Outline - Criminal Law - XI - Trial Process

Criminal Law (2005 Fall)

XI. TRIAL PROCESS

1. Evidence
   1. Evidence that is relevant is admissible only if it is:
      1. Probative
      2. Material
   2. Evidence that is relevant but inadmissible
      1. Privilege
         1. Patient/doctor
         2. Attorney/client
         3. Priest/penitent
         4. Spouse
         5. Self-incrimination
      2. Hearsay [Krulewitch – Prostitution conspiracy]
      3. Prejudice [Zackowitz – Character evidence inadmissible unless defense makes character an issue; psychological profiles or reputations in rape cases.]
   3. Evidence that is relevant but limited in admissibility
      1. Rule 404(b) – Evidence of prior crimes may be used for proof of motive, opportunity, intent, etc., but not for establishing character.
      2. Signature exception – Where prior crimes establish a “signature”, preponderance of evidence is sufficient.
      3. Sex offenses – Evidence of prior offense admissible unless prejudicial.
      4. Impeachment – If defense makes character an issue, character evidence admissible.
2. Burden of Proof
   1. Reasonable doubt
   2. Preponderance for affirmative defense
   3. Allocation
      1. Normally state bears burden of production (putting an issue in play) and burden of persuasion (convincing the trier of fact).
      2. State may not shift burdens to defendant by making an element’s converse an affirmative defense. [Patterson/Mullaney]
   4. Presumptions
      1. Conclusive [Sandstrom – Conclusive not okay]
      2. Mandatory
      3. Permissible
      4. Rebuttable
3. Role of Counsel

   1. Perjury

      Nix v. Whiteside – If defendant wants to commit perjury, counsel must choose between free narrative, and thread of disclosure.

   2. Impeachment of prosecution witnesses