Criminal Evidence Principles and Cases 8th Edition by Gardner – Test Bank

 

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Sample Test

CHAPTER 3

 

 

 

MULTIPLE CHOICE

 

1.   In terms of procedure,

2.   felony cases involve more steps and protections for defendants than misdemeanor cases.

3.   misdemeanor cases involve more steps and protections for defendants than felony cases.

4.   felony and misdemeanor cases have exactly the same procedures.

5.   most states require grand jury review in misdemeanor cases but not in felony cases.

 

ANS:   C         LO: 1               REF: p.54

 

2.   An indictment is a formal criminal charge issued by

3.   the police.

4.   the judge.

5.   the prosecutor.

6.   the grand jury.

 

ANS: D           LO: 2               REF: p.55

 

3.   In states that do not use grand juries, the formal charging document is the

4.   criminal complaint.

5.   information.

6.   habeas corpus.

7.   indictment.

 

ANS: B           LO: 1               REF: p.55

 

4.   At the procedure termed ____________, the defendant will enter a formal plea to the charges.

5.   arraignment

6.   pretrial motions

7.   preliminary hearing

8.   coram nobis

 

ANS: A           LO: 1 | 2          REF: p.55

 

 

5.   Another term for a no contest plea is a plea of

6.   former jeopardy.

7.   guilty but mentally ill.

8.   nolo contendere.

9.   guilty on conditions.

 

ANS: C           LO: 2               REF: p.55

 

6.   If a defendant refuses to enter a plea, the court will enter a plea of

7.   not guilty.

8.   guilty.

9.   no contest.

10.                not guilty by reason of insanity.

 

ANS: A           LO: 2               REF: p.55

 

7.   In the U.S., the overwhelming majority of persons charged with felonies ultimately will plead

8.   not guilty.

9.   guilty.

10.                no contest.

11.                double jeopardy.

 

ANS: B           LO: 2               REF: p.57

 

8.   If a defendant wants to plead guilty, the defendant must

9.   waive a number of rights.

10.                prove to the judge that s/he is not insane.

11.                be represented by an attorney.

12.                have agreed to a plea bargain.

 

ANS: A           LO: 2               REF: p.58

 

9.   In an Alford plea, the defendant pleads guilty but refuses

10.                to waive the right to a jury trial.

11.                to plea bargain.

12.                to admit guilt.

13.                to acknowledge the jurisdiction of the court.

 

ANS: C           LO: 2               REF: p.58

 

10.                In a typical conditional plea, the defendant pleads guilty but reserves the right to

11.                appeal certain issues.

12.                a jury trial.

13.                a bench trial.

14.                a speedy and public trial.

 

ANS: A           LO: 2               REF: p.59

11.                In the federal system and most states, if the defendant raises the insanity defense, the burden of proof is

12.                on the prosecution to disprove the defense.

13.                on the defendant to prove the defense.

14.                on the defendant to prove the defense beyond a reasonable doubt.

15.                on the prosecution to disprove the defense beyond a reasonable doubt.

 

ANS: B           LO: 4               REF: p.60

 

12.                An affirmative defense is one in which the defendant

13.                denies doing the criminal act.

14.                argues the defense of double jeopardy.

15.                has agreed to a plea bargain.

16.                admits doing the act but claims other matters that will result in an   acquittal.

 

ANS: D          LO: 4               REF: p.57

 

13.                Which of the following is the weakest argument in favor of guilty plea pursuant to a plea bargain?

14.                Such pleas help alleviate the problem of heavy caseloads and long               backlogs of cases.

15.                Such pleas eliminate the cost and delay of appeals.

16.                A guilty plea can be the first step toward genuine rehabilitation.

17.                Pleas are a more open and well-informed procedure than a trial.

 

ANS: D            LO: 3               REF: p.62

 

14.                A defendant’s offer to plead guilty

15.                cannot be used as evidence if the defendant goes to trial.

16.                can be used at trial as evidence of guilt.

17.                can be used as evidence at trial if the prosecution consents.

18.                can be used at trial if the defendant fails to plea bargain in good faith.

 

ANS: A           LO: 2 | 4          REF: p.65

 

15.                In most appeals,

16.                the appeal takes the form of a new trial.

17.                the appeals court reviews the records for errors.

18.                the defendant usually is ordered to be acquitted.

19.                the prosecution must again prove that the defendant was guilty beyond a               reasonable doubt.

 

ANS: B           LO: 1               REF: p.69

 

 

16.                The purpose of _____ is to assure the defendant’s appearance at trial.

17.                bail

18.                presentence investigation

19.                a criminal history investigation

20.                an employment check

 

ANS: A           LO: 1              REF: p. 66

 

17.                Plea bargaining may involve substituting a guilty plea to one offense for a trial on ________ offenses

18.                petty

19.                multiple

20.                misdemeanor

21.                felony

 

ANS: B           LO: 2               REF: p.61

 

18.                The ________ Amendment of the U.S. Constitution states that “Excessive bail shall not be required.

19.                Fourth

20.                Fifth

21.                Sixth

22.                Eighth

 

ANS: D           LO: 1               REF: p.66

 

19.                The level of proof required in criminal cases is proof beyond a _________doubt.

20.                cannot be used as evidence if the defendant goes to trial.

21.                can be used at trial as evidence of guilt.

22.                can be used as evidence at trial if the prosecution consents.

23.                reasonable

 

ANS: D           LO: 1               REF: p.56

 

20.                Affirmative defenses include insanity, immunity, _______, and double jeopardy.

21.                entrapment

22.                incapacity

23.                inadvertency

24.                conspiracy

 

ANS: A           LO: 2               REF: p.57

 

 

TRUE/FALSE

 

1.   Every case that proceeds to the warrant phase will ultimately be disposed of by plea or trial.

 

ANS: F            LO: 1               REF: p.72

 

2.   In most jurisdictions, a defendant who is charged with a misdemeanor has a right to both a preliminary hearing and grand jury review.

 

ANS: F            LO: 1               REF: p.55

 

3.   An indictment is a formal charging document issued by a grand jury.

 

ANS: T            LO: 1               REF: p.55

 

4.   An Information is a formal charging document issued by a prosecutor.

 

ANS: T            LO: 1               REF: p.55

 

5.   A defendant who pleads no contest is subject to the same range of punishments as one who pleads guilty.

 

ANS:  T           LO: 2               REF: p.59

 

6.   A nolo contendere plea is the same as a not guilty plea.

 

ANS:  F           LO: 3               REF: p.59

 

7.   A majority of states and the federal courts have a plea and verdict of guilty but mentally ill.

 

ANS:  F           LO: 3               REF: p. 60

 

8.   In the U.S., most felony cases will ultimately be disposed of by a jury trial.

 

ANS: F            LO: 1               REF: p.57

 

9.   If a defendant and prosecutor agree to a plea bargain and guilty plea, the judge cannot lawfully refuse the plea and plea bargain.

 

ANS: F            LO: 3               REF: p.64

 

10.                In an Alford plea, the defendant pleads guilty but refuses to admit to committing the crime.

 

ANS: T            LO: 3               REF: p.58

11.                The Constitution never allows a judge to accept an Alford

 

ANS: F            LO: 1               REF: p.58

 

12.                In order to preserve the right to appeal an issue after entry of a guilty plea, a defendant would attempt to enter a conditional plea.

 

ANS: T            LO: 2               REF: p.59

 

13.                All states allow a plea of not guilty by reason of insanity.

 

ANS: F            LO: 2               REF: p.60

 

14.                The defense of insanity is successful in a majority of cases where the defendant uses such a defense.

 

ANS: F            LO: 2               REF: p.63

 

15.                Both defense attorneys and prosecutors evaluate the strength and admissibility of evidence in deciding upon strategies for handling the case.

 

ANS: T            LO: 1 | 4          REF: p.55

 

16.                One of the goals of the criminal justice system is seeking retribution for victims.

 

ANS: F            LO: 4               REF: p.54

 

17.                In general, cases with significant evidentiary problems are likely to be weeded out.

 

ANS: T            LO: 3               REF: p.68

 

18.                One of the purposes of some of the rules of evidence is to assist in finding the truth.

 

ANS: T            LO: 4               REF: p.56

 

19.                The rules of evidence always apply.

 

ANS: F            LO: 3               REF: p.56

 

20.                In using the insanity defense, most defendants also enter a not guilty plea.

 

ANS: T            LO: 2               REF: p.61

 

 

 

FILL-IN-THE-BLANK

 

1.   Following the filing of a criminal complaint, the judge or magistrate may issue an arrest _____________.

 

ANS: warrant                                       LO: 1               REF: p.28

 

2.   In many jurisdictions, before trial, a defendant charged with a felony may be entitled to a preliminary ____________.

 

ANS: hearing                                       LO: 1              REF: p.55

 

3.   A/n ___________ is a formal criminal charge issued by a grand jury.

 

ANS: indictment                                 LO: 1               REF: p.55

 

4.   A/n ____________ is a formal criminal charge issued by a prosecutor.

 

ANS: information                               LO: 1               REF: p.55

 

5.   The formal court proceeding where the defendant pleads to the charges is called a/n _____________.

 

ANS: arraignment                                LO: 1              REF: p.55

 

6.   A no contest plea is the same as a ____________ plea.

 

ANS: nolo contendere                         LO: 2               REF: p.55

 

7.   A guilty plea where the defendant refuses to admit committing the crime is called a/n ____________ plea.

 

ANS: Alford                                        LO: 2               REF: p.58

 

8.   A guilty plea where the defendant reserves certain rights (such as the right to appeal a legal issue) is termed a/n ____________ plea.

 

ANS: conditional                                LO: 2               REF: p.60

 

9.   Of the cases that go to trial, about 20 percent are tried before a ____________.

 

ANS: judge                                         LO: 1               REF: p.67

 

10.                ____________ is usually the last resort or final step in defendants attempting to overturn their convictions.

 

ANS: Habeus Corpus                         LO: 2               REF: p.72

 

11.                Many defendants plea bargain and plead guilty in hopes of obtaining a lighter (or more lenient) _____________.

 

ANS: sentence                                    LO: 3               REF: p.64

 

12.                Although an appellate court may find that errors were committed at the trial, only ____________ errors will result in a new trial.

 

ANS: reversible                                   LO: 1               REF: p.69

 

13.                A “best practice” includes a ____________ review of evidence.

 

ANS: team                                           LO: 1              REF: p.53

 

14.                The ____________ plea requires evidence of disease or defect.

 

ANS: insanity                                      LO: 2              REF: p.60

 

15.                The greatest risk of granting _________ is flight.

 

ANS: bail                                           LO: 1               REF: p.66

 

 

ESSAY

 

1.   Briefly trace the steps in a typical state felony case from commission of the crime to habeas corpus. Briefly describe what happens at each step. What are the legal methods by which someone convicted in state court could challenge their conviction in a federal court?

 

ANS: Criminal cases begin with a criminal complaint filed in misdemeanour crimes, or indictments in felony cases where grand juries are used. After arrest, the defendant is arraigned before a judge or magistrate, a plea is taken, and the case is bound over for trial. A preliminary hearing is usually held, where a judge decides only if sufficient evidence exists to justify a trial.  A state prisoner ordinarily uses a writ of habeas corpus in attempting to get his or her case into the federal courts. To do this, a violation of a right under the U.S. Constitution must be shown. Because there are very few violations (or errors) of this type, few habeas corpus hearings are granted.

 

LO: 1               REF: p.68

 

 

2.   Define, discuss, compare, and contrast the pleas of guilty, not guilty, and no contest (nolo contendere). Why would a person plead no contest rather than guilty?

 

ANS: The regular guilty plea is made in open court upon a showing that the  defendant did in fact commit the criminal act or acts with which he or she is charged and upon a showing that the defendant voluntarily and intelligently is entering the guilty plea and waiving the right to a trial.  In this guilty plea and all other guilty pleas, the defendant is subject to the statutory penalties of the state. However, it is a common practice in the United States to reward the defendant who enters a guilty plea with a lesser sentence under the sentencing guidelines and practices of the state.  The Alford guilty plea permits a defendant to enter a guilty plea without admitting guilt.  The no contest or nolo contendere plea allows the defendant not to contest the criminal charge or charges against her. Defendants who believe they will be sued in a civil court for their criminal conduct sometimes seek to use this plea.  The conditional guilty plea is used when a defendant seeks to preserve the right to appeal a ruling of the trial judge.

 

LO: 2              REF: p.59

 

3.   How do prosecutors and defense attorneys weigh the strength and admissibility of the evidence when determining whether plea bargaining will be successful?

 

ANS: The defense lawyer seeks to discover and obtain evidence helpful to his client. He may also make some or all of the following motions before the court:

• Motion to dismiss because of insufficient evidence, etc.
• Motion to dismiss because of improper procedure, constitutionality of statute, etc.
• Motion to suppress evidence (statements, physical evidence, identification evidence, or procedure, etc.)
• Motion for discovery of evidence

The defense’s decision on whether to try the case before a jury or a judge is generally based on the evaluation of the case and the evidence. Because weaker cases are filtered out of the system or charged as lesser offenses, most cases that reach the trial stage are strong governmental cases. In these cases, the defense may attempt to plea bargain or may enter a guilty plea. If the state has a weakness in its case at this stage, the state may attempt to plea bargain.

 

LO: 4               REF: p.68

 

4.   Assume the role of defense attorney. Would you ever encourage a client to use the insanity plea? Why or why not? Under what circumstances? Explain your answers fully.

 

ANS: The student response should be based on the fact that most defendants will be held for observation longer than they would have been incarcerated if found guilty of the crime.  Secondly, most states place the burden on a defendant using the insanity plea to come forward with evidence showing that he or she was so mentally diseased or defective that he or she was unable to formulate the mental intent to commit the crime charged.

 

LO: 2               REF: p.63

5.   Evidence case reviews increase efficiency and lead to higher clearance rates. Discuss why these reviews are helpful. Focus your discussion on questions about evidence that may aid in a review, i.e., physical evidence, witnesses, suspect(s) confession(s).

 

1.   ANS: Team reviews allow for better communication and exchange of information between officers involved in an investigation, who might work different shifts. Whether done informally or pursuant to established department policy, evidence reviews can increase the efficiency of investigations and lead to higher clearance   The following list suggests some of the methods and questions that are raised in a team review; what physical evidence is available, was the physical evidence obtained in a manner that may be seriously attacked or suppressed under the exclusionary or derivative evidence rule? Are there problems with the chain of custody of the evidence? What witnesses are available and how reliable and dependable are the witnesses? Have the witnesses listed below been evaluated (on a scale from Excellent to Poor, or unknown) on their reliability, dependability, credibility, willingness to testify, and importance of their testimony, as well as their age and appearance?  What are some likely ways the witnesses may be attacked on cross- examination? What evidence is available to corroborate statements made by witnesses, especially eyewitnesses?  Is there a suspect or suspects? What are the reasons for targeting the suspect? Are any persons related to the case in police custody? If so, on what charges? Are charges for an offense other than the crime under investigation? If so, are the offenses related? Is there an opportunity for multiple clearances?  Are confessions or incriminating statements available as evidence? If so: Where and when were the statements made?

 

LO: 4               REF: p.53 | 54

 

6.   Explain how the rules of evidence are not designed to be of assistance in the search for truth but have other purposes; they often actually hinder the search for the truth.

 

ANS: Testimonial privilege rules that have been created to protect relationships and interests, such as husband-wife, attorney-client, and physician-patient. These relationships have been determined to be of sufficient importance to justify sacrificing what might be reliable evidence from being used in criminal and civil trials.  The rule of the exclusion of evidence (the exclusionary rule) that is used to discourage and deter law enforcement officers from improper or illegal conduct or procedure. This form of “policing the police” sometimes prevents reliable evidence from being used in criminal trials.

 

LO: 4               REF: p.56

 

7.   Discuss the pros and cons of possible bail outcomes from a prosecutorial and defense attorney position.

 

ANS: The defense lawyer argues that high bail punishes a defendant and that defendants can be punished only after trial and conviction.  Another argument of defense lawyers is that high bail can be used as preventive detention, to unlawfully detain a defendant based on only the possibility that the defendant may be a threat to others.

In most states, preventive detention in this sense is not regarded as a legitimate basis for setting bail.  In asking for high bail, prosecutors generally stress the seriousness of the crime, the viciousness of the criminal act, and the strength of the evidence against the defendant.

 

LO: 1               REF: p.66

 

8.   Discuss the method and procedure in place for the reviewing of sentencing.

 

ANS:  Imposed sentences may be reviewed by the following authorities:

• Trial judge: On a motion by the defense attorney, the trial judge reviews his or her sentence of a particular defendant and may modify the sentence after hearing arguments presented by both the defense lawyer and the prosecutor.
• Appellate courts (including the U.S. Supreme Court and state supreme courts): On appeal, an appellate court may find that a particular sentence was not within the statutory authority of the trial judge to impose, or that the sentence violated the Eighth Amendment’s Cruel and Unusual Punishment Clause.
• Federal courts: A state prisoner ordinarily uses a writ of habeas corpus in attempting to get his or her case into the federal courts. To do this, a violation of a right under the U.S. Constitution must be shown. Because there are very few violations (or errors) of this type, few habeas corpus hearings are granted.
• State parole board or parole authorities: Parole authority is granted by a statute of that state. State statutes might provide that parole eligibility for murder does not commence until after sixteen years—or after twenty or twenty-five years. Whether the convicted person is released on parole (and the conditions of parole) is then determined by the parole board.
• The president of the United States and state governors: The president and state governors have broad power to pardon, grant amnesty, or commute a sentence. Such authority is constitutional, with additional statutory power often provided. Article II of the U.S. Constitution provides that the president “shall have Power to grant Reprieves and Pardons for Offenses against the United States, except in Cases of Impeachment.

 

LO: 1               REF: p.70 | 72

 

CHAPTER 5

 

 

 

MULTIPLE CHOICE

 

1.   In general, to be deemed a competent witness, the witness must, among other things,

2.   have personal knowledge of the matters.

3.   be 21 years of age or older.

4.   have at least a sixth grade education.

5.   not be biased about the case.

 

ANS: A          LO : 1          REF: p. 114

 

2.   To be deemed a competent witness, the witness must have the capacity to

3.   speak the English language.

4.   observe, remember, narrate, and understand the obligation to be truthful.

5.   be a citizen of the United States.

6.   be capable of reading and writing in any language.

 

ANS: B          LO: 1          REF: p. 114

 

3.   Adult witnesses are

4.   presumed incompetent unless shown to be competent.

5.   presumed competent unless shown to be incompetent.

6.   always subjected to voir dire before being allowed to testify.

7.   presumed competent if they are at least 21 years of age.

 

ANS:  B           LO: 1          REF: p. 115

 

4.   Children may testify only if

5.   they are a minimum of ten years of age.

6.   a psychologist testifies that they are aware of the obligation to tell the truth.

7.   the judge allows them to testify after the child is questioned (voir dire).

8.   they have competed the first grade.

 

ANS: C           LO: 2          REF: p. 115 | 116

 

 

5.   The 1670 jury trial of ____________ in England was an important milestone in establishing the independence of juries from influence by the government.

6.   Benjamin Franklin.

7.   Sir Walter Raleigh

8.   Robert Palmer

9.   William Penn

 

ANS:  D          LO: 1          REF: p. 120

 

6.   A subpoena duces tecum is a subpoena that orders the person to

7.   bring certain items or records with them to court.

8.   appear with an attorney.

9.   waive their privilege against self-incrimination.

10.                not discuss their testimony with anyone.

 

ANS:  A          LO: 4          REF: p. 121

 

7.   A criminal defendant’s right to compel the appearance of witnesses at trial is found in the __________ Amendment.

8.   Fourth

9.   Fifth

10.                Sixth

11.                Eighth

 

ANS:  C          LO: 4          REF: p. 121

 

8.   A criminal defendant’s right to confront and cross-examine witnesses is found in the __________ Amendment.

9.   Fourth

10.                Fifth

11.                Sixth

12.                Seventh

 

ANS:  C          LO: 4          REF: p. 121 | 122

 

9.   Defendants who decide to testify at their trial

10.                may not be cross-examined because they have a privilege against self-incrimination.

11.                may not be prosecuted for perjury even if they lie.

12.                may be cross-examined.

13.                do not have to take an oath to tell the truth.

 

ANS:  C          LO: 4          REF: p. 122 | 123

 

 

10.                In general, only ____________ witnesses may testify as to their opinions or conclusions.

11.                ordinary

12.                expert

13.                prosecution

14.                defense

 

ANS:  B          LO: 4          REF: p. 123 | 124

 

11.                An ordinary witness may give an opinion about

12.                things which are in the common knowledge of most people.

13.                things they have been told by another

14.                their own competence to be a witness.

15.                whether their testimony is relevant.

 

ANS:  A          LO: 3 | 5     REF: p. 125 | 126

 

12.                Questioning of a witness by the party that called that witness is called ____________ examination.

13.                cross

14.                central

15.                straight

16.                direct

 

ANS: D           LO: 5          REF: p. 127 | 128

 

13.                Questioning of a witness by the opponent of the party that called that witness is called ____________-examination.

14.                cross

15.                didact

16.                critical

17.                skeptical

 

ANS:  A          LO: 5          REF: p. 128 | 129

 

14.                If a party believes that a question posed by the opponent is improper, that party must make a/n ____________ to that question.

15.                exception

16.                objection

17.                proposition

18.                request to omit

 

ANS:  B          LO: 7          REF: p. 130 | 131

 

 

15.                After a witness is subject to cross-examination, the party that called them originally may ask further questions under ____________ examination.

16.                recross

17.                following

18.                redirect

19.                didactic

 

ANS:  C          LO: 7          REF: p. 133

 

16.                As fact finders, the jury alone determines the ______ given to all evidence.

17.                exceptions

18.                legality

19.                weight

20.                sequence

 

ANS:  C          LO: 6          REF: p. 136

 

17.                As fact finders, the jury determines whether sufficient ___________exists to justify a verdict of guilty.

18.                evidence

19.                convincing

20.                bias

21.                objectivity

 

ANS:  A          LO: 6          REF: p. 136

 

18.                The trial judge determines the _____________ of a witness.

19.                recross

20.                competence

21.                redirect

22.                didactic

 

ANS:  B          LO: 3          REF: p. 133 | 134

 

19.                By using_______________, “the cross-examiner intends to afford the jury a basis to infer that the witness’ character is such that he would be less likely than the average trustworthy citizen to be truthful in his testimony.”

20.                evidence

21.                convincing

22.                impeachment

23.                objectivity

 

ANS:  C          LO: 3          REF: p. 129

 

20.                Expert testimony based on handwriting analysis is generally ___________in both federal and state courts under Federal Rules of Evidence 702 and similar state rules

21.                inadmissible

22.                excluded

23.                subjective

24.                admissible

 

ANS:  D          LO: 5 | 6          REF: p. 125

 

 

TRUE/FALSE

 

1.   Adult witnesses are presumed to be competent witnesses.

 

ANS:  T           LO: 1          REF: p. 114

 

2.   Unless they are the victim of a crime or an eyewitness, a child under the age of twelve can never be a competent witness.

 

ANS:  F           LO: 2          REF: p. 115

 

3.   At common law, no child under the age of fourteen was eligible or competent to testify as a witness.

 

ANS:  T           LO: 2          REF: p. 115

 

4.   Voir dire is a French term meaning to incriminate oneself.

 

ANS:  F           LO: 1          REF: p. 116

 

5.   Many jurisdictions have set up special procedures to protect child victims who testify at the trial of their alleged abuser.

 

ANS:  T          LO: 2          REF: p. 117

 

6.   In a jury trial, voir dire of witnesses is conducted by the foreperson of the jury.

 

ANS:  F           LO: 1          REF: p. 116

 

7.   In a jury trial, it is the province of the jury to determine the credibility of the witnesses and the weight to be given to their testimony.

 

ANS: T            LO: 3          REF: P. 136

 

8.   The term “demeanor of a witness” refers to the conduct and/or appearance of a witness while testifying.

 

ANS: T           LO: 3          REF: p. 120

 

9.   One of the purposes of the right to a jury trial is to protect people against overzealous prosecutors and biased judges

 

ANS:  T           LO: 3          REF: p.121

 

10.                The right to confront and cross-examine witnesses is found in the Fifth Amendment.

 

ANS:  F           LO: 4          REF: p. 128 | 129

 

11.                The privilege against self-incrimination gives the defendant a right to testify at his or her trial.

 

ANS:  F          LO: 4          REF: p. 122 | 123

 

12.                Under the Sixth Amendment, a defendant who lies on the witness stand cannot be prosecuted for perjury.

 

ANS:  F          LO: 4          REF: p.120

 

13.                The right to subpoena witnesses is found in the Sixth Amendment.

 

ANS:  T           LO: 5          REF: p.121

 

14.                The general rule is that ordinary (non-expert) witnesses may not give their conclusions or opinions.

 

ANS:  T           LO: 1          REF: p. 123 | 124

 

15.                A police officer can never be an expert witness.

 

ANS:  F           LO: 5          REF: p.125

 

16.                The first witnesses to testify in a criminal case are prosecution witnesses.

 

ANS: T          LO: 1          REF: p. 126

 

17.                Upon being called as a witness, a witness will first be subject to direct examination by the party that called them.

 

ANS: T          LO: 1          REF: p. 127 | 128

18.                Defendants who testify at their criminal trial may not be cross-examined by the prosecution.

 

ANS: F          LO: 4          REF: p. 128 | 129

 

19.                After direct examination, a witness is subject to cross-examination by the opposing party.

 

ANS:   T          LO: 7          REF: p.129

 

20.                If a party does not want a witness to answer a question, that party must object to the question.

 

ANS:   T          LO: 7          REF: p. 130 | 131

 

 

FILL-IN-THE-BLANK

 

1.   Adults are generally ___________ to be competent witnesses.

 

ANS:   Presumed                                LO: 1               REF: p.114 | 115

 

2.   Children and other witnesses whose competence is questioned will usually be subjected to a(n) ____________ examination.

 

ANS: voir dire                        LO: 2              REF: p.116

 

3.   To be deemed a competent witness, the witness must generally have ____________ knowledge of the matters to which they testify.

 

ANS: personal                                   LO: 3               REF: p.114 | 115

 

4.   Voir dire is a French term that means “to speak the _____________.”

 

ANS:   truth                                        LO: 3               REF: p.116

 

5.   Under the Sixth Amendment, the defendant has a right to ____________ and cross-examine witnesses.

 

ANS:   confront                                  LO: 4               REF: p.121

 

6.   A subpoena duces ____________ commands a witness to appear and bring certain things with them.

 

ANS:   tecum                                      LO: 4               REF: p.121

 

7.   To be admissible, testimony must be relevant, competent, and ____________.

 

ANS:   material                                   LO: 5               REF: p.122 | 123

 

8.   In a jury trial, it is the duty of the ____________ to assess the credibility of the witnesses and the weight to be given to the testimony.

 

ANS:   jury                                          LO: 3               REF: p.136

 

9.   The conduct or attitude of a witness is called their “_____________.”

 

ANS: demeanor                                LO: 3               REF: p. 120

 

10.                Defendants who testify at their trial waive their ____________ against self-incrimination.

 

ANS:   privilege                                  LO: 4               REF: p. 128 | 129

 

11.                In ____________ Arkansas, the U.S. Supreme Court dealt with the admissibility of hypnotically refreshed testimony.

 

ANS:   Rock                                        LO: 5               REF: p.122

 

12.                A defendant’s right to testify does not include the right to commit ____________.

 

ANS:   perjury                                     LO: 4               REF: p. 122 | 123

 

13.                ___________ means implanting false memories

 

ANS: taint                                           LO: 7               REF: p. 118

 

14.                The use of falsehoods to ___________ key witnesses can reverse a conviction on

Appeal

 

ANS:  impeach                                    LO: 7               REF: p. 129

 

15.                The first line of defense an opposing party seeks to use is _______________

 

ANS: objection                                  LO: 7               REF: p.130

 

 

 

ESSAY

 

1.   What are the three basic requirements for a person to qualify as a competent witness? Be sure to provide examples.

 

ANS: In order to be a witness, a person must satisfy the following requirements: Requirement of personal knowledge: The witness must have some personal knowledge of the matter before the court.  Requirement to declare that testimony is truthful: Most witnesses take an oath swearing that they will tell the truth.  Requirement of competency:  In addition to competency as having personal knowledge, a witness most also demonstrate competency to function as a witness.  Students’ responses to the examples should reflect accurate understanding of the three aforementioned qualifiers.

 

LO: 1              REF: p. 114

 

2.   Describe and discuss the Sixth Amendment rights of defendants with regard to witnesses.

 

ANS: The Sixth Amendment of the U.S. Constitution provides that “In all criminal prosecutions, the accused shall enjoy the right to have compulsory process for obtaining witnesses in his favor.”  The Sixth Amendment also provides that “The accused shall enjoy the right … to be confronted with the witnesses against him.” The witness not only testifies in open court in the presence of the accused but is also subject to cross-examination by the opposing party.

 

LO: 4               REF: p. 121 | 122

 

3.   Discuss, define, compare, and contrast the law on the permissibility of ordinary and expert witnesses to give their opinions. Be sure to provide examples.

 

ANS: Most witnesses are ordinary (or lay) witnesses who are called to testify about the firsthand information they have regarding the case before the court. Their testimony is typically limited to what they have seen, heard (although hearsay is in most instances excluded), smelled, felt, and, on rare occasions, tasted. Law enforcement officers appear in most instances as ordinary witnesses, although some officers also appear as expert witnesses when they qualify, testifying about fingerprinting, traffic matters, weapons, and so on.

An expert witness is a person who has had special training, education, or experience. Because of this experience and background, the expert witness may be able to assist the jury and the court in resolving the issues before them. The party that offers a witness as an expert must lay a foundation (that is, ask a series of questions) establishing the witness as an expert in the field in which the expert will testify and offer opinions.  Student examples should be based on the qualifiers that distinguish lay and expert witnesses.

 

LO: 5               REF: p. 125 | 126

4.   Discuss the objections which attorneys may make to both questions and answers directed to witnesses in a criminal trial.

 

ANS: The trial judge has considerable discretion in ruling on objections and in determining what is relevant, material, and competent. The trial judge will not be overruled by a higher court unless there is an abuse of discretion or plain error.  Objections are classified as follows:

• Objections to the substance of the question: These objections concern the answer called for by the question. Usual objections in this area are irrelevant, immaterial, incompetent, and hearsay.
• Objections to the form of the question: These objections concern the manner in which the question is worded. In most instances, the question may be rephrased and asked again in a form in which both the question and answer are admissible. Usual objections to the form of a question are that the question is leading, argumentative, calls for speculation, or misstates a fact in evidence.
• Objections to the answer: If an attorney is slow in objecting, the attorney usually pays the penalty and is told to object faster. In this situation and others, a lawyer can object to an answer and ask that the answer be stricken from the record because: (1) the answer is unresponsive to the question (most often when the witness volunteers additional information beyond the scope of the question asked), (2) the answer contains an inadmissible opinion, or (3) the answer includes inadmissible hearsay statements.

 

LO: 7               REF: p. 130 | 131 | 132

 

5.   List the three elements that all evidence must be in order to be allowed into a trial.

 

ANS:  All evidence must be relevant, material, and competent. Therefore, to introduce facts, testimony, or a physical object as evidence, it must be shown that the evidence addresses a material fact, the evidence is relevant to that fact and lastly, the evidence is able to affect the probable truth or falsity of that fact by being competent.  A fact is material if it will affect the result of a trial. Evidence is relevant if it has a tendency to make a material fact more or less probable.  Competency directly relates to the foundation of personal knowledge as required under the Federal Rule of Evidence 602.

 

LO: 6               REF: p. 132 | 133

 

6.   Discuss the purposes of redirect examination.

 

ANS:  To restore the credibility of a witness who has been impeached on cross-examination by explanations of matters on which the cross-examiner sought to impeach the witness and to restore the credibility of a witness by pointing out prior consistent statements when the impeachment was made by means of prior   inconsistent statements.

 

LO: 3               REF: p. 133

7.   Discuss the functions of impeaching a witnesses’ testimony.

 

ANS: The functions of impeachment may be classified as follows.  First, to attack the witness’ credibility and qualifications to testify truthfully because of prior criminal conviction (and in some jurisdictions and some instances, a showing of prior bad conduct). Rule 609 of the Federal Rules of Evidence limits evidence of prior criminal convictions to crimes with a penalty in excess of one year of imprisonment, or crimes involving dishonesty or false statement, regardless of the punishment; secondly, to attack the testimony given by the witness on direct examination by a showing of prior inconsistent statements and lastly to attack the witness’ credibility by showing bias, prejudice, or ulterior motives of the witness.

 

LO: 3               REF: p. 129 | 130

 

8.   List the objections to the form of the questions asked in a trial.

 

ANS:

• Leading question (suggests the answer that is wanted)
• Calls for speculation
• Argumentative
• Misstates facts in evidence
• Assumes facts not in evidence
• Vague and ambiguous
• Repetitive or cumulative
•  

 

LO: 7               REF: p. 130 | 131