Criminal Evidence

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Example of Prosecutor’s Fallacy:

- Joe wins the lottery of $110,000,000. Joe had a stat chance of one in 750,000,000 of winning. It is so improbable that he must have cheated. What is wrong with this conclusion? If joe was the only person to buy a ticket then the conclusion would be true. But if 400 million other people bought tickets then this conclusion does not make any sense. You cannot look at the probability in isolation.

- Sally Clarke case: testimony from pediatrician concluded that the chance of two kids from an affluent non-smoking family suffering from SIDS was 1 in 73 million. He arrived to this by squaring 1 in 8,500, as the likelihood of a cot death in similar circumstances. Expert Dr. Meadows showed that the child had a staph infection and that was more probable to be the cause of death of the second child. This was never brought forth in the record.

- If the likelihood of guilt or innocence are equally high, how are the two reconciled? When there is probability evidence brought into a case, a Mathematics expert must be brought in to weigh the significance of the evidence and its validity.

- PHYSICAL EVIDENCE

- Analysis

- Evidence real or demonstrative?

- Note: Best Evidence Rule – Should produce original doc., narrow scope

- Real Evidence – Directly connected to this event

- Requires foundation and authentication (FRE 901)

- Evidence sufficient to support finding the item is what proponent claims it is

- Sufficiency standard, procedure depends on type of evidence (Long – rational basis to authenticate it is what they claim, can use circumstantial evidence; Bruther – proof of limited access)

- Some evidence is self-authenticating (FRE 902 – e.g., signed/sealed, notarized, etc. public documents, certified records of regular activity, etc. – Certification should be from authorized person/custodian of documents)

- Chain of custody goes to weight not admissibility (Casto)

- Unless chain is so broken the evidence is irrelevant (Grant – only need some likelihood the substance tested was the substance seized)

- Witness testimony is necessary to authenticate a writing only if required by jurisdiction (FRE 903)

- Demonstrative Evidence – Illustrations, diagrams, examples, photos, etc.

- FRE 1006 – Summaries to prove content. Can use a summary/chart/calculation to prove content of voluminous data that can’t be conveniently examined in court. Must make originals available to opposing party and court can order production.

- Consider: Fair and accurate representation? Relevant? Helpful? Does it supplant jury’s fact finding role? Purely illustrative?

- Is the item sufficiently explanatory/illustrative of testimony to be helpful?

- Photos – Authenticate (fair and accurate?), sits between real and demonstrative (formalistic vs. functional – not the scene, but can’t possible bring scene to court)

- Photo a gloss on evidence, or actual evidence you can draw conclusions from?

- Authentication: Photographer testifies to date/time and any manipulation; and/or witness testifies to subject matter then confirms fairness and accuracy

- Generally

- Procedure

- Mark/identify the piece of evidence

- Show opposing counsel

- Authenticate/lay foundation

- Move into evidence

- Publish to jury

- FRE 901 – Authentication

- Proponent must produce evidence sufficient to support finding the item is what proponent claims it is

- Examples: Testimony with PK, non-expert opinion re handwriting, comparison by an expert of authenticated specimen, opinion about a voice, evidence re phone convo (must ID persons/business on the line), evidence re public records, evidence re ancient docs (20y/o+, not suspicious), evidence a process/system produces accurate results

- FRE 902 – Self-Authenticating Evidence

- Domestic public documents that are sealed and signed

- Domestic public documents that are not sealed but are signed and certified

- Certification certifies that the original signature is genuine and by an official

- Foreign public documents

- Certified copies of public records if certified as correct by

- The custodian or other authorized person or one that complies with (1)-(3)

- Official publication – issued by a public authority

- Newspaper/periodical

- Trade inscriptions and the like

- Acknowledged (notarized) documents

- Commercial paper and related

- Presumptions under federal statute

- Certified domestic/foreign records of a regularly conducted activity

- Cases – Real Evidence

- Long – To authenticate a document, the proponent need only prove a rational basis for the claim the document is what proponent asserts, can use circumstantial evidence

- K offered to prove Δ was fooled into thinking his conduct was legal

- Issue was not whether K was valid, but whether it was the K fiancé had seen/read

- Bruther – Standard for authentication is sufficiency

- Argument Π couldn’t authenticate that a bulb offered was the one that injured him

- Evidence showed it came from somewhere with limited access, correct brand/size

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