Collin Greenland | The value of evidence - Putting together a case can be a complex exercise
In recent times, well-publicised allegations of fraud and other corrupt acts have attracted widespread calls for swift arrests and convictions of the suspected perpetrators. Law-enforcement personnel worldwide are usually at pains to explain to the enraged public that it is not what you know, but what you can prove in court.
Although it is often reiterated that evidence is the key to placing corrupt individuals in ‘short pants’ it is worthwhile to revisit some of the essentials of evidence that investigators, law-enforcement personnel, lawyers, and, indeed, the public must consider while we seek justice for corrupt acts.
Since this writer is not an attorney, a caveat is necessary in penning this article, since, despite him having some legal training as a forensic auditor, this contribution is presented mainly from perspectives gained during decades of white-collar crime investigations.
Like all legal matters, readers must take advice from legally trained and authorised officers of the court, but feedback from such practitioners would be most welcome on the following perspectives on evidence.
The law books have many definitions of evidence. However, simplistically, from an investigator’s (and layman’s) understanding, evidence can be anything perceivable by the five senses and any proof, such as testimony of witnesses, records, documents, facts, data, or tangible objects, legally presented at a trial to prove a contention and induce a belief in the minds of a judge or jury.
Most jurisdictions, in dealing with matters of criminal cases, require the burden of proof to be beyond a reasonable doubt, while in civil litigation, the standard of proof may be lower and may be decided by possibly a preponderance of evidence.
Despite the inundation of sensational revelations we have seen emerge in many of the topical allegations of corruption cases over time, investigators, prosecutors, and the police must, for example, be concerned about matters such as the admissibility of evidence before placing suspects before the court. In order to be admissible, evidence must be both relevant and material.
Relevance may involve considerations such as motive for an offence, opportunity, elements of the offence, threats or expression of ill will, means of committing the offence, physical evidence linking the suspect to the offence, attempts to conceal or destroy evidence, and so on. Even in cases where evidence is deemed admissible, courts may still exclude them for reasons such as matters considered unduly prejudicial, information that might confuse the jury, matters cumulative of other evidence, evidence obtained illegally or through bad faith, privileged information, and so on.
CHAIN OF CUSTODY
Even before investigators/prosecutors are able to get suspects in court, they must ensure that the ‘chain of custody’ is proficiently maintained. Even in cases with powerful forensic evidence presented, evidence obtained to prove an offence should be marked, identified, inventoried, and preserved in its original condition until introduced at trial. The failure to do so could leave the evidence open to challenge of its authenticity.
The ability to gather and analyse different types of evidence is one of the most important competencies for anyone who conducts investigations.
There are many types of evidence that can help an investigator to make decisions during a case, even if they are not direct proof of an event or claim.
The first rule is that evidence must be relevant to the investigation. If it is not directly related to the case it isn’t relevant evidence. That said, there are many types of evidence that, while not admissible in court, can be valuable to an investigator trying to reach a conclusion in an investigation.
Even some evidence that is not admissible on its own may be admissible in conjunction with other types of evidence. For example, analogical evidence might not be a kind of evidence used in court, but this kind of evidence can be useful or credible by drawing parallels when there isn’t enough information to prove something in a workplace investigation.
Analogical evidence uses a comparison of things that are similar to draw an analogy. Prima facie evidence also called ‘presumptive evidence’ refers generally to ‘on its first appearance’ and is evidence presented before a trial that is enough to prove a matter until it is successfully disproved or rebutted at trial.
Another type, circumstantial evidence, is used to infer something based on a series of facts separate from the fact the argument is trying to prove.
It requires a deduction of facts from other facts that can be proven, and, while not considered to be strong evidence, it can be relevant in some investigations that have a different burden of proof than a criminal investigations. Another common and reliable kind of evidence is demonstrative evidence – when an object or document directly demonstrates a fact.
Examples of this kind of evidence are photographs, video and audio recordings, charts, etc. Evidence that uses numbers (or statistics) to support a position is called statistical evidence and is based on research or polls.
Testimonial evidence is well known and is either spoken or written evidence given by a witness under oath. It can be gathered in court, at a deposition, or through an affidavit.
Generally, to be admissible, it must be relevant and based on facts not speculation or opinion (unless the witness is testifying as an expert). Testimony must be direct knowledge, not hearsay and generally, “direct knowledge” means the witness did the act or participated in it, saw the act done or heard about it from the defendant. However, it is important to note that the testimony of any party or witness may be impeached by showing bias or self-interest, prior inconsistent statements, a felony conviction, or a reputation for untruthfulness.
Character evidence is another type used to help prove that someone acted in a particular way based on the person’s character.
While this can’t be used to prove that a person’s behaviour at a certain time was consistent with his or her character, it can be used in some investigations to prove intent, motive, or opportunity.
Documentary and electronic evidence, though potent in court, must be authenticated, that is, it must be what the person offering it says it is, and that it must not have been altered. Certain documents, such as public records under seal, are self-authenticating. This often include digital evidence such as email, text messages, instant messages, files and documents extracted from hard drives, electronic financial transactions, audio files, and video files. Digital evidence can be found on any server or device that stores data, including some lesser-known sources such as home video game consoles, GPS sport watches, and Internet-enabled devices used in home automation.
INCREASED USE OF FORENSIC EVIDENCE
Documentary evidence is commonly considered to be written forms of proof, such as letters or wills, but can also include other types of media, such as images, video or audio recordings, etc. Direct evidence is probably the most powerful type of evidence since it requires no inference. The evidence alone is the proof. This could be the testimony of a witness who saw first-hand an incident of forgery or a collaborator of embezzlement, for example. Physical evidence comes in the form of a tangible object, such as a firearm, and fingerprints. Also known as ‘real’ or ‘material’ evidence these can be presented in court as exhibits of physical objects, captured in still or moving images, described in text, audio or video, or referred to in documents.
In modern crime-fighting, forensic evidence is now increasingly used and represents scientific evidence such as DNA, trace evidence, fingerprints, ballistics reports, or forensic accounting extractions and can provide proof to establish a person’s guilt or innocence. Forensic evidence is generally considered to be strong and reliable evidence, and alongside helping to convict criminals, its role in exonerating the innocent has been well-documented. Exculpatory evidence is the type that can exonerate a defendant usually in a criminal case, and prosecutors and police are required to disclose to the defendant /court any exculpatory evidence they find or risk having the case dismissed.
Jamaican law enforcement and prosecutors, and even defence lawyers, are increasingly becoming more adept in the use of these varied types of evidence. Gathering, assessing, evaluating, preserving, and presenting evidence can be an intricate, meticulous, time-consuming, and complex exercise. Therefore, despite our anxiety about the delays in resolving the plethora of corruption cases now emerging, let us consider these things while we are demanding swift justice.