Criminal Evidence 7th Edition Norman M. Garland Chapter 13 Physical Evidence Copyright © 2015 McGraw-Hill Education. All rights reserved. No reproduction.

Criminal Evidence 7th Edition

Norman M. Garland

Chapter 13Physical Evidence

Copyright © 2015 McGraw-Hill Education. All rights reserved. No reproduction or distribution without the prior written consent of McGraw-Hill Education.

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What Is Physical Evidence?o In a criminal trial, physical

evidence is material objects, such as a gun, a knife, bloodstained clothing, a latent fingerprint, or a photograph.

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Two Forms of Physical Evidence

o Real evidence is the actual object itself, or the real thing.

o Demonstrative evidence is a representation of the object, either a copy, imitation, model, or reproduction.

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Physical Evidence Must Be Relevant

o For physical evidence to be admissible, it must have some connection to the facts of the case.

o It must be relevant to the issues of the trial, and it must assist in proving the facts in dispute.

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Again, Relevancy and the FREo FRE 401 defines relevant

evidence as evidence that “ has any tendency to make a fact more or less probable than it would be without the evidence” as long as “the fact is of consequence in determining the action."

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Laying the Foundation for Admissibility

o Before any physical object may be admitted into evidence and shown to the jury, enough proof must be presented to satisfy FRE 901 authentication requirements that the object is what its proponent claims it to be.

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Methods for the Laying the Foundation for the Objecto Testimony of a witness who has first hand-

knowledge.o Allowing the jury or an expert to compare

the objects and decide its authentication.o Distinctive characteristics and surrounding

circumstances, such as sending a bill to an address and receiving payment from the bill.

o Voice identification that can be learned first hand or through a mechanical or electronic transmission such as a television or answering machine.

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What is self-authenticating evidence?

o Certified copies of public recordso Domestic public documents

under sealo Foreign public documentso Official publications such as

books, pamphlets, newspapers, and periodicals

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Burden of Authentication of Evidence

o The burden of authentication of physical evidence in a criminal trial most often falls upon the police officer because an officer discovers the object while investigating the crime and knows how the object connects the crime with the accused.

o The officer may be aware of the object’s connection to the case because it was removed from the accused at the time of the arrest or from the crime scene.

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Sources of Physical Evidence: An Initial Discussion

o The law enforcement officer, or investigator, can find physical evidence in many places and can use it to determine what crime has been committed, to lead to other evidence, to enable the officer to reconstruct the crime, and to assist in convicting the perpetrator.

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Where to Look?o The most logical and likely place

to find physical evidence is at the crime scene.

o The perpetrator’s person, vehicle, home, place of business, or base of operations are prime sources of evidence.

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Kinds of Physical Evidenceo Fruits of a crime—the items

obtained as a result of the crime.o Instrumentalities used in

committing the crime—the objects that the perpetrator used to commit the crime.

o Contraband—any item that is illegal for a person to possess.

o Evidence of a crime—any object that shows that a crime has been committed.

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Kinds of Physical Evidence continued

o Fruits of a crime are the items obtained as a result of the crime, such as a television taken in a burglary, or money or jewelry taken in a robbery.

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o Instrumentalities of a crime are objects that the perpetrator used to commit the crime, such as a gun used in a car jacking or drive-by shooting, a crowbar used to open the front door of a house to commit a burglary, or the automobile used by bank robbers to get to and from the crime scene.

Kinds of Physical Evidence continued

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o Contraband is any item that is illegal for a person to possess, such as an illegally sawed-off shot gun or illegal drugs (crack cocaine).

Kinds of Physical Evidence continued

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o Evidence of a crime is any object that demonstrates that a crime has been committed.

Kinds of Physical Evidence continued

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Chain of Custodyo When the prosecutor seeks to

introduce an object into evidence, the burden is on the prosecution to prove that the object in court is the same item that was collected by the officer out on the street and that it is in the same condition, or substantially the same condition, as it was when it was collected.

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Prosecutor’s Proofof Chain of Custody

o The prosecutor needs to obtain testimony that traces who had control of the object and where the object has been.

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Who Are the “Links” in the Chain?

o The collecting officero The transport officer (who takes it to

the crime laboratory for analysis or directly to the police evidence locker for booking)

o The crime lab personnelo The custodian of the records of the

evidence roomo The officer who brings the object to

court

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Law Enforcement Officer’s Duty

at the Crime Sceneo Protect the integrity of a crime scene. o Determine if anyone is injured or needs

medical treatment and summon the necessary health professionals.

o Determine who to interview.o Move non-essential individuals out of the

area. o Cordon off or otherwise close the area to

non-essential individuals.o Keep contamination of the scene to a

minimum.

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Collecting Physical Evidenceo Each type of physical evidence,

whether an intact object, pieces of an object, blood, glass, liquids, or gasses, must be collected, marked or tagged, packaged, transported, and stored properly to be later admitted into evidence in court.

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Connecting Objects With Issues of a Trial: Chain of Custody or Possessiono Objects that constitute the fruits, the

instrumentalities, the evidence of the crime, or are contraband may be introduced in evidence and exhibited to the jury if it is proven that such objects offered as evidence relate to the crime charged.

o To do this, someone must be in a position to testify that the object was connected with the crime or found at the scene.

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Record of Custody or Possession

The typical record of custody or possession includes:

othe person who initially observed the object

othe possession of the object by the officer

otransportation to the laboratoryopossession by laboratory techniciansoretrieval by another officer and

transportation to police storage facilitiesothe final transport to court

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Three Procedures May Be Used to Positively Identify an

Object1. The officer may keep the object in his

or her complete and exclusive custody and control from the time it was found until it is presented in court.

2. The officer may maintain a complete and accurate record of the chain of custody.

3. The officer may tag or mark the object in some distinctive manner.

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Exclusive Control: Considerations and Problems

o First, it is virtually impossible for an officer to maintain control of many objects.

o Second, and probably most important, the object may require examination or analysis by experts.

o Finally, exclusive control is also impractical because of the right of discovery by the defendant.

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Complete Custodyvs. Exclusive Control

o Complete custody and control does not mean that the officer must carry the object at all times, but it does mean that from the time the officer picks it up at the crime scene until it is produced in court, the object must be continually under his or her exclusive control.

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Identification by Proofof Chain of Custody

o The officer must know to whom the object was released, and the purpose for which it was released.

o In other words, the officer must maintain a record of the chain of custody.

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Chain of Custody Definedo Proof of chain of custody, or

possession, specifically means the knowledge, or accounting, of each person who has come into possession of a physical object found at a crime scene from the time it was discovered until it is presented in court, so that the jury can be sure that the object is what it is claimed to be and has not been altered or tampered with.

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Marking Objects for Identification

o The prosecution can only introduce relevant objects into evidence against a defendant.

o Thus the identification of an object of evidence in court is extremely important.

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Marking the Objecto The most efficient and desirable

method for marking an object is for the officer who discovered it to mark the object in such a manner that the officer will recognize it later.

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What the Evidence Tag Generally Contains

o Case number and name of the defendanto Name of the victimo Name of the officer who found the objecto Date, time, place where object was foundo Brief description of the articleo Signature of the officer finding the object

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What the Evidence Tag Generally Contains

o Person to whom the object was released and reason for the release

o Date and time of releaseo Ultimate disposition of the

object: what will be done with the object if it is not used as evidence

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Storage of Physical Evidenceo Frequently much of the value

that could be derived from the evidence is lost because of deficient storage procedures.

o Objects should be stored in a manner where they can retain their original shape and appearance as much as possible.

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Mailing Physical Evidence: Maintaining the Chain of Custodyo The officer who collects the object

should wrap it, seal the container, and properly initial it.

o A cover letter should describe the object to be examined and the desired examination.

o Explosives and narcotics should never be shipped without meeting the federal shipping guidelines.

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Mailing Physical Evidence: Maintaining the Chain of Custodyo The object should be wrapped,

sealed, and initialed by the officer.o The whole package, including the

cover letter, should be wrapped with an outer wrapping suitable for shipping and properly addressed to the crime laboratory with the notation that the package contains evidence.

o The package should be sent by certified mail.

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Preparation of Physical Evidence for Use in Court

o With the use of a little ingenuity and planning, physical evidence can be most effectively displayed to the jury, and its use as evidence greatly enhanced.

o The physical evidence emphasizes and substantiates the officer’s testimony.

o In most jurisdictions, jurors may take the physical evidence with them into the jury room while deliberating to enable them to better recall the testimony of the officer.

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Gruesome Objectso The court weighs the importance

of the gory object to the prosecution against the effect the evidence will have on the jury.

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Gruesome Evidence and the FRE

o FRE 403 states that, relevant evidence may be excluded “if its probative value is substantially outweighed by a danger of one or more of the following: unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence.”

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Gruesome Objects: The Old Balancing Test

o The evidence will be admitted unless the prejudice against the defendant is substantially greater than the value of the evidence to the jury in determining the outcome of the case.

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State v. Thompsono Photographs of homicide victims

are admissible at trial even if they are “gory, gruesome, horrible or revolting so long as they are used by a witness to illustrate his testimony and so long as an excessive number of photographs are not used solely to arouse the passions of the jury.”

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Physical ObjectsNot Produced in Court

o There is no requirement that all physical evidence in a case must be produced or introduced into evidence.

o There is only the requirement that the defendant be afforded a fair trial.

o The prosecuting attorney has the final decision in determining which evidence will be presented, if at all, and how it will be presented.

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Viewing of the Crime Sceneby the Jury

o The trial judge has the discretion of allowing the jury to view the crime scene, taking into consideration the time the viewing will take and the value of the viewing.