There are many different types of evidence that can be used in court against a criminal or civil defendant. Private investigators most probably will not become directly involved with the various types of evidence described herein, but knowl-edge of what is and what may not be considered evidence should be an important part of their training. Therefore, the private investigator should be aware of what constitutes evidence and what can be admitted in a court of law.
So then, in addition to that described below, evidence is found and collected in many forms and is to be considered a major element in the prosecution of any case, criminal or civil. Therefore, consider the gathering of evidence in statements and confessions (see Chapter 5, “Statements and Confessions”) and search and seizure (see this chapter, “Search and Seizure”), among other areas, to be an important part of the investigative procedures of the private investigator.
Definition of Evidence
Evidence is a system of rules and standards by which the admission of proof at a trial or hearing is regulated. In a broad sense, it is the means or method by which any disputed or necessary matter of fact is proved or disproved.
Evidence may come in different forms; it can be direct—testimony by a witness who actually saw, heard, or touched the matter at issue—or circumstantial—facts or items that lead the mind to certain conclusions.
Physical evidence can be defined as something tangible or material of some nature, such as a written confession by the defendant, a bullet, weapon, blood, or an article of clothing. It can be further described as any element that helps prove that an offense was in fact committed, and that connects the perpetrator to that offense.
(For a complete list of the types of evidence and the significance of each, see the “Glossary.”)
Evidence to be admissible in court must be material and relevant:
Materiality—If the fact that the evidence tends to prove is part of an issue of the case, the evidence is material. It must affect an issue of the case signifi-cantly. Evidence that proves something or tends to prove something that is not part of an issue of the case is immaterial. For example, Subject A is being charged with grand larceny, the theft of a pocketbook from a woman while she walked down the street. The defense attorney for Subject A puts forth the argument that the time of occurrence was 2 a.m., and the woman should not have been in that neighborhood at that time of night and therefore placed herself in jeopardy. This fact was unimportant to the case at hand and was therefore immaterial.
Relevancy—Evidence that tends to prove the truth of a fact at issue is relevant.
For example, Subject A shoots Subject B intentionally with a loaded rifle from a distance of 1,000 feet. Evidence shows that Subject A is a hunter, is highly proficient with rifles, and is an instructor in target shooting and handling firearms. Such information can be admitted as being relevant.
Witnesses and Evidence Issues Witness Competency
A competent witness is a person who is eligible to testify. Competency, which is both mental and moral, over the age of 13 is presumed. Mental competency relates to the ability to see, recall, and relate. Moral competency refers to the understanding of the truth and the consequences of false testimony. The court can accept the competency of a child if after examination the child has been found to have the mental aptitude that is acceptable and understands right from wrong. The credibility of a witness may be affected by his or her character and integrity or past transgressions.
Expert Witness
An expert witness is one skilled in some art, science, or trade to the extent that he possesses information not within the common knowledge. The testimony of an
expert can be admitted on matters of a technical nature relevant to the case that may or will require interpretation that the judge and jury can understand. This can include physicians, ballistic and fingerprint technicians, and blood and DNA specialists. Once examined and satisfied by the court and accepted as an expert, he or she may testify to the issue in question.
Spontaneous Exclamations
Generally, it is accepted that if a person speaks or makes an utterance before he has time to reflect or fabricate a lie, he will speak the truth. It may defined as an utterance spoken at the time of a startling event or occurrence when during the excitement, shock, or surprise, such exclamations can be inferred as spontaneous and without deliberation, and can be introduced as evidence by anyone who heard such declaration. Note that the utterance in most cases, must not have been in response to a question.
The Exclusionary Rule
Evidence is excluded if it is not allowed by the court to be entered as evidence. This rule commands that where evidence has been obtained in violation of the privileges guaranteed by the U.S. Constitution, the evidence must be excluded at the trial.
Evidence obtained by an unreasonable search and seizure is excluded from evi-dence at trial under the Fourth Amendment of the U.S. Constitution, and this rule is applicable to all states.8
The “Plain-View Doctrine”
Consider also, that if a private investigator or security officer has the right to be in a certain place or area, and he or she happens to observe evidence or contraband in plain view, those items can be seized and will be admissible in court (the plain-view doctrine). In other instances, as a private investigator or security officer, you are not an agent of the government, and thereby you have the right to search with due notice. For example, if a retailer or any business premises posts signs noting “All packages are subject to search” as company policy, entry into the business locale or site can be denied to a person who refuses to give access to a search of the package.
Also, if certain company rules are noted to all newly hired employees as part of their hiring procedures that all packages, bags, and so forth are subject to inspec-tion upon leaving the business premises or leaving at the end of the workday, the search is legal and they must submit or suffer termination.
“Fruit of the Poisoned Tree” Concept
In criminal law, this is the doctrine that states that evidence discovered due to information found through illegal search or other unconstitutional means (such
as a forced confession) may not be introduced as evidence in court. The theory is that the “tree” (the original illegal evidence) is poisoned and thus taints that which
“grows” or is gained from it. As an example, a confession, forced or not, was given by a defendant who was arrested for a larceny without being advised of his right to remain silent, and so forth (Miranda warnings). He subsequently told the police the location of the stolen property. Because the admission, oral or written, cannot be used against the defendant, the recovered stolen property cannot be introduced in court as evidence.9
Remember that the PI and security officer must have reasonable grounds or probable cause to act, and the action must be “fresh” in that it must relate to an event that is occurring at that time or occurred a short time prior, which is usually measured in minutes rather than hours.
Therefore, in any case with a private investigator or security officer, if and when the rights of a suspect are violated in any way, such as an improper arrest or false imprisonment, then any evidence arising from that arrest is inadmissible.
Incriminating oral or written statements made by the suspect, recovery of stolen property, and any other evidence gathered as a result of that arrest will be inadmis-sible in court, and the case would be dismissed (“ fruit of the poisoned tree” concept).
The business owner, client, and the officers involved can be sure that civil litigation against them will follow.
Motion to Suppress Evidence
In a court of law, an attorney may attempt to suppress evidence on a motion based on the following:
1. Unlawful search
2. Illegal eavesdropping; evidence received without eavesdropping warrants 3. Offenses against the Right to Privacy
4. Unlawful confession 5. Poisoned tree concept 6. Illegal identification
Hearsay Evidence
During any investigation, investigators will come across a lot of “hearsay.” This is information that the subject offers as secondhand knowledge or knowledge that was overheard by him or another person. It is not firsthand intelligence that a per-son heard which can be introduced as evidence. The courts will not accept a state-ment by a person who is a witness called at trial as evidence—utterances, remarks, or facts—stated by someone else. The reason for this is that attorneys on either side will not have the opportunity to challenge or question the actual person who spoke the original words.
Although “hearsay” cannot be introduced as evidence in a trial,10 investigators can use information gathered in this manner to broaden their avenues of inquiry.
However, depending on certain circumstances that may be described as a “dying declaration,” such utterances may be introduced in court.
See Chapter 5, “The ‘Hearsay’ Rule” for additional information.
Judicial Notice
For certain facts that the court need not have proven by a formal presentation, the court is authorized to recognize and accept their existence without such proof.
Whenever judicial notice is taken, there is no need to establish the merit of the evidence; there will be no dispute concerning it:
Of Fact (Discretionary)—Where a judge may accept the opinion or abstract offered by an attorney, for example, law of the land, law of the state, and law of other states.
Of Law (Mandatory)—Where a judge must accept as a fact evidence offered as commonly accepted knowledge, for example, standards of weights and measures, the seasons, and forensic evidence (once expert testimony is offered with the evidence), such as fingerprints, blood evidence, and DNA findings.
Privileged Communications
Privileged communication is not admissible unless the person holding the privilege con-sents to give it up. Communication between the following is considered privileged:
Husband and wife
◾
Clergyman and confessor
◾
Psychologist and patient/client
◾
Attorney and client
◾
Doctor and patient
◾
Psychotherapist and patient/client
◾
As a general rule, privileged information is determined by the nature of the infor-mation and the circumstances under which it was given. All conversation is not privileged.
Handling Evidence
The process of handling and identifying evidence may determine its use in a court of law or the conviction of a defendant. Generally, evidence should be handled by trained technicians, who are usually designated as crime scene or forensic
investigators. Once an offense is reported to the police, they will control the gath-ering and processing of evidence.
However, there will be times when the private investigator will obtain some item other than a written statement or confession which could be designated as evidence. If a VCR tape taken from a closed-circuit television (CCTV) camera can be used to identify a crime or the perpetrator, it should be safeguarded by remov-ing the plastic tab so erasure cannot be made at a later time. This would include safeguarding a compact disk (CD). Further, the cassette or CD, should be initialed and dated by the operator who made the tape or disk, and initialed by the investiga-tor who received it. If the tape or disk is not turned over to the police as evidence, it should be secured in a safe place for future reference. Although not as critical as evidence controlled by police procedures, it is a good idea for the PI to identify a
“chain of custody” to a tape or disk so the question of tampering can be fought.
Photographs of evidence at a scene before being moved or handled, or photos of the scene itself are also important as evidence.
In any event, all evidence collected (including that noted above), weapons, tools, photos, and any object considered as evidence pertinent to the crime, should be inscribed at least with the investigators’ initials, case number assigned, and date of collection, and so noted in detail in the case report. A very important detail includes when, where, and how the evidence or item was found and by whom. Items not easily marked should be placed in evidence envelopes, sealed, and imprinted with the necessary information. Other than indelible ink, a metal scribe may be used on metal or other hard objects.