Deck 12: Real Evidence

Question 1

What is real evidence? Distinguish it from documentary evidence or oral testimony.

Answer 1

Real evidence, also known as physical evidence, refers to tangible objects that are involved in the case or have a direct connection to the incident in question. This type of evidence can include anything from weapons used in a crime, to a piece of clothing, to a fingerprint, to a car involved in a traffic accident. Real evidence is presented to the court to help establish the facts of the case, and it is often considered highly reliable because it provides a direct and physical representation of what happened.

Documentary evidence, on the other hand, consists of documents or written records that are used to prove a fact. This can include contracts, letters, emails, business records, and other types of documents that contain information relevant to the case. Documentary evidence is often used to support or refute claims made by the parties involved in the case.

Oral testimony is evidence that is spoken by a witness, either in court or in a deposition. This type of evidence is based on what the witness has seen, heard, or experienced. Oral testimony relies on the credibility of the witness and is subject to cross-examination by the opposing party to test its reliability and accuracy.

The distinction between real evidence and the other forms of evidence lies in its physical nature. Real evidence can be directly examined by the court, whereas documentary evidence and oral testimony are representations of facts that must be interpreted. Real evidence can often stand on its own, while documentary evidence and oral testimony usually require a witness to authenticate or explain them.

In summary, real evidence is a physical object presented in court, documentary evidence is written material used to prove a fact, and oral testimony is spoken evidence given by a witness. Each type of evidence plays a crucial role in the judicial process, and their relative importance can vary depending on the context of the case and the rules of evidence that apply.

Question 2

List four general rules regarding the admissibility of real evidence. How does the party offering real evidence authenticate the item?

Answer 2

Four general rules regarding the admissibility of real evidence are:

1. Relevance: The real evidence must be relevant to the case at hand and must have the potential to prove or disprove a fact in question.

2. Authenticity: The party offering the real evidence must be able to prove that the item is what it claims to be. This can be done through witness testimony, chain of custody documentation, or other means of authentication.

3. Hearsay: Real evidence that is offered to prove the truth of a matter asserted must not be based on hearsay. Hearsay is an out-of-court statement offered to prove the truth of the matter asserted and is generally not admissible as real evidence.

4. Best Evidence Rule: The best evidence rule requires that the original of a document or recording be presented as evidence, rather than a copy, unless the original is unavailable for some legitimate reason.

To authenticate the item, the party offering real evidence can use various methods such as witness testimony from someone who can verify its authenticity, documentation showing the chain of custody of the item, expert testimony, or other means of proving that the item is what it claims to be. This authentication process is crucial in ensuring that the real evidence is admissible in court.

Question 3

What is meant by the term chain of custody? Is real evidence admitted if there is a break in the chain of custody? Explain.

Answer 3

The term "chain of custody" refers to the documented process that outlines the collection, transfer, handling, and storage of evidence from the time it is obtained until it is presented in court. This process is crucial in legal contexts to ensure that the evidence presented is the same as the evidence that was originally collected, and that it has not been tampered with, altered, or contaminated in any way.

The chain of custody must establish a chronological paper trail that records the sequence of custody, control, transfer, analysis, and disposition of physical or electronic evidence. It typically includes details such as:

- Who collected the evidence
- When and where the evidence was collected
- Who has had custody of the evidence since its collection
- How the evidence was stored and preserved
- Any changes that were made to the evidence (such as opening a sealed bag for analysis)

If there is a break in the chain of custody, it can cast doubt on the integrity and authenticity of the evidence. When a break occurs, it means there is a period or instance where the evidence was not properly accounted for, and during which it could have been potentially tampered with or compromised.

Whether real evidence is admitted in court despite a break in the chain of custody depends on the legal jurisdiction and the circumstances of the case. In some cases, a minor break might not necessarily disqualify the evidence if it can be reasonably shown that the evidence remains intact and reliable. For example, if the break is well-documented and explained, and there is no indication of tampering, the evidence might still be admissible.

However, if the break in the chain of custody is significant and raises substantial concerns about the evidence's authenticity or integrity, the evidence may be deemed inadmissible. The decision ultimately lies with the judge, who will consider the nature of the break, the importance of the evidence, and the potential impact on the fairness of the trial.

In summary, the chain of custody is a critical aspect of legal proceedings that helps to maintain the integrity of evidence. A break in the chain of custody can jeopardize the admissibility of evidence, but whether it leads to the exclusion of evidence depends on the specific details and the judge's discretion.

Question 4

What factors are considered in determining whether real evidence is connected with a crime? Give some examples.

Question 5

What are the factors that a judge might consider in determining whether the exhibition of the person of the victim is to be allowed?

Question 6

May a weapon, such as a gun allegedly used in the commission of a crime, be introduced in evidence? Are there any conditions on its admission? If so, what are they? Must the party offering the weapon establish an absolute chain of custody? Are there other ways to authenticate a firearm?

Question 7

What is the general rule concerning the admissibility of clothing, such as that worn by the accused at the time of the crime? Give other examples of evidence that is admissible as an article or instrument connected with a crime. What are the requirements for admitting narcotics, narcotics paraphernalia, and records?

Question 8

Does a judge have the authority in a criminal case to permit the jurors to view the premises where the crime was alleged to have been committed? If it is authorized, what is the procedure for viewing the premises? Would a trial judge commit an error to refuse to allow the defendant to be present at the scene of the crime?

Question 9

What are the requirements for the admissibility of photographs? How may photographs be authenticated? Are photographs admissible if the officer who takes the photographs violates the Constitution when getting into a position to take the photographs? Explain.

Question 10

What is the rationale for not allowing the admission of gruesome photographs? What factors are considered when determining admissibility?

Question 11

What evidence is required in laying the foundation for the admissibility of motion pictures at trial? Give some examples of the use of motion pictures in criminal cases. What are the requirements for the admissibility of videotapes or digital video recordings? Explain. Does the fact that parts of the tape or digital video recording are inaudible require exclusion?

Question 12

Are sound recordings admissible in evidence? If so, what are the requirements? What are the dangers of using sound recordings in evidence?

Question 13

What are the requirements for laying a foundation for the admission of sound recordings?

Question 14

May diagrams, maps, models, and blackboard drawings be used to explain testimony during a trial? If so, are there any conditions on their use?

Question 15

Does the law require the prosecution to turn over exculpatory evidence to the defendant? If the prosecution is required to turn over exculpatory evidence to the defendant, what are the consequences for failing to do so?

Question 16

In Schmerber v. California, an officer ordered that blood be drawn from a motorist to be used in a blood-alcohol test because the driver was suspected of being under the influence of alcohol. A prosecutor introduced the blood-alcohol results against the defendant in a driving-while-intoxicated prosecution. Under what provisions of the Constitution was the taking of the blood challenged? What was the decision of the court concerning the use of blood for this purpose? Can blood or DNA be considered testimonial in nature such that its admission would violate the Fifth Amendment? Why or why not?

Question 17

In the case of State v. Griffin, the prosecution was permitted to introduce DNA evidence that had been obtained in 1984 from a dollar bill that the government seized years before the trial. The defendant contended that there was a break in the chain of custody that must be established before real evidence could properly be admitted. The defendant contended that the DNA evidence obtained from analyzing blood on the currency in 1984 should not have been allowed to be compared to DNA samples taken from the defendant in recent times

Question 18

In the case of Underwood v. State, the defendant was indicted for capital murder. The indictment charged that the defendant murdered the victim by shooting her with a pistol during the course of a kidnapping. The jury returned a verdict of guilty and found that the defendant should be sentenced to death. On appeal, the defendant argued that the introduction of the videotape of the crime scene depicting the victim's body outweighed the tape's probative value, and the introduction of numerous gruesome photographs outweighed their probative value. What were the comments of the court concerning the general rule relating to the admissibility of gruesome photographs? What factors must the judge consider when deciding on the admissibility of gruesome photographs? Do the same standards apply to determining admissibility of videotapes? Were the videotapes and the photographs properly admitted by the trial court in this case?

Question 19

In McHenry v. State of Indiana, the prosecution used videotape of a bank teller to help convict her of embezzlement. The videotape showed that at the precise time she withdrew money from the customer's account, there was no customer in front of her teller station. In order for a still picture or a videotape to be admitted as evidence, it must be shown to depict faithfully what it purports to depict. Should there have been more evidence as to how and when the camera was loaded, how frequently the camera was activated, when the photographs were taken, and the processing and changing of custody of the videotape? Could the videotape evidence of the crime be considered a silent recording of the real evidence of the crime and admissible as a silent witness?

Question 20

"Evidence furnished by things themselves, upon a viewing or inspection, as distinguished from a description of them by a witness," is a definition of:

A) documentary evidence.
B) oral testimony.
C) real evidence.
D) substitutes for evidence.

Question 21

The case of Schmerber v. California involved the use of real evidence (blood) extracted from the defendant, which was analyzed and used against him. In this driving-while-intoxicated case, the Supreme Court held the blood that was drawn from the defendant without his consent:

A) was properly used to show that he had been driving with a blood-alcohol level that was above the legal limit and that the use of this kind of real evidence did not violate his Fifth Amendment privilege against self-incrimination.
B) should not have been used to help convict him even though it qualified as real evidence and the blood did not produce a deceptive result.
C) should not have been used to help convict him because he did not give consent to the extraction of this type of real evidence and the effect was to require him to testify against himself.
D) did not qualify as real evidence and should not have been admitted under that theory.

Question 22

For an item of evidence to be authenticated using the chain of custody theory:

A) the prosecution must generally account for the location and control of the item from the time it was secured at a crime scene until it is introduced in court as evidence.
B) even minor gaps in the chain of custody will virtually always result in the item of evidence being excluded from the criminal trial.
C) the item of evidence must have a serial number introduced in court that will demonstrate that the item of evidence is the same one found at the crime scene.
D) must be proof that the evidence never left the police property room for any reason until the day of trial, when the item of evidence was introduced.

Question 23

One method of authenticating an item of real evidence is to establish a chain of custody. In order for evidence to be admissible under a chain of custody theory:

A) the prosecution must show that the evidence was kept in a locked safe from the time it was found until it was introduced in court.
B) the prosecution need only show that the evidence is of the same type as that found at the scene.
C) the evidence must be taken to the judge immediately after it is obtained.
D) the trial court need only be satisfied that in reasonable probability the article had not changed in important respects and was the same article originally obtained.

Question 24

In applying the Federal Rule 901 (Requirement of Authentication or Identification), federal courts have:

A) refused to admit real evidence if a continuing chain of custody is not clear.
B) been fairly consistent in allowing real evidence to be admitted, even if the chain of custody is not clear, where the items have been in official custody and there is no affirmative evidence of tampering.
C) ruled that the prosecutor does not have to introduce evidence to show that it is improbable that the item might have been contaminated or been subjected to tampering.
D) held that there is a presumption that federal officers have not discharged their duties properly but that this presumption may be overcome.

Question 25

Police arrested a juvenile following a drive-by shooting, and police recovered a handgun that was illegal for the juvenile to have possessed. The arresting officer scratched one of his initials on the frame of the handgun, and the handgun has a manufacturer's serial number stamped on the gun's frame. The gun's connection to the case must be demonstrated through some type of authentication. The prosecutor may show the officer the handgun and ask if the officer recognizes it. The officer may authenticate the gun by:

A) explaining that it is the same gun she recovered at the point of arrest by referencing the officer's initial on the frame.
B) identifying the gun due to its serial number as being the same number recorded on the day of the arrest.
C) indicating that the gun in court was taken from the defendant and properly stored in the property room from that time until it was brought to court from the property room.
D) All of the methods should serve to properly authenticate the gun and make it admissible in evidence.

Question 26

When, in a criminal case, the defendant is charged with physically harming the victim:

A) the exhibition of the person of the victim to the jury is not permitted, because this would have undue influence on the jury.
B) courts generally will allow the display of the victim's injury to the jury.
C) the injury must be displayed to the jury as a matter of law, and the judge has no discretion in this matter.
D) a display of the injury to the jury is never permitted if the injury can be described sufficiently.

Question 27

Generally, devices and instruments used in the commission of a crime and articles connected with a crime, such as weapons and clothing worn by the accused:

A) are admissible if it is shown that there was a connection between the article and the accused or the victim.
B) are prejudicial to the accused and therefore are not admissible.
C) are admissible even if the prejudicial effect outweighs the probative value.
D) are considered incompetent evidence unless a continuous chain of custody has been established.

Question 28

In considering the admissibility of devices and instruments used in the commission of a crime as well as articles connected with the crime, it has been determined that:

A) bloodstain evidence can be the subject of expert evaluation; however, a police officer may not be authorized to testify about such evidence because he or she cannot qualify as an expert witness.
B) evidence concerning paint chips found on the clothing of a suspect is not admissible, because the evidence has not been scientifically recognized.
C) hair samples may be admitted to connect a suspect with a crime, but such samples taken from an automobile more than 12 months after a collision cannot be used.
D) bloodstain evidence can be the subject of expert evaluation if a proper foundation is laid.

Question 29

In recent years, many court decisions have related to the admissibility of drugs and drug-related evidence. Generally, the courts have:

A) refused to authorize the introduction of drug paraphernalia.
B) refused to allow introduction of records of drug operations.
C) refused to allow the use of evidence concerning weapons found on the defendant during a search incident to a drug arrest.
D) not been hesitant to authorize the introduction of narcotics seized from the defendant as well as related objects that are "tools of the trade."

Question 30

In some instances, jury members or a party asks to view the crime scene, the actual place where the crime occurred. Usually:

A) this will not be authorized, because this is improper use of real evidence.
B) the request will be honored in most states.
C) the judge has no discretion in honoring the request if the defendant requests the viewing.
D) a jury is given permission to view the scene, but counsel is not allowed to be present.

Question 31

Photographs frequently convey information to the court and jury more accurately than words. In criminal cases, photographs:

A) may not be used because they would prejudice the defendant.
B) are inadmissible if the defendant claims they are inflammatory even though the judge disagrees.
C) are admissible only if they are posed photographs.
D) are properly admitted if the correctness of the representation is established by a witness who is familiar with the scene portrayed.

Question 32

Photographs are frequently offered in evidence to convey information to the court and jury. However:

A) photographs taken by a bank surveillance camera are not admissible against a defendant.
B) photographs will be admitted if they can be shown to accurately depict what they purport to show.
C) if the witness can describe an object or scene, photographs will not be admitted.
D) the Supreme Court has held that photographs of a marijuana field taken from an airplane are not admissible, because this procedure violates the Fourth Amendment to the Constitution.

Question 33

Some photographs are gruesome. The general rule concerning the admissibility of such photographs is that:

A) the gruesome nature of the photograph is sufficient to render it inadmissible.
B) such a photograph is admissible even if not of essential evidentiary value.
C) they are admissible, at the judge's discretion, where the probative value of the photographs outweighs the danger of unfair prejudice to the defendant.
D) they may not be admissible if in color because this would unduly influence the factfinder.

Question 34

Motion pictures are:

A) never allowed in evidence, because they are too easily altered.
B) generally admitted if the authenticity and accuracy of portrayal is established by laying an adequate foundation.
C) admissible at the trial only if they are sound as well as motion pictures.
D) never admissible if they show the defendant re-enacting the crime and admitting that he or she committed the crime in the manner depicted.

Question 35

Videotape recordings containing sound:

A) are not admissible if part of the recording is inaudible.
B) are admissible in criminal cases even if they unfairly prejudice the accused.
C) may be used as evidence even if parts are inaudible, if the inaudible portions of the recording are not substantial and do not render the audible parts unintelligible.
D) are considered not as reliable as motion pictures for depicting scenes of the crime.

Question 36

Before a sound recording is admitted into evidence, a foundation must be established. In establishing that foundation:

A) it must be proved that all portions of the tape are audible.
B) it must be shown that the recording is authentic and correct and that the recording has been preserved in a manner that is shown to the court.
C) all parties to the conversation must have agreed to have the conversation recorded.
D) evidence must show that the recordings have no parts that are inaudible.

Question 37

Permission for a witness to explain his or her testimony by visual illustration, such as a diagram or map:

A) rests within the discretion of the trial judge.
B) will not be given by the judge because the introduction of the illustration (map or diagram) is not competent evidence and prejudicial to the accused.
C) is usually refused because this is equivalent to using a map or plat to establish a particular fact.
D) is generally approved; however, the use of a blackboard to illustrate testimony in a criminal case may not be permitted.

Question 38

The United States Supreme Court, as well as other courts, have pondered the extent to which due process requires law enforcement officers and prosecutors to preserve and disclose evidence favorable to the accused. From these cases emerges the rule that:

A) if a case is one in which the interests of justice clearly require it, the police and prosecutor have an obligation to preserve evidence that is favorable to the accused.
B) the due process protection is not violated if an officer knowingly and in bad faith destroys exculpatory evidence.
C) the prosecutor has a constitutional duty routinely to deliver his or her entire file to the defense counsel.
D) if the defendant uncovers evidence favorable to the prosecution, the defense counsel has an obligation to advise the prosecutor.

Question 39

In considering the results of blood, urine, and breath tests to determine intoxication, the courts-including the United States Supreme Court-have generally concluded that:

A) the use of blood is an approved method; however, the use of urine is not reliable and therefore not approved.
B) the administration of such tests by a medical doctor, chemist, or medical technician without a warning violates self-incrimination rights.
C) the extraction of blood samples for such tests does not violate self-incrimination or right-to-counsel protections.
D) these tests may be made by any public official because the due process question is not at issue.

Question 40

In considering the admissibility of DNA evidence taken from a dollar bill seized at a crime scene many years before, the trial court had to evaluate a variety of factors. One objection the defendant offered was the failure to show a complete and unaltered chain of custody for the dollar bill from the time of seizure until the time of testing. The trial court decision, which was upheld on appeal:

A) excluded the real evidence obtained from the dollar bill in the form of DNA because the evidence was extremely old and could have been contaminated in unknown ways.
B) excluded the DNA evidence because the state was unable to prove conclusively that the dollar bill had not been contaminated in any way.
C) properly admitted the DNA evidence taken from the old dollar bill because the government was able to show a complete chain of custody and lack of contamination.
D) admitted the DNA evidence from the dollar bill because DNA evidence under the circumstances was not considered real evidence and was not required to meet any chain of custody requirement.

Question 41

In the case of Underwood v. State, the defendant was convicted of capital murder and sentenced to death. On appeal, he argued that the evidence presented by way of the videotape of the crime scene as well as still pictures depicting the victim's body outweighed the tape's probative value and the probative value of the pictures and was prejudicial, and thus constituted reversible error. The appeals court ruled:

A) the photographs were properly admitted, but the videotape had little probative value.
B) gruesome photographs are admissible even if they are not necessary to bring out the facts.
C) as a rule, determining whether photographs are admissible is in the sound discretion of the trial judge, and his or her decision is upheld unless there is an abuse of discretion.
D) because videotapes are more likely to unduly influence the jury, higher standards are required in determining the admissibility than are required for photographs.

Question 42

In attempting to have her embezzlement conviction reversed, in McHenry v. State of Indiana, the defendant argued that the use of a videotape recording system that took moving pictures of her activities in the bank as a teller should not have been used against her. She believed that the prosecution failed to offer a proper authentication of the bank videotape and that there had been no proof that the videotape was a business record. In order to admit a bank videotape of a crime as photographs of real evidence:

A) the prosecution must show that the videotaping system was working properly on the day in question and that the videotaping activity was a regularly conducted business practice.
B) at least one government witnesses must be able to identify the defendant as the perpetrator from looking at a videotape and testify concerning the defendant's identity.
C) the government need only have an original copy of the videotape, and the quality of the copy goes to the weight rather than its admissibility.
D) the prosecutor does not have to prove the reliability of the system or that it was working properly on the day in question, only that the videotaping was often done as part of the bank's routine.