Chapter 3: What You Need to Know About Evidence - Introduction to Criminal Investigation: Processes, Practices, and Mindset (2023)

"Evidence forms the building blocks of the investigative process, and for the final product to be properly constructed, evidence must be recognized, collected, documented, protected, validated, analyzed, disclosed, and presented in a manner acceptable to the court."

The term "evidence", in relation to the investigation, refers to a wide range of sources of information that may eventually inform the court to prove or disprove controversial points before the facts are heard. Evidence sources can be anything from observing witnesses to examining and analyzing physical objects. You can even include the spatial relationships between people, places and objects in the timeline of events. From the various evidence, the court can draw conclusions and draw conclusions to determine whether an accusation has been proven beyond a reasonable doubt.

Given the critical nature of evidence within the court system, there are a variety of definitions and protocols that have evolved to guide how evidence is defined for court scrutiny. Many of these protocols are specifically addressed and defined in the provisions of theCanada Evidence Act(Government of Canada, 2017).

In this chapter, we will look at some of the most important definitions and protocols that a researcher must understand to carry out the research process:

1. The probative value of the evidence
2. relevant evidence
3. direct evidence
4. circumstantial
5. incriminating evidence
6. exculpatory evidence
7. supporting evidence
8. disclosure of evidence
9. depositions
10. a boat
11. Search and seizure of evidence
12. deletion of evidence

Each relevant piece of evidence is examined on the basis of its "probative value", i.e. the weight or persuasiveness the court gives to that particular piece of evidence when considering its value in proving a point of fact in the case at hand. This probative value benefits the judge or judge and jury who make their evidentiary decision beyond a reasonable doubt in criminal court or civil court based on the balance of probabilities.

depositions

A competent, convincing, independent eyewitness of excellent physical and mental ability, who witnessed the criminal act and can relate the facts, will generally satisfy the court and provide evidence of high probative value. In assessing the probative value of testimony, the court will consider a number of factors, which we will discuss in more detail in our chapter on dealing with witnesses. These include:

• The type of witness such as eyewitness or corroborating witness
• the ability to testify
• obligation to testify
• The degree of independence of the witness to the event.
• Witness credibility is based on assessment of physical limitations

physical test

The court usually also attaches high probative value to physical evidence. The court prefers physical evidence because it is an item that the court can view and examine to interpret the facts at issue as evidence beyond a reasonable doubt. Physical evidence can include almost anything, such as weapons, fingerprints, footprints, tire tracks, tool marks, hair, fibers or bodily fluids. Such physical evidence may be examined and analyzed by experts, who may provide the court with expert reports that link the evidence to a person, place or criminal act. This allows the court to examine the defendant's circumstantial connections to the crime scene or the defendant to the victim. For example, if a suspect's fingerprints are found at the crime scene and a DNA match is found in the blood of a murder victim on that suspect's clothing, forensic connections can be made and, in the absence of an explanation, the court will probably use this physical. relevant and convincing evidence of high probative value.

Relevant evidence supports a question in court about the charges heard. Relevant evidence includes direct evidence and indirect circumstantial evidence. For direct or indirect circumstantial evidence to be relevant to the court, it must relate to the elements of the crime that it is intended to prove. If the evidence is not related to proof of the place, time, identity of the accused or criminal acts within the scope of the crime itself, the evidence will not be considered relevant to the criminal prosecution. Prosecutors can present evidence in the form of physical evidence for the court to see and examine, or they can present evidence in the form of testimony, in which case the witness tells the court what he perceived within the limits of his senses.

Direct evidence is evidence that proves the facts without interpreting the circumstances. (Canada Department of Justice, 2017). It is any evidence that can show the court that something happened.without the judge having to draw any conclusions or assumptions to reach a conclusion. An eyewitness who saw the defendant shoot a victim could provide direct evidence. Likewise, a surveillance camera showing the suspect committing a crime or a confession statement from the suspect admitting to the crime can also be considered direct evidence. Direct evidence should not be confused with the concept of a direct hearing, which is the first hearing and cross-examination of a witness in court by the subpoenaing party. And while any witness presenting evidence can theoretically testify directly based on their own knowledge and experience, often that evidence is not direct evidence of the crime itself.

Indirect evidence, also known as circumstantial evidence, is any other evidence, such as a suspect's fingerprint found at a crime scene. Indirect evidence alone does not prove the crime, but through interpretation of the circumstances and in conjunction with other evidence, it can be added to a body of evidence that can prove guilt beyond a reasonable doubt (US Department of Justice, Canada , 2017). Strong circumstantial evidence, which leads only to a logical conclusion, can sometimes become the evidence the court uses to convict a defendant beyond a reasonable doubt. It requires logical assumptions and conclusions that the court must make to make sense of the evidence..

"If one or more things are proved from which we can conclude by our experience that something else, unproved, must have happened, we assume that it happened, both in criminal and civil matters" (MacDonell, 1820).

Circumstantial evidence shows the spatial relationships between suspects, victims, timelines and the criminal event. These spatial relationships can sometimes show that an accused person had a combination of intent, motive, opportunity, and/or means to commit the crime, all of which are significant features of criminal behavior.

Circumstantial evidence of intent can sometimes be provided by indirect evidence that a suspect plans to commit the crime and/or plans to flee and discard evidence after the crime. A pre-offense statement about the plan can illustrate both intent and motive, e.g. B. “I really need some money. I'm going to rob this bank tomorrow."

Circumstantial evidence of conflict, revenge, or financial gain arising from the crime can also become mobile evidence.

Circumstantial evidence of opportunity can be illustrated by showing that a suspect had access to the victim or crime scene at the time of the crime and that access provided the opportunity to commit the crime.

Circumstantial evidence from the media can sometimes be shown showing that the suspect has the physical ability and/or the tools or weapons to commit the crime.

The presentation of this type of circumstantial evidence can help the court confirm assumptions and conclusions in order to arrive at conclusions that give weight to the links between the accused and a person or place and the material evidence. These tortuous connections can create the essential connections between a suspect and the crime.

There are many ways to create shortcuts to demonstrate complicated connections. These range from forensic fingerprints or DNA analysis that link a suspect to the crime scene or victim, to testimonial evidence that describes a suspect's criminal behavior before, during or after the crime. The possibilities and variations of when or how tracks appear are endless. It is up to the investigator to look at the big picture of all the evidence and then analytically develop theories about how events may have occurred. Once a reasonable theory has been established, evidence of circumstantial links can be validated through further investigation and analysis of the physical evidence linking a suspect to the crime.

Incriminating evidence is any evidence that directly or indirectly connects an accused person to the crime under investigation. For an investigator, incriminating evidence can be found in the victim's report, in physical evidence, in witness statements or in the circumstantial context that is investigated, analyzed and recorded during the investigative process. This could be anything from direct evidence from an eyewitness who saw the suspect commit the crime to circumstantial evidence from a fingerprint found at a location that links the suspect to the victim or crime scene.

Of course, direct evidence proving that the defendant committed the crime is the preferred incriminating evidence, but in practice it is often unavailable. The investigator must seek and interpret other sources of evidence and information. A lot of circumstantial evidence is often needed to build a case, allowing the investigator to find reasonable grounds for the assumption and allowing the court to reach its conviction beyond a reasonable doubt.

A single fingerprint found on the driver's outer door of a stolen car would not be enough for a court to convict a defendant of car theft. However, if you add witness evidence showing that the defendant was seen near the car at the time of the robbery and security camera footage of the defendant leaving the parking lot where the stolen car was dumped and the police finding the defendant if he left the to throw away. where you tried to throw the keys to that stolen car in the weeds, the court would likely have evidence beyond a reasonable doubt.

If a plethora of incriminating evidence can be presented to the court, leading to a single logical conclusion, the court will often reach its conclusion beyond a reasonable doubt, unless the defense presents defensive evidence to justify bringing a case.

Exculpatory evidence is the exact opposite of incriminating evidence, as it tends to show that the accused or suspect did not commit the crime. It is important for an investigator to not only look for incriminating evidence, but also to look at the evidence from an exculpatory perspective. Looking at the evidence from the perspective of exoneration shows that an investigator is objective and does not fall into the tunnel vision trap. When it is possible to find exculpatory evidence that demonstrates that the suspect is not responsible for the crime, this is useful for the police, as it allows the removal of that suspect and redirects the investigation towards the prosecution of the real culprit.

Sometimes the defense presents defense evidence at trial to show that the defendant was not involved in the crime, or perhaps only to a lesser extent. In our previous circumstantial car theft case, there is a strong circumstantial case; but what happens if the defense presents the following defense evidence where:

• A tow truck dispatcher testifies in court and produces records showing that the defendant is a tow truck driver;
• On the day of the car theft, the defendant was sent to the scene of the theft to help a driver who was unable to get into the car;
• The defendant alleges that he only helped another man into the stolen car because he could see the car keys in the front seat;
• The defendant explains that after opening the vehicle, he arranged to meet this man in the parking lot where the vehicle was parked;
• He took the other man's stolen car keys and then towed the vehicle from that location to a gas station;
• When the police approached him, he said he was nervous and suspicious of the car that had just been towed; AND
• He tried to throw the keys away because he had a criminal record and he knew the police wouldn't believe him.

Armed with such defense evidence, the court could dismiss the case against the defendant.

After reading this, you might think that this defense and defense evidence sounds a little vague, which is the dilemma often faced by the court. If they can establish guilt beyond a reasonable doubt, they will convict, but if the defense can present evidence to raise a reasonable doubt, they will acquit. Experienced criminals can be quite adept at inventing alternative explanations for their involvement in criminal acts, and it is sometimes useful for investigators to see if an alternative explanation can be invented. When an alternative explanation may be expected, further research can sometimes call into question the false aspects of the alternative possibilities.

Corroborative evidence broadly refers to any type of evidence that tends to support the meaning, validity, or veracity of other evidence that has already been presented in court. Corroborating evidence can take the form of a physical item, such as a B. DNA sample from a defendant that matches a victim's DNA, thereby corroborating the victim's testimony. Corroborating evidence may also come from the testimony of an independent witness who makes statements consistent with the account of events described by another witness. If it can be shown that these two witnesses were separate and did not cooperate or listen to each other's testimony, the court may accept their testimony as mutually corroborating testimony about the same event.

Courts attach high probative value to corroborative evidence as it helps the court reach its conviction beyond a reasonable doubt. It is important that investigators do not just look for the minimal evidence that can be discerned at the crime scene. The investigation should also seek other evidence that may corroborate the facts witnessed by witnesses or victims in their accounts of the event. An interesting example of corroborative evidence comes from the court's acceptance of a police investigator's notes.awkwardly affirmativeevidence and reporting of facts by that official. When a police investigator testifies in court, the court usually gives him permission to consult his notes to refresh his memory and give a full account of events. If the investigator's notes are detailed and accurate, the court can give significant weight to the officer's account of these events. If the notes are not detailed or incomplete in any material respect, the court may place less value on the accuracy of the investigator's account.

For the court, detailed records duly produced at the time corroborate the officer's testimony and provide circumstantial evidence of the reliability of the officer's testimony (McRory, 2014).

It is important for an investigator to know that all aspects of their investigation may be revealed as potential evidence in court. As part of the fundamental justice process within theCanadian Charter of Rights and Freedoms, a person accused of a crime has the right to full disclosure of all investigative evidence (R against Stinchcombe, 1991). This means that any evidence or information obtained during the police investigation must be available for the defense to examine and determine whether that evidence can help the defendant defend himself against the charges in court.

In the disclosure process, the decision to disclose or not to disclose is the sole competence of the Crown Prosecutor and, although police investigators may submit information and evidence to the Prosecutor with a request that the information be considered an exception to the disclosure rules, the decision The end rests with the Crown. However, even the Crown's decision can be challenged by the defense and then it becomes a final decision for the judge. The prosecutor will ask the police to fully disclose the evidence collected during the investigation.

The list of what should be part of a normal disclosure usually includes the following:

• billing document
• crime details
• depositions
• Witness audio/video evidence statements
• defendant's statements
• defendant's criminal record
• opinion of an 'expert
• Police notebooks and reports
• exhibitions
• search warrants
• Permissions to intercept private communications
• Similar factual evidence
• identification proof
• Witness criminal records
• Informs quality control and recommends rates
• Witness prosecution material

It must be emphasized that police notes and investigation-related reports are usually very carefully reviewed by the defense to ensure they are complete and have been fully disclosed. Disclosure also includes investigative notes and reports regarding other persons being considered, investigated and removed as suspects in the crime for which the accused is being tried. If alternate, non-eliminated suspects are identified during the investigation, that failure in the investigation may form the basis of a defense against the prosecution.

Issues related to the disclosure of evidence have been the subject of several Supreme Court of Canada judgments and some exceptions to disclosure have been identified where certain information does not need to be disclosed. These disclosure exceptions were described in the Reference Disclosure Case ofR against Stinchcombe(1991).These exceptions include:

• Clearly irrelevant information
• Information considered privileged
• Information that would reveal ongoing police investigations
• Information that would jeopardize the safety of a witness

For an investigator, the duty to disclose is one of the best reasons to ensure that notes and reports are complete and accurately reflect the investigation and actions taken during the investigation. From the court's point of view, there will never be an excuse for a police investigator to intentionally conceal or not disclose evidence or information.

Witness evidence is evidence obtained from a person who can provide the court with information to help decide which charges to bring to the court. This means that witnesses are not simply people who turned out to be victims of a crime or who observed the crime at the scene. They may also be people who can inform the court about events leading up to the crime or activities after the crime.

These post-crime activities not only relate to the suspect's activities, but encompass the full range of activities required to solve the crime. Consequently, every police officer involved in the investigation and every person involved in the processing, examination and analysis of evidence to be presented in court is a potential witness.

Issues related to the collection of evidence from witnesses are discussed in more detail in Chapter 7 on witness management.

Hearsay evidence, as the name suggests, is evidence that a witness heard a communication from another party. In addition to oral communication, the legal interpretation of the meaning of the rumor also includes other types of person-to-person communication, such as written expressions or even gestures intended to convey a message. As John Sopinka defines in his book,Tthe right of proof, by rumor:

„Oral or written statements or communicative conduct by persons who are not witnesses in the proceedings in which they are offered are inadmissible if such statements or conduct are offered as proof of their truthfulness or as proof of the statements implied therein" (Sopinka, 1999, p. .173 ).

Hearsay evidence is generally considered inadmissible in court for a number of reasons; However, there are exceptions where the court will consider accepting hearsay evidence (Thompson, 2013). Reasons why the court does not openly accept rumors include the following reasons:

• The court generally applies the best evidence rule to the evidence presented, and the best evidence would come from the person describing the facts firsthand;
• The person who originally made the rumored allegation is not available to be sworn in and questioned by the defense;
• In hearing the evidence, the court does not have the opportunity to hear the communicator firsthand and assess his behavior to assess his credibility; AND
• The Court recognizes that heard and repeated communications are subject to interpretation. Repeating what you hear can degrade the message content.

The court will consider accepting hearsay evidence as an exception to the hearsay rule in cases where:

• There is a death certificate.
• A witness is the recipient of an impromptu statement.
• Witness Testifies About Rumors of Incompetent Child Witness

death certificates

Exceptions to the hearsay rule include the death of a murder victim. This kind of explanation is permissible because it is traditionally believed that a person facing imminent death would not lie. Justice Eyre in the English Affair of 1789R against scholarshipdid:

„The general principle by which this kind of evidence is admitted is, that it is utterances when the party is on the verge of death, and when all hope in this world is gone: when every motive for lying is silenced, and the mind is led by the most powerful considerations to tell the truth; The situation, so solemn and so terrible, is considered by law as an obligation similar to that imposed by an affirmative oath taken in court.(R against scholarship, 1789).

According to the rules ofCanada Evidence Act(Government of Canada, 2015) For a death certificate to be accepted by the court, the victim must:

• You must be a victim of first or second degree murder, manslaughter or criminal negligence resulting in death;
• You must provide a statement about the cause of death;
• You must know at the time you make the declaration that your death is imminent;
• It must be someone who would have been a competent witness had he lived; AND
• they must die of their wounds within a reasonable time after testifying.

This is a sensitive area because, in cases where the victim of an aggravated assault is at risk of death, the investigator may have the opportunity to obtain evidence from that victim's testimony; however, that statement would have to include some acknowledgment by the victim that he believed himself to be in imminent danger of death (Sebetic, 1950).

Recipient of a spontaneous declaration

In cases where a witness hears a spontaneous statement from a victim, the court may accept the repetition of that statement by the witness if, pursuant to art.rats against R(1971):

"... the statement, provided that it is made under conditions of participation or pressure that exclude the possibility of invention or distortion to the benefit of the person making it or to the detriment of the accused" (rats against R, 1971).

Rumor testimony from an incompetent child witness

In cases where a child witness is not authorized or available to present evidence, the parent or other adult who heard that child's testimony may be authorized to pass that information on to the hearing court. These circumstances have been illustrated in the jurisprudenceR contra Khan(nineteen ninety). In this case, the mother of a 3.5-year-old girl was not present when her doctor sexually abused the girl during an examination. However, immediately after the examination, the child made explicit statements about what happened to the mother and provided descriptions of actions that a child could not have dreamed of. For this case, the court considered hearsay as an exception to the hearsay rule. In case ofR contra Khancreated what has come to be known as the "principles-based approach" and allows hearsay evidence to be admissible if two conditions are met. These conditions are necessity and reliability.

EmR contra Khan(1990), the S.C.C. are definedto needas cases where:

• One child was inconclusive due to his young age;
• A child cannot testify;
• A child cannot testify; any
• According to an experienced psychologist, the statement would be very traumatic and harmful for the child.

EmR contra Khan(1990) defined the courtreliabilityFactors related to the credibility of the person's observations, including:

• When the testimony of the crime was made;
• The nature of the child's behavior;
• The child's level of intelligence and understanding; AND
• The child's lack of motive to make up the story.

Since the adoption ofKhan-Ruland, the hearsay rules expanded the basic approach that when evidence is deemed necessary to prove a fact at issue at trial, the hearsay evidence presented is considered reliable (Dostal, 2012). To prove trustworthiness, the Crown must provide evidence to support the cumbersome assurance of trustworthiness. This definition of reliability was best articulatedR contra Smith:

"The criterion of 'reliability' or the circumstantial guarantee of reliability - depends on the circumstances in which the statement in question was made. or false, the statement may be considered "reliable" by hearsay, d ”(R contra Smith, 1992).

An interesting aspect of hearsay that sometimes confuses new investigators is that during each investigation, the investigator searches for and retrieves rumors from multiple witnesses. From these hearsay reports, the investigator analyzes the evidence and uses that hearsay information to find reasonable reasons to believe and act. This is a perfectly acceptable and legal process, and if the investigator is asked in court about the process of forming reasonable grounds based on hearsay, he can put his actions into perspective by stating his intent, the original witness to testify in the courtroom with all the first-hand account of events. Investigators are simply the people authorized to collect facts and information available from various sources found in witnesses and crime scene evidence. When an investigator assembles the evidence, he or she has the authority to form a reasonable basis for the assumption and take steps to search, apprehend, arrest and indict in order to initiate the judicial process. In court, the investigator's testimony only refers to things he personally did or testimony he heard as exceptions to the hearsay rule, while also establishing reasonable grounds for action.

In order for material evidence to be accepted as evidence by the court, each piece of evidence must undergo proof that it has been requested and seized by the competent legal authorities. There are several ways in which evidence can be legally searched and seized.

Investigators may search for evidence and seize or receive:

• With the consent of the registered person
• Based on a search warrant pursuant to Section 487(1) of thecanada penal code
• As part of a search in connection with the lawful arrest of a suspect
• As part of a security search in connection with the lawful detention of a suspect
• Under the doctrine of naked eye evidence at a legally entered crime scene

It is important to note that, when presenting evidence in court, the investigator has a responsibility to provide an explanation of the circumstances in which the evidence was sought and seized. This may include the investigator articulating not only the details of how you discovered the item, but also the circumstances to illustrate the crime committed and your authority to arrest, detain and/or lawfully enter the crime scene.

With similar responsibility, when issuing an arrest warrant, the police are obliged, under the terms of article 487, paragraph 1, of the Penal Code, to previously provide a sworn statement of facts that demonstrate their reasonable conviction that it was committed a crime and evidence of that crime, and the premises to be inspected. This arrest warrant and affidavit may be reviewed and challenged at the main hearing. In the remainder of this book, we will discuss the process of developing the mind map that allows the investigator to meet the challenge of seeing and articulating the issues of legal authority for seeking and apprehending evidence.

In any case, the court has the power to accept or exclude any evidence presented. All tests will be reviewed for admissibility or disqualification. The types of evidence that may be admitted or excluded range from physical evidence found at the crime scene to factual accounts given by witnesses to a suspect's confession. It is important for investigators to understand that any evidence may be challenged by the defense for disqualification. In case of dispute, the court will decide whether to exclude evidence based on a set of rules and based on the type of evidence presented.

In the case of testimony, the court first checks that the witness is legally competent and able to present evidence. A competent witness isgenerallyconvincing testimony (R contra Schell, 2004). Competent means legally competent to declare and obligated means legally competent to declare. Witness competence and responsibility are decided based on a number of factors which will be discussed later in the Witness Management section of this book.

If a witness is found to be competent and convincing, the court will hear his or her testimony and, after assessing the witness's credibility, will consider the value of the evidence presented. If a witness is found to be incompetent or unconvincing, their testimony will be excluded from the trial.

Like testimonial evidence, the court evaluates physical evidence based on several factors to determine its admissibility in court. These factors are discussed later in our chapter on crime scene management; However, they include:

• Whether the evidence was legally seized
• How the evidence was collected, marked and preserved
• If the evidence was somehow tainted
• When the continuity chain of evidence has been properly maintained

Failure of any of these factors may result in the exclusion of evidence in court. Also, the court can completely exclude all evidence obtained after the violation of the law.Charter of Rights and Freedomsthe accused person. Such violations of these guaranteed rights and freedoms include:

• Improper or unauthorized search of any person or property of any person
• Improperly taking a suspect's testimony by failing to give appropriate warning and caution as set out in Section 10 of the Charter.
• Failure to provide the arrested or detained person with a reasonable opportunity to speak with a lawyer after arrest or detention
• Failure to adequately disclose all evidence prior to trial to allow the defendant a complete defense against the prosecution.

§ 24 ofCanadian Charter of Rights and FreedomsConditions:

24. (1) Any person whose rights or freedoms guaranteed by this Charter have been violated or denied may apply to a court of competent jurisdiction for such action as the court considers reasonable and just under the circumstances.

(2) If, in a proceeding referred to in paragraph 1, a court finds that evidence was obtained in a manner that violates or has denied a right or freedom guaranteed by this Charter, the evidence shall be excluded. if it is established that, taking into account all the circumstances, its admission to the proceedings would bring the administration of justice into disrepute.

Practices regarding the evidence that may be brought against an individual claim are discussed in Section 24(2). Where evidence is obtained in violation of a fundamental right, the claimant may request that the evidence be excluded from proceedings under this section (Government of Canada, 2015).

The exclusion of evidence arising from a violation of the Charter is not automatic and there is significant case law that the court will take into account when determining whether to exclude evidence.

In case ofR vGrant(2009), the Supreme Court of Canada has developed a new test to determine when the administration of justice has fallen into disrepute (replacing the 1987 test inR vs collins). TheGrantest lists three factors that courts should consider:

(1) the severity of the legal violation behavior (with a focus on a review of how society would view the state's actions),

(2) the impact of the violation on the defendant's interests protected by the Charter (with a focus on a review of how the State's actions affected the defendant), and

(3) the interests of society in judging the case on the merits (with an emphasis on reviewing the relevance and reliability of the evidence) (R against concession, 2009).

Knowing the rules for collecting, handling, and storing evidence can help an investigator avoid making mistakes that could prevent the presentation of evidence in court. Following the rules that define statutory violations can help an investigator prevent valuable evidence of statutory violations from being completely excluded in court. These topics are covered in more detail in the following chapters.

Evidence is a key element of any investigation, so it is important for investigators to understand the various legal definitions of evidence, the different types of evidence, and how the court considers and evaluates evidence. Evidence forms the building blocks of the investigative process, and for the final product to be properly constructed, evidence must be recognised, collected, documented, protected, validated, analysed, disclosed and presented in a manner acceptable to the court. Throughout the remainder of this book, evidence will continue to be a key element to consider in developing appropriate investigative techniques.

Detailed description of test types:There are two types of evidence: direct and indirect. Direct evidence proves the facts without interpreting the circumstances. Indirect evidence is circumstantial evidence; Interpretation is needed to prove the facts.[Back to test types]