1 Book Cover Here Chapter 16 EVIDENCE AND EFFECTIVE TESTIMONY Criminal Investigation: A Method for Reconstructing the Past, 7 th Edition Copyright © 2014, Elsevier Inc. All Rights Reserved

2 Culmination of the Criminal Investigation The case is unfounded The case is cleared by arrest for another crime Suspect is deceased Suspect pleads guilty to the crime(s) or a lesser offense An “indictment” or “information” is filed The case is referred for trial Copyright © 2014, Elsevier Inc. All Rights Reserved

3 Responsibilities of the Investigator Establishing that a crime was committed Developing evidence to prove beyond a reasonable doubt that a particular individual is guilty of that crime If a prosecutor and investigator do not work together, the presentation in court will be adversely affected and so will the case against the defendant Copyright © 2014, Elsevier Inc. All Rights Reserved

4 What is Evidence? Anything a judge permits to be offered in court to prove the truth or falsity of the question(s) at issue Testimonial, Real, or Demonstrative Direct or Circumstantial Tangible, or Verbal or Testimonial Copyright © 2014, Elsevier Inc. All Rights Reserved

5 Types of Evidence Testimonial Evidence – Evidence given orally by a witness Real Evidence – Any tangible object or exhibit offered as proof Demonstrative Evidence – Can be a chart, drawing, model, illustration, or experiment Copyright © 2014, Elsevier Inc. All Rights Reserved

6 Types of Evidence Direct Evidence – Proves or refutes the fact at issue Circumstantial Evidence – Indirect proof from which the fact at issue may be inferred – Court can insist on proper safeguards to ensure that a conviction resting solely on circumstantial evidence is sound – Can be a most persuasive type of proof Copyright © 2014, Elsevier Inc. All Rights Reserved

7 Historical Background on the Rules of Evidence Two legal systems remain dominant in modern times – Romanesque Developed in the 1200s Known as an inquisitorial system of criminal justice, it is still operative in Continental Europe and Latin America Guilt or innocence is decided by a judge Copyright © 2014, Elsevier Inc. All Rights Reserved

8 Historical Background on the Rules of Evidence Anglican – Common law system inherited from England and is operative in the U.S. – Comprised of an elaborate set of rules to govern the evidence that may be heard by a judge and a lay jury – Defendant in a criminal case is presumed innocent until proven guilty Copyright © 2014, Elsevier Inc. All Rights Reserved

9 Developments in the United States Rules of Evidence for U.S. Courts & Magistrates (1972 – Adopted by the Supreme Court) Federal Rules of Evidence (1975 – Federal Law) The rules may be added to and revised Copyright © 2014, Elsevier Inc. All Rights Reserved

10 The Rules of Evidence The rules of evidence are rules of exclusion. – This means: securing a search warrant to obtain evidence, arresting only on probable cause, administering Miranda warnings before interrogating a suspect, and respecting the right to counsel and the need for due process Relevant Evidence Material Evidence Competent Evidence Copyright © 2014, Elsevier Inc. All Rights Reserved

11 Relevant Evidence Evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence Copyright © 2014, Elsevier Inc. All Rights Reserved

12 Material Evidence As used with respect to evidence, “material” has a wholly different meaning from “relevant.” To be relevant means to relate to the issue. To be material means to have probative weight, that is, reasonably likely to influence the tribunal in making the determination required to be made. All material evidence is necessarily relevant, but all relevant evidence is not necessarily material. Copyright © 2014, Elsevier Inc. All Rights Reserved

13 Competent Evidence Competency involves either the nature of the evidence itself or the person through whom it is offered in court Many different definitions, it is best understood by turning to examples – Constitutional Grounds Evidence that has been obtained in violation of the Constitution is inadmissible not because it is irrelevant or immaterial but because it is incompetent as determined by the courts Copyright © 2014, Elsevier Inc. All Rights Reserved

14 Incompetent Evidence (Statutory Incompetence) Evidence is unreliable (e.g., hearsay) Evidence is so prejudicial that it could inflame the jury and its detrimental effect outweigh by far its probative value Evidence might lead to undue sympathy or hostility on the part of the jury Evidence would be disruptive of trial procedure Evidence would waste the court’s time Copyright © 2014, Elsevier Inc. All Rights Reserved

15 What is Effective Testimony? Understandable Testimony Believable Testimony Behavior and Appearance Copyright © 2014, Elsevier Inc. All Rights Reserved

16 Understandable Testimony It is important that the investigators be able to articulate the investigative activities leading to the indictment of the defendant – Q&A format – Must speak plainly and avoid police jargon What cannot be understood will not be believed Copyright © 2014, Elsevier Inc. All Rights Reserved

17 Believable Testimony A criminal trial has two sides: – The prosecution has the burden of proof beyond a reasonable doubt – Defense must convince the court of the state’s failure to do so; the defense need prove nothing Appropriate when testifying to display a concern for the plight of both victim and accused, as well as an obvious sincerity when presenting the facts that led to the indictment Copyright © 2014, Elsevier Inc. All Rights Reserved

18 Behavior and Appearance He or she is under scrutiny by the jury Just as conduct is important, so too is general appearance Copyright © 2014, Elsevier Inc. All Rights Reserved

19 Cross-Examination The Purpose – Facts Favorable to the Defense – Discrediting the Witness – Destroying the Witness’s Testimony Strategy and Tactics – Leading questions – Rapid-fire questions – Harassment, humiliation, intimidation, embarrassment Copyright © 2014, Elsevier Inc. All Rights Reserved

20 Discrediting Witnesses Bringing out any latent evidence of bias or prejudice Testing the memory of the witness, the aim being to elicit statements inconsistent with or contradictory to the direct testimony Revealing the direct testimony to be unreasonable and, therefore, of questionable credibility Showing that the direct testimony was inaccurate, mistaken, or the result of an oversight Copyright © 2014, Elsevier Inc. All Rights Reserved

21 Destroying the Witness Testimony Leading questions – Permitted on cross-examination but not direct examination – Attorneys with fearful reputations will sometimes treat a witness “with kid gloves” when leading questions help the defense Witness should remain in command of the facts and behave in a civil manner Copyright © 2014, Elsevier Inc. All Rights Reserved

22 Objections as to Form & Substance Alleged Prior Statements Use of Notes Use of Audio or Video Recordings “Yes or No” Answers Timing the Response Copyright © 2014, Elsevier Inc. All Rights Reserved

23 Conclusion Maintain familiarity with the rules of evidence Understand defense counsel is merely doing a legal duty Be thoroughly prepared Understand what constitutes effective testimony Apprehension dissipates with preparation and experience Copyright © 2014, Elsevier Inc. All Rights Reserved