Chapter 16 – Evidence and Investigations

Facts and Evidence

• Fact:  an actual incident or condition; not a legal consequence.
• Evidence:  information that can be presented in a court of law as proof of some fact.
• Rules of evidence:  federal and state rules that govern the admissibility of evidence in court.

Forms of Evidence

• Real or Physical evidence
  • knife, gun, shoe
• Documentary evidence
  • contract to purchase ref, apartment lease
• Testimonial evidence
  • On the stand, John says “I saw him shoot Joe.”
• Judicial notice
  • Christmas falls on December 25

Types of Evidence

• Direct

  • On the witness stand, John says “I saw Jim shoot Joe.”

• Circumstantial

  • A police officer testifies he saw skid marks on the pavement.

• Cumulative

  • The fifth witness in a row testifies he saw Jim at Jake’s Donut Shop at the same time the murder was occurring on the other side of town.

• Corroborative

  • Janet from Security-Is-Us authenticates a surveillance tape taken at Jake’s Donut Shop showing Jim entering the shop at the same time the murder was occurring on the other side of town.

Rule 401

• According to Rule 401 of the Federal Rules of Evidence, for evidence to be relevant it must be evidence that:
  • has any tendency
  • to make a fact that is of consequence to the action (sometimes referred to as a material fact)
  • more of less probable than the fact would be without the evidence

Hearsay

• Someone in court testifying to what someone said out of court for the purpose of establishing the truth of what was said.

Best Evidence Rule

• The rule requiring that the original document be produced at trial.

Investigation

• Planning an Investigation
  • Identifying Needed Facts
  • Developing a Coordinated Plan
• Gathering Physical Evidence
  • Taking photographs
  • Preparing Diagrams
  • Obtaining Documents and Information from Public Records
  • Researching Miscellaneous Empirical Information
  • Reporting the Results

Subpoena Duces Tecum

• A court order that a person who is not a party to the litigation appear at a trial or deposition and bring requested documents.

Answers to Chapter 16

• How do courts determine what types of information can be used and what the lawyers must do in order to get evidence admitted?
  • Courts determine what types of information can be used based on its relevancy.  Before the courts can used any evidence in court, it must be relevant to the issue.  If its not relevant to the legal issue then, the evidence will not be admitted.
• Define each of the following : real or physical evidence, documentary evidence, testimonial evidence, and judicial notice.
  • Real or physical evidence is a tangible object such as the weapon used in the crime.  Documentary evidence refers to records, contract, leases and other written instrument such as the suicide letter.  Testimonial evidence refers to the description of events that the defendant testifies to under oath in a legal proceeding such as the testimony of a witness in court. 
  • Sometimes, there are information that do not need evidence.  Judicial notice refers to information which the judge consider as a fact without the necessity of attorneys having to prove it through the introduction of evidence (Currier and Eimermann 465) .
• Define each of the following: direct, circumstantial, cumulative, and corroborative evidence.
  • Direct evidence establishes a direct link to the event that must be proven. For example, the gun owned registered to an individual establishes a direct link between the said individual and the crime.
  • Circumstantial evidence does not establish a direct link but is used to establish a fact by implication.  For example, the fact that the defendant is seen leaving the scene of the crime a few minutes after the occurrence of the crime establishes a circumstantial evidence of his participation to the crime.
  • Cumulative evidence refers to pieces of evidence that do not add new information but confirms facts that have already been established (Currier and Eimermann 466).  For example, an eyewitness already testified to the presence of the individual in the crime scene, the presentation of another witness to testify to the same fact only serves as a cumulative evidence. 
  • Corroborative evidence serves to confirm facts that have already been established but through an evidence in different form.  For example, if CCTV records already establish that the defendant was indeed present at the crime scene, eyewitness testimony that the defendant was present at the crime scene serves as a corroborative evidence.
• What is the requirement for finding that evidence is relevant?
  • Relevancy refers to an evidence that leads one to logically conclude that an asserted fact is more or less probable.  To consider an evidence as relevant, it should be material and probative (Currier and Eimermann 467).  For example, in a trial for murder, eyewitness testimony that the defendant is a high school dropout is not material to the case because his educational attainment is not an issue.  Insofar as probative value is concerned, testimony of an eyewitness leaving the crime scene has a probative value.  It should be stressed however that relevancy is different from weight of the evidence.  Even if the evidence is relevant it is still up to the judge to decide the weight he will give to the evidence.
• What is hearsay, and under what circumstances is hearsay evidence admissible?
  • Hearsay are statements made out of court which is introduced in court for the purpose of establishing the truth of what was said.  Since hearsay evidence does not relate to the main issue which is the occurrence of the crime it is generally considered inadmissible in court.  However, it maybe admitted as evidence under several circumstances.  One of the exceptions is that hearsay evidence may be admitted to impeach the credibility of a witness.  Second, hearsay evidence maybe admitted in court when the declarant is dead.  Third, hearsay evidence maybe admitted when the nature of the statement will indicate its trustworthiness such as excited utterance.
• Under what circumstances can a lay witness give opinion testimony ?
  
  • A lay witness is an individual witness who is not shown to have any special expertise (Currier and Eimermann 468).   As a rule, lay witnesses can give opinion testimony provided they testify only to facts of which they have personal knowledge; and that the opinion must be one that which they have personal experience or within the range of common experience (Currier and Eimermann 471).
• Before a person can testify as an expert witness, what must happen?
  • Before a person can testify as an expert witness, he must be qualified as an expert witness.  This means that the attorney presenting him must establish before the courts that he possesses knowledge that an average individual does not possess.
• How does the testimony of an expert differ from that of a lay witness?
  • An expert testimony is different from that of a lay witness since the former can testify not only on facts but also on his opinion.  In testifying as to his opinion, the court relies on his knowledge that no average man possesses. 
• What must be done to properly authenticate real evidence?
  • All real evidence should be proper authenticated before they are accepted as evidence.  In order to authenticate a real evidence, the attorney presenting the evidence must establish a chain of custody by presenting a witness who has personal knowledge of the real evidence and identifying it before the court (Currier and Eimermann 473).
• What impact does the best evidence rule have on the presentation of evidence?
  • The best evidence rule requires that only the original document must be produced at the trial.  For this reason, the lawyers cannot present photocopies of documents and expect the court to admit it.  Only under certain circumstances can the copy of an original document be admitted in court. 
• what is the goal of factual investigation?
  • The goal of factual investigation is to find an admissible evidence that will establish the facts necessary to prove the client’s case.
• Before beginning the investigation, why is it important to discuss the theory of the case with the supervising attorney?
  • It is essential to discuss the theory of the case with the supervising attorney before beginning the investigation.  The supervising attorney understands better the elements of the crime.  The supervising attorney will confirm what kinds of evidence are needed to convince the court.
• Why might it sometimes be more appropriate to hire a professional, independent investigator rather than relying on the firm’s employees?
  • Collecting evidence is an activity that should be delegated to experts.  For this reason, it is essential to hire a professional and independent investigator rather than rely on the firm’s employees who may not have the necessary expertise or work experience to perform a specialized function.  Moreover, hiring an independent investigatory is also necessary to avoid any ethical issue since it is possible that the person submitting the report of the investigation might be asked to authenticate the documents.  If it is the paralegal who will authenticate these documents, there might be an issue of credibility in the report (Currier and Eimermann 477).
• What is e-discovery and what particular challenges does it present?
  • e-discovery refers to the motions on the part of an attorney to request the court to order the other party to obtain specific electronically stored information.  While the information can be very useful there are a number of challenges in e-discovery.  Among these challenges are: handling the sheer volume of information; determining how to eliminate duplicate copies; and establishing a method for retrieving these documents (Currier and Eimermann 482).