Hearsay literally means information gathered by the first person from a second person concerning some event, condition, or thing of which the first person had no direct experience. When submitted as evidence, such statements are called hearsay evidence. As a legal term, “hearsay” can also have the narrower meaning of the use of such information as evidence to prove the truth of what is asserted. Such use of “hearsay evidence” in court is generally not allowed. This prohibition is called the hearsay rule.
For example, a witness says “Susan told me she was cold.” Since the witness did not experience Susan’s coldness firsthand, the statement would be hearsay evidence to the fact that Susan was cold, and not admissible.
Federal Rules of Evidence:
401 – Definition of “Relevant Evidence”.
This rule says basically that any evidence admitted at trial must be relevant and to be relevant, it must have the tendency to make the existence of a fact more or less probable.
403 – Exclusion of Relevant Evidence on Grounds of Prejudice, Confusion, or Waste of Time.
This rule allows the exclusion of relevant evidence if its value is outweighed by its danger of unfair prejudice, undue delay, waste of time, or unnecessary duplication of evidence already presented.
602 – Lack of Personal Knowledge. This rule says that a witness can testify only to what she has personal knowledge of, and that foundation of that knowledge has been adequately shown through testimony by that witness or another witness.
Jury selection is the process by which a panel of jurors is chosen to render a decision in a trial. The parties may request a jury trial or have the judge render a final decision in a matter. Some proceedings, such as family law and bankruptcy, do not have the option of having a jury trial.
Jurors are chosen from the community in which the court is, and are randomly selected from voter registration, MVD records, or other public records. The prospective jurors are then sent a summons in the mail to appear at court the first day of trial. Some juries are asked to fill out a jury questionnaire prior to trial.
A jury generally consists of 12 jurors and two alternates. The clerk calls the first group of jurors by name, and then the judge or attorney starts voir dire, which is basically a question and answer session to learn more about the jurors. Both parties want jurors who will offer a fair decision at the end of the trial, so often they ask questions to expose potential biases the individuals may have.
The parties may request a juror be removed. This is called a challenge. Each side has a predetermined number of preemptory challenges, and an unlimited number of challenges for cause. Basically, a challenge for cause would be offered if the juror knows someone connected to the trial, has a strong bias, or shows some other reason why they would not be able to render an impartial decision in the matter. The judge rules on challenges for cause, but preemptory challenges do not need to be argued, the juror is simply dismissed. They are then replaced with the next potential juror, and voir dire continues until both sides have used all their preemptory challenges, and the remaining jurors have not been removed for cause.
The jury is given jury instructions at various points in the trial. At the beginning of the trial the judge will read some initial instructions to the jury which have been mutually agreed upon by both parties. At the end of the case the judge will read a final set of instructions, then send the jury to deliberate with a copy of each instruction.
The jury instructions help guide the jury in their deliberation. The instructions lay out each element of the claim which the prosecution must prove. The jury uses the instructions to weigh evidence and testimony, and ultimately determine the verdict of “guilty” or “not guilty.” Since this is a criminal trial, the burden is “beyond a reasonable doubt,” which must be reached by a unanimous decision. The jurors will decide each count for each individual defendant, using this standard.
Jury Deliberations and Verdict
After both sides have rested and given closing arguments, the judge will read instructions to the jury, then turn the case over to them for deliberation. The jury will go into a separate room to select a foreman, discuss the case, go through exhibits, and render a decision. Because this is a criminal case, the decision must be unanimous. If the jury has any problems or questions, they will send a message to the Judge in a note, who will either answer the question or speak with both parties before writing back an answer.
Once a jury reaches the decision, a jury verdict form is filled out, and the Judge is notified. Court resumes, and generally the Judge reads the verdict form, and gives it back to the jury foreman, who reads the final verdict aloud.
An opposing party may stand and make an objection during the examination of a witness. The objection is to be stated with a specific evidentiary ground. Its purpose is to keep the witness’s answer from the jury, or to keep a piece of evidence from being admitted. The Rules of Evidence bar either side from asking certain types of questions; if the lawyer wanders into prohibited territory, the opposing lawyer may object. In other instances, the judge has already decided that certain types of evidence are inadmissible, such as statements or evidence too far removed from the controversy, or opinion testimony that a particular witness does not have the authority to make. Sometimes a lawyer may object generally to testimony that is “irrelevant,” which means not likely to help the jury decide the case
In order for an issue to be appealed, the opposing party must make an objection, on the record, to “preserve the issue.” Higher courts will not review a claim that was not objected to during the trial phase of the controversy. The theory of this principle is that the trial judge should be given a chance to rule on the objection and cure the problem before a party may complain to a higher court that it prejudiced the outcome.
Defendants not having to testify
The Fifth Amendment of the U.S. Constitution notes that a defendant shall not “be compelled in any criminal case to be a witness against himself.” In other words, a defendant may choose to remain silent, and cannot be called by the prosecution or forced to respond to any question by the judge or attorneys. In a civil trial, a defendant does not have this right and may be forced to testify as a witness.
One reason that a defendant may decide not to testify is because it opens the defendant up to cross examination by the prosecution. A defendant may be nervous or emotional on the stand, or have an unpleasant effect on the jury if he were to testify. In cases that have lots of physical evidence and confusing timelines a defendant may not testify merely to avoid looking inconsistent or confused on the stand.
Generally the jury is told in the jury instructions not to assign any weight to defendant’s decision not to testify or to interpret a defendant’s silence as a sign of guilt.
What is a Motion
A motion is a request by one of the parties, through their counsel, which asks the court to make a decision on a specific matter. Motions are made at all stages of the trial. Pretrial motions are generally brought to the court by the filing of a motion, with a brief stating the argument for the passage of the motion. The opposing side is then given a limited amount of time to file a written brief in opposition. The judge may then make a ruling, or have the parties make oral arguments to the court. Motions are also made during trial, and can be made in writing or, sometimes, verbally. Once a party makes a proper motion, or “moves the Court,” the Court must rule on it unless the party withdraws the motion.
What is a Brief
A brief is a document that provides the legal argument and factual background to support a request to the court. A brief is longer and more detailed than a motion. Both parties file briefs in support of, and in opposition to motions.
Standard of proof: probable cause
A criminal defendant does not have to prove that he did not commit the crime with which he is charged. Instead, a person charged with a criminal offense is presumed innocent until proven guilty. The government must prove beyond a reasonable doubt that the person committed the crime.
While the government must prove every “element” of a criminal offense, a defendant may sometimes argue that even though he committed the crime, there were good reasons for doing so. These are called “mitigating circumstances,” and the defendant bears the burden of proof for them.
Statute of limitations
A statute of limitations is the limit on the time period during which a charge must be made, or a claim brought. The government may not prosecute acts committed before the statutory limit, unless the crime extends from before the statutory period until after. For example, the conspiracy charge in U.S. v. W.R. Grace extends over a period of decades, but must have some act that can be proven in the five years before the defendants were indicted.
If the charge is initiated before the statute has run, a trial may extend past that period, so long as the initial proceeding was within the period. State and federal law dictates the time period, and major crimes such as murder do not have a statute of limitations.
One important concept involved in determining when the statute begins is the accrual of all the elements of the crime. In some cases, the discovery of a wrong or injury starts the clock, such as a civil medical malpractice claim where the victim doesn’t become sick or suffer side effects for several years after the harmful event. In childhood sexual abuse cases, the statute is extended if the victim only becomes aware of the abuse through therapy or other means. Statutes of limitation encourage swift investigation and resolution of problems.
Role of Witnesses
All information is brought before the jury through the testimony of witnesses. A witness is a person, with knowledge, who is called by a party, sworn to tell the truth, and through questioning relays that information to the jury. Exhibits are also entered into the record through this testimony. A witness may be either a lay witness or an expert witness.
Lay witnesses are allowed to testify to information of which they have personal knowledge. Fed.R.Evid. 602. Lay witnesses are generally precluded from testifying in the form of an opinion unless the information is “(a) rationally based on the perceptions of the witness and (b) helpful to a clear understanding of his testimony or the determination of a fact in issue.” Fed. R. Evid. 701.
An expert witness is a person who by virtue of education, experience, skill, or training has knowledge of a specific subject beyond that of a normal person. Expert witnesses may give opinions about evidence within their scope of expertise. An expert must be tendered to the court as such, and satisfy Fed.R.Evid. 702 as having “scientific, technical, or other specialized knowledge” to assist the fact-finder. Once qualified by the Court, the expert may give opinion testimony if “(1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case.” Fed.R.Evid. 702.
After each side has out in all of its evidence, the lawyers will make closing arguments to the jury. This is the final opportunity for the attorneys to speak to the jury about the trial. The prosecution will give its closing argument first, often reviewing evidence and testimony to bolster each element of the crime. The defendants will then give their final arguments, noting which elements of the claim have not been fully proved, and arguing why their clients should be found not guilty.
What is a “hostile witness”?
A hostile witness is “[a] witness who is biased against the examining party, who is unwilling to testify, or who is identified with an adverse party.” Black’s Law Dictionary 1333-1334 (8th Ed., West 2005). A hostile witness may be considered unwilling, reluctant, reticent, evasive, unfriendly, defense-orientated or deceptive. A witness whose testimony is antagonistic or potentially prejudiced may be declared hostile at the request of the examining party, or by the judge. The examining party may then ask leading questions, which are reserved for cross-examination generally. F.R.Evid. 611(c). Leading questions are phrased in a way that suggests an answer, and generally leave the witness to merely respond “yes” or “no” as opposed to open-ended questions which invoke a narrative response.
98 C.J.S. Witnesses § 422 (2008).