules of Evidence 28 2.4 Reasons for Excluding Evidence 29 2.5 Rules of Evidence in Criminal Cases Compared to Rules of Evidence in Civil Cases 31 2.6 Pretrial Flow of Evidence 33 2.7 Use of Evidence at the Trial 35 2.8 Consideration of Evidence on Appeal 36 2.9 Use of Evidence at the Probation Hearing 37 2.10 Use of Evidence When Considering Parole 37 2.11 Summary 38 v vi CRIMINAL EVIDENCE Proof by Evidence and Substitutes 41 Chapter 3 Burden of Proof 43 Section 3.1 Introduction 45 3.2 Defi nitions and Distinctions 46 3.3 Preponderance of the Evidence 49 3.4 Clear and Convincing Evidence 50 3.5 Beyond a Reasonable Doubt 52 3.6 Burden on the Prosecution 56 3.7 Burden to Prove All Elements of the Crime 58 3.8 Burden on the Accused 60 3.9 Burden of Proving Affi rmative Defenses—General 63 3.10 —Alibi 64 3.11 —Insanity 66 3.12 —Self-Defense 69 3.13 Suffi ciency of Evidence 72 3.14 Summary 73 Chapter 4 Proof via Evidence 75 Section 4.1 Introduction 77 4.2 Pretrial Motions Pertaining to Evidence 78 4.3 General Approach to Admissibility 79 4.4 Order of Presenting Evidence at the Trial 81 4.5 Procedure for Offering and Challenging Evidence 83 4.6 Role of the Trial Judge in Evidence Matters 85 4.7 Function of the Jury 88 4.8 Role of Witnesses 89 4.9 Prosecuting Attorney’s Responsibilities 91 4.10 Defense Attorney’s Responsibilities 94 4.11 Admissibility and Weight of Direct and Circumstantial Evidence 97 4.12 Summary 103 Chapter 5 Judicial Notice 105 Section 5.1 Introduction 107 5.2 Judicial Notice Defi ned 108 5.3 Judicial Notice of Facts 111 5.4 —Matters of General Knowledge 113 5.5 —History and Historical Facts 116 TABLE OF CONTENTS vii 5.6 —Geography and Geographical Facts 117 5.7 —Facts Relating to Nature and Science 119 5.8 —Language, Abbreviations, and Symbols 121 5.9 Judicial Notice of Laws 123 5.10 —Law of the Forum 124 5.11 —Federal Law 124 5.12 —Law of Sister States 125 5.13 —Law of Foreign Countries 126 5.14 —Municipal Ordinances 127 5.15 —Administrative Regulations 128 5.16 —Jurisdiction of Courts 129 5.17 Judicial Notice Process 130 5.18 Judicial Notice in Criminal Cases 132 5.19 Summary 133 Chapter 6 Presumptions, Inferences, and Stipulations 135 Section 6.1 Introduction 137 6.2 Defi nitions and Distinctions 138 6.3 Reasons for Presumptions and Inferences 144 6.4 Presumptions of Law 146 6.5 Presumptions of Fact 147 6.6 Classes of Presumptions 148 6.7 Specifi c Presumption Situations 151 6.8 —Innocence 152 6.9 —Sanity 156 6.10 —Suicide 159 6.11 —Possession of Fruits of Crime 160 6.12 — That a Person Intends the Ordinary Consequences of His or Her Voluntary Acts 163 6.13 —Knowledge of the Law 167 6.14 —Flight or Concealment 168 6.15 —Unexplained Absence as Death 171 6.16 —Regularity of Offi cial Acts 173 6.17 Constitutionality Tests for Presumptions and Inferences 175 6.18 Stipulations 180 6.19 —Polygraph Tests 183 6.20 Summary 185 viii CRIMINAL EVIDENCE General Admissibility Tests 187 Chapter 7 189 Relevancy and Materiality Section 7.1 Introduction 191 7.2 Relevancy and Materiality Defi ned 192 7.3 Admissibility of Relevant Evidence 196 7.4 Reasons for Exclusion of Relevant and Material Evidence 199 7.5 Relevancy of Particular Matters 206 7.6 —Identity of Persons 207 7.7 —Identity of Things 210 7.8 —Circumstances Preceding the Crime 211 7.9 —Subsequent Incriminating or Exculpatory Circumstances 213 7.10 —Defenses 217 7.11 —Character Evidence 221 7.12 —Proof of Other Crimes, Wrongs, or Acts 224 7.13 —Experimental and Scientifi c Evidence 229 7.14 Summary 231 Chapter 8 Competency of Evidence and Witnesses 233 Section 8.1 Introduction 235 8.2 Defi nitions 236 8.3 General Categories of Incompetent Evidence 236 8.4 Competency of Evidence—Documentary Evidence 238 8.5 —Tests and Experiments 238 8.6 —Conduct of Trained Dogs 240 8.7 —Telephone Conversations 243 8.8 Negative Evidence as Competent Evidence 245 8.9 Evidence Competent for Some Purposes but Not for Others 247 8.10 Competency of Witnesses 248 8.11 —Mental Incapacity 251 8.12 —Children 254 8.13 —Husband and Wife 258 8.14 —Conviction of Crime 262 8.15 —Religious Belief 264 8.16 Competency of Judge as Witness 265 8.17 Competency of Juror as Witness 267 8.18 Summary 271 TABLE OF CONTENTS ix Evidence via Witness Testimony 273 Chapter 9 Examination of Witnesses 275 Section 9.1 Introduction 277 9.2 Essential Qualities of a Witness 278 9.3 Oath or Affi rmation Requirement 281 9.4 Judicial Control of Testimony 283 9.5 Separation of Witnesses 285 9.6 Direct Examination of Witnesses 288 9.7 —Leading Questions 289 9.8 —Refreshing Memory—Present Memory Revived 293 9.9 —Past Recollection Recorded 297 9.10 Cross-Examination of Witnesses 300 9.11 Redirect and Recross-Examination 305 9.12 Impeachment of Witnesses 306 9.13 —Own Witness 308 9.14 —Bias or Prejudice 310 9.15 —Character and Conduct 312 9.16 —Conviction of Crime 316 9.17 —Prior Inconsistent Statements 321 9.18 —Defects of Recollection or Perception 323 9.19 —Use of Confession for Impeachment Purposes 324 9.20 Rehabilitation of Witness 326 9.21 Summary 328 Chapter 10 Privileges 331 Section 10.1 Introduction 333 10.2 Reasons for Privileged Communications 337 10.3 Communications Between Husband and Wife 338 10.4 Communications Between Attorney and Client 351 10.5 Communications Between Physician and Patient 362 10.6 Communications to Clergy 368 10.7 Confi dential Informant Privilege 372 10.8 State Secrets and Other Offi cial Information 376 10.9 News Media-Informant Privilege 380 10.10 Summary 386