1. Using Evidence to Determine Guilt or Innocence
Chapter 3
Using Evidence to Determine Guilt or Innocence

2. Learning Objectives Outline the criminal court process.
List the pleas a defendant may enter to a criminal charge.
Evaluate the pros and cons of plea bargaining.
Compare the use of evidence at various stages of a criminal trial.
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3. Evaluation and Review of Evidence
The rules of evidence ultimately decide what evidence will be presented to the judge and jury for evaluation.
Evidence may be evaluated in a variety of settings at various stages of the investigatory and criminal court process.
There are many settings where the rules of evidence do not apply.
In the process of review and evaluation of evidence, weaker cases are filtered out of the system or lesser charges are used.
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4. Evaluation and Review of Evidence
A motion to suppress evidence is a written or oral request to a judge to keep out evidence at a trial or hearing.
Motions to suppress are often made when a party believes the evidence was unlawfully obtained.
To rule on a motion to suppress, the judge must review the evidence.
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5. Lee v. State 59 Md. App., 28, 474 A.2d 537, 35 CrL 2147 (1984).
The defendant’s appeal argued that a shoplifter had to leave a store in order to be convicted of larceny (theft).
The Maryland Court of Special Appeals affirmed the conviction, holding that once “a customer … crosses the threshold into the realm of behavior inconsistent with the owner’s expectations, the circumstances may be such that a larcenous intent can be inferred.”
Lee v. State 59 Md. App., 28, 474 A.2d 537, 35 CrL 2147 (1984).
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6. Team Review of Evidence
A 2008 FBI article on best practices in homicide investigations concluded that police departments that use the practice of team review of evidence have a higher clearance rate than the national average.
Team review allows for better communication and exchange of information between investigating officers.
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7. Team Review of Evidence
Methods and questions raised in a team review can include:
What physical evidence is available?
Was the evidence obtained in a manner that can be attacked or suppressed?
What witnesses are available, and how reliable and dependable are they?
What are some likely ways that witnesses may be attacked on cross-examination?
Is there a suspect or suspects?
Are confessions or incriminating statements available?
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8. Goals of the Criminal Justice System
The generally recognized overall goals of the criminal justice system are to:
Discourage and deter people from committing crimes;
Protect society from dangerous and harmful people;
Punish people who have committed crimes; and
Rehabilitate and reform people who have committed crimes.
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9. The Criminal Court Process
The filing of a criminal complaint with a magistrate or other judicial official is how a typical misdemeanor case begins.
The complaint can be filed with the court before or after the defendant is placed under arrest, depending on the case.
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10. The Criminal Court Process
The magistrate determines only whether probable cause exists to believe a crime has been committed and that the named defendant committed it.
The defendant appears before the judge at the initial appearance (arraignment) where the charges are read, a plea is entered, and bail is set.
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11. The Criminal Court Process
If a felony is charged in the criminal complaint, a preliminary hearing will be held.
The judge can also dismiss the charges if the prosecution’s case is weak.
In many states and in federal courts, the indictment system is used for felonies instead of public prosecutors issuing criminal complaints.
If sufficient evidence is introduced to show probable cause, the defendant is bound over for trial.
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12. The Criminal Court Process
A criminal indictment is a list of criminal charges issued by a grand jury, which has heard evidence presented by a U.S. Attorney or a state prosecuting attorney.
States that do not use the grand jury system may begin a criminal case with an information.
The defendant enters a plea at the arraignment and the case is bound over to the appropriate criminal court for trial.
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13. Pleas a Defendant May Enter to a Criminal Charge l
The following pleas are available to defendants:
Not guilty plea.
Guilty plea: This may be a regular guilty plea or an Alford guilty plea in states that permit them.
An insanity plea (or defense): Usually this plea is not guilty by reason of mental disease or defect.
No contest plea (nolo contendere plea) : Permitted if the statutes of the state and the court allow it.
Standing mute or refusing to enter a plea: This plea ordinarily causes the court to enter a plea of not guilty.
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14. Purposes of the Rules of Evidence
Rules of evidence that assist the judge or jury:
Requirement for relevant, reliable, and competent evidence.
Opinion evidence rule.
Hearsay rules.
Rules of evidence that expedite trials:
Rules concerning judicial notice.
Rules concerning presumptions and inferences.
Rules of evidence that have other purposes:
Testimonial privilege rules.
Exclusionary rule.
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15. The Not Guilty Plea
All defendants in criminal cases are presumed innocent until proven guilty through the use of evidence and witnesses presented during a trial.
The burden of proof is always on the state or government to prove the elements of the crime charged.
The level of proof required in all criminal cases is proof beyond a reasonable doubt.
This means that the evidence presented during the trial must convince the fact finder of the defendant’s guilt to a moral certitude.
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16. The Not Guilty Plea
The defendant can remain silent, appear as a witness on his or her own behalf, or actively attack or seek to hinder and minimize the state’s evidence and case.
The defendant can deny performing the acts charged or assert an affirmative defense.
To assert an affirmative defense, the defendant must come forward with evidence showing a basis for it, e.g., entrapment.
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17. The Guilty Plea
In the United States, most people charged with felonies plead guilty.
Most guilty pleas are entered because defendants realize the evidence against them will result in a conviction.
It is a standard practice to reward a defendant who acknowledges guilt in open court with a lighter sentence.
The foundations of a valid guilty plea are:
the defendant’s voluntary admission that he or she committed the acts charged; and
the defendant’s knowing consent to the judgment of guilt without trial.
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18. The Guilty Plea
Defendants who offer a guilty plea must admit that he or she committed the crime charged.
It must be shown that the defendant entered a guilty plea voluntarily and intelligently.
The trial judge must be convinced by the evidence presented that the defendant did in fact commit the criminal act.
There is no constitutional right to plead guilty, but a state may create a statutory right to do so.
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19. The Guilty Plea
Rule 11 of the Federal Rules of Criminal Procedure lists fourteen specific topics that the trial judge must address, including:
The right to plead not guilty;
The right to have an attorney appointed;
The right to a jury trial; and
The right to information about the possible sentence.
Rule 11 specifically states that the trial judge “must address the defendant personally in open court” to provide this information.
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20. The Court defined the nature and consequences of a guilty plea in criminal prosecutions.
The guilty plea is more than a confession; it is a conviction.
When defendants plead guilty, they waive the following rights:
the privilege against compulsory self-incrimination;
the right to a trial by jury; and
the right to confront one’s accusers.
Boykin v. Alabama 395 U.S. 238 (1969)
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21. The Alford Guilty Plea
The Alford guilty plea permits a defendant to enter a guilty plea while at the same time asserting his or her innocence.
Most state courts hold that an Alford pleas is the “functional equivalent” of a regular plea of guilty.
There may be different consequences of a regular guilty plea and an Alford plea.
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22. North Carolina v. Alford 400 U.S. 25, 37, 91 S. Ct. 160, 167 (1970)
The Court held that a defendant can voluntarily and knowingly consent to the imposition of a prison sentence even if the defendant is unwilling or unable to admit his or her participation in the acts constituting the crime.
The Alford plea permits a defendant to enter a guilty plea while at the same time protest his innocence.
The Alford plea is not mandatory for states but many have adopted the concept.
North Carolina v. Alford 400 U.S. 25, 37, 91 S. Ct. 160, 167 (1970)
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23. The No Contest Plea
Most states also have statutes permitting a no contest plea, sometimes referred to as a nolo contendere plea.
In most states and in the federal courts, this plea may be made only with the consent of the trial judge.
Some states limit this plea to misdemeanor and local ordinance violations.
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24. Conditional Guilty Plea
The defendant does not have the constitutional right to have his or her guilty plea accepted by the court.
Under the laws of all states, trial judges have the discretion to refuse to accept a plea of guilty.
Defendants who enter a guilty plea in any form to a criminal charge lost most of their right to appeal.
The defendant can enter a guilty plea conditioned upon the defendant’s right to appeal the trial judge’s ruling.
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25. U. S. v. Mendez-Santana 645 F.3d 822 (6th Cir. 2011)
Under federal rules a defendant has an absolute right to withdraw a guilty plea before the trial judge accepts the plea.
The Federal Rules of Criminal Procedure permits a defendant to withdraw a guilty plea before sentencing for “fair and just” reasons.
In federal prosecutions, there is no jurisdiction in the trial court to grant a motion to withdraw a guilty plea after sentence has been imposed.
U. S. v. Mendez-Santana 645 F.3d 822 (6th Cir. 2011)
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26. The Insanity Plea
The insanity plea is found in the criminal codes of most states.
The insanity plea is used by defendants primarily in murder cases, for which sentences are severe.
If an insanity plea were entered in a minor criminal matter, the state may agree and join the defendant in requesting the court to find the defendant legally insane.
The defendant would very likely then be held for mental observations and treatment for a much longer period than would have been the case had he or she been convicted of the crime charged.
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27. The Insanity Plea
If a defendant decides to use an insanity defense, most defendants will enter a not guilty plea and proceed to trial.
The trial will then be bifurcated, with the first part of the trial determining guilt or innocence of the charge and the second part determining whether the defendant was legally insane when the criminal act was committed.
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.
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28. Is the Insanity Plea an Effective Defense?
Studies suggest that the insanity defense is the last resort for most defendants.
The defense is used in only about 1 percent of prosecuted felony cases and has a success rate of just over 20 percent.
The defense is risky and usually leads to longer sentences if the defense is unsuccessful.
Among defendants who are successful in raising the defense, only 1 percent are released after being found not guilty by reason of insanity.
For defendants found not guilty in violent crimes other than murder, the period of confinement in a mental hospital is twice as long as those convicted without making an insanity plea.
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29. The Guilty Plea System, Plea Bargaining, and Victim’s Rights Laws
Plea bargaining is when a defendant agrees to enter a guilty plea guilty in return for a reduction in the charge or sentence.
Prosecutors often charge defendants with multiple offenses; as part of the plea bargain, the lesser offenses are dropped in exchange for a guilty plea to the principal criminal charge.
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30. The Guilty Plea System, Plea Bargaining, and Victim’s Rights Laws
In all guilty plea hearings, the defendant is entitled to an attorney unless that right has been waived.
The trial judge questions the defendant to establish that the defendant knowingly and voluntarily is pleading guilty to the charge.
The state must introduce sufficient evidence to show beyond a reasonable doubt that the defendant committed the crime.
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31. The Guilty Plea System, Plea Bargaining, and Victim’s Rights Laws
Victim’s rights laws have been enacted in every state to give victims rights during the court process.
Crime victims must be informed of times, dates, and details for all court proceedings in their case.
Victims have the right to make a “victim impact statement” during sentencing.
In many states, victims may voice objections with a plea bargain agreement.
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32. The Guilty Plea System, Plea Bargaining, and Victim’s Rights Laws
Plea bargaining, negotiated pleas, and sentence pleading have become standard practice in most American communities.
It clears the court calendar of cases by providing a rapid trial and punishment.
Defendants participate and admit their guilt.
The practice eliminates many appeals.
The practice provides a certainty of adjudication.
A guilty plea could be the first step toward genuine rehabilitation.
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33. The Guilty Plea System, Plea Bargaining, and Victim’s Rights Laws
The main danger in the present system of nontrial dispositions is that it is so informal and invisible that it gives rise to fears that it does not operate fairly, or that it does not accurately identify those who should be prosecuted and what disposition should be made in their cases.
The very informality and flexibility of the procedures are sources of both potential usefulness and abuse.
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34. Fast-Track Trials and Plea Bargains
Defendants in “fast track” trials must prepare for a speedy trial or have the choice of “fast-tracking” plea bargaining.
The ability of defendants to receive reduced sentences in federal districts that have fast-track programs has caused problems for judges sentencing defendants in other districts, where fast track plea bargains are not available.
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35. Use of a Guilty Plea Offer as Evidence
To encourage guilty pleas, the federal government and many states have statutes that forbid the use of any of the following as evidence:
Evidence of a plea of guilty, later withdrawn;
A plea of nolo contendere, or of an offer to plead guilty or nolo contendere to the crime charged or any other crime; or
Statements made in connection with any of the foregoing pleas or offers.
States with similar statutes also prohibit evidence of pleas offered in plea negotiations.
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36. Quantums of Proof and Standards of Proof Required in Criminal Cases
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37. The Use of Evidence at a Bail Hearing
The purpose of bail is to assure the defendant’s appearance at trial.
During bail hearings, evidence of prior convictions and failures to appear in court are admissible.
Historically, about 60 percent of persons charged with felony crimes are released on bail.
Bench warrants are issued in approximately one- fourth of the cases of persons released on bail who fail to appear in court for trial.
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38. United States v. Salerno 481 U.S. 739, 752 (1987)
The Court held that pretrial detention is permissible in some circumstances under the Bail Reform Act, and does not violate the Eighth Amendment.
United States v. Salerno 481 U.S. 739, 752 (1987)
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39. The Trial
Only about 8 percent of criminal cases in the United States actually go to trial.
About 20 percent of those are tried before a judge, and 80 percent are tried before a jury.
Prior to the trial, the discovery process takes place; both the prosecution and the defense gather evidence through formal questions put to the other side, depositions of witnesses, and examination of documents and records.
Various motions can be filed by the parties as a result of the discovery process.
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40. The Trial
Jurors are selected from the community in which the court sits (the venue) from lists maintained by the court.
Jurors are summoned and selected, and subpoenas are issued to compel witnesses to attend and testify at the trial.
Depending on the seriousness of the crime charged and state rules, the jury may consist of six to twelve people.
The prosecution presents evidence first and must establish a prima facie case.
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41. The Trial
If the judge concludes the evidence is insufficient to support a reasonable jury verdict of guilty beyond a reasonable doubt, the case will be dismissed.
If the case is not dismissed, the defendant may present evidence to either cast doubt on the prosecution’s case or to prove an affirmative defense such as insanity, immunity, entrapment, or double jeopardy.
The prosecution may then offer rebuttal evidence to such defense and other new matters brought out in the defendant’s case.
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42. Use of Evidence in the Stages of the Criminal Process
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43. The Trial
After all evidence is in and both sides have delivered closing arguments to the jury, the trial judge issues jury instructions and jury deliberations begin.
With a not guilty verdict, the case is over and the defendant is discharged from custody.
With a guilty verdict, the defendant may file post-trial motions in the trial court such as judgment notwithstanding the verdict (sometimes called judgment NOV) or a motion for a new trial.
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44. The Trial
If the defendant’s motions are overruled, the defendant may appeal the criminal conviction and/or the sentence imposed upon the defendant.
In state cases, the defendant’s initial appeals go through the state appellate process.
The state appellate court does not conduct a new trial. Rather, it looks at the evidence to see whether it supports the conviction and determines whether the judge made any reversible errors.
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45. The Trial
The state appellate court also rules on other claims the defendant may make, such as a constitutional violation.
Appellate courts give deference to decisions made by the trial court on most questions.
Such decisions are reversible only if they constitute an “abuse of discretion.”
Appellate courts generally will review only those issues raised by the defendant at the trial.
The “plain error” rule is an exception to this general rule.
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46. The Trial
After the defendant has exhausted his or her state court appeals, the defendant may seek review in the federal courts but only for violation of federal constitutional rights.
Writs of certiorari are filed in the U.S. Supreme Court.
Writs of habeas corpus are filed in U.S. district courts.
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47. The Appellate Process
Writs of certiorari are limited to a review of state court rulings that violate the defendant’s rights under the Constitution.
Writs of certiorari are very rarely granted.
Habeas corpus writs are filed with a federal district court to ask the court to determine whether the defendant is being held in violation of his constitutional rights.
The denial of a writ is itself appeal- able by the defendant through the federal appellate system.
Filing successive habeas corpus writs is possible.
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48. Review of Sentencing
Imposed sentences may be reviewed by the following authorities:
Trial judge
Appellate courts
Federal courts
State parole board or parole authorities
The President of the United States and state governors
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49. States the meaning of the “plain error” rule in federal appeals of criminal convictions.
Error was clear and obvious, and
There is a “reasonable probability” the error affected the outcome of the trial.
U.S. v. Marcus 130 S.Ct (2010)
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