Student Center | Instructor Center | Information Center | Home

Criminal Investigation, 8/e

Charles R. Swanson, University of Georgia
Neil C. Chamelin, Assistant State Attorney, Second Judicial Circuit
Leonard Territo, University of South Florida- Tampa

The Investigator and the Legal System

Chapter Outline

I. ARREST (See slides 21-2, 21-3, 21-4, 21-5, 21-6, and 21-7)

A. Definition of Arrest

There are a number of definitions of the term "arrest." They range from "any interference with a person which, if not privileged, would constitute false imprisonment," to "interfering with the freedom of a person who is suspected of criminal conduct to the extent of taking him to the police station for some purpose," to "taking of custody upon sufficient and proper evidence for the purpose of prosecution."

1. Ingredients. There are three essential ingredients of an arrest:

a. Intention

b. Authority

c. Custody

2. Arrest Distinguished from Detention. Detention is a temporary and limited interference with the freedom of a person for investigative purposes.

3. Arrest Distinguished from Charging. Formally charging a suspect with a crime does not automatically flow from an arrest. Charging follows a decision to prosecute.

4. Arrest Procedures. The laws of most jurisdictions permit an arrest in at least three types of situations:

a. When a crime is committed in the presence of an arresting officer.

b. When a warrant has been issued.

c. When an officer has probable cause to believe that the suspect being arrested has committed a felony.

5. The Arrest Warrant. An arrest warrant is a judicial order commanding the person to whom it is issued or some other person to arrest a particular individual and to bring that person promptly before a court to answer a criminal charge.

6. The Probable-Cause Requirement. The third and final major category in which a lawful arrest is generally permitted involves offenses not committed in the officer’s presence and for which a warrant has not been issued. The law allows an officer to make warrantless arrests in felony cases provided reasonable grounds or probable cause exist to make the arrest.

B. Evaluating the Case

The decisions investigators must make involve a great deal of discretion. Investigators must consider what may be termed risk factors.

II. THE TRIAL PROCESS (See Slide 21-8)

Some police officers and criminal investigators are not fully aware of the order in which a trial is conducted because time often prohibits them from attending a complete trail from beginning to end. Also, witnesses are often sequestered from the courtroom before and after giving testimony. This very common practice is used to minimize the possibility that a witness’s testimony might be affected by other witnesses’ testimony.

III. THE RULES OF EVIDENCE (See slides 21-9, 21-10, 21-11, and 21-12)

A. Evidence

Evidence can be defined as anything that tends logically to prove or disprove a fact at issue in a judicial case or controversy.

B. The First Rule of Evidence

The rules of evidence are designed primarily to keep a jury from hearing or seeing improper evidence, and the first rule of evidence is designed to set parameters on the above definition of evidence.

C. Proof

Proof may be defined as the combination of all those facts—of all the evidence—in determining the guilt or innocence of a person accused of a crime.

D. Testimony

Testimony is simply evidence given in oral form.

E. Admissibility

The rules of admissibility protect the trier of fact, generally a jury, from hearing improper evidence that may be unreliable or untrustworthy and that may prejudice the case unjustifiably against the defendant.

F. Relevance

One of the rules governing the admissibility of evidence requires that the evidence be relevant.

G. Materiality

Admissibility may be denied on the basis of immateriality. Thus, materiality deals with the importance of the item of evidence in question.

H. Competence of Evidence

The test of competence of evidence relates to evidence’s legal significance to the case. Because of certain statutory requirements or other rules of evidence, a particular item of evidence may not be admissible.

I. Competence of Witnesses

Regardless of their knowledge of the facts of a case, certain individuals are not permitted by law to testify for or against a defendant in a criminal case. For example, the rules of evidence generally prohibit people who have been declared legally insane from testifying in a criminal case.

J. Weight of Evidence

Once evidence has been admitted into the trial, it must be weighed by the jury. Weight then deals with the elements of persuasion and believability.

1. Presumptions. Among the guidelines that the jury is required to follow in weighing and applying evidence are those regarding presumptions.

2. Inferences. An inference is similar to a presumption but differs in that the jury has more latitude in accepting or rejecting an inference. Thus an inference is a permissible deduction that the jury may make.

K. Burden of Proof

In each criminal case, the prosecution has the responsibility of affirmatively providing the allegations on which it has based its accusation. This is known as the burden of proof.

L. Burden of Going Forward

The burden of going forward with evidence is placed on the defense so that it will present evidence that creates a reasonable doubt of guilt.

M. Preponderance of Evidence

The plaintiff in a civil action is not required to prove allegations beyond and to the exclusion of every reasonable doubt. All that is required is a preponderance of evidence—that is, that the evidence the plaintiff presents be considered weighter by the jury than the contrary evidence presented by the defendant.

N. Order of Proof

Court procedures generally require that he prosecuting attorney prove the existence of the corpus delicti at trial before attempting to show the guilt of the defendant. The corpus delicti is the combination of all the elements of the crime.

IV. JUDICIAL NOTICE (See Slide 21-13)

The doctrine of judicial notice is an evidentiary shortcut. Judicial notice is designed to speed up the trial and eliminate the necessity of formally proving the truth of a particular matter when the truth is not in dispute.

V. TYPES OF EVIDENCE (See Slides 21-14, 21-15, and 21-16)

A. Direct Evidence

Direct evidence usually is the testimony of witnesses that ties the defendant directly to the commission of the crime, such as the testimony of an eyewitness who can positively state that the defendant committed the crime.

B. Real Evidence

Sometimes referred to as "physical evidence," real evidence is connected with the commission of the crime and can be produced in court.

C. Demonstrative Evidence

Demonstrative, or illustrative evidence is not identical to real evidence even though the items introduced are tangible. It consists of maps, diagrams, sketches, photographs, tape recordings, videotapes, X-rays, and visual tests and demonstrations produced to assist witnesses in explaining their testimony.

D. Circumstantial Evidence

It is a myth that one cannot be convicted of a crime solely on circumstantial evidence. The broad definition of circumstantial evidence encompasses all evidence other than direct evidence, provided that it logically relates the defendant to the crime.

E. Opinion Evidence

The only things on which a nonexpert may give opinion evidence are matters of description in which fact and opinion are so interwoven that they cannot be separated without losing most of their probative value. Matters of description in which a nonexpert may give an opinion include color, size, shape, speed, mental condition, identity, race, and language.

VI. THE HEARSAY RULE (See Slides 21-17 and 21-18)

A. Hearsay Evidence

The fact that stories tend to be changed when they are repeated makes their reliability and truthfulness questionable. For this reason, the hearsay rule was created. Hearsay is derived from "heard say."

B. Exceptions to the Hearsay Rule

If the circumstances surrounding the hearsay evidence can ensure a high degree of trustworthiness and reliability, that evidence is admissible as an exception to the rule in order to minimize any injustice.

1. Confessions. A confession is an acknowledgment by a person accused of a crime that he or she is guilty of that crime. Confessions made out of court falls within the hearsay rule. For such confessions to be admissible, they must meet the tests of admissibility and overcome the assumptions of unreliability and untrustworthiness.

2. Admissions. One who makes an admission does not acknowledge all. The facts surrounding the crime necessary to constitute guilt but does admit to certain facts or circumstances from which guilt may be inferred by the jury.

3. Spontaneous and Excited Utterances. If one makes a spontaneous or excited utterance after something startling or unusual has happened, the utterance may be admissible as an exception to the hearsay rule when testified to by one who heard it made.

4. Dying Declarations. A declaration concerning the facts and circumstances of the fatal injury made by the victim of a homicide is about to die, expects to die, and does not hope to recover is admissible as an exception to the hearsay rule.

5. Former Testimony. Written or oral testimony in a hearing or trial falls within the hearsay rule if that testimony is sought to be introduced in a later judicial proceeding.

VII. EVIDENTIARY PRIVILEGES (See Slide 21-19)

Defendants and other witnesses have a right to have certain matters of communication barred from disclosure in court—for example, confidential communications between husband and wife, confidential communications between attorney and client, and grand jury proceedings that are confidential requirements of law are barred. The evidentiary privileges may vary from state to state.

VIII. WITNESSES

With the advent of the rules of evidence, procedures had to be established for requiring the presence of people who possessed knowledge of the facts of the case. The subpoena is used for this purpose.

IX. THE INVESTIGATOR AS WITNESS (See Slide 21-20)

A. The Role of the Police Witness

The investigator must inform the jury of the matters investigated in the case and present this information so that the jury understands the sequence events and their significance. But the investigator may not offer personal conclusions.

1. Credibility. A police officer is not entitled to any more credibility in the courtroom than any other witness. The officer has an equal responsibility, through presentation, appearance, demeanor, and the substance of testimony, to persuade the jury to believe the facts being related.

B. Characteristics of a Good Witness

The successful testimony of the investigator is based n adequate preparation of the case, familiarity with the rules of evidence and with how juries think and react, knowledge of trail processes, and maintenance of roper appearance and conduct at all times.

1. Understanding the Jury. The good police witness will, at the very least, understand and appreciate the fact that juries do not make their determination of guilt or innocence solely on the substance of testimony and evidence offered.

2. Dress should be clean and neat. If civilian clothes are worn, a degree of formality is appropriate. Conservative clothes are less likely to offend members of the jury than are wild, flashy outfits, even though neat. Police witnesses should be conscious of their demeanor fro the time they arrive at the courthouse.

C. Taking the Witness Stand

From the moment the police witness enters the courtroom, people are forming opinions. The officer should walk naturally when approaching the witness stand, not look at or speak to the prosecutor, and not frown at the defendant.

1. Answering Questions. The ability to answer questions under direct and cross-examination is usually developed through experience. The police witness must answer without emotion or partiality.

2. The purpose of cross-exmaination is to ensure that testimony given under direct examination has been accurate and truthful. Through cross-examination the attorney attempts to impeach witnesses called by the opposing side. Impeachment is the process of discrediting or contradicting the testimony of the witness to show that the witness is unworthy of belief.

3. Use of Notes on the Stand. It is permissible for witnesses to use notes to help refresh their memory while testifying; the human mind can retain only so much information.

D. Leaving the Witness Stand

How witnesses leave the witness stand is just as important as how they enter, because the eyes of the jury follow them. The witness should wait to be excused by the judge and should leave the courtroom without smiling, speaking or glaring at anyone.

2002 McGraw-Hill Higher Education
Any use is subject to the Terms of Use and Privacy Policy.
McGraw-Hill Higher Education is one of the many fine businesses of The McGraw-Hill Companies.