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Chapter 14
Real Evidence
Guns, Drugs, and DNA

Real Evidence
    • Definition-
        • Material (tangible) objects or other things offered as evidence
    • Real evidence can be either
        • Physical
            • Such as a murder weapon or an injury on a body
        • Demonstrative
            • Demonstrates or illustrates, such as maps, charts, or visual aids
        • Does not include communicative (testimonial) evidence
     • Must meet the standards as for any other evidence, namely
        • It must be relevant and material
        • It may not be hearsay (unless there is an exception)
        • It may not be privileged
    • However, it is not subject to the 5th amendment self incrimination privilege
        • Suspect may be compelled to give fingerprints, blood sample, DNA, line-up, voice sample, wear an item, and so on.

Authentication
    • All real evidence must be “authenticated”
        • In other words, genuine.
        • It is what the proponent claims it to be. Rule 901

Four Foundational Requirements
    • 1. “Chain of Custody”
        • Law enforcement must account for storage and processing of evidence since its seizure to insure:
        • It is in same condition as originally
        • Test results are reliable
        • No need to show 100% accountability, just “reasonable probability”
        • Most important for drugs, blood, DNA
    • 2. demonstration of necessity
        • The item is being offered for a legitimate purpose
        • Factual explanation rather than emotional appeal
    • 3. “Nexus” to the crime
        • Just because it was seized doesn’t mean it’s relevant
    • 4. ID by either the officer or a witness

Authentication Problems
Specific Examples
1. Exhibition of the victim or defendant
    • Scars, physical attributes, tattoos
    • Voice or mannerisms
    • Walk or special features
    • Must be in substantially the same condition as the time in question

2. Articles connected with the crime
        • must have a “nexus” to the crime
    • Weapons
        • Similar weapons which witness cannot positively ID
            • Sufficient similarity is enough, positive ID not required
        • Other weapons besides the one used in the crime
            • Need independent nexus
        • “blunt force trauma” weapons
            • Generally requires expert testimony
    • Instruments connected with the crime
        • Burglary tools
        • Shaved keys, ceramic chips
        • May require expert testimony
    • Clothing
        • Anything the defendant is wearing at arrest
        • How similar must clothing be to the given description• Judge’s discretion
    • Blood stains
        • Blood splatter/pattern analysis
        • DNA matching and comparison
        • Known sample v. CODIS database
    • Narcotics trafficking items
        • Anything considered the “tools of the trade”
        • Cut, scales, notes, baggies, weapons, scanners, computers

3. Jury view of the scene
    • Must show it is substantially the same condition
    • Discretionary decision by the judge.
    • Attorneys and defendant have a right to go.
    • No discussions between jurors or by the attorneys are allowed.

4. Photo’s
    • Anyone familiar with the subject of the photo may testify to “authenticity” (accuracy)
        • Does it accurately depict the scene or item at the time in question?
        • Does not have to be the photographer
        • Don’t have to know the technical details of the photo unless information will be extracted from the photo itself
    • Posed photos
        • If they are corroborated by other evidence, they may come in as evidence to illustrate the facts.
         • If not corroborated, they may be used to illustrate the parties’ contentions, but are not evidence.
    • Gruesome photos may admitted in need can be shown.
        • Not inadmissible just because unpleasant, but
        • May not be used just for shock value.
    • Aerial photos, blow-ups, and bank surveillance photos
        • These are commonly used
        • Some technical information may be required for these
    • Any pictures taken in violation of constitutional or privacy rights will not be admissible
        • Doesn’t matter whether taken by law enforcement or not

5. Video’s
    • Same standards as photos.
    • Technical details may be needed moreso than photos, so cameraman may be needed
    • Slow-mos are ok if explained
    • Automatic or hidden surveillance cameras
        • May be admitted under a “silent witness” exception even though no one was around during the filming

6. X-rays or MRI’s
    • Even though they are technically pictures, they may be admitted using the “business records” rules

7. Sound recordings
    • Taped interviews
        • Someone who was present must testify to the “authenticity”
        • An agreed on transcript must be prepared by the attorneys
        • If editing is needed, it will be reviewed in court out of jury’s presence first.
        • Unintelligible portions may be admitted and remainder may come in if overall meaning is same and not out of context
    • Phone recordings
        • Someone familiar with the conversation or the speakers voice must “authenticate”
        • Illegally obtained recording may not be used
            • Fed: either party to conversation may consent to recording- only one party’s consent is needed
            • Cal: may not record without other party’s consent except for certain crimes.
    • Recordings of live conversations
        • No consent needed for hidden microphone conversations (like in undercover operations).

8. Diagrams, maps, and models
    • Same distinctions apply about whether they illustrate facts or contentions.
    • “Illustrative” diagrams or models (no information will be extracted from them) need not be to scale.
        • House floor plans, etc.

9. Live demo’s & experiments
    • Must be substantially similar to the actual event and under similar conditions
        • Remember OJ’s glove?

Preservation of Evidence
    • Preservation of evidence: Arizona v. Youngblood
        • The government must obviously preserve evidence it intends to use at trial, but how about evidence it does not intend to use•
            • All evidence should be preserved
            • Exculpatory evidence must be preserved
            • However, the failure to preserve potentially useful evidence of unknown value will not be a due process violation (read “dismissal”) unless bad faith can be shown.