Definitions and Rules of Evidence
In every investigation, investigators, behavioral investigators, police, police detectives, and child protective services workers have to follow legal, evidence and criminal procedure rules in order to get their evidence entered into court as an exhibit. There are terms and definitions associated with this process. These definitions are a general guideline for beginner to the advanced as a reference guide.
Evidence Defined – Any species of proof, probative matter, legally presented at the trial of an issue, by the act of the parties and through the medium of witnesses, records, documents, exhibits, concrete objects, etc., for the purpose of inducting belief in the minds of the court or jury as to their contention. Testimony, writings, material objects, or other things presented to the senses that are offered to prove the existence or nonexistence of a fact. All the means by which any alleged matter of fact, the truth of which is submitted to investigation, is established or disproved.
Any matter of fact, effect, and tendency is designed to produce in the mind, a persuasion of the existence or nonexistence of some matter of fact.
Two basic types of evidence:
- Direct evidence – evidence in form of testimony from a witness, who actually saw, heard or touched the subject of interrogation. Proof, which tends to show the existence of a fact in question.
- Indirect evidence - circumstantial evidence.
Other Types of Evidence
- Best evidence – Original written documents, photographs, and video-tapes, etc.
- Demonstrative evidence – Pertains to photographs video-tapes, the evidence “speaks for it self”.
- Circumstantial evidence – Testimony not based on actual personal knowledge or observation of the facts in controversy, but of other facts from which deductions are drawn, showing indirectly the facts and circumstances in a given case.
- Demeanor evidence – Relates to physical appearance; outward bearing or behavior. It embraces such facts as the tone of voice in which a witness’ statement is made, the hesitation or readiness with which answered are given, the look of the witness, his carriage, his evidences of surprise, his gestures, his zeal, his bearing, his expressions, his yawns, the use of eyes, his furtive or meaning glances, shrugs, pitch of voice, and, candor.
- Documentary evidence - Evidence derived from conventional symbols [means], letters, notes, family calendars etc.
- Prima Facie evidence – Latin “on the face of it” … at first sight, on the first appearance, a fact to be presumed to be true until or unless disproved.
- Expert evidence – one who by reason of education or specialized experience possesses superior knowledge about a subject. Persons having no particular training are incapable of forming an accurate opinion with respect to a related subject or field. Experts are admitted by the court to testify under: Daubert v. Merrell Dow Pharmaceuticals and Frye v. United States.
Admissibility
- The evidence that is introduced is of such a character that the court or judge is bound to receive it; that is, allow it to be introduced at trial.
Hearsay Rule
- The mechanics – A statement, other than the one made by the declaring while testifying at the trial or hearing offered in evidence to prove the truth of the matter asserted. Hearsay evidence is testimony in court of a statement made out of court, the statement being offered as an assertion to show the truth of matters therein. Ask your self, what purpose is it being offered for? If offered to prove the truth, then it is hearsay.
- Exceptions -
- a. “res gestae” – the courts admit various conversations that are connected in some way with a transaction. Means, some one hears an act, but does not see the act transpire. An example – witnesses back is turned when an accident occurs, hears the accident, turns and sees the accident after the fact.
- b. excited utterances – a speakers spontaneous words made while he was under the stress of excitement caused by the event will be admitted even as proof of the matter contained in the statement. This type of statement is made under stress is, reliable, because the speaker did not have time to fabricate.
- c. official records – any certified document from government.
- d. past recollections written – written and or recording(s) concerning a matter about which a witness once had knowledge, but now has insufficient recollection to enable him to testify fully and accurately.
- e. past recollection refreshed – the witness may refresh their memory, then testify from the document.
- f. dying declarations – Certain conditions must exist:
- 1) the victim must be “in extremis”
- 2) they must know they are dying
- 3) if he were living he would be competent as a witness
- 4) his statement must relate to the cause of death.
- g. declarations against interest – out of court statements by one who is not a party to the crime and can be used as evidence when a witness is not available.
Other terms
Open view – A viewable legal line of sight.
Plain view – Deals with police search and seizure … if a police officer has the right to be where they are, and happens upon or sees a particular piece of physical evidence, then the evidence may be [photographed or video-taped] and or seized.
Curtilage – The enclosed space of ground and buildings immediately surrounding a dwelling.
Preponderance of the evidence – evidence which is of greater weight or more, convincing than the evidence which is offered in opposition to it.
Clear and convincing evidence – more than preponderance of evidence, but less is required than beyond reasonable doubt.
Beyond a reasonable doubt – the evidence is fully satisfied, entirely convinced, satisfied to a moral certainty.
Handling Of Evidence – Every piece of physical evidence needs to be handled properly and the handling of the physical evidence is dependent on the type of evidence.
Chain of Custody - One who offers real evidence [original], example; video-tape, photographs, drug case etc. the investigator must account for the custody of the evidence from the moment it reaches the investigators custody until the moment in which it is offered into evidence.
