Rules of Evidence, Entrapment, and other Technicalities CrimeFighters shouldn't consider the following information all the legal reference there is available. When you're working on a criminal case, especially during the final stages, you should also be working with an FBI case agent or the police. At that time, the prosecutor (or your lawyer if you assume the role of the prosecutor) and others will advise and teach you the rules of evidence in a court of law. In the meantime, here's a few things to keep in mind. Kinds of Evidence Direct evidence. This is solid proof that is indisputable and stands alone without the need for further evidence. A videotape recording is both direct and real evidence. It carries more weight than the testimony of a witness - - especially if the witness is a CrimeFighter asking for a reward based on the conviction of the suspect! Direct evidence examples: The sworn testimony of a witness to a crime; drugs sold to undercover agents in a sting operation; or a letter or written contract with signatures; a videotape recording of a crime in progress that clearly identifies the violators; a videotape showing a license plate of the vehicle leaving the scene of the crime at the time the crime was committed; a legally obtained wiretap recording. All of the above evidence links the suspect directly to the crime. Real evidence is tangible, physical evidence, as opposed to verbal, where something is described. Real evidence can be looked at, handled, or both. It is often shown in court, when practical, as exhibits. Videotape record- ings of crimes in progress are both direct and real evidence. Circumstantial evidence, or indirect evidence, is an accumulation of facts and presumptions based on known facts that allow us to draw a conclusion or inference concerning a crime. Example: An ex-con, convicted of armed robb- ery, out on parole, is found in the vicinity of a robbery just committed by a masked, armed robber. The suspect has weapons described in the robbery in his possession. These facts are sufficient to justify suspicion of robbery, but is not conclusive evidence that the suspect committed the robbery. However, if the suspect also has in his possession some of the loot (watch, rings, etc.) taken from the victim, then the circumstantial evidence is supported by real evidence and is usually sufficient for a conviction. Inculpatory (damning) evidence, is similar to circumstantial evidence. It's sufficient to make a presumption of guilt, but without supporting evidence is insufficient by itself if it can't be proved. The robber mentioned above, with weapons in possession, provides inculpatory evidence, but without direct evidence to link the person to the crime, the person remains only a suspect of the robbery. Hearsay evidence is not obtained from the personal knowledge of the witness but consists of information that was given by another person. The person giving hearsay evidence as testimony in court can't swear to the accuracy of the information passed on. The unreliable nature of this kind of evidence shows its weakness. In all criminal prosecutions, the Sixth Amendment of the U.S. Constitution provides protection against rumors or hearsay by including the words "to be confronted with the witness against him." This statement provides the accused with the right to cross-examine the witness. If the witness is not available, can't give testimony and be cross-examined, the hearsay evidence can't be used. Hearsay evidence is seldom heard or accepted by the court -- except in unusual circumstances. In civil suits, the sixth amendment doesn't apply. "Qualified" hearsay evidence is sometimes heard and may be included as part of the preponderence of evidence. Civil Suits vs Criminal Suits Preponderence of evidence means all the evidence weighed for conviction against that offered by the defendant for acquittal, and which is is more convincing in the minds of the jury. In criminal cases, "guilt" must be established in the minds of a jury, based on the evidence presented to them beyond a reasonable doubt and moral certainty, and the jury must be unanimous in its decision. In civil suits, a preponderence of evidence against the defendant usually results in a conviction (or, more correctly in civil suits, a "verdict of liability"). Only a majority (usually two-thirds) of the jurists need to agree on the verdict. Generally speaking, in civil cases, the lawyer who presents the best argument ("preponderence of evidence") which outweighs the defense lawyer's argument, usually wins the case. In criminal courts the burden of proving guilt beyond a reasonable doubt rests with the prosecutor. However, in civil suits, the situation is reversed. Defendants have the burden of proving themselves innocent of the accusations. When there is a sufficient amount of circumstantial evidence, proving themselves innocent may be difficult to do. Only a majority of the jurists, not all of them, need to be convinced of the defendant's guilt. Civil actions may be best when real and/or direct evidence isn't available or sufficient to ensure a criminal conviction, or when politics and special interests may influence the jury! For example: If the accused is a corporation and is the main source of employment in that area, one or more jurists may be influenced more by lost jobs or political favors than the need to close down an industrial polluter. One "undecided" or dissenting vote will result in a hung jury. Most prosecutors are politically ambitious and expect to receive large corporate donations for political campaigns from big companies - who expect favors in return. As a result, many D.A.'s are bribed (by political donations) and influenced to allow plea bargaining to lesser offenses or dismiss the case for lack of evidence. Or, the D.A. may have too many cases to handle and is likely to give the case minimal effort. In these situations, a Qui Tam RICO civil suit by a Crimefighter, with experienced lawyers who are paid on a no-win, no-pay, contingency basis, would obtain more satisfactory results. * * * * * * Expert evidence is testimony given in relation to some scientific, technical, or professional matter by experts in their respective fields who are qualified by reason of their special training, skill, or experience. Independent water testing laboratories, for example, are considered as "expert witnesses" to support claims of water pollution from certified samples sent to them for analysis. The EPA will also conduct water pollution tests. However, many books on pollution of the environment ("Laying Waste", "The Toxic Cloud," plus others) accuse the EPA of being lax in their past enforcement of pollution laws, mainly because of built-in bureaucracy, politics, and budget cuts. It may be better to use independent commercial laboratories because they provide fast turnaround, unbiased results, and tighter security to avoid "lost" samples. To fully control a water-pollution case, use independent laboratories, hire a lawyer on a contingency basis, and use Qui Tam law to prosecute cases. In civil suits, the courts usually award the plaintiff the legal costs of prosecution when that party is successful in winning the case. That means the defendant must pay your lawyer's fees, laboratory tests, and costs of your investigation. * * * * * * State's evidence, which is testimony given by an accomplice or participant in the commission of a crime, tends to incriminate or convict the defendant. It's usually given under actual or implied promise of immunity from prosecution. (In the vernacular of criminals -- "The first to talk, the first to walk.") Impeachment of witnesses is a strategy that both prosecutors and defense attorneys use to discredit witnesses. A witness may feel like the person being tried when subjected to cross-examination to discredit his or her testimony. CrimeFighters should keep in mind this is a standard legal tactic and means nothing personally. If the only evidence is the verbal testimony of a witness, the usual legal strategy of lawyers is to discredit (and impeach) a witness if they can. While jurists are not supposed to take into consideration the witness may be paid a reward, the defense lawyer will be sure to make it known (directly or indirectly) and may try to dismiss your verbal testimony on the grounds that you "make a profit" if you obtain a conviction. The implication is that your motive is "questionable" and your testimony should be discounted accordingly. If the CrimeFighter has a criminal record, it too, would be brought to light and the defense attorney will imply the testimony is further questionable to the maximum degree. But, it doesn't mean the jury will dismiss the CrimeFighter's testimony. Most jurists are well aware of that defense strategy and will usually ignore it when there are other things to be considered. The D.A., or your lawyer, will provide extensive coaching on how to handle defense lawyers' tactics. Lack of Evidence A witness who gives verbal testimony that isn't supported by any other evidence will find his or her testimony offset by the accused's assertion of innocence. Since it's one man's word against another, it will result in a draw, with the case being dismissed for lack of evidence. In addition to verbal testimony, you need direct, real or circumstantial evidence and/or additional witnesses. A good videotape of the crime or audio recording is usually sufficient to prove your accusations. The D.A. or your own lawyer will advise you when you have insufficient evidence to obtain a conviction. * * * * * * Entrapment Entrapment happens when law enforcement agents (or a CrimeFighter) coax someone into committing a criminal act which the person, without the prompting and coaxing, would not normally consider. Leading a person to commit a criminal act and then making an arrest is not legally or morally right. In entrapment the person doing the coaxing and manipulating of the accused is guilty of instigating a criminal act that would not otherwise have taken place. Instead of discouraging or preventing crime, the act of entrapment makes it happen. In a lecture given at the Mississippi Law Enforcement Officers' Training Academy, in Jackson, Mississippi, the following definition of entrapment was provided. "When used in its original sense of merely trapping the criminal, the fact of entrapment is obviously not a defense. Thus a defendant cannot raise a defense that money was marked by means of which he was detected; that marked goods were exposed to a suspected thief; that a door was purposely left open for him; or that an opportunity was intentionally given him to commit the crime. Similarly, it is no defense that the victim, on learning of the proposed crime, does nothing to stop its commission but allows the defendant to begin the commission of the crime so that he may be apprehend- ed in the act. When the doing of a particular act is a crime regardless of the consent of anyone, and the criminal intent originates in the mind of the accused, that fact that an opportunity is furnished, or that the accused is aided in the commission of the crime in order to secure the necessary evidence to prosecute him therefore, constitutes no defense. The purpose of a law enforcement officer is not to solicit the commission of, nor to create, an offense, but to ascertain if the accused in engaged in an unlawful business, or to entrap the defendant in the act of committing an offense which he has reasonable grounds to believe the accused has commenced, or is about to commence. In the case of those crimes into which enters as an essential element the violation of civil rights of persons, such as the offense of Larceny, Burglary, and Robbery, the situation is different. Here, it will be seen, the entrapment must not be under such circumstances as would amount to the consent of the person affected, or a necessary ingredient of guilt, the want of such consent, will be lacking, and the crime will not have been committed. The line of distinction seems to be whether there has been an active, as distinguished from passive, inducement to the taking on the part of the persons affected or his duly authorized agents; and where such active inducement can be shown, no conviction can be had. Where the owner, in person or by his duly authorized agent, suggests to the accused the criminal design, and actively urges, cooperates with, and assists the accused in the taking of the goods, such conduct amounts to a consent of the taking, and the criminal quality of the act is wanting. Consent to the crime is not shown, however, by proof that the owner or victim remained passive and made no effort to prevent the commission of the crime, such as Larceny, Burglary, or Robbery. It is likewise no defense that the agent of the owner or victim or law enforcement officer pretended to cooperate with the defendant. The fact that the defendant was led to commit the crime by his friends or confederate does not, under any circumstances, constitute entrapment." Unquote. Sting operations are based on legal entrapment. For example, suppose and officer or CrimeFighter knows that a person regularly commits certain drug law violations, and a CrimeFighter poses as a customer to make an offer to purchase a supply of narcotics to obtain evidence. The intent to commit a criminal act was already in the mind of the accused and is part of his normal business activity. In this instance, entrapment is not a defense. Neither is entrapment a defense when a suspected or known prostitute is seen on street corners and an undercover agent solicits services. The offer to use the services described by the hooker isn't planted in the prostitute's mind by the agent. When she (or he) names the services and prices and takes money for payment, it is admissible as evidence of prostitution. Entrapment usually occurs when the defendant isn't the instigator of the criminal act and would not normally have done such a thing on his or her own. If the defendant was coaxed or coerced into the crime or criminal activity by the officer or CrimeFighter simply to make an arrest, that would be entrapment. The Latest Word on Entrapment From the Supreme Court An excerpt from the Las Vegas Review Journal, April 7, 1992: By David G. Savage, L.A. Times. Postal Inspectors Erred, Justices Rule, By Enticing a Nebraska Farmer To Buy Banned Child Pornography WASHINGTON -- In a surprise ruling that limits government "sting opera- tions," the Supreme Court said Monday that investigators may not seek to trap an "unwary innocent" unless they first have clear evidence that the person is likely to commit a crime. The 5-4 decision overturns the conviction of a Nebraska farmer who ordered illegal child pornography through the mails, but only after U.S. postal service inspectors sent him at least 10 solicitations over 26 months. In their zeal to enforce the law, government agents may not originate a criminal design, implant in an innocent person's mind the disposition to commit a criminal act, and then induce commission of the crime so that the government may prosecute," wrote Justice Byron R. White for the court. The prosecution must prove beyond reasonable doubt that the defendant was disposed to commit the criminal act prior to first being approached by government agents," he added. The message here is that the government's job is to catch criminals, not turn law-abiding citizens into criminals," said Steven R. Shapiro, an American Civil Liberties Union lawyer. "It is not a new message, but one that the court has to repeat every so often." While many defendants claim they were entrapped, few succeed. To prevail, the defendant must show both that the government "induced" his criminal act and that he was not "predisposed" to commit such a crime. If a man solicits sex from a policewoman posing as a street walker, he cannot claim entrapment. His request "amply demonstrates (his) disposition," the court said. Similarly, government agents may take elaborate steps to trap a person who, based on other evidence, is quite likely to commit a further crime. But in this case (Jacobson vs U.S., 90-1124), the court was confronted with a law-abiding citizen who broke the law only after being encouraged repeatedly to do so by postal inspectors. The government may not play on the weaknesses of an innocent party and beguile him into committing crimes which he would not otherwise have attempted," White said." Unquote. The essence of the entrapment ruling is that police may not originate and plan a criminal activity, then implant in an innocent person's mind the disposition, by persuasion, to commit a criminal act, and then aggressively encourage commission of the crime so the law may prosecute. In court, the prosecution must prove beyond reasonable doubt that: (a) defendant was actually looking for such a criminal opportunity; (b) defendant was more than willing (eager) to do such a criminal act; and (c) defendant was mentally prepared and predisposed to commit the criminal act BEFORE being contacted by an undercover agent. When working undercover, CrimeFighters should wear a "wire" or otherwise make tape recordings of conversations that prove (a) (b) and (c) for successful prosecution. Always work with law enforcement agents before undertaking a sting operation on your own. If you don't, you might get caught in a sting operation yourself and it would be difficult to explain in court. If you work with law enforcement officials, make sure you have an agreement in writing as to exactly what your role is, and what you need to do to qualify for the reward and expenses promised. Recommended Reading (in CRIMCAT) "Legal Handbook for Special Agents," a book used by the FBI to advise their agents what they can do without crossing the line of legality. The book explains probable cause, warrants, arrests, confessions, and interrogations, civil and criminal liability, search and seizure, diplomatic immunity, and eyewitness identification. "D.E.A. Narcotics Investigator's Manual," an exact reprint of the same manual used by the Drug Enforcement Administration to train its narcotics investigators. This one covers all aspects and every angle involved with drug law enforcement. It covers interviews and interrogations, case preparation, testifying in court, informants, surveillance operations, undercover operations, entrapment, penetration of drug rings, search operations, raids, clandestine laboratories, raid and surveillance equipment, and a lot more. The section of use of informants and preparation for court testimony are especially enlightening. ($50, but worth it.) F9 for next Chapter