AIUI, the defense has significant advantages in any criminal case, due to the presumption of innocence and burden being on the prosecution.
One factor is that the prosecution has tough rules to meet in terms of evidence that can be admitted for use in trial. For instance, the prosecution cannot use evidence that was illegally obtained. The prosecution must follow chain-of-custody for preserving forensic evidence, etc.
What I’m curious is whether the defense has similarly strict rules. If there is evidence that would clearly acquit the defendant, but such evidence was illegally obtained, is that evidence therefore un-usable by the defense? What other rules does the defense have to follow in terms of what evidence it can or cannot use?
rules for presenting evidence is same for all.
but collecting evidence works different due to two HUGE RULES
FIRST, illegally obtained evidence cannot be used in criminal court
(but might be allowed in civil court) all humans are subject to laws of illegal collecting of evidence. lawyers will face worse sanctions because they (should) know the law.
lose of evidence is just one sanction of “police” (includes all goverment incitated evidense) trail of evidence must be preserved. etc.
SECOND all evidence that may help needs to be shown to defense wether or not it will be used in court BUT defense doesn’t need to show prosecutors defense evidence if not going to use it in court for main presentition. if not shown, cannot use it (EXCEPT) if it proves a witness lied then witness can be impeached using undesclosed evidence
ONLY NEW EVIDENCE NOT AVAILABLE AT DISCOVERY can be used after discovery. must be disclised ASAP, no, “we found new information a year ago, found a week after discover deadline.”
the judge will ask “why didn’t you tell the court 11 months ago?”
and “i didn’t think i needed to use it, but looks like i’m losing…” WON’T CUT IT.
For an interesting read, look up the case of Paul Bernardo. After the police tore his house apart looking for evidence, his defense lawyer went in and retrieved videotapes the police didn’t find. Under Bernardos instructions, he kept them but did not watch them, until close to the trial.
Basically, Bernardo and his wife kidnapped, raped and dismembered two girls. His wife played the "I was abused: card and got a special deal from the prosecutor (10 years, she’s been out for a long time). Bernardo wanted the tapes that showed that she was an very active pariticpant, not coerced.
The prosecution had made a deal with his wife (Karla Homolka) and even went so far as to forbid any moention of it in the media. When the tapes made them look stupid (including a third drugging and rape victim she neglected to mention, and overdosing her sister) they then charged the defense lawyer with withhlding evidence. (he was acquitted)
But the crux of the matter - the lawyer was following the orders of his client. It was a pretty good bet what was on the tapes, but since he had not directly seen them, he did not turn them over.
Evidence introduced by defense lawyers is subject to the same strict rules regarding relevancy.
The exclusionary rule, however, only applies to the government. See Brady v. Maryland, 373 U.S. 83, 87 (1963) (prosecutors cannot suppress accomplice’s illegally obtained confession to committing the murder).
Private citizens can obtain evidence without a search warrant. Warrants are required for evidence obtained by law enforcement and officers of the court.
But such evidence obtained will normally need to be approved by the judge prior to its admission into evidence, and subject to cross examination by the prosecution.
Of course, any evidence from anywhere needs to be verified for its validity. When police take evidence as part of a warrant, there is a chain of custody to show where it came from. If Bob walks into the police station with a baggie and says “this was in Charlie’s car” then it really isn’t evidence against Charlie.
(I forget which movie it was… The person hides a body in the trunk of his car to dispose of later. The person who wants him caught moves the car a block to a no parking zone so it gets towed, since there are no grounds for his buddy the policeman to search it legally. First guy comes out, finds his car gone, reports it stolen. Second guy’s police buddy says that now that the car is moved from where it was parked, then it proves nothing against the first guy because his car was “stolen” and then towed, so anyone could have planted the body after the fact.)
Not on cross, but in the US, a defendant may admit certain “humanizing” testimony whereas the prosecution may not admit bad character testimony in most circumstances.
So, for example, a criminal defense may testify about his wife, beautiful children, and thrice-daily churchgoing so the jury will be aware of what his life is like. That evidence is not admissible to show the defendant’s character, but in practice that’s why it will be offered.