Evidence Basics – A Key to Good Investigations

Evidence consists of information and objects which are used to prove or disprove facts. The investigator gathers evidence to determine the facts in the case. Although the investigative report may not directly address the evidence behind every fact stated in the report, the quality of that evidence will eventually determine the degree to which the facts will be accepted by others, especially in administrative or judicial proceedings. Rules of evidence exist to ensure evidence is reliable, and experienced investigators should be familiar with and apply the rules and the concepts behind them.

Types of Evidence

Evidence includes information obtained from people, documents, and physical objects. It may constitute first-hand knowledge of witnesses, or an explanation of what they have learned from others (hearsay). Documents may be obtained by the investigator to prove their existence (e.g. there was a bill of sale), or to establish the substance of their contents (e.g. the bill of sale was issued on a particular date).

The Quality of Evidence Used in Investigations

The investigator should consider the following qualities of evidence in determining its value to the investigation:

1. Relevance – Does it make a fact that is of consequence more or less probable
2. Veracity – Was the evidence obtained in a manner that supports its veracity. For example, a statement obtained by coercion will not be as reliable as one given freely.
3. Authenticity – Is the evidence what it purports to be? In other words, is it of high quality? We look to sources of the evidence, chain of custody, and sometimes the existence of other statements or evidence that supports the authenticity of another piece of evidence

Categories of Evidence Pertinent to Investigations

The investigator must deal with several categories of evidence and understand the distinctions between them. The most important include direct versus circumstantial evidence, and fact versus opinion evidence.

Direct Evidence

Evidence, in whatever form, may tend to prove or disprove a fact either directly or indirectly (circumstantially). A fact is proved by direct evidence when the witness has actual, or direct, knowledge of the fact to be proved, and does not need to rely on facts the witness did not actually observe, but only inferred from other facts known to the witness. A witness who says, “I know that Ray stole the money because I was there and saw him pick it up and put it in his pocket. Then I saw him leave right after” has presented direct evidence to prove the fact that Ray stole the money.

Circumstantial Evidence

When direct evidence cannot be obtained to establish a fact, the existence of that fact may sometimes be established because reasonable persons are willing to draw inferences from other facts. Circumstantial evidence is direct evidence of one or more facts from which other facts may be inferred, or established indirectly, because there is a logical relationship between them. A witness who says, “I know Ray stole the money because the money was on the table when I left the room and Ray was the only other person there. When I came back the money and Ray were gone.” has presented circumstantial evidence to suggest Ray stole the money. The evidence is circumstantial because the witness did not actually observe Ray take the money, but inferred that fact from other facts the witness did observe directly. In the absence of other contrary facts, it is logical to infer that Ray took the money.

Importance of Distinction

It is important to appreciate the difference between direct and circumstantial evidence because circumstantial evidence leaves room for an alternate explanation of what really happened that the investigator may need to explore. In the previous example, there may have been a third person who came in the room and took the money after Ray left. Or, the witness may not have known Ray by sight, but, after describing the person to the witness, they might have been told “that could have been Ray.” Witnesses may think they know something directly, and present it in that manner, when in fact they are really drawing inferences from indirect or circumstantial evidence. When a witness says they know “X” happened, it is important for the investigator to establish the actual basis for that statement. In many cases, careful examination by the investigator will reveal the witness does not really know “X” happened, but rather believes it did because “Y” and “Z” did.

It is important to test a witness’ statements by asking follow-up questions, such as, “How do you know that”, or “What leads you to that conclusion.” Don’t reject evidence because it proves to be circumstantial, but be aware that circumstantial evidence should be more critically evaluated and, when possible, corroborated with additional evidence.

Facts Versus Opinion

Opinions are generally conclusions based on certain facts and the interpretation of those facts. For example, to say that Joe was shouting at Jim, was calling him names, and was red in the face, constitutes an objective statement of facts. To state that Joe was angry at Jim constitutes a subjective statement of opinion that is based on the facts observed. The opinion may be accurate, but you cannot be certain without knowing the facts underlying it. However, in some cases observation of physical details may not always be sufficient to form a valid opinion. Jim may have been helping Joe practice a role in a play that required Joe to show anger.

Managing Evidence

It is critical that all evidence gathered in an investigation is managed and controlled to avoid any accusations of tampering, damage, or lost evidence. To do this it is necessary to ensure a chain of custody. Evidence should be tagged, bagged, and stored in a safe place with controlled and documented access. Some evidence might need to be utilized or referred to during an investigation and where possible; such as in the case of documents, working copies should be created, and originals kept under lock and key. The failure to properly control evidence and ensure the ability to testify to its integrity, can cause a case to be lost at a hearing.

To keep evidence safe, investigators should do the following:

• Authenticate evidence: Know where evidence came from, who provided it, when it was provided, and what relevance it has to the case.
• Describe the evidence: Fully document the evidence, including its condition, upon receipt.
• Create working copies: Scan or copy documents to create working copies and ensure originals are secured and not altered in any way.
• Log evidence: Mark or tag all evidence appropriately to identify it and properly document the identification in the case file and the investigator’s notes.
• Secure evidence: Ensure evidence is properly secured; limiting access to certain people to prevent evidence tampering.
• Document access: Whenever someone accesses evidence, the person’s name and reason for access should be logged. Also, the dates and times evidence was removed and returned should be logged.

This short article covers the basics of evidence and is only an introduction to what can be a very involved discussion. At Benard + Associates we have been practicing these principles for many years and can work with you or your team to build your knowledge and investigative skills. Please visit our website for more information on our services.