1. Define the term evidence.
    
2. Differentiate between the burden of production, burden of persuasion, and burden of proof, and the relationship between burden of proof and guilt beyond a reasonable doubt.
    
3. Explain the diverse roles of the judge and jury at trial in terms of the determination of the law and the determination of the facts.
    
4. Explain the origin of trial by jury in England.
    
5. Explain the development and significance of judicial review.
    
6. Identify and describe the relationship between the U.S. Supreme Court, federal courts of appeal, and federal district courts.
    
7. Describe the structure of state court systems.
    
8. Explain why precedent is relied on by the courts.
    
9. Explain the debate over the Fourteenth Amendment and the incorporation of the Bill of Rights.
    
10. Describe the relationship between the Federal Rules of Evidence and state rules of evidence, and explain why rules of evidence are needed.

SUMMARY: Section 140 of the California Evidence Code defines “evidence” as “testimony, writings, material objects, or other things presented to the senses that are offered to prove the existence or nonexistence of a fact.” This definition makes clear that along with the testimony of witnesses a number of items, objects, and documents may constitute evidence. The definition also suggests that what is considered evidence in a specific case depends on the facts involved.

Evidence introduced at trial may include testimony, firearms and other instrumentalities, documents, and forensics. Items seized in violation of the Fourth Amendment to the U.S. Constitution may be excluded from evidence based on the exclusionary rule.

The prosecution has the burden of proof in a criminal case. This means that each and every element of a crime must be established beyond a reasonable doubt. The defendant is presumed not guilty. The prosecution in most cases has the burden of production, the burden of presenting evidence (“moving forward”), and the burden of persuasion or the obligation to persuade the jury of the defendant’s guilt beyond a reasonable doubt. The defendant has no obligation to present a defense, and unless the prosecution presents evidence that establishes the defendant’s guilt beyond a reasonable doubt, the defendant should be found not guilty.

An equally important role for the judge is to rule on what evidence will be introduced at trial. Some of these decisions involve a fairly straightforward application of the law of evidence. Other situations, such as whether a prosecutor’s closing argument to the jury was inflammatory and potentially prejudiced the jury against the defendant, call for an exercise of judicial discretion and are less clear cut. The judge also is the “traffic cop” in the courtroom. He or she is responsible for ensuring that the lawyer’s questions are asked in the appropriate form and that the witness’s answers are responsive to the question.

The origins of the law in the United States can be traced to England. The decisions of local courts gradually were compiled into a system of law common to the English people and formed the basis of the common law that was shared by the English people. The judges’ decisions formed the precedent (stare decisis) that was to be followed by other judges. A system of trial by jury also gradually developed. The common law had a strong emphasis on individual rights and liberties. The Magna Carta of 1215, known as the “Great Charter,” was a significant step in the development of the common law. A second important event in the development of civil rights and liberties was the Glorious Revolution of 1689, which resulted in the installation of King William II and Mary II and led to the adoption of the Bill of Rights.

In 1787, representatives from twelve of the original thirteen states met in Philadelphia and drafted a Constitution, which contains various provisions that address individual rights in the criminal justice system. The Supreme Court in 1803 in Marbury v. Madison claimed the authority of judicial review, the right to define the meaning of the Constitution and to throw out federal, state, and local laws as unconstitutional that do not conform to the Constitution. The federal judicial system is based on a pyramid. At the lowest level are ninety-four district courts. These are federal trial courts of general jurisdiction that hear every type of case. District courts are the workhorses of the federal system and are the venue for prosecutions of federal crimes. A single judge presides over the trial. The ninety-four district courts, in turn, are organized into eleven regional circuits and the District of Columbia. Appeals may be taken from district courts to the court of appeals in each circuit.

Each of the fifty states has a constitution, and virtually all of these constitutions contain a “declaration of rights.” In most cases, the provisions are the same as the criminal procedure provisions in the Bill of Rights to the U.S. Constitution. In some instances, state constitutions have provided for additional rights or have clarified the meaning of particular rights.

There is significant variation among the states in the structure of their state court systems. Most state court systems include courts of original jurisdiction, which include courts of limited jurisdiction and courts of general jurisdiction. Appeals as a matter of right are taken from courts of general jurisdiction to intermediate appellate courts.

Discretionary appeals may be taken to the state supreme court.

Federal and state courts follow stare decisis, which means that once a court has established a legal principle, this rule constitutes a precedent that will be followed by courts in future cases that involve the same legal issue. The advantage of precedent is that courts do not have to reinvent the wheel each time that they confront an issue and, instead, are able to rely on the opinion of other judges.

The last half of the twentieth century witnessed the nationalization or what law professors refer to as the constitutionalization of criminal procedure. This involved interpreting the Fourteenth Amendment Due Process Clause to extend most of the protections of the Bill of Rights to the states. There now is a single standard of criminal procedure that all levels of government must satisfy. You may be prosecuted in Indiana, in Iowa, or in the federal system, and your rights are fundamentally the same. This constitutionalization or development of a single standard that applies to the federal government as well as to the states marked a true revolution in the law.

There are strong arguments that the individuals who drafted the Bill of Rights intended that the Due Process Clause incorporate the Bill of Rights and extend these protections to state governments. Judges favoring the total incorporation approach argue that these rights were viewed as fundamental by the drafters of the U.S. Constitution and clearly were intended to be guaranteed to African American citizens by the congressional sponsors of the Fourteenth Amendment.

A second approach contends that the Due Process Clause left states free to conduct criminal trials so long as the procedures are consistent with fundamental fairness.

Other judges favored selective incorporation. A small number of judges advocated selective incorporation plus and contended that there are rights that are not part of the Bill of Rights that also applied to the states. The challenge confronting the selective incorporation approach is to identify what parts of the Bill of Rights are essential.

In 1972, the United States Supreme Court adopted the Rules of Evidence for United States Courts and Magistrates and transmitted them to Congress for approval. The Congressional Judicial Committee of the House of Representatives debated these rules for almost a year before transmitting the slightly amended rules to the floor of the House of Representatives, which approved the new rules of evidence in early 1975. States have the sovereign power to adopt their own rules of evidence.

The majority of states have adopted the Federal Rules of Evidence in entirety, and forty-two states have adopted the Federal Rules in whole or in part. These states are not bound by the interpretation of the federal rules by U.S. district or appellate courts or the Supreme Court although in most instances they follow the precedent established by these courts. Several states, including California, have adopted their evidentiary rules, which follow most of the basic principles of the Federal Rules of Evidence.