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

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.


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.


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.


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.


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.

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.


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.


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.


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.


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


18. The ________ Amendment of the U.S. Constitution states that

“Excessive bail shall not be required.
19. Fourth
20. Fifth
21. Sixth
22. Eighth


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


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

double jeopardy.
21. entrapment
22. incapacity
23. inadvertency
24. conspiracy


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.


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.


5. A defendant who pleads no contest is subject to the same range of

punishments as one who pleads guilty.


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


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.


9. If a defendant and prosecutor agree to a plea bargain and guilty plea,

the judge cannot lawfully refuse the plea and plea bargain.


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

to committing the crime.

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


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.


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


14. The defense of insanity is successful in a majority of cases where

the defendant uses such a defense.


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.


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

be weeded out.


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

in finding the truth.


19. The rules of evidence always apply.


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


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.


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


16. As fact finders, the jury alone determines the ______ given to all
evidence.
17. exceptions
18. legality
19. weight
20. sequence


17. As fact finders, the jury determines whether sufficient

___________exists to justify a verdict of guilty.
18. evidence
19. convincing
20. bias
21. objectivity


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


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.


3. At common law, no child under the age of fourteen was eligible or

competent to testify as a witness.


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


5. Many jurisdictions have set up special procedures to protect child

victims who testify at the trial of their alleged abuser.


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

the jury.


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.


9. One of the purposes of the right to a jury trial is to protect people

against overzealous prosecutors and biased judges


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.


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

Amendment.


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.


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

witnesses.


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.


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

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2. An indictment is a formal criminal charge issued by

4. At the procedure termed ____________, the defendant will enter a

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

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

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

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

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

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

12. An affirmative defense is one in which the defendant

13. Which of the following is the weakest argument in favor of guilty

14. A defendant’s offer to plead guilty

15. In most appeals,

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

17. Plea bargaining may involve substituting a guilty plea to one

18. The ________ Amendment of the U.S. Constitution states that

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

1. Every case that proceeds to the warrant phase will ultimately be

2. In most jurisdictions, a defendant who is charged with a misdemeanor

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

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

5. A defendant who pleads no contest is subject to the same range of

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

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

9. If a defendant and prosecutor agree to a plea bargain and guilty plea,

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

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

12. In order to preserve the right to appeal an issue after entry of a

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

14. The defense of insanity is successful in a majority of cases where

16. One of the goals of the criminal justice system is seeking

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

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

19. The rules of evidence always apply.

1. Following the filing of a criminal complaint, the judge or magistrate may

2. In many jurisdictions, before trial, a defendant charged with a felony

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

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

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

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

10. ____________ is usually the last resort or final step in defendants

11. Many defendants plea bargain and plead guilty in hopes of

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

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

15. The greatest risk of granting _________ is flight.

3. How do prosecutors and defense attorneys weigh the strength and

 Motion to dismiss because of insufficient evidence, etc.

4. Assume the role of defense attorney. Would you ever encourage a

5. Evidence case reviews increase efficiency and lead to higher clearance

1. ANS: Team reviews allow for better communication and exchange of

6. Explain how the rules of evidence are not designed to be of assistance

7. Discuss the pros and cons of possible bail outcomes from a

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

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

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

4. Children may testify only if

5. The 1670 jury trial of ____________ in England was an important

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

7. A criminal defendant’s right to compel the appearance of witnesses at

8. A criminal defendant’s right to confront and cross-examine witnesses is