Electronic Surveillance

1. Franks v. Delaware, 438 US 154, 57 L.Ed.2d 667, 98 S.Ct. 2674 (1978)
   False and misleading information in government affidavits concerning the necessity of the wiretaps required suppression of the information derived from the wiretaps.
   
   
2. Little v. Armontrout, 835 F.2d 1240 (8th Cir. 1987)
   Destruction of tapes violated due process if they had exculpatory value which was apparent before their destruction.
   
   
3. US v. Antoon, 933 F.2d 200 (3rd Cir. 1991)
   The United States cannot use intercepted communications in a criminal prosecution unless party to communication first consents to interception.
   (Authors note: With the passing of the Patriot Act the above may no longer be true.)
   
   
4. US v. Barnes, 47 F.3d 963 (8th Cir. 1995)
   Only statutory remedy for improper disclosure of wiretap evidence before grand jury is suit for civil damages, not suppression.
   
   
5. US v. Davanzo, 699 F.2d 1096 (11th Cir. 1983)
   When paid informer gives his consent before recording conversation in which he was involved, the conversations were free from warrant requirements.
   
   
6. US v. Hanson, 41 F.3d 580 (10th Cir. 1994)
   Two elements comprise statutory crime of wire fraud; scheme or artifice to defraud and use of interstate wire communication to facilitate that scheme.
   
   
7. US v. Herring, 933 F.2d 932 (11th Cir. 1991)
   Wiretap law did not prohibit conspiring to sell descramblers to view satellite television.
   
   
8. US v. McCowan, 706 F.2d 863, 865 (8th Cir. 1983)
   US v. Williams, 774 F.2d 258 (8th Cir. 1985)
   These cases established the 7 factors to be used to determine the admissibility of a tape recording.
   
   
9. US v. Meling, 47 F.3d 1546 (9th Cir. 1995)
   District court must suppress evidence seized pursuant to wiretap if defendant can show wiretap application contained intentionally or recklessly false information that was material to finding of probable cause.
   
   
10. US v. Ojeda Rios, 495 US 257, 109 L.Ed.2d 224, 110 S.Ct. 1845 (1990)
    Delay in sealing recordings derived from electronic surveillance held to require suppression, unless government gives "satisfactory explanation," at suppression hearing, why delay is excusable.
    
    
11. US v. Tavarez, 40 F.3d 1136 (10th Cir. 1994)
    

    1. Federal wiretap statute requires federal courts to defer to state law on question of validity of wiretap order obtained in state court under state law.
    2. Because an order authorizing a wiretap must conform to all provisions of the Oklahoma Security of Communications Act, an improper application results in an invalid order.

    
    
12. US v. Torres, 908 F.2d 1417 (9th Cir. 1990)
    Hits many areas on current wiretap law - some positive; some negative.
    
    
13. US v. Tomblin, 42 F.3d 263 (5th Cir. 1994)
    Government has the burden of proving consent to tape recording of conversations.
    
    

Back To Top

Entrapment

1. Hampton v. US, 425 US 484, 48 L.Ed.2d 113, 96 S.Ct. 1646 (1976)
   US v. Daniel, 3 F.3d 775 (4th Cir. 1993)
   

   1. Entrapment has 2 related elements; government inducement of crime and lack of predisposition on part of defendant to engage in criminal conduct.
   2. "Predisposed defendant" for purposes of defendants allegation of entrapment, is one who is ready and willing to commit the offense.

   
   
2. US v. Al - Talib, 55 F.3d 923 (4th Cir. 1995)
   Purpose of entrapment doctrine is to ensure that government does not implant in mind of innocent person the disposition to commit alleged offense and induce its commission.
   
   
3. US v. Davis, 15 F.3d 902 (9th Cir. 1994)
   Where informant was clearly acting on behalf of government before inducing defendant, informant is government agent, for purposes of entrapment defense.
   
   
4. US v. Eldeeb, 20 F.3d 841 (8th Cir. 1994)
   When entrapment is an issue, government must prove absence of entrapment beyond a reasonable doubt.
   
   
5. US v. Garza - Juarez, 992 F.2d 896 (9th Cir. 1993)
   Even though misconduct did not raise to level of entrapment or outrageous government conduct, it mitigated seriousness of defendant's participation in crimes and warranted a downward departure in the Sentencing Guidelines.
   
   
6. US v. Gleason, 980 F.2d 1183 (8th Cir. 1992)
   Government conduct in promoting the commission of a crime may be so outrageous as to violate fundamental fairness regardless of defendant's predisposition.
   
   
7. US v. Hollingsworth, 9 F.3d 593 (7th Cir. 1993)
   Doctrine of entrapment protects privacy of citizen rather than economy of law enforcement (Authors note: conviction was reversed on appeal).
   
   
8. US v. Hollingsworth, 27 F.3d 1196 (7th Cir. 1994)
   Defense of "derivative entrapment" exists if private person, himself entrapped, acts as agent of conduit for government efforts at entrapment of others.
   
   
9. US v. Hudson, 985 F.2d 160 (5th Cir. 1993)
   US v. Young, 954 F.2d 614 (10th Cir. 1992)
   Once defendant makes prima facia showing entrapment so as to be entitled to jury instruction thereon, burden shifts to government to prove beyond reasonable doubt that defendant was disposed to commit criminal act prior to first being approached by government agents.
   
   
10. US v. Ivey, 949 F.2d 759 (5th Cir. 1991)
    Entrapment defense is available to defendant even if defendant denies committing acts upon which criminal charge is based.
    
    
11. US v. Lakich, 23 F.3d 1203 (7th Cir, 1994)
    For purposes of entrapment defense, "predisposed" individual is one who is prepared and eager for opportunity to commit crime.
    
    
12. US v. Mitchell, 915 F.2d 521 (9th Cir. 1990)
    When undercover agents or informers engineer and direct criminal enterprise from start to finish, due process prevents conviction of even predisposed defendant.
    
    
13. US v. Price, 945 F.2d 331 (10th Cir. 1991)
    Court may find entrapment as a matter of law if evidence satisfying essential elements of entrapment is uncontradicted.
    
    
14. US v. Salmon, 948 F.2d 776 (D.C. Cir. 1991)
    US v. Skarie, 971 F.2d 317 (9th Cir. 1992)
    With respect to affirmative defense of entrapment, "inducement" is government behavior that would cause unpredisposed person to commit crime.
    
    
15. US v. Straach, 987 F2d 232 (5th Cir. 1993)
    Defense of entrapment is not available if there is evidence that defendant was predisposed to commit the crime.

Back To Top

Equal Protection

1. Ariz. Constitution Article 2§ 13 Equal Privileges and Immunities.
   B.) No law shall be enacted granting to any citizen, class of citizens, or corporations other than municipal privileges or immunities which, upon the same terms shall not equally belong to all citizens.
   
   
2. Bills v. Dahm, 32 F.3d 333 (8th Cir. 1994)
   Equal protection clause keeps governmental decision makers from treating disparately persons who are in all relevant respect similarly situated.
   
   
3. Capital Cities Media Inc. v. Chester, 797 F.2d 1164 (3rd Cir. 1986)
   Myers v. Ridge, 712 A.2d 791, 799 (PA. Comm. 1998)
   In order to properly state and equal protection claim, a plaintiff must allege that he is receiving different treatment from that received by other similarly situated individuals.
   
   
4. City Of Cleburne v. Cleburne Living Center, 473 US 432, 87 L.Ed.2d 313, 105 S.Ct. 3249 (1985)
   Jacobs, Visonsi & Jacobs Co. v. City Of Lawrence, Ks, 927 F.2d 1111 (I0th Cir. 1991)
   

   1. The equal protection clause essentially requires that all persons similarly situated be treated alike.
   2. Equal protection violation occurs when government threats someone differently than another who is similarly situated.

   
   
5. Cleburne v. Cleburne Living Ctr. Inc., 473 US 432, 439 (1985)
   Plyler v. Doe, 457 US 202, 216 (1982)
   The equal protection clause of the fourteenth amendment is essentially a direction that all persons similarly situated should be treated alike.
   
   
6. Dyszel v. Marks, 6 F.3d 116 (3rd Cir. 1993)
   Amount of deference shown to state created categories on equal protection review varies according to group discriminated against and infringed upon right or interest.
   
   
7. Eagleston v. Guido, 41 F.3d 865 (2nd Cir. 1994)
   Threshold requirement of equal protection claim is a showing that government discriminated among groups.
   
   
8. Edmonson v. Leesville Concrete Co. Inc., 860 F.2d 1308 (5th Cir. 1988)
   Principle of equal protection applies to governmental action in civil and criminal matters.
   
   
9. Hong v. Childrens Memorial Hospital, 993 F.2d 1257 (7th Cir. 1993)
   To prevail on disparate treatment claim under Title VII, plaintiff must prove that she was victim of intentional discrimination.
   
   
10. Larson v. Larson v. Miller, 55 F.3d 1343 (8th Cir. 1995)
    Women as class enjoy heightened scrutiny of state action under equal protection clause.
    
    
11. Mackenzie v. City Of Rockledge, 920 F.2d 1554 (11th Cir. 1991)
    Unequal application of state law may violate equal protection clause.
    
    
12. O'Bar v. Pinion, 953 F2d 74 (4th Cir. 1991)
    

    1. Class is suspect for equal protection purposes when it is defined from deep seated prejudice, rather than rational pursuit of some legislative objective.
    2. "Fundamental right," for equal protection purposes is one that is otherwise guaranteed in the constitution.

    
    
13. Powers v. Ohio, 499 US 400, 113 L.Ed.2d 411, 111 S.Ct. 1364 (1991)
    White criminal defendant held to have standing to raise equal protection objection to prosecutors allegedly race based exercise of peremptory challenges to exclude black perspective jurors.
    
    
14. Saulpaugh v. Monroe Comm. Hospital, 4 F.3d 134 (2nd Cir. 1993)
    Sexual harassment of women employees constitutes disparate treatment based on gender in violation of equal protection clause and is actionable under §1983.
    
    
15. US v. Cobb, 975 F.2d 152 (5th Cir. 1992)
    Equal protection clause forbids prosecutor to exercise peremptory challenges against prospective jurors solely on account of their race.
    
    
16. US v. Gutierrez, 990 F.2d 472 (9th Cir. 1993)
    Under equal protection standards, racial and ethic classification should be reviewed under strict scrutiny.
    
    
17. US v. LaFleur, 952 F.2d 1537 (9th Cir. 1991)
    Equal protection claims under the Fifth Amendment are treated the same as those under the Fourteenth Amendment.
    
    
18. US v. LaFleur, 971 F.2d 200 (9th Cir. 1991)
    

    1. Fifth Amendment includes equal protection component, which requires that the federal government accord every person within its jurisdiction equal protection of the laws.
    2. Equal protection claims under the Fifth Amendment are treated the same as those under the Fourteenth Amendment.

    
    

Back To Top

Evidence

1. Blacks Law Dictionary 976 (6th edition 1990)
   Material evidence is the quantity of evidence which tends to influence the trier of fact because of its logical connection with the issue.
   
   
2. 5th And 14th Amendment Burden Of Proof
   Proof, burden of proof, presumption. The due process clause of the 5th and 14th amendments protect the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged.
   
   
3. A.R.C.P. 19.3 Evidence
   

   1. General Rule.
      The law of evidence relating to civil actions shall apply to criminal proceedings except as otherwise provided.
      a. Prior Inconsistent Statements.
      No prior statement of the witness may be admitted for the purpose of impeachment unless it varies materially from the witness’s testimony at trial.
      a. Prior Recorded Testimony.
      b. Admissibility.
      Statements made by a party or a witness during a previous judicial proceeding or a deposition under rule 15.3 shall be admissible in evidence if:

      (i) the party against whom the former testimony is offered was a party to the action or proceeding during which a statement was given and had the right in opportunity to cross-examine the declaring within interest and motive similar to that which the party has now (no person for less on represented by counsel at the proceeding during which a statement was made shall be deemed to have had the right in opportunity to cross-examine the declaring, unless such representation was waived) and

      (ii) the declaring is unavailable as a witness, or is present in subject to cross-examination.

   c. Limitations And Objections.
   The admissibility of former testimony under this section is subject to the same limitations and objections as though the declaring were testifying at the hearing except that the former testimony offered under this section is not subject to:
   objections to the form of the question which were not made at the time the prior testimony was given.

   (iv) objections based on competency or privilege which did not exist at the time the former testimony was given.

4. A.R.Cr.P. 15.1 (b) Provision of evidence for expert examination.
   Supplemental disclosure scope.
   Except as provided by rule 39 (b) the prosecutor shall make available to the defendant the following material and information within the prosecutor's possession or control:
   
   (5) a list of all papers, photographs or tangible objects that the prosecutor intends to use at trial or which it were obtained from or purportedly belong to the defendant.
   
   
5. A.R.Cr.P. 15.1 (e) Additional disclosure upon request and specification.
   Unless otherwise ordered by the court, the prosecutor shall within thirty days of a written request make available to the defendant for examination testing and reproduction of the following: (1) any item specified in the list submitted under rule 15.1 (b).
   
   
6. A.R.Cr.P. 15.7 Sanctions
   Failure to make disclosure.
   If a party fails to make disclosure required by Rule 15, any other party may move to compel disclosure and for appropriate sanctions. The court shall order disclosure and shall impose sanction it finds appropriate, unless the court finds that the failure to comply was harmless or that the information could not have been disclosed earlier even with due diligence and the information was disclosed immediately upon discovery. All orders imposing sanctions shall take into account the significance of the information not timely disclosed, the impact of the sanction on the party and the victim and the stage of the proceedings at which the disclosure is ultimately made. Available sanctions include, but are not limited to:
   

   a. Precluding or limiting the calling of a witness, use of evidence or argument in support of or in opposition to a charge or defense, or

   b. Dismissing the case with prejudice or without prejudice, or

   c. Granting a continuance or declaring a mistrial when necessary in the interests of justice, or

   d. Holding a witness, party, person acting under the direction or control of a party, or counsel in contempt, or

   e. Imposing costs of continuing the proceedings, or

   f. Any other appropriate sanction.
   
   

7. A.R.Cr.P. 26.10 (2006 Ed) Judicial Decisions/Set-Aside
   A sentence must be set-aside where the defendant can demonstrate that false information formed part of the basis for the sentence; the defendant must show:
   

   a. That the information before the sentencing court was false or misleading.

   b. That the court relied upon the false information in passing sentence. See also: State v. Grier, 146 Ariz. 511, 701 P.2d 309 (1985)

8. A.R.Cr.P. 26.14 Resentencing
   Where a judgment or sentence or both, have been set-aside on appeal, by collateral attack or on post trial motion accord may now impose a sentence for the same offense, or a different offense based on the same conduct, which is more severe than the prior sentence unless:
   

   1. It concludes on the basis of evidence concerning conduct by the defendant occurring after the original sentencing proceeding that the prior sentence is inappropriate, or
   2. The original sentence was unlawful and on remand it is corrected in a lawful sentence imposed, or
   3. Other circumstances exist under which there is no reasonable likelihood that the increase in the sentence is the product of actual vindictiveness by the sentencing judge.

   
   
9. A.R.E. Rule 401 & 403
   State v. Oliver, 158 Ariz. 22, 760 P.2d 1071 (1988)
   The right is not absolute and requires scrutiny of the proposed evidence for relevance under rule 401 and 403. ID at 158 Ariz. 27-28 and 30-32, 760 P.2d at 1076-77 and 1079-81.
   
   
10. A.R.E. Rule 402 Relevant Evidence.
    Unfair prejudice-all relevant evidence is admissible except in those cases where its pro rata value is substantially outweighed by the danger of unfair prejudice.
    
    
11. A.R.E. Rule 403 Exclusion Of Relevant Evidence.
    There are five factors to be considered in assessing the danger of unfair prejudice; 1) the witness being impeached denies making the impeaching statement; 2) the witness presenting to be in teaching statement has an interest in the proceeding and there is no other corroboration that the statement was made; 3) there are other factors affecting the reliability of the impeaching witness, such as age or mental capacity; 4) the true purpose of the offer is substantive use of the statement rather than impeachment of the witness; 5) the impeachment testimony is the only evidence of guilt.
    
    
12. A.R.E. Rule 701 Opinion Testimony by Lay Witness.
    Inadmissible testimony. Social worker improperly gave an opinion regarding the truthfulness of the victim.
    
    
13. A.R.E. Rule 702 Testimony by Experts.
    Admissible testimony assists the trier of facts.
    
    
14. A.R.E. Rule 901
    1.General provision
    The requirement of authentication or identification is a condition precedent to add visibility, is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims.
    
    Illustrations.
    By way of illustrations only, and not by way of limitation, the following are examples of authentication or identification conforming with the requirements of this rule:
    Comparison by trier or expert witness.
    Comparison by the trier of fact or by expert witnesses with specimens which have been authenticated.
    
    
15. A.R.E. Rule 1002 requirement of original
    To prove the content of a writing, recording, or photograph, the original writing, recording or photograph is required, except as otherwise provided in these rules or by applicable statute or rule. (Source: Federal Rules Of Evidence, Rule 1002)
    
    
16. A.R.E. Rule 1003 Admissability Of Duplicates
    A duplicate is admissible to the extent as an original unless:
    

    1. A genuine question is raised as to the authenticity of the original.
    2. In the circumstances it would be unfair to admit the duplicate in lieu of the original.
    3. (Source: Federal Rules Of Evidence, Rule 1003)

    
    
17. A.R.S. Rule 13-35.1
    (J) except as provided below, nothing in this rule shall be construed to require the prosecutor to reproduce or lease for testing or examination any items listed in rule 15.1 (b) (5) if the production or possession of the items is otherwise prohibited by A. R. S. 13-35.1. Reproduction of or release for examination and testing shall be subject in addition to such other terms and conditions ordered by the court in any particular case, to the following restrictions: (1) the items shall not be further reproduce or distributed except as allowed in court order.
    
    
18. A.R.S. 13-2407 Tampering With A Public Record; Classification
    A person commits tampering with a public record if, with the intent to defraud or D.C., such person knowingly:
    

    1. Makes or completes a written instrument knowing that it has been falsely made, which purports to be a public record or true copy there of or alters or makes a false entry in a written instrument which is a public record or a true copy of a public record; or
    2. Presents or uses a written instrument which is or purports to be public record, knowingly that it has been falsely made, with intent that it be taken as genuine; or
    3. Records, register or files in a governmental office or agency a written statement which has been falsely made, completed or altered or in which a false entry has been made or which contains a false statement or false information; or
    4. Destroyers, mutilates, conceals, removes or otherwise in pairs the availability of any public record; or
    5. Refuses to deliver a public record in such person's possession upon proper request of a public servant entitled to receive such record for examination or other purposes.
       
       A. In this section (stress that "public records" means all official books, papers, written instruments or records created, issued, received or kept by others for the information of government.
       B. Tampering with a public record is a class six felony.

    
    
19. A.R.S. 13-2409 Obstructing Criminal Investigations Or Prosecutions; Classification.
    A person who knowingly attempts by means of bribery, misrepresentation or force or threats of force to obstruct, delay or prevent the communication of information of testimony relating to a violation of any criminal statute to a peace officer, magistrate, prosecutor or grand jury or who knowingly injures another in his person or property on account of the giving by the latter or by another person of any such information or testimony to a peace officer magistrate, prosecutor or grand jury is guilty of a class 5 felony.
    
    
20. A.R.S. 13-2809 Tampering With Physical Evidence: Classification
    A person commits tampering with physical evidence if, with intent that it be used, introduced, rejected or unavailable in any official proceeding which is pending or which such person knows is about to be instituted, such person:
    

    1. Destroys, mutilates, alters, conceals our removes physical evidence with the intent to impair its veracity or availability; or
    2. Knowingly makes, produces or offers any false physical evidence; or
    3. Prevents the production of physical evidence by active force, intimidation or deception against any person.

    A. Inadmissibility of the evidence in question is not a defense.
    B. Tampering with physical evidence is a class six felony.
    

21. Agnew v. US, 165 US 36 (1897)
    Holt v. US, 218 US 245, 253 (1910)
    The above cases overturned.
    
22. Berger v. New York, 388 US 41, 44n.2 (1967)
    Other demonstrative evidence may be obtained through the warrant process or without a warrant where “special needs of government” are shown. See also:
    Zurcher v. Stanford Daily, 436 US 547, 553-60 (1978)
    
    
23. B.K.B. v. Maui Police Dep't, Nos. 99-17087, 99-17158, UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT, 276 F.3d 1091; 2002 US App. LEXIS 276; 87 Fair Empl. Prac. Cas. (BNA) 1306; 82 Empl. Prac. Dec. (CCH) P40,914; 58 Fed. R. Evid. Serv. (Callaghan) 1011; 2002 Cal. Daily Op. Service 185; 2002 Cal. Daily Op. Service 1594; 2002 Daily Journal DAR 283; 2002 Daily Journal DAR 1933, May 17, 2001, Argued and Submitted, Honolulu, Hawaii , January 9, 2002, Filed , As Amended February 20, 2002. ... in part and reversed in part
    A court properly imposed sanctions against an employer in an employee's sex discrimination action because counsel for the employer acted in bad faith when they introduced testimony regarding the employee's sexual behavior and predisposition.
    
    
24. Byers v. US, 227 US 28, 32, 47 S.Ct. 248 (1927)
    Quoting Boyd. The state and federal courts have the same responsibility to protect the persons from violation of their constitutional rights.
    
    
25. Carpenter v. Superior Court, 176 Ariz. 486, 862 P.2d 246 (Ct. App. 1993)
    If a Defendant has reason to believe that the prosecutor has not disclosed information within the possession or control of such agency, his proper recourse is to seek relief pursuant to this rule rather than to circumvent the rules of criminal procedure. See also:
    State v. Gonzalez Perez-Ariz, 392 Ariz. Adv. Rep. 3, 62 P.3d 126, 2003 Ariz. App. Lexis 13 (Ct. App. 2003)
    State v. Tucker, 157 Ariz. 433, 759 P.2d 579 (1988)
    State v. Khoshbin, 166 Ariz. 570, 804 P.2d 103 (Ct. App. 1990)
    State v. Miller, 187 Ariz. 254, 928 P.2d 678 (Ct. App. 1996)
    
    
26. Caye v. Louisiana, 498 US 39 (1990) (Percuriam)
    Jury instruction that explains a reasonable doubt as doubt that would give rise to a grave uncertainty, as equivalent to any substantial doubt and as requiring a moral certainty, suggests a higher degree of certainty that is required for acquittal and therefore violates the due process clause and it operates to ensure that the jury considers the case solely on the evidence.
    
    
27. Cervantes v. Cates, 1 CA-SA 03-0157 , COURT OF APPEALS OF ARIZONA, DIVISION ONE, DEPARTMENT A , 206 Ariz. 178; 76 P.3d 449; 2003 Ariz. App. LEXIS 154; 409 Ariz. Adv. Rep. 3, September 23, 2003, Filed , Review denied by Cervantes v. Cates, 2004 Ariz. LEXIS 32 (Ariz., Mar. 16, 2004)
    Despite the fact that certain videotapes and pictures depicted child pornography, the State was required to copy the materials for defendant to aid in the preparation of his defense.
    
    
28. Coffin v. US, 156 US 432,453 (1895)
    Justice Harlan's concurrence, Id at 365, proceeded on the basis that inasmuch as there is likelihood of error in any system of reconstructing past events, the error of convicting the innocent should be reduced to the greatest extent possible through the use of the reasonable doubt standard. In many past cases, the standard was assumed to be the required one. The court held that the presumption of innocence was evidence from which the jury could find a reasonable doubt.
    
    
29. Cook v. American S.S. Co., 53 F.3d 733 (6th Cir. 1995)
    First and universal requirement for admissibility of expert opinion testimony is that evidence must be reliable and relevant.
    
    
30. Cooper v. Sielaff, 640 F. Supp. 345, E.D. VA. 1985
    Petitioner failed to allege any circumstances impugning fundamental fairness or infringing specific constitutional protection to permit habeas corpus review of claim that trial court erred in going against its own ruling that Commonwealth of Virginia could not use certain evidence at trial.
    
    
31. DA v. Osbourne, 2009 US LEXIS 4536
    Federal courts should not presume that state criminal procedures will be inadequate to deal with technological change. The criminal justice system has historically accommodated new types of evidence, and is a time-tested means of carrying out society's interest in convicting the guilty while respecting individual rights. That system, like any human endeavor, cannot be perfect. DNA evidence shows that it has not been. But there is no basis for Osborne's approach of assuming that because DNA has shown that these procedures are not flawless, DNA evidence must be treated as categorically outside the process, rather [***39] than within it. That is precisely what his § 1983 suit seeks to do, and that is the contention we reject. The judgment of the Court of Appeals is reversed, and the case is remanded for further proceedings consistent with this opinion.
    
    
32. Deutch v. US, 367 US 456, 471 (1961)
    The presumption of innocence is invaluable in assuring defendants a fair trial.
    
    
33. Dick v. Kemp, 833 F.2d 1448, 1451 (11th Cir 1989)
    Instruction in establishing presumption that defendant voluntarily under influence of alcohol intended legitimate consequences of on action unconstitutionally shifted burden of proof on element of intent.
    
    
34. ExLine v. Gunter, (1993, CA 10 Colo) 985 F.2d 487
    Defendants due process rights in his prosecution for sexual assault of a 9-year-old child were violated by trial court's failure to review in accordance with defendants offer of proof alleged victims social service records in camera to determine whether records which contained facts relating to victims credibility and earlier sexual assault by other man or necessary for determination of defendants guilt or innocence.
    
    
35. Flores v. Minnesota, 906 F.2d 1300, 1303 (8th Cir 1990)
    Upholding instruction that defendant required to prove by preponderance of evidence that he was too intoxicated to form premeditation because it also provided that prosecution had burden of proving intent beyond a reasonable doubt.
    
    
36. Fortini v. Murphy, 257 F.3d 39 (1st Cir 2001)
    Even highly prejudicial evidence can be excluded it is unduly prejudicial.
    
    
37. Franklin v. Henry, No. 96-16320, UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT, 122 F.3d 1270; 1997 US App. LEXIS 22793; 97 Cal. Daily Op. Service 7017; 97 Daily Journal DAR 11327, March 11, 1997, Argued, Submitted, San Francisco, California , August 29, 1997, Filed. REVERSED AND REMANDED
    The district court improperly denied the defendant's petition for habeas corpus because the exclusion of the proffered evidence was error was of constitutional magnitude and the excluded evidence might have tipped the verdict to acquittal.
    
    
38. Franks v. Delaware, 438 US 154, 57 L.Ed.2d 667, 98 S.Ct. 2674 (as 1978)
    US v. Wulferdinger, 782 F.2d 1473 (9th Cir 1986)
    A "Franks" hearing is used to determine whether the search warrant was invalid because the affidavit provided to the magistrate issuing the warrant was misleading or incorrect.
    
    
39. G. L. J.
    It is now settled that such evidentiary items as fingerprints,
    Davis v. Mississippi, 394 US 721 (1969)
    blood,
    Schmerber v. California, 384 US 757 (1966)
    urine,
    Skinner v. Railway Labor Executives Assoc., 489 US 602 (1989)
    fingernail and skin scrapings
    Cupp v. Murphy, 412 US 291 (1973)
    conversations, voice and handwriting exemplars,
    US v. Dionisio, 410 US 1 (1973)
    
    
40. G. L. J.
    An accused has the right to the assistance of counsel during a polygraph examination, since it is the functionally equivalent of interrogation. However, and accused may waive the right and agree to submit to a polygraph was out the assistance of counsel. Generally, polygraph results are not admissible without direct evidence at trial. However some prosecutors use the results to determine whether to prosecute an accused.
    
    
41. Glasser v. US, 315 US 60, 86 L.Ed 680, 62 S.Ct. 457 (1942)
    Hamling v. US, 418 US 87, 41 L.Ed.2d 590, 94 S.Ct. 2887 (1974)
    When reviewing the sufficiency of evidence to support a guilty verdict, the evidence, and all reasonable inferences therefrom, is viewed in the light most favorable to the government.
    
    
42. Guthrie v. Warden, 683 F.3d 820, 822-23 (4th Cir 1982)
    Instruction that defendant required to persuade jury that defendant was too intoxicated to form specific intent to commit murder unconstitutionally shifted burden of proof on element of intent.
    
    
43. Henry v. Estelle, (1993, CA9 CAL) 993 F.2d 1423, 93 CDOS 3626, 93 Daily Journal DAR 6251, 37 F.R.E. Rule 267
    Defendant’s due process rights were violated by state courts admission of uncharged crime and subsequent jury instructions since both were highly prejudicial and rendered defendant’s trial fundamentally unfair.
    Note: Twenty-year-old evidence is what is referred to here.
    
    
44. Henry v. Dees, 658 F.2d 406 (5th Cir 1981)
    US v. Givens, 767 F.2d 574, 585 (9th Cir 1985)
    Polygraph examination results used at sentencing
    
    
45. Idaho v. Wright, 497 US 805,110 S.Ct. 3139 (1990)
    Circumstances surrounding interview demonstrate danger of unreliability which, because interview was not audio/videotaped or otherwise recorded, can never be fully assessed.
    
    
46. Illinois v. Gates, 462 U. S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983)
    Gates failed to establish "...A fair probability that contraband or evidence of a crime will be found in a particular place..."
    
    
47. In re Winship, 397 US 358, 364 (1970)
    The reasonable doubt standard plays a vital role in the American scheme of criminal procedure. It is a prime instrument for reducing the risk of convictions resting on factual error. The standard provides concrete substance for the presumption of innocence--backed bedrock "axiomatic and elementary" principle boost enforcement lies at the foundation of the administration of our criminal law. Id at 363.
    
    
48. Ison v. Western Vegetable Distributors, 48 Ariz. 104,111, 59 P.2d 649 (1936)
    "Preponderance of the evidence means such evidence as weighed with the opposed to it has more convincing force, and from which it results that a greater probability is in favor of the party upon whom the burden rests. It does not necessarily depend on the number of witnesses; it merely means that the testimony which points to one conclusion appears to the trier of facts to be more credible than the testimony which points to the opposite one. The capacity of the submitted testimony to enforce belief on the arbiter to whom it is submitted the touchstone of preponderance as applied to the testimony of witnesses."
    
    
49. Jackson v. Garrison, 495 F. Supp. 9, 11 (W.D.N.C. 1979)
    There is no reason why, subject to proper (jury) instruction, the jury should be allowed to consider polygraph evidence.
    
    
50. Jeffers v. Ricketts, 627 F.Supp. 1334, affirmed in part, reversed in part 832 F.2d 476
    Review by federal habeas corpus court of petitioner’s 4th amendment claims is limited to determination of whether he received full and fair hearing on those claims by state courts. 28 USCA SS 2254.
    
    
51. Kennedy v. US, 330 F.2d 26
    Proceeding to correct an illegal sentence. The United States District Court for the District of Oregon, Gus J. Solomon, Chief Judge, entered an order, and the accused appealed. The Court of Appeals, Jertberg, Circuit Judge, held that ten year concurrent sentences for breaking and entering post office with intent to commit larceny were not absolutely void even though statute fixed maximum penalty at five years; the sentences were void only as to the excessive five years; after commencement of legal five year portions of sentences the excessive portions were correctable by appropriate amendment and not by discharge of prisoner; in making the correction the sentences could not be made to run consecutively. Remanded with instructions.
    
    
52. Larrison v. US, 24 F.2d 82 (7th Cir 1928)
    A new trial should be granted when (a) the court is reasonably well satisfied that the testimony given by a material witness is false; (b) that without it to the jury might have reached a different conclusion; and (c) that the party seeking the new trial was taken by surprise when the false testimony was given and was unable to meet or did not know of its falsity until after the trial.
    
    (Note: as discussed this case was the basis for the Larrison standard followed by many circuits.) See also:
    US v. Natanel, 938 F.2d 302 (1st Cir 1991)
    US v. Nixon, 881 F.2d 1305 (5th Cir 1989)
    US v. Mass, 867 F.2d 174 (3rd Cir 1989)
    US v. Butler, 567 F.2d 885 (9th Cir 1978)
    US v. Anderson, 509 F.2d 312 (1975)
    US v. Johnson, 487 F.2d 1278 (4th Cir 1973)
    
    
53. Johnson v. Makowski, 823 F.2d 387 (10th Cir. 1987)
    US v. Enzor, 820 F.2d 684 (5th Cir. 1987)
    Jury’s use of or exposure to extrinsic material requires new trial if there is slightest possibility that harm could have resulted.
    
    
54. Mapp v. Ohio, (1961) 367 US 643, 6 L.Ed.2d 1081, 81 S.Ct. 1684, 16 Ohio Ops 2d 384, 86 Ohio L.ABS. 513, 84 ALR 2d.reh. den. 368 US 871, 7L.Ed.2d 72, 82 S.Ct. 23
    Rule which excludes unconstitutional evidence from being admitted in state criminal trial is essential part of both 4th and 14th amendments.
    
    
55. McMorris v. Israel, 643 F.2d 43 F.2d 458 (7th Cir 1981) (en Banc), cert denied, 445 US 967 (1982)
    A polygraph test records changes in blood pressure, respiration, pulse and galvanic skin response.
    
    
56. Neil v. Biggers, 409 US 188 (1972)
    Reliability of pretrial identification procedures.
    
    
57. Nix v. Williams, 467 US 431, 81 L.Ed.2d 377, 104 S.Ct. 2501 (1984)
    Unlawfully obtained evidence held admissible if ultimately or inevitably it would have been discovered by lawful means.
    
    
58. Novak v. Navistar Intern Transp. Corp., 46 F.3d 844 (8th Cir. 1995)
    If prior incidents are not substantially similar to one giving rise to case in issue, they are not admissible.
    
    
59. Offor v. Scott, 72 F.3d 33, 36 (5th Cir 1995)
    Petitioner’s confrontation clause rights were transgressed in child sexual abuse case as a result of the admission of videotaped interview between child and police at which no representative of the defense was present.
    
    
60. Old Chief v. US, 519 US 172, 181, 117 S. Ct. 644, 651, 136 L.Ed.2d (1997)
    The defendant was charged with the prohibited possession of a firearm, although the defendant offered to stipulate to the fact of a prior conviction, the government declined to stipulation and the trial court allowed the government to prove the prior conviction was for assault causing serious bodily injury.
    
    
61. People v. Barbara, 400 Mich, 352, 255 N.W.2d 171 (1977)
    US v. Tucker, 773 F.2d 136, 141 (7th Cir 1985)
    Polygraph and admissibility left to discretion of trial court.
    
    
62. People v. Barney, 8 Cal. App. 4th 798, 10 Cal. Rpt.2d 731 (1992)
    HN3 – Before DNA evidence is submitted to the jury an evidentiary hearing must be held.
    
    
63. People v. Cantrell, 9 Cal Rptr.2d 188
    In a prosecution arising from a photographer's lewd conduct with three minors, a jury found defendant guilty of contributing to the delinquency of a minor (Pen. Code, ß 272), of annoying or molesting a child under 18 (Pen. Code, ß 647.6), of committing a lewd act on a child under 14 (Pen. Code, ß 288, subd. (a)), of battery (Pen. Code, ß 242), of sexual filming of a minor (Pen. Code, ß 311.4, subd. (c)), of procuring a minor for an indecent purpose (Lab. Code, ß 1308), and of penetration by a foreign object (Pen. Code, ß 289, subd. (i)). (Superior Court of Napa County, Nos. 6780, 6785 and 7110, W. Scott Snowden, Judge.) We modify the judgment as follows: (1) that part of the judgment indicating that appellant has been found guilty on counts 1, 2 and 3, is ordered stricken as is that part of the judgment ordering that a six-month jail sentence be served on these counts concurrent to the sentence in count 16; (2) the following language is added: "Counts 1, 2 and 3 are dismissed." In all other respects the judgment is affirmed.  The trial court is directed to send a copy of the amended abstract of judgment to the Department of Corrections.
    
    
64. People v. Gonyea, 421 Mich. 462, 365 N.W.2d 136 (1984)
    Statement obtained in violation of the right to counsel are inadmissible for both substandard and impeachment purposes.
    
    
65. People v. Leonard, 421 Mich. 207, 210, 364 N.W.2d 625 (1984)
    Statements obtained after a polygraph examination are not admissible for impeachment purposes where the parties had an agreement that the polygraph examination and any opinions drawn therefrom would not be admissible in evidence.
    
    
66. People v. Regan, 395 Mich. 306, 235 N.W.2d 581 (1975)
    Prosecutors are in agreement that if defendant passes a polygraph examination, the charges would be dropped is binding. Polygraph results also may be used for impeachment purposes if the defendant testifies at trial. A defendant, as part of an agreement with the prosecutor, may take a polygraph that if passed, would result in the charges being dismissed. But the failure to pass the examination could be used by the prosecutor to impeach the defendant if testifying at trial. See also: Harris v. New York, 401 US 222 91 S.Ct. 643, 28 L.Ed.2d 1 (1971)
    
    
67. People v. Strieter, 119 Mich. App. 332, 326 N.W.2d 502 (1982). Iv. Vacated, 418 Mich. 946 (1984)
    Statements obtained during a polygraph examination in violation of an agreement between the parties are inadmissible for both substandard and impeachment purposes.
    
    
68. People v. Stricter, supra 58
    Counsel had an agreement that only certain procedures would be followed and the police, with knowledge of the agreement exceeds these procedures; therefore the statements were suppressed.
    
    
69. Polygraph
    Most people think that the polygraph, or the "lie detector", is a reliable method for determining the truth. However few courts have allowed the results of the polygraph to be introduced and a criminal trial as direct evidence on the issue of innocence or guilt. A major reason why the courts have excluded polygraph results are the unreliability of the evidence.
    
    Every polygraph examination has three parts. The first part is the pretest, at which the defendant is interviewed to obtain the background information needed to formulate the questions to be asked. The second part is the actual examination. The third part is the post test interview, at which the defendant is informed of the results and given an opportunity to explain any answer indicating deception. Before commencement of the polygraph examination defense counsel, the prosecutor, and the polygraph examiner should need to establish the guidelines for each stage of the polygraph examination. Defense counsel should be present for all pre and post examination questioning and should obtain an agreement that all stages of the polygraph questioning of the accused will be recorded. Some polygraph examiners will allow counsel to be present during the actual testing is counsel agrees not to say or do anything to interfere with the questioning after it begins, but other examiners will not allow counsel to be present. Before the examination, counsel should review the questions the accused will be asked during the testing an object to those that are improper. Counsel should also obtain an agreement and after the polygraph examination has been completed, the accused will not be told the results nor questioned about it even if he or she asks. After the polygraph examination, the examiner or will usually ask the accused to explain any unfavorable results. Without an agreement that the accused will not be questioned about the results of the polygraph, any statement made will be admissible unless contrary state law exists. In Wyrick v. Fields, the Supreme Court held that new Miranda warnings to questions asked to explain the tests unfavorable results were admissible.
    
    
70. People v. Barney, 8 Cal. App. 4th 798, 10 Cal. Rpt.2d 731 (1992)
    HN3 – Before DNA evidence is submitted to the jury an evidentiary hearing must be held.
    
    
71. People v. Wallach, 110 Mich. App. 37, 312 N.W.2d 387 (1981) remanded on other grounds, 417 Mich. 937, 331 N.W.2d 730(1983)
    Warnings which omit advice about the right to have counsel present "during questioning" may be incomplete and a basis for suppression.
    
    
72. Rhue v. Dawson, 173 Ariz. 220, 841 P.2d 215 (Ct. App. 1992)
    Where evidence of the parties’ alcoholism would affect his credibility and memory loss, the trial court did not abuse its discretion by admitting the evidence as relevant, or as not being substantially outweighed by unfair prejudice to the party.
    
    
73. Sandstorm v. Montana, 422 US 510-24 (1979)
    On the interrelated concept of the burden of the prosecution to prove guilt beyond a reasonable doubt and defendants entitlement to a presumption of innocence, see Taylor v. Kentucky, 436 US 478, 483-86 (1978) and Kentucky v. Whorton, 431 US 786 (1979)
    
    
74. Shows v. M/V Red Eagle, 695 F.2d 114 (5th Cir. 1983)
    It was reversible error to admit into evidence, plaintiffs conviction that was over 10 years old.
    
    
75. Simmons v. US, 390 US 377, 383-84 S.Ct. 967, 70-71, 19 L.Ed.2d 1247 (1968)
    No lineup was conducted. Under these circumstances, we cannot find the error harmless beyond a reasonable doubt. See also:
    Chatman v. California, 386 US 18, 24, 87 S.Ct. 824, 828 7 L.Ed.2d 705 (1967)
    Hanrahan v. Thieret, 933 F.2d 1328, 1336-37 (6th Cir) cert denied, 502 US 970, 112 S.Ct. 446, 116 L.Ed.2d 464 (1991)
    
    
76. Sneed v. State, Criminal No. 766., Supreme Court of Arizona, 40 Ariz. 441; 14 P.2d 248; 1932 Ariz. LEXIS 226, September 17, 1932, Filed. ... Fickett, Judge. Judgment reversed and cause remanded
    Conviction for rape alleged to have been committed on defendant's daughter was improper because trial court erred in admitting testimony from witness, another daughter, over defendant's objection, indicating that defendant previously raped witness.
    
    
77. Speiser v. Randall, 357 US 513, 525-26 (1958)
    But because it was so widely accepted only recently has the court had the opportunity to pronounce it guaranteed by the due process. See also:
    Estelle v. Williams, 425 US 501, 503 (1976)
    Miles v. US, 103 US 304, 312 (1881)
    Davis v. US, 160 US 469, 488 (1895)
    Holt v. US, 218 US 245, 253 (1910)
    Henderson v. Kibbe, 431 US 145, 153 (1977)
    Ulcer County Court v. Allen, 442 US 140, 156 (1979)
    
    
78. State v. Aguilar, Arizona Supreme Court No. CR-03-0332-PR , SUPREME COURT OF ARIZONA, 209 Ariz. 40; 97 P.3d 865; 2004 Ariz. LEXIS 99; 442 Ariz. Adv. Rep. 14, September 16, 2004, Filed. Convictions and sentences reversed; remanded
    Court of appeals erred in concluding that evidence of defendant's other sexual assaults was inadmissible because the aberrant sexual propensity exception to prohibition against character evidence included nonconsensual sexual assaults against adults.
    
    
79. State v. Alvardo, 178 Ariz. 539, 541, 875 P.2d 198, 200 (App. 1994)
    In determining whether sufficient evidence supports the conviction we view the evidence in light most favorable to sustaining the verdict, and... Resolve all reasonable inference against the defendant. See also:
    State v. Atwood, 171 Ariz. 576, 596, 832 P.2d 593, 613 (1992) overruled on other grounds by State v. Nordstrom, 200 Ariz. 229, 25 P.3d 717 (2001)
    
    
80. State v. Anthony, Arizona Supreme Court No. CR-04-0098-AP, SUPREME COURT OF ARIZONA, 218 Ariz. 439; 189 P.3d 366; 2008 Ariz. LEXIS 123, July 28, 2008, Filed... in Maricopa County, REVERSED AND REMANDED
    Trial court's application of wrong legal standard, in deciding whether defendant's prior bad acts, allegedly consisting of molesting wife's daughter, should be admitted under Ariz. R. Evid. 404(b) in defendant's murder trial, was not harmless error; proper question was if there was clear and convincing evidence that defendant molested daughter.
    
    
81. State v. Atwood, 171 Ariz. 576, 638, 832 P.2d 593, 655 (1992) cert. Denied, 506 US 1084, 113 S.Ct. 1058, 122 L.Ed.2d 364 (1993)
    Under A. R. E. Rule 404 (b), evidence of other crimes is admissible to prove person’s bad character or the likelihood that he or she acted in conformity with it. However it may be introduced for other relevant purposes such as proving motive, opportunity, intent, preparation, plan, knowledge, identity, and absence of mistake or accident Id. The probative value of such evidence must not be substantially outweighed by the danger of unfair prejudice, and there should be a limiting instruction if requested.
    
    
82. State v. Arthur Leon Thompson, 198 Ariz. 142; 7P.3d 151; 2000 Ariz. App. LEXIS 112; 326 Ariz. Adv. Rep.5 July 25, 2000 Filed
    A prior conviction under 13-604 applies only when the defendant was sentenced on the prior offense before committing the present offense.
    
    
83. State v. Berceiga, 146 Ariz. 353, 705 P.2d 1384 (Ct. App. 1985)
    Defendant’s prior conviction for theft was inadmissible to rebut the defense of entrapment in a case charging attempted trafficking in stolen property.
    
    
84. State v. Bojorquez, 151 Ariz. 611, 619, 729 P.2d 965 (Ct. App. 1986)
    Evidence was not admissible as it did not complete the story of the offense, rather it was evidence of a completely separate criminal action whose only purpose could be to prejudice the jury; therefore, admission of the evidence was harmful error.
    
    
85. State v. Boles, )1 CA-CR 93-0333, COURT OF APPEALS OF ARIZONA, DIVISION ONE, DEPARTMENT B, 183 Ariz. 563; 905 P.2d 572; 1995 Ariz. App. LEXIS 170; 196 Ariz. Adv. Rep. 6, August 3, 1995, Filed. REVERSED AND REMANDED
    Defendant's convictions based on expert testimony that a DNA autorad match positively identified defendant, was reversed because there was no generally accepted scientific method of calculating the frequency of a random match.
    
    
86. State v. Brady, 105 Ariz. 190, 196, 461 P.2d 488 494 (1969)
    Evidence of later date inadmissible because of differences from crime at issue. For this error to require reversal however, they must be a reasonable probability that the verdict would have been different hand the evidence not been admitted.
    
    
87. State v. Carlisle, 198 Ariz. 203, TT 11, 8 P.3d 391, 394 (App. 2000)
    TT 8 conviction must be based on substantial evidence. "Substantial evidence is more than a mere scintilla and is such proof that a reasonable person could accept as adequate and sufficient to support a conclusion of a defendant's guilt beyond a reasonable doubt."
    
    
88. State v. Coghill, 216 Ariz. 578, 169, P.3d 942 (App. 2007)
    Introduction into testimony of the presence of adult pornography for the purpose of proving capability of downloading contraband and for proving intent, is inadmissible when other downloaded files were available that could have served the same purpose without the potential of prejudicing the jury against defendant. Presence of adult pornography cannot be used as proof of intent.
    
    
89. State v. Crane, 166 Ariz. 3, 799P.2d 1380 (Ct. App 1990)
    If certain types of opinion testimony are inherently unhelpful, and any danger or prejudice requires holding the evidence inadmissible.
    
    
90. State v. Davis, 205 Ariz. 174, 398 Ariz. Rep. 3, 68 P.3d 127, 2002 Ariz. App. Lexis 209 (Ct. App. 2002)
    Willits instruction is appropriate when the state destroys or loses evidence potentially helpful to the defendant; however destruction or nonretention of evidence does not automatically entitled defendant to it Willits instruction. To merit the instruction, a defendant must show:
    

    1. That the state failed to preserve material and reasonably accessible evidence having a tendency to exonerate him; and
    2. That this failure resulted in prejudice

    
    
91. State v. Dickens, 187 Ariz. 1, 24, 926 P.2d 468,491 (1996)
    A defendant has the burden of establishing mitigating circumstances by a preponderance of the evidence.
    
    
92. State v. Escalante, Nos. 1 CA-CR 8949, 1 CA-CR 8965, Court of Appeals of Arizona, Division One, Department A, 153 Ariz. 55; 734 P.2d 597; 1986 Ariz. App. LEXIS 726, July 17, 1986 , Review Denied March 31, 1987. REVERSED
    Defendant's convictions for sexual assault, kidnapping, and aggravated assault arising out of two separate incidents with two victims were reversed because the police wrongfully permitted destruction of evidence by not freezing victims' underwear.
    
    
93. State v. Faller, 88 S.D. 685, 227 N.W.2d 433, 435 (1975)
    The situation that the lie detector presents can best be described as a psychological rubber hose. A defendant when suddenly faced with the impersonal accuracy of a machine, may believe it is safer to confess and place himself at the mercy of the law rather than lie to the examiner and sacrifice any possibility of leniency.
    
    
94. State v. Ferguson, 149 Ariz. 200, 717 P.2d 879 (1986)
    Rule 402. Searches seizure. At police officers pursuit, stop, detention and request for defendants identification papers where impermissible under the fourth amendment without any founded suspicion of criminal activity. Evidence derived from an illegal search and seizure is "fruit of the poisonous tree" and should have been suppressed.
    
    
95. State v. Fernane, 2 CA-CR 94-0652, COURT OF APPEALS OF ARIZONA, DIVISION TWO, DEPARTMENT A, 185 Ariz. 222; 914 P.2d 1314; 1995 Ariz. App. LEXIS 242; 202 Ariz. Adv. Rep. 84, October 31, 1995, Filed , A Petition for Review was filed and DENIED by Order of the Arizona Supreme Court May 20, 1996. REVERSED AND REMANDED
    The trial court erred in failing to narrow evidence of prior bad acts to avoid undue prejudice and in refusing to sever defendant's trial from co-defendant's where his alternative defense was that defendant was guilty based on her prior bad acts.
    
    
96. State v. Garcia, 1 CA-CR 99-0852, COURT OF APPEALS OF ARIZONA, DIVISION ONE, DEPARTMENT B, 200 Ariz. 471; 28 P.3d 327; 2001 Ariz. App. LEXIS 104; 351 Ariz. Adv. Rep. 10, July 10, 2001, Filed , The State of Arizona's Petition for Review and Cross-Petition for Review DENIED January 10, 2002. Petition for Review DENIED on January 8, 2002, by Arizona Supreme Court CR 01-0309-PR. AFFIRMED IN PART; REVERSED IN PART
    Two molestation convictions were affirmed but indecent exposure conviction was reversed where court did not fully consider the prejudicial effect of the testimony of several young victims, each testifying to multiple uncharged molestations.
    
    
97. State v. Gates, 182 Ariz. 459, 897 P.2d 1345
    The Court of Appeals, Noyes, J., held that defendant's making of three videotapes of minors was insufficient to sustain conviction where minors were not engaged in sexual conduct.
    
    
98. State v. Getz, 189 Ariz. 561
    The state acknowledges that, in this case, the undisputed evidence shows that the victim/participant consented to the touching of her breasts. Therefore, the trial court should have granted judgments of acquittal on counts six, seven, eight and nine, and it is now so ordered. The memorandum decision of the court of appeals is vacated insofar as it addresses the issue dealt with in this opinion and the balance of the memorandum decision is approved. We remand for ressentencing This opinion does not affect the convictions on counts three and ten for sexual exploitation of a minor, class two felonies. The seventeen-year-sentence imposed on count three is affirmed, as is the twenty-eight-year sentence on count ten, which shall be served consecutively to the sentence on count three.
    
    
99. State v. Grannis, 183 Ariz. 52, 57, 900 P.2d 1, 6 (1995)
    The US Supreme Court has held that in determining whether the probative value of a given piece of information outweighs the risk of unfair prejudice the court must consider alternative evidence that could prove the same thing but which is less prejudice.
    
    
100. State v. Green, 200 Ariz. 496, 29 P.3d 271 (2001)
     Evidence of prior convictions admissible at court.
     
     
101. State v. Greene, 168 Ariz. 104
     Jacqueline Greene appeals from her conviction on three counts of child abuse for which she was sentenced to three consecutive terms of 12 years, to be served in full. She raises a number of issues on appeal. We need address only one, however, finding that the evidence was insufficient to support the verdict. Affirmed as modified; remanded for resentencing.
     
     
102. State v. Gulbrandson, 184 Ariz. 46, 60, 906 P.2d 579, 593 (1995)
     Admission of other act evidence is reviewed for abuse of discretion in line.
     
     
103. State v. Holsinger, 115 Ariz. 271, 564 P.2d 1238
     The Supreme Court, Cameron, C.J., held that prosecutor's failure to disclose to defense counsel that immunity had been granted to the only state witness who tended to corroborate testimony of accomplice constituted prejudicial error requiring reversal of defendant's conviction, since fact of immunity was relevant, not only to test witness' credibility, but also to determine if witness was herself an accomplice.
     
     
104. State v. Jackson, 124 Ariz. 202, 204, 603 P.2d 94, 96 (1979)
     Evidence of prior crimes not admissible under rule 404 (b) because the crimes were dissimilar.
     
     
105. State v. Joachim, 202 Ariz. 566, 48 P.3d 516
     Defendant filed motion in limine to suppress data seized on defendant's computer equipment in prosecution for sexual exploitation of a minor. The Superior Court, Maricopa County, Cause No. CR 2001-001690, Louis A. Araneta, J., granted the motion, and State appealed. The Court of Appeals, Edward C. Voss, J., held that a magistrate's decision to return seized property pursuant to statute allowing motion to controvert grounds for issuance of a search warrant does not necessarily preclude the State from offering that evidence in a subsequent felony prosecution. Vacated.
     
     
106. State v. Lacy, 187 Ariz. 340, 929 P.2d 1288 (1996)
     The evidence of prior bad acts was not admissible under A. R. E. Rule 404 (b) because the crimes were dissimilar, however the erroneous admission was harmless.
     
     
107. State v. Lehr, Supreme Court No. CR-97-0317-AP, SUPREME COURT OF ARIZONA, 201 Ariz. 509; 38 P.3d 1172; 2002 Ariz. LEXIS 15; 378 Ariz. Adv. Rep. 6, January 30, 2002, Filed , Writ of certiorari denied: Lehr v. Arizona, 2002 US LEXIS 8359 (US Nov. 12, 2002). US Supreme Court certiorari denied by Lehr v. Arizona, 154 L. Ed. 2d 428, 123 S. Ct. 550, 2002 US LEXIS 8359 (US, 2002)Appeal after remand at, Remanded by State v. Lehr, 2003 Ariz. LEXIS 60 (Ariz., Apr. 30, 2003).AFFIRMED IN PART, REVERSED IN PART
     Trial court abused its discretion when it found that the probative value of DNA evidence from a Frye hearing was outweighed by the risk of juror confusion regarding the protocol, validation studies, and match window of the DNA analysis.
     
     
108. State v. Lujan, Supreme Court No. CR-97-0375-PR, SUPREME COURT OF ARIZONA, 192 Ariz. 448; 967 P.2d 123; 1998 Ariz. LEXIS 636; 281 Ariz. Adv. Rep. 6, October 22, 1998, Filed in Pima County REVERSED AND REMANDED
     Evidence of prior sexual abuse along with expert testimony as to behavior was admissible to bolster a defense theory that the child was predisposed to misinterpret touching as sexual in a molestation case.
     
     
109. State v. Mathers, 165 Ariz. 64, 796 P.2d 866
     The Supreme Court, Moeller, J., held that defendant was entitled to acquittal on charges notwithstanding that evidence was ample to support convictions of two codefendants with whom defendant was seen leaving California to go to Arizona, place where incident occurred, and that defendant admitted being in Arizona on day of incident in light of complete absence of probative facts placing defendant at or near scene of crime. Quoting State v. Jones, 125 Ariz. 417, 419, 610 P.2d 51, 53 (1980)."We will not set aside a jury verdict for insufficient evidence unless it clearly appears that upon no hypothesis whatever is there sufficient evidence to support the conclusion reached by the jury." See also:
     State v. Arredondo, 155 Ariz. 314, 316, 746 P.2d 484, 486 (1987)
     
     
110. State v. Moran, 151 Ariz. 378, 728 P.2d 248 (1986)
     Witnesses have a right to testify about their opinion concerning the mental condition of a party. Jurors most of whom are unfamiliar with the behavioral sciences, may benefit from expert testimony explaining behavior they might otherwise attribute to inaccuracy or prevarication. See also:
     Starkins v. Bateman, 150 Ariz. 537, 724 P.2d 1206 (Ct. App. 1986)
     
     
111. State v. Mills, 196 Ariz. 269, 275, 28, 995 P.2d 705, 711 (App 1999)
     Evidence is unfairly prejudicial if it has an undue tendency to suggest decision on an improper basis, commonly, though not necessarily an emotional one.
     
     
112. State v. Mott, 187 Ariz. 536, 545 P.2d 1046, 1055 (1997)
     Improper basis included in motion, sympathy or horror.
     
     
113. State v. Perez, 141 Ariz. 459, 687 P.2d 1214 (1984)
     The state has a duty in the interest of justice, to act in a timely manner to ensure the preservation of evidence is aware of, where the evidence is obviously material and reasonable with its grasp.
     
     
114. State v. Plew, 155 Ariz. 44, 745 P.2d 102 (as 1987)
     Expert testimony in the behavioral sciences is admitted to educate and assists the jury in understanding the evidence which will determine the facts in issue.
     
     
115. State v. Polan, 78 Ariz. 253, 278 P.2d 432 (1954)
     A defendant who takes the stand may be impeached by prior felony convictions, in the same manner as any other witness. See also:
     State v. Sorrel, 85 Ariz. 173, 333 P.2d 1081
     ARS 13-163
     
     
116. State v. Richcreek, 187 Ariz. 501, 903 P.2d 1304 (1997), cert. denied, 520 U. S. 1276, 117 S.Ct. 2458, 138 L.Ed.2d 215 (1997)
     Relevant evidence can and should be excluded where the probative value of the item is substantially outweighed by its prejudicial effects. See also: State v. Merez, 152 Ariz. 588, 734 P.2d 73 (1987)
     
     
117. State v. Riggs, 189 Ariz. 327, 330, 942 P.2d 1159, 1162 (1997)
     If a trial court excludes essential evidence, thereby precluding a defendant from presenting a theory of defense, the trial court's decision results in a denial of defendant's right to due process that is not harmless. See also:
     Oshrin v. Coulter, 142 Ariz. 109, 111, 688 P.2d 1001, 1003 (1984)
     
     
118. State v. Roberts, 139 Ariz. 117, 677 P.2d 280 (Ct. App. 1983)
     In a child molestation case the jury would have been in a much better position to determine nine-year-old victims credibility if it had been aided by expert testimony. Thus, victim's credibility was a proper subject for expert testimony.
     
     
119. State v. Robinson, 165 Ariz. 51, 56, 796 P.2d 853, 858 (1990) cert. denied, 498 US 1127, 111 S.Ct. 1091 (1991)
     As stated in State v. Lacy, 187 Ariz. 340, 929 P.2d 1288, 1996 Ariz. LEXIS 129; 233 Ariz. Adv. Rep. 3 appellate court will not reverse evidentiary rulings absent an abuse of discretion.
     
     
120. State ex rel Romley v. Superior Court (Roper), 172 Ariz. 232, 836 P.2d 445 (App. 1992)
     But, any privilege that resents a barrier to the production of evidence relevant to cross examination is trumped by the defendant's constitutional due process right to present his defense and conduct effective cross examination.
     
     
121. State v. Salazar, )1 CA-CR 92-1586, COURT OF APPEALS OF ARIZONA, DIVISION ONE, DEPARTMENT E, 181 Ariz. 87; 887 P.2d 617; 1994 Ariz. App. LEXIS 194; 173 Ariz. Adv. Rep. 3, September 6, 1994, Filed , Petition for Review DENIED on January 25, 1995 by Arizona Supreme Court No. CR-94-0416-PR. REVERSED AND REMANDED
     The trial court erred by allowing the admission of inflammatory details of defendant's prior sexual crimes without considering appropriate restraints to limit the overly prejudicial effect of the evidence.
     
     
122. State v. Sanchell, 191 NeB. 505, 508, 216 N.W.2d 504 (1974)
     A polygraph examination agreement requires the court's approval to be binding. If the defendant does not agree before the examination to provide the polygraph results to the government, the results will not be admissible at trial. Prior notice is required since a defendant would be under psychological pressure during the examination if he knew the government would not have access to the results of the polygraph examination for years at trial, even for impeachment purposes.
     
     
123. State v. Smith, 146 Ariz. 491, 707 P.2d 289 (1985)
     It is for the trial court to determine whether evidence properly admissible should nevertheless, be excluded as unduly prejudicial that determination is to be made by balancing the probate value of the evidence against the prejudicial effect the evidence would have on those hearing it.
     
     
124. State v. Speers, 1 CA-CR 02-0578 , COURT OF APPEALS OF ARIZONA, DIVISION ONE, DEPARTMENT B, 209 Ariz. 125; 98 P.3d 560; 2004 Ariz. App. LEXIS 139; 435 Ariz. Adv. Rep. 3, September 28, 2004, Filed , Review denied by State v. Speers, 2005 Ariz. LEXIS 60 (Ariz., May 24, 2005)
     State sought to introduce evidence of alleged child molestation as propensity evidence in defendant's trial for sexual exploitation of a minor. Trial court's ruling, which precluded expert testimony to rebut this evidence, was reversible error.
     
     
125. State v. Stolp, No. 5397, Supreme Court of Arizona, 133 Ariz. 213; 650 P.2d 1195; 1982 Ariz. LEXIS 233, June 2, 1982 , Rehearing Denied September 14, 1982. ... in part and reversed and remanded in part
     Reversible error occurred in defendant's trial where victim's posthypnotic testimony was admitted even though she could not identify defendant until after hypnotic session and no precautions were taken to safeguard against suggestibility in session.
     
     
126. State v. Taylor, 196 Ariz. 584, 589 TT 15, 2 P.3d 674, 679 (App. 1999)
     Reversible error where "credibility was the primary issue-there was no corroborating physical evidence or eyewitness testimony, and the appellant's and victims stories were markedly different."
     
     
127. State v. Terrazas, 189 Ariz. 580, 944 P.2d 1194
     Following bench trial in which evidence of prior thefts of pickup trucks was admitted, defendant was convicted in the Superior Court, Maricopa County, Cause No. CR 94-06193, Michael J. O'Melia, J., of theft of third truck, and he appealed. The Court of Appeals, 187 Ariz. 387, 930 P.2d 464, affirmed. Review was granted. The Supreme Court, en banc, Moeller, J., held that: (1) prior bad acts are not admissible in criminal case unless profferer can prove by clear and convincing evidence that prior bad acts were committed and that defendant committed acts, and (2) evidence that library books which had been located in stolen truck were found on defendant's property was not admissible as prior bad acts evidence. Conviction and sentence reversed and remanded. Opinion of Court of Appeals vacated.
     
     
128. State v. Thompson, 169 Ariz. 471,820 P.2d 335 (Ct. App. 1991)
     The crucial question is whether declarants out-of-court statements were reasonably pertinent to diagnosis or treatment; a two-part test is used to aid in deciding whether the proffered statements were reasonably pertinent to diagnosis or treatment.
     

     1. Was the declarants’ apparent motive consistent with receiving of medical care;
     2. Was it reasonable for the physician to rely on information in diagnosis or treatment. In a prosecution involving alleged sexual molestation of a child, the Arizona Court of Appeals held that a child's statement during a videotaped interview with a social worker were not reasonably pertinent to diagnosis or treatment and what is inadmissible pursuant to this rule.

     
     
129. State v. Tucker, 165 Ariz. 340, 798 P.2d 1349 (Ct. App. 1990)
     Scope of expert testimony. The expert may neither quantify nor express an opinion about the veracity of a particular witness or type of witness and may not explained that, based upon the characteristics and behavior he has described a person's conduct is consistent or inconsistent with the crime having occurred.
     
     
130. State v. Tucker, 759 P.2d 579, 157 Ariz. 433 (1988)
     US Constitutional Amendments 5 and 14. There is no general federal constitutional right to discovery in criminal case the Constitution does impose procedural due process obligation to disclose exculpatory evidence that is essential on issue of guilt or punishment.
     
     
131. State v. Valdez, 1 CA-CR 93-0094, COURT OF APPEALS OF ARIZONA, DIVISION ONE, DEPARTMENT B, 182 Ariz. 165; 894 P.2d 708; 1994 Ariz. App. LEXIS 266; 181 Ariz. Adv. Rep. 7, December 30, 1994, Filed
     Defendant could be convicted on only one charge of sexual exploitation of minor, despite fact that roll of film he possessed produced five pornographic pictures, because roll constituted one "visual medium" under sexual exploitation statute.
     
     
132. State v. Weaver, 158 Ariz. 407, 762 P.2d 1361 (Ct. App. 1988)
     Evidence that tends only to suggest that defendant has any prior criminal history must be excluded.
     
     
133. State v. Williams, 144 Ariz. 433, 698 P.2d 678, 1985 Ariz.. Lexis 194
     In the words of classic admonition in Boyd v. US, 116 US 616, 635, 6 S.Ct. 524 (1886) it may be that it is the obvious thing in its mildest and least repulsive form, but illegitimate and unconstitutional practices get their first foot in that way, namely, by silent approaches and slight deviation from legal modes of procedure. This can only be obviated by adhering to the role that constitutional provisions for the security of person and property should be liberally construed. A close and literal construction deprives them of half their efficacy and lead to gradual depreciation of the right as if it consisted more in sound than in substance. It is the duty of courts to be watchful for the constitutional rights of the citizens and against any stealthy encroachment thereon.
     
     
134. State v. Youngblood, Nos. 2 CA-CR 3979, 2 CA-CR 4364-2, Court of Appeals of Arizona, Division Two, Department B, 153 Ariz. 50; 734 P.2d 592; 1986 Ariz. App. LEXIS 728, October 2, 1986 , Review Denied March 27, 1987. REVERSED
     Defendant's molestation of a child, sexual assault, and kidnapping convictions were reversed because the state failed to adequately preserve certain physical evidence and disposed of other evidence in violation of defendant's due process rights.
     
     
135. Stovall v. Denno, 388 US 293
     The conduct of identification procedures must not be so unnecessarily suggestive and conducive to irreparable mistaken identification as to be a denial of due process of law.
     
     
136. US v. A&S Counsel Oil Co., 947 F.2d 1128 (4th Cir. 1991)
     US v. Barger, 931 F.2d 359 (6th Cir. 1991)
     Polygraph results are generally inadmissible.
     
     
137. Ulibarri v. Gerstenberger, 1 CA-Cv. 91-0154, COURT OF APPEALS OF ARIZONA, DIVISION ONE, DEPARTMENT D, 178 Ariz. 151; 871 P.2d 698; 1993 Ariz. App. LEXIS 88; 139 Ariz. Adv. Rep. 14, May 20, 1993, Filed
     Patient who claimed that her psychiatrist engaged in improper sexual conduct while she was hypnotized survived summary judgment on statute of limitations grounds because there was an issue as to whether she was able to discover her injuries.
     
     
138. US v. Adams, 110 F.3d 31 (8th Cir 1997)
     When Supreme Court's "Franks" decision, search warrant is invalid and affidavits knowingly and intentionally, or with reckless disregard for the truth, includes false statement in warrant affidavit.
     
     
139. US v. Agurs, 427 US 97 (1996)
     The court summarized and somewhat expanded the petitioners obligation to disclose to the defendants expelled Atari evidence in his possession, even in the absence of a request, or upon a general request by the defendant. The obligation is expressed in a tripartite tests of materiality of expelled toward evidence in the context of the trial record. First if the prosecutor knew or should have known that testimony given to the trial was perjury, the conviction must be set-aside if there is any reasonable likelihood that the false testimony would have affected the outcome of the trial. Id at 103-04. This situation is the Mooney v. Holohan type of case. Second is the defense specifically requested certain evidence and the prosecution witheld it, the conviction must be set-aside if the suppressed evidence might have affected the outcome of the trial. Id at 104-106. And this is a Brady situation. Third, (the new law created in Agurs) if the defendant did not make a request in all, or simply ask for "all Brady material" or for "anything exculpatory" a duty resides in the prosecution to reveal to the defendants obviously exculpatory evidence; if the prosecutor does not reveal it, reversal of the conviction may be required, but only if the undiscovered evidence creates a reasonable doubt as to the defendants guilt. Id at 106-14.
     
     
140. US v. Aims Back, No. 77-2662, UNITED STATES COURT OF APPEALS, NINTH CIRCUIT, 588 F.2d 1283; 1979 US App. LEXIS 17861, January 4, 1979
     Admission of testimony of co-defendant's victim in regard to sexual encounter with defendant was highly prejudicial because he was charged with raping a different woman and, therefore, the evidence should have been excluded.
     
     
141. US v. Aldrich, 169 F.3d 526 (8th Cir 1999)
     Evidence of a prior crime is always prejudicial to a defendant because it diverts the attention of the jury from the question of the defendants responsibility for the crime charged to the improper issue of his bad character.
     
     
142. US v. Alexander, 526 F.2d 116, 168 (8th Cir 1975)
     The potential is that juries may improperly regard polygraph evidence as infallible.
     
     
143. US v. Anderson, 933 F.2d 1261 (5th Cir. 1991)
     US v. Waechter, 771 F.2d 974 (6th Cir. 1985)
     Government cannot convict defendant of being bad person, engaging in sharp practices, or discovering loopholes in government policies. Jury may not premise criminal verdict on defendants character, but only on evidence relevant to charged crime.
     
     
144. US v. Binder, No. 84-1249, UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT, 769 F.2d 595; 1985 US App. LEXIS 21930, February 11, 1985, Argued and Submitted , August 22, 1985, Decided. Reversed
     Conviction for child molestation and sexual conduct with a minor was reversed because trial court erred in replaying children's videotaped testimony to jury because it unduly emphasized that portion of testimony.
     
     
145. US v. Boone, 62 F.3d 323 (10th Cir. 1995)
     Evidence that is acquired because of prior illegal police activity generally must be excluded as fruit of that illegality.
     
     
146. US v. Bradley, 173 F.3d 225 (3rd Cir 1999)
     In balancing the probate of value of evidence against its prejudicial effect, the district court must appraise the genuine need for the challenged evidence and balance that necessity against the risk of prejudice to the defendant.
147. US v. Casel, 995 F.2d 1299 (5th Cir. 1993)
     US v. James, 590 F.2d 575 (5th Cir. 1978 - en banc)
     "James Hearing" is held to determine whether out of court statement of alleged co-conspirator should be admitted into evidence.
     
     
148. US v. Chamberlin, 139 F.Supp.2d 637
     Minors and their parents sued photographer who took nude pictures of minors for violation of Protection of Children Against Sexual Exploitation Act, infliction of emotional distress, invasion of privacy, and negligent supervision. On photographer's motion for summary judgment, the District Court, Caputo, J., held that: (1) some photographs did not contain exhibition of minors' genitals as required to establish violation of Act; (2) other photographs which did exhibit genitals were not lascivious; (3) affidavits describing photographs not in record did not establish lasciviousness; and (4) there was no affirmative reason to retain jurisdiction over state-law claims. Summary judgment granted in part, and claims dismissed in part.
     
     
149. US v. Clark, 598 F.2d 994 (5th Cir 1979) cert denied, 449 US 1128 (1981)
     US v. Fife, 573 F.2d 369 (6th Cir 1976)
     Results of polygraph test is not competent evidence.
     
     
150. US v. Davis, 183 F.3d 231 (3rd Cir 1999)
     Intoxication can negate specific intent.
     
     
151. US v. DeCoito, 764 F.2d 690 (9th Cir. 1985)
     Jurors are generally entitled to examine documents properly admitted in evidence.
     
     
152. US v. Doane, 975 F2d 8 (1st Cir. 1992)
     

     1. "Exclusionary Rule" provides that illegally obtained evidence to which timely objection was made, cannot be admitted into evidence.
     2. Exclusionary rule reflects not, the personal constitutional right of person aggrieved but, instead, judicially created remedy designed primarily to deter improper conduct by law enforcement officials.

     
     
153. US v. Donaghe, No. 93-30058, UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT, 50 F.3d 608; 1994 US App. LEXIS 38736; 94 Cal. Daily Op. Service 7471; 94 Daily Journal DAR 13741, December 15, 1993, Argued, Submitted, Seattle, Washington , September 30, 1994, Filed , As Amended on Denial of Rehearing January 31, 1995
     Defendant's child molestation convictions, investigation into sexual misconduct with nephew, and diagnosis of homosexual sexual deviation were improper factors upon which to upwardly depart from sentencing guidelines for false statement conviction.
     
     
154. US v. Dorgman, 532 F. Supp. 1118, 1135 (N.D. Ill. 1981)
     The validity of polygraph results depends on many different factors related to the accused, the examiner and the test itself. These factors include: the physiological and mental abnormalities of the accused; the inadequate phrasing of questions; the appropriateness of the control questions; the expertise of the examiner; the methodology employed in reading the grass; the number of indices employed to generate data; and the use of auxiliary sources of data.
     
     
155. US v. Feldman, 711 F.2d 758 767 (7th Cir 1983)
     US v. Tucker, supra note 51
     The defendant's refusal to agree to use of the results regardless of the results prior to polygraph examination would make the results unreliable.
156. US v. Gay, 774 F.2d 368 (10th Cir. 1985)
     Absent an abuse of discretion, deficiencies in a chain of custody go to weight of evidence and not its admissibility.
157. US v. Flyer, No. 08-10580, UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT, 633 F.3d 911; 2011 U.S. App. LEXIS 2362, April 15, 2010, Argued and Submitted, San Francisco, California, February 8, 2011, Filed
     Where child pornography images were located in "unallocated space" containing deleted data defendant could not access or download, and no evidence showed he knew those images were on his computer's hard drive, an 18 U.S.C.S. § 2252(a)(4)(B) conviction was reversed; deletion of an image alone was insufficient to show possession on an alleged date.
     Note: In this case the only evidence presented was deleted files in unallocated space.
     
     
158. US v. Gourde, No. 03-30262 , UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT, 382 F.3d 1003; 2004 US App. LEXIS 18584, June 9, 2004, Argued and Submitted, Seattle, Washington , September 2, 2004, Filed , Rehearing, en banc, granted by United States v. Gourde, 416 F.3d 961, 2005 US App. LEXIS 14215 (9th Cir., 2005)Different results reached on rehearing at United States v. Gourde, 2006 US App. LEXIS 5890 (9th Cir. Wash., Mar. 9, 2006)
     Affidavit for warrant establishing that it was possible to infer that defendant might possess child pornography was not enough to justify a warrant to search his home and seize his computer. Thus, trial court improperly denied his motion to suppress.
     
     
159. US v. Ghent, 279 F.3d 1121
     Petitioner sought federal habeas corpus relief following affirmance, on direct appeal, 43 Cal.3d 739, 239 Cal.Rptr. 82, 739 P.2d 1250, of his conviction by original jury for first-degree murder, attempted rape, and assault with intent to commit rape, and of death penalty imposed pursuant to second jury's verdict in special circumstances retrial. The United States District Court for the Northern District of California, William A. Ingram, Chief District Judge, denied petition. Petitioner appealed. The Court of Appeals, Reinhardt, Circuit Judge, held that: (1) admission of testimony in violation of Miranda violated petitioner's due process rights; (2) erroneous admission of psychiatrist's testimony did not have substantial or injurious effect on original jury's verdict; (3) erroneous admission of psychiatrist's testimony during special circumstances retrial warranted habeas relief; (4) jurors' brief glimpses of petitioner in restraints did not rise to level of due process violation; and (5) failure to give lesser-included instruction did not prejudice petitioner. Affirmed in part, reversed in part, and remanded with directions.
     
     
160. US v. Hitt, 981 F.2d 422 (9th Cir 1992)
     Where evidence is of very slight if any probative value, it is abuse of discretion to admit it if there is even modest likelihood of unfair prejudice or small risk of misleading the jury.
     
     
161. US v. Little Bears, 583 F.2d 411, 414 (8th Cir 1978)
     Citing state v. Henry, 652 So.2d 643 (LA. Sup. Ct. 1977) the court held that due to the coercive impact of the polygraph someone taking it should be advised of his right: (1) to refuse to take the test, (2) to discontinue it at any point, and (3) to decline to answer any individual questions.
     
     
162. US v. Lowery, 135 F.3d 957 (5th Cir 1998)
     Court's exclusion of evidence in defendant's trial for obstruction of justice was an order requiring reversal when evidence was relevant and necessary to defendant affirmative defense
     
     
163. US v. McCoy, No. 01-50495 , UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT, 323 F.3d 1114; 2003 US App. LEXIS 5378; 2003 Cal. Daily Op. Service 2483; 2003 Daily Journal DAR 3129, August 6, 2002, Argued and Submitted, Pasadena, California , March 20, 2003, Filed , Rehearing denied by, Rehearing, en banc, denied by United States v. McCoy, 2003 US App. LEXIS 17573 (9th Cir. Cal., June 24, 2003)
     Federal child pornography statute was unconstitutional as applied to a mother's simple intrastate possession of a pornographic photo of her daughter that had not been transported interstate and was not intended for any economic or commercial use.
     
     
164. US v. Meadows, 91 F.3d 851 (7th Cir 1996)
     Conviction of defendant when the prosecution provided no evidence of essential element of offense was subject to appeal.
     
     
165. US v. Moore, 115 F.3d 1348 (7th Cir 1997)
     Other crimes evidence may not be used to demonstrate individual’s propensity to commit crime.
     
     
166. US v. Moore, 956 F.2d 843 (8th Cir. 1992)
     If state officials seize evidence in violation of the Fourth Amendment and turn that evidence over to federal officials, the evidence must be excluded in the resulting federal prosecution.
     
     
167. US v. Morrow, 39 F.3d 1228 (1st Cir. 1994)
     Normally, where evidence is wrongly admitted over objection, it is for government to show that evidence was harmless.
     
     
168. US v. Murray, 784 F.2d 188 (6th Cir 1986)
     US v. Falsia, 724 F.2d 1339, 1341 (9th Cir 1983)
     Introduction of polygraph evidence will inject a time-consuming potentially prejudicial and perhaps confusing collateral issue into the court.
     
     
169. US v. Nabors, 901 F.2d 1351 (6th Cir. 1990)
     If evidence is procured in violation of knock and announce statute, evidence must be suppressed.
     
     
170. US v. Oliver, 525 F. Supp. 731 (8th Cir 1976)
     Parties had stipulated to admit the results but; court denied the motion.
     
     
171. US v. Oloyede, 982 F.2d 133 (4th Cir. 1992)
     Government may not seize legitimate files even when it has evidence of extensive fraud scheme in one particular area of business.
     
     
172. US v. Ridling, 350 F. Supp. 90 (E.D. Mich 1972)
     In perjury trial, polygraph results are admissible under detailed guidelines.
     
     
173. US v. Saelee, 162 F.Supp. 2d 1097
     Prior to trial defendant moved to exclude testimony by government forensic document analyst comparing hand printing found on packages in which drugs were shipped to hand printing exemplars obtained from defendant. The District Court, Holand, J., held that: (1) testimony was not admissible as opinion by lay witness, and (2) testimony was also inadmissible as expert opinion, since government had not established reliability of theories and methods used by document examiner. Motion granted.
     
     
174. US v. Schwimmer, 924 F2d 443 (2nd Cir. 1991)
     Government must demonstrate that evidence it uses to prosecute was derived from legitimate, independent sources.
     
     
175. US v. Sebetich, 776 F.2d 412 (3rd Cir 1985)
     At trial five years later, the trial court denied defendant's request for and in court identification lineup or placement in the audience. The appellate court held that the trial court should have followed the standard set forth in US v. Archibald, 756 F.2d 223 (2nd Cir 1984) During an in court identification the defendant can be required to speak.
     
     
176. US v. Tom Yu, D.C. Ariz., 1 F.Supp. 357 (1952)
     "... a person should not be subject to search of premisis on mere suspicion of fact..."
     
     
177. US v. Tucker, supra note 51
     Courts have also stated that [t]he lie detector does not tear into the mind; it is a list of a relative anxiety and if the person taking the test has nothing to lose and everything to gain, [the accused] may not be anxious and... Passing the test may prove nothing.
     
     
178. US v. Vandyke, 14 F.3d 415 (8th Cir. 1994)
     Evidence should not be excluded on the grounds that it is exculpatory.
     
     
179. US v. Wade, 388 US 218, 87 S.Ct. (1926)
     The influence of improper suggestion upon witnesses accounts for more miscarriages of justice than any other factor.
     
     
180. US v. Weber, No. 89-10096, UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT, 923 F.2d 1338; 1990 US App. LEXIS 25891, April 17, 1990, Argued and Submitted , September 28, 1990, Filed , As Amended, January 15, 1991
     Defendant was improperly convicted of receiving of visual depictions of minors engaged in sexually explicit conduct because evidence seized under warrant should have been suppressed after affidavit did not give substantial basis for probable cause.
     
     
181. US v. Wheeler, No. 23712, UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT, 434 F.2d 1195; 1970 US App. LEXIS 6164, December 2, 1970
     Conviction was error where large portion of trial was focused on issue unnecessary for conviction and thus may have infringed defendant's due process rights and where conflicting testimony provided insufficient evidence to support conviction.
     
     
182. US v. Williams, 436 F.2d 1166, 1168 (9th Cir 1970)
     The courts have the discretion to determine what type of in court identification procedure to use. The court may require a lineup or it may seek the defendant in the courtroom audience before and during the testimony of the identification witness. However when the defendant's appearance has been significantly altered by the passage of time and in court identification procedure may be inappropriate.
     
     
183. US v. Williams, 704 F.2d 315, 319-20 (6th Cir), cert denied, 464 US 991 (1983)
     In, in court lineup defendant may be required to wear particular close, including a mask. See also: US v. Domina, 74 F.2d 1361, 1369 (9th Cir 1986)
     
     
184. US v. Zeiger, 354 F.Supp. 685 (D.D.C. 1972)
     Court must alert jurors to the value and limitations of the polygraph technique.
     
     
185. Valdez v. Ward, 219 F.3d 1222, 1245 (10th Cir 2000)
     Defendant not entitled to voluntary intoxication instruction because he failed to Raise a reasonable doubt concerning ability to form criminal intent.
186. Watkins v. Sowders, 449 US 341, 101 S.Ct. 654 (1981)
     It is the reliability of identification evidence that primarily determines it's admissability.
     
     
187. Webb v. Lewis, 44 F.3d 1387 (9th Cir 1994) cert. denied 115 S.Ct. 2002 (1995)
     After his conviction for child sexual abuse was affirmed and the Arizona Supreme Court denied his petition for review, defendant filed habeas corpus petition. The United States District Court for the District of Arizona, Stephen M. McNamee, J., denied petition, and appeal was taken. The Court of Appeals, Noonan, Circuit Judge, held that: (1) videotaped interview with victim, conducted by social worker, was not admissible under hearsay exception for medical diagnosis or treatment, and (2) videotape of interview, conducted by social worker, of alleged victim did not have sufficient guarantees of trustworthiness to be admissible absent firmly established hearsay exception. Reversed with instructions.
     
     
188. Weeks v. US, 232 US 383, 398 (1914)
     Exclusionary rule applies in federal court to evidence obtained through 4th amendment violation. See also:
     Mapp v. Ohio, 367 US 643, 654 (1961)
     
     
189. Wyrick v. Fields, 459 U. S. 42, 103 S.Ct. 394, 74 L.Ed.2d 214 (1982)
     The issue not raised on appeal, but which could be considered on remand, will at least determine six amendment right to counsel was violated. The court held that before the examination and request of counsel's presence... It would have been unreasonable for Fields and his attorney to assume that Fields would not be informed of the polygraph readings and asked to explain any unfavorable results. Id. at 47-48. Police and are required to give a technical explanation of the polygraph to someone who has consented to take it. See also:
     Monte v. Jenkins, 626 F.2d 584 (7th Cir 1980)

Back To Top

Exhaustion of Remedies

1. Bijeol v. Benson, 404 F.Supp 595 (S.D. Indiana 1975)
   Prisoners must demonstrate attempt at exhausting administrative remedies.
   
   
2. Deltona Corp. v. Alexander, 682 F.2d 888 (11Ith Cir. 1982)
   Courts will not require exhaustion when administrative remedy is inadequate, does not exist, would not provide relief commensurate with claim, be so unreasonably delayed as to create serious risk of irreparable injury, when the claim would be denied because it would be clearly denied, or when the administrative action will not resolve the merits.
   
   
3. Fuentes v. Roher, 519 F.2d 379, 387 (2nd Cir. 1975)
   These two are applicable when you allege that the administrative remedy process itself is unconstitutional. Both cases came from Miller v. Stanmore, 636 F2d 986 (5th Cir. 1981) page 991 note #8.
   
   
4. Lyons v. US Marshals, 840 F.2d 202 (3rd Cir. 1988)
   

   1. Lists the criteria for the non exhaustion of administrative remedies.
   2. If seeking only monetary damages under BIVENS exhaustion is not required.

   
   
5. Maguire v. Wilkinson, 405 F.Supp 637 (D. Conn. 1975)
   If no response is elicited, appeal will be deemed denied.
   
   
6. McCarthy v. Madigan, 503 US 117 L.Ed.2d 291, 112 S.Ct. (1992)
   Muhammad v. Carlson, 739 F2d 122 (3rd Cir. 1984)
   Federal prisoners are not required to exhaust The Federal Bureau of Prisons internal grievance procedure before initiating a Biven's action solely for money damages.
   
   Note: If you’re a federal prisoner who Is suing the B.O.P. for solely monetary damages you do not have to exhaust your administrative remedies. See: McCarthy v. Madigan, 112 S.Ct. 1081
   Bivens v. Six Unknown Agents, 403 US 388
   
   
7. Patsey v. Board of Regents, 457 US 496, 73 L.Ed.2d 172, 102 S.Ct. 2557 (1982)
   An individual is not required to exhaust administrative remedies prior to instituting an action under § 1983.
   
   
8. Raines v. Us Parole Commission, 829 F.2d 840 (9th Cir. 1987)
   When government failed to raise the exhaustion of administrative remedies in the lower court it made a tactical decision and could not raise the issue for the first time on appeal.
   
   
9. Swoops v. Sublett, 196 F.3d 1008 (9th Cir. 1999)
   We consider this appeal on remand from the Supreme Court for further consideration in light of O'Sullivan v. Boerckel, 119 S. Ct. 1728 (1999), decided after issuance of our prior decision in this case. After reconsideration, we conclude that Arizona state prisoners need not appeal an Arizona Court of Appeals' denial of post-conviction relief to the Arizona Supreme Court in order to exhaust their state remedies for federal habeas corpus purposes, except in capital cases or cases involving the imposition of a life sentence.
   
   
10. Tarlton v. US, 429 F.2d 1297 (5th Cir. 1970)
    After exhaustion of administrative remedy court will look at same.

Back To Top

For questions or comments about this website contact: jcoghill2@cox.net