Chapter 4 1 Majority Concurring And Dissenting Opinions Iv Criminal

CHAPTER FOUR. PROCEDURE AND EVIDENCE

LEARNING OBJECTIVES

• To understand the differences between alternative dispute resolution, civil procedure and

criminal procedure

• To understand the formal steps in civil procedure

• To understand appellate procedure especially that of the U.S. Supreme Court

CHAPTER SUMMARY

The chapter begins by reviewing the difference between procedural law and substantive

law. The focus of the chapter is procedural due process. Alternative dispute resolution is

discussed briefly to make the student aware that invoking the formal legal process is only one

aspect of conflict resolution. The section also covers the growth of alternative dispute resolution

in recent years.

The chapter then turns to coverage of criminal procedure. Differences between civil and

criminal procedures are explained. The role of the grand jury, the concept of jeopardy, and the

standard of proof as they relate to the criminal justice process are discussed.

The chapter concludes with an extensive examination of the rules of evidence. Topics

include the difference between direct and circumstantial evidence, tangible and oral evidence,

scientific evidence, examination of witnesses, privileges, and the exclusionary rule. The chapter

concludes with a brief discussion of the importance of fair processes in the administration of

justice.

CHAPTER OUTLINE

I. Introduction

II. Alternative Dispute Resolution

III. Civil Procedure

A. Initial Formal Process

1. Complaint

2. Damages

3. Service

B. Discovery

1. Depositions

2. Interrogatories

C. Selection of the Jury

1. Voir dire

2. Challenges

D. Submission of Evidence

1. Standard of Proof

E. Final Motions

F. Jury Deliberation and Verdict

G. Appellate Procedure

1. Harmless and Reversible Errors

IV. Criminal Procedure

A. Pretrial Procedures

1. Complaints and Arrest Warrants

2. Preliminary Hearings and Bond

3. Indictment and the Role of the Grand Jury

B. Criminal Trial Stage

1. Jeopardy in a Criminal Case

2. Hung and Sequestered Juries

3. Habeas Corpus Procedures

V. Rules of Evidence

A. Direct and Circumstantial Evidence

B. Forms of Evidence

C. Presentation of Evidence

VI. Conclusion

TERMS/CONCEPTS/PEOPLE

Alternative dispute resolution (ADR) Bench trial

Mediation Venire

Arbitration True bill

Petition Answer

Complaint Fifth Amendment

Demurrer Challenge for cause

Default judgment Peremptory challenge

Compensatory damages Voir dire

Punitive damages Opening statement

Discovery Direct examination

Interrogatory Cross-examination

Deposition Leading questions

Reversible error Remittitur

Garnishment Arrest warrant

Harmless error Appeal

Appellant Service

Appellee Principal brief

Reply brief En banc

Rule of Four Writ of certiorari

Majority opinion Minority opinion

Concurring opinion Dissenting opinion

Plurality opinion Search warrant

Fourth Amendment Indictment by information

Indictment by grand jury Grand jury

Petit jury Probable cause

True bill No bill

Nolo contendere plea Plea bargain

Sequester the jury Double jeopardy

Fifth Amendment Sixth Amendment

Writ of habeas corpus Direct evidence

Circumstantial evidence Tangible evidence

Judicial notice Oral testimony

Indeterminate sentencing Fourteenth Amendment

Motion in limine Mens rea

Actus reus Booking

Oral argument Scientific evidence

Prima facie case Indictment

CHAPTER TEST QUESTIONS

Multiple Choice Questions

1. The presumption of innocence means that at trial:

A. Defendant must prove that she is not guilty;

B. State must prove that the defendant is guilty;

C. Only a judge may find the defendant guilty;

D. Only a jury may find the defendant guilty;

E. None of the above.

2. The document that the plaintiff files with a court in which she alleges that the defendant has caused her

some injury is:

A. Complaint;

B. Summons;

C. Response;

D. Motion for summary judgment;

E. Default judgment.

3. As to every factual issue, one of the parties has the duty to properly raise the issue through pleadings,

admissible evidence and persuasion is called:

A. Burden of proof;

B. Presumption of innocence;

C. Proof beyond a reasonable doubt;

D. Privilege;

E. None of the above.

4. Opinion testimony from witnesses is generally excluded because:

A. It is the jury‘s role to draw conclusions from the facts brought out by the

witnesses;

B. Experts are usually paid to give their testimony;

C. The jury is just as competent as the witness to interpret the

facts,

D. A and B;

E. A and C.

5. In a criminal case, the State must convince a jury or a judge that the defendant is:

A. Guilty by a preponderance of the evidence;

B. Guity by reason of insanity;

C. Guilty beyond a reasonable doubt;

D. Guilty by clear and convincing evidence;

E. None of the above.

6. Elizabeth is a witness in Matthew‘s trial for spousal abuse of Anne. Elizabeth repeats Katherine‘s assertion that

Matthew beat Anne.

A. The testimony is inadmissible because of the Parol Evidence Rule;

B. The testimony is inadmissible because of the Hearsay Rule;

C. The testimony is inadmissible because of the Best Evidence Rule;

D. The testimony is inadmissible because of the Exclusionary Rule;

E. The testimony is admissible.

7. The exclusionary rule was imposed on federal courts in the case of:

A.

Marbury

v. Madison;

B. Pennsylvania v Munk;

C. Weeks v. United States,

D. Colegrove v. Green;

E. United States v. Richardson.

8. As part of the divorce proceedings between Rhett and Scarlett, the judge mandates that the couple

consult a neutral third party, Margaret Mitchell, about the property division and advises them that the

Court will consider Mitchell‘s recommendations binding. This is known as:

A. Mediation;

B. Court–annexed arbitration;

C. Compromise;

D. ARM;

E. A peaceful solution.

9. Assume that Derek Jeter and the Steinbrenner family, owners of the New York Yankees, are involved in a

controversy over the amount that Jeter is to be paid during the next contract term. They agree to submit

the question to a neutral third party and to be bound by the decision of that person. This is known as:

A. Mediation;

B. Arbitration;

C. Compromise;

D. ARM;

E. None of the above.

10. A plurality opinion:

A. Is one where all the judges agree on both the reasoning and the outcome of a case;

B. Is one where at least five of the judges on a nine–person court agree on both the reasoning and the

outcome of the case;

C. Is one where at least five of the judges on a nine–person court agree on the outcome but not

necessarily the reasoning of a case;

D. Is absolutely binding as precedent;

E. Is none of the above.

11. If the defendant in a civil suit fails to respond to a summons, the judge may render a:

A. Summary judgment;

B. Judgment by default;

C. Complaint;

D. Deposition;

E. Directed verdict.

12. An order from a higher court to a lower court to send up the record of case so that the higher court may

review the case is:

A. Motion for habeas corpus,

B. Writ of certiorari;

C. Writ of certification;

D. Corpus delicti;

E. None of the above.

13. A defendant who pleads nolo contendere is:

A. Denying culpability;

B. Accepting punishment;

C. Accepting culpability;

D. A and B;

E. B and C.

14. Which of the following is not considered as part of the pleadings in a civil case?

A. Complaint;

B. Cross–complaint;

C. Answer;

D. Interrogatory

E. None of the above

15. In a bifurcated system, there are actually two trials in one proceeding. In a criminal trial, the first portion

pertains to establishing the innocence or guilt; the second portion is to:

A. Determine punishment;

B. Determine the sufficiency of the evidence;

C. Plead;

D. Allow for an appeal;

E. All of the above.

16. Agreeing to plead guilty to a lesser offense for a lighter sentence is called:

A. Plea bargaining;

B. Indicting;

C. No billing;

D. Injunction;

E. None of the above.

17. Potential jurors who exhibit obvious and apparent bias are dismissed by:

A.

Pro se

motions;

B.

Pro bono

motions;

C. Peremptory challenges;

D. Challenges for cause;

E.

Pro publico

challenges.

18. When can an attorney use leading questions?

A. Establishment of preliminary matters that are not in issue such as name, address and occupation;

B. Examination of a child witness (within certain limits);

C. Examination of an expert witness;

D. Examination of a hostile witness;

E. All of the above.

19. Rebecca is bringing a lawsuit against Tracy for personal injuries and property damage because of an

automobile accident. Which of the following statements is correct?

A. The initial document that is filed with the court is the complaint or petition;

B. The suit cannot proceed if Tracy cannot be served;

C. Tracy may file for a demurrer if Rebecca does not establish a prima facie case in her pleadings;

D. A default judgment may be issued against Tracy if she does not file an answer after being served;

E. All of the above.

20. The recording of a witness‘ out–of–court statement, taken under oath prior to the trial, is called:

A. Deposition;

B. An interrogatory;

C. A request for admissions;

D.

A subpoena;

E.

A motion in

limine.

21. When an attorney is allowed to eliminate a prospective juror without giving a reason, this is called;

A. Challenge for cause;

B. Special venire;

C. Process of elimination;

D. Peremptory challenge;

E. None of the above.

22. A type of evidence that allows the trier of fact to accept facts that are common knowledge or subject

to certain verification by highly–reliable sources without further factual proof is:

A. Testimonial;

B. Tangible;

C. Direct;

D. Judicial notice;

E. None of the above.

23. The judge may—within limited circumstances—alter a jury verdict under the doctrine of:

A. Judgment non obstante verdicto (j.n.o.v.);

B. Replevin;

C. Contributory negligence;

D. Res ipsa loquitor;

E. None of the above.

24. Bail is designed:

A. To keep the rich in jail;

B. To allow the release of the accused pending trial;

C. To be based primarily on the assets of the accused;

D. As a form of punishment;

E. B and C.

25. Which of the following are basic qualifications for a witness?

A. Ability to communicate with the judge and/or jury;

B. Understanding of the duty to tell the truth;

C. Personal knowledge of the facts;

D. All of the above;

E. None of the above.

26. Which of the following is not hearsay?

A. “I told the officer that I saw the accident;“

B. “He pointed to the defendant at the line–up when asked who committed the crime;”

C. “I know that he beat her regularly because the children told me;“

D. “She said she screamed at him, ‘Please don‘t hit me anymore;“‘

E. “Three people told me that she said that the defendant was at fault in the accident.“

27. A case is deemed “overruled“ when:

A. The trial court judge does not follow precedent established by appellate courts;

B. A case is appealed;

C. It is declared to have been wrongly decided in a subsequent case on appeal;

D. Judges follow precedent;

E. None of the above.

28. During the murder trial of Blake, the prosecution wishes to present a gun that the State claims is the murder

weapon. Which of the following is true?

A. Horatio Caine, the crime scene investigator, must testify about finding the gun at the scene and the

chain of custody regarding the gun;

B. During discovery, the defense would have had an opportunity to examine the gun and pertinent

reports such as the ballistics test;

C. The defense could seek to exclude the gun because it was seized during an

illegal search;

D. Samantha, the potential juror who had herself been the victim of a crime involving a handgun,

would likely be excluded on a challenge for cause;

E. All of the above.

29. Questions of fact are decided by:

A. Jury in a jury trial;

B. Judge in a bench trial;

C. Appellate judges;

D. A and B;

E. A and C.

30. When an appellate

court

finds only harmless error, the court:

A. Sustains the lower court‘s decision;

B. Reverses the lower court‘s decision;

C. Remands the case to the lower court;

D. Hears the case en banc

E. None of the above

31. Which of the following is not one of the elements of hearsay?

A. Testimony by a witness;

B. About an out–of–court statement;

C. Made by himself or herself;

D. That is being offered to prove the truth of the matter stated;

E. None of the above.

32. The term used to describe the action when an appellate court sends back a case to a lower court for

further action is:

A. Reverse;

B. Remittitur;

C. Remand;

D. Richochet;

E. Reconsider.

33. Which of the following is not a form of evidence?

A. Motion in limine,

B. Testimonial;

C. Tangible;

D. Judicial notice;

E. None of the above.

34. Which of the following is not true of a civil case?

A. Either party may request a jury trial;

B. The plaintiffs case is presented prior to the defendant‘s

case;

C. The trial judge never determines the facts;

D. The verdict is always a special issues verdict;

E. None of the above.

35. A general demurrer involves:

A. Denying the facts purporting to create a cause of action;

B. Asserting that the complaint does not state a cause of action;

C. Pointing out the technical and procedural defects in the complaint;

D. Choosing not to respond to the complaint at all;

E. None of the above.

36. Damages that are awarded in a civil suit (such as libel) to teach the wrongdoer a lesson is called:

A. Prison sentences;

B. General damages;

C. Compensatory damages;

D. Contributory damages;

E. Punitive damages.

37. A legal document developed by a grand jury that charges someone with committing a violation of the

criminal law is:

A. Information;

B. Indictment;

C. Iniquity;

D. Interdict;

E. Inquisition.

38. Chen slipped on a banana peel at the grocery store and sues. He must prove his case:

A. By a preponderance of the evidence;

B. By clear and convincing evidence;

C. Beyond a reasonable doubt;

D. Ipso facto;

E. Ex parte.

39. Evidence introduced at trials:

A. May be excluded for one purpose and admitted for another;

B. May be excluded if it is the fruit of a tainted search in a criminal case;

C. May be excluded if the police improperly conducted the interrogation;

D. All of the above;

E. None of the above.

40. A jury that cannot agree on a verdict in a case that requires a unanimous verdict is said to be:

A. Stagnant;

B. Impassive;

C. Garroted;

D. Hung;

E. Suspended.

41. The _________________of a criminal case is determined by the geographic location of a crime.

A. Voir dire,

B. Venue;

C. Verdict;

D. Venire;

E. None of the above.

Essay Questions

1. Discuss the purpose of alternate dispute resolution, its advantages and disadvantages, and its

various formats.

2. Discuss the process of filing a civil lawsuit from the time of the event through discovery.

3. Discuss a civil lawsuit from the time of discovery through the verdict and enforcing the

judgment.

4. Discuss the process of summoning and selecting a jury.

5. Discuss the stages of an appeal.

6. Discuss the appellate procedure at the U.S. Supreme Court and the state appellate courts

including, but not limited to, the procedures for selecting and deciding cases and the types of

opinions.

7. Discuss discovery including, but not limited to, its purposes and formats.

8. Discuss the criminal process from the time of the event through the arraignment.

9. Discuss the criminal process from the time of arraignment through punishment.

10. Discuss various types of evidence.

11. Define and discuss the Exclusionary Rule and the Rule against Hearsay and the purposes of

each.