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Evidence makes the case.


TO SUCCESSFULLY INVESTIGATE and prosecute a criminal offender, a security manager must gather evidence of both the offense and the perpetrator so the matter can be properly dealt with both from an internal investigative standpoint and from a prosecutorial view.

Thus a security manager who wants to build a successful case must understand the legal concepts involved in the gathering of evidence. This article explains some of the various evidence precepts. While certain concepts of evidence procedures are common to all states and federal courts, variations do occur; therefore, readers should consult local statutes and court rules for specific guidance.

Evidence is that which tends to prove or disprove a fact in dispute. For example, if the issue in dispute is whether John Doe was at the ABC warehouse on the night of a burglary, it is up to the prosecution to produce evidence placing him at the scene of the crime, while Doe may produce evidence placing him someplace other than at the crime scene.

Evidence can generally be divided into two categories: direct and circumstantial. Direct evidence is that which can prove a fact without need for the fact finder (usually a jury in a criminal case) to make any inference. An example of direct evidence would be an eyewitness to a shooting who states that he or she clearly saw the accused shoot the victim.

Circumstantial evidence, also known as indirect evidence, is that which can prove a fact but which requires the fact finder to infer the fact from the evidence. Judges often explain such evidence by using the following story:

Before going to sleep at 11:00 pm

you look out your front door. You

notice the ground is clear and it is

not snowing. When you wake up

at 7:00 am you look

out the front door

and, although it is

not currently snowing,

you notice six

inches of snow on the

ground. Even though

you did not observe

it snowing, you can

clearly infer that it

snowed between

11:00 pm and 7:00

am. An example of circumstantial evidence in a criminal case is a fingerprint of the accused found inside a home that has been burglarized; no one may have seen the accused in the home, but it can be inferred from the fingerprint that the accused was in fact there.

Contrary to what television may lead us to believe, circumstantial evidence can be admissible in court. In fact, circumstantial evidence can be some of the most convincing evidence available to a security investigator.

Security investigators should make use of both direct and indirect evidence when it is available. When there is an eyewitness, circumstantial evidence should be gathered to support and verify the witness's testimony. An eyewitness who observes the accused fleeing from your warehouse in the middle of the night after a burglary has taken place may or may not be a good witness at trial. The jury will be asked to consider such factors as the lighting, the time of day, and the distance between the witness and the accused. These factors affect the witness's ability to positively identify the defendant.

However, if we add to that eyewitness's testimony circumstantial evidence such as fingerprints of the accused found inside the warehouse and warehouse property located inside the defendant's residence, the eyewitness's testimony is now bolstered.

To be admissible in a court of law, evidence must be relevant to the pending charges. Generally, evidence of prior crimes by the accused will not be admissible to show an individual's predisposition to having committed the pending charge. Relevancy relates to the charges at hand, not to other pending charges unrelated to the particular incident. For example, if the defendant is accused of embezzling funds from his or her employer, the evidence relating to an unrelated armed robbery charge is irrelevant in proving whether or not he or she committed the embezzlement.

Assuming the evidence offered is relevant, it must also be legally admissible for the jury to consider it. The judge decides whether evidence is admissible. Evidence might be relevant but not admissible. For example, the law will not allow the prosecution to use evidence that has been illegally obtained by the police. Therefore, if the police recovered a murder weapon but did so in violation of the defendant's rights, that murder weapon will not be admissible in court. Obviously, the murder weapon is relevant to the charge, but nonetheless it is inadmissible.

This concept was adopted by the U.S. Supreme Court and is known as the exclusionary rule. Basically, that rule holds that any evidence recovered as a result of an unlawful search and seizure will be excluded and inadmissible at trial.

The Supreme Court also held that any further evidence obtained as a result of the initial unlawful search also will be excluded. For example, let us assume that a safe-deposit box key is discovered during an unlawful search. The police take the key and enter the box. Stolen securities are recovered. The key and the securities are not admissible. This ruling is known as the fruit of the poisonous tree doctrine.

Assuming evidence has been admitted based on the judge's ruling, it is for the jury to determine the weight to be given to that evidence. An eyewitness's testimony that he or she observed the fleeing thief is relevant and admissible, but the jury will have to decide if it is believable. The eyewitness who testifies that he was half a mile from the crime scene, it was dark, there was no lighting, he did not have his glasses on, and yet he saw the defendant clearly - that eyewitness probably is not credible.

Certain relevant evidence may not be admissible based on privileges the law recognizes. One of the most widely known privileges is communication between lawyer and client. Discussions, even confessions, between a client and his or her lawyer are held to be protected and are not admissible as evidence.

Other well-known privileged communications are those between clergy and penitent and husband and wife. All of these privileged communications are based on public policy whereby it is recognized that the sanctity of the relationship between the parties is more important than the evidential value of the communication. As a security investigator, you cannot and should not expect that these privileged communications will be violated.

One of the most interesting and constantly developing areas of evidence law is search and seizure. Physical evidence of a crime can be seized by two methods - namely, by execution of a search warrant or by a warrantless search.

A search warrant is a court-authorized document allowing the police to search the person or property of the defendant in an attempt to gather evidence. A search warrant must be issued by a neutral magistrate, which is basically a judge with no personal interest in the matter. A judge determines whether to issue the search warrant based on an affidavit from a police officer detailing facts, which must establish probable cause.

Probable cause is facts that are sufficient to warrant a person of ordinary caution in the belief that evidence relating to a crime can be found at a specified location or on a specified person.

A search warrant will specify places and persons that can be searched, as well as items that can be seized. Any items discovered during the search that were specified in the warrant will be admissible. Additionally, any contraband not specified in the warrant that the police observe in plain view during the search can be seized and will be admissible.

Police are allowed to search for and seize evidence without a warrant in a number of situations. One type, a warrantless search, is a consent search whereby the party consents to a search of his or her person or property. Such consent should be in writing and signed by the consenting person. Additionally, some states require that the accused be advised of his or her right not to consent.

Other types of warrantless searches include searches incident to a lawful arrest (for example, when contraband is found on an arrestee after he or she is searched as a result of lawful arrest), evidence observed in the plain view of a police officer when the officer is in a position he or she had a lawful right to be in, evidence discovered as a result of a pat-down search conducted because the officer had a reasonable basis to believe that his or her safety or the safety of others was in question, and evidence seized during certain motor vehicle stops.

Many courts will require pretrial hearings to determine the admissibility of evidence. Whether evidence is seized with or without a warrant, it is subject to review by a court if the accused makes a motion to suppress it. Statements given by the accused are likewise subject to judicial review before the jury is allowed to hear them. These pretrial hearings are held outside the presence of the jury and, in many cases, are held even before a jury is selected.

The security investigator also must be aware of evidence problems concerning hearsay. Hearsay is a statement given by a person based on observations that another person made or conversations to which he or she was not a party. Examples of hearsay are testimony that a friend saw the defendant running from the house or that the defendant admitted to a friend that he or she committed the robbery.

Generally, hearsay is inadmissible. Since the accused has a constitutional right to hear and cross-examine the witnesses against him or her, to allow hearsay would deprive the defendant of this right. The accused would have no effective way of cross-examining the testifying witness since the witness would be conveying a conversation or an event he or she did not observe.

Armed with this basic information, a security investigator is now ready to gather evidence from a number of different sources. There is a plethora of sources the security investigator, along with the prosecuting attorney, can use to gather evidence.

For example, if your company has been the victim of a substantial embezzlement of funds over a long period, one of the aims of the investigation should be to determine where those funds went. Assuming you have targeted a particular employee, a review of that employee's bank records may reveal substantial deposits that coincide with the theft of funds. A search warrant or subpoena for the bank records may be obtained.

Additionally, a subpoena or search warrant for the target's accounting records may reveal helpful information. (Many states do not have an accountant-client privilege, and therefore, these records are subject to seizure.) Telephone toll records may be another source of information as you search for long distance calls between the suspect and banks, brokerage firms, and the like.

Cashed employee payroll checks are always a good source of information concerning where the target does his or her other banking. Search warrants seeking to recover stolen property and fingerprinting of documents and stolen property are excellent sources of circumstantial evidence. Handwriting analysis should not be overlooked as a scientific method of verifying the suspect's involvement.

A security investigator must be motivated and ingenious in seeking to uncover both direct and indirect evidence. A strong case can be built on direct evidence, indirect evidence, or a combination of both.

About the Author . . . Richard F. Denes is an attorney in West Caldwell, NJ.
COPYRIGHT 1989 American Society for Industrial Security
No portion of this article can be reproduced without the express written permission from the copyright holder.
Copyright 1989 Gale, Cengage Learning. All rights reserved.

Article Details
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Author:Denes, Richard F.
Publication:Security Management
Date:Sep 1, 1989
Previous Article:Who you gonna call? Fraudbusters!
Next Article:See you in court.

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