principles of evidence Jon Smibert Principles of Evidence Jon Smibert, J.D., LL.M. (Lond.) United States Department of Justice Pristina 2014 1 Publisher: United States Department of Justice Office of Overseas Prosecutorial Development, Assistance and Training Office of the Resident Legal Advisor United States Embassy, Pristina © Jon Smibert 2014 No part of this work may be reproduced or transmitted in any form or by any means, electronic or mechanical, including photocopying and recording, or by any information storage or retrieval system, without the prior written approval of the Author or the United States Department of Justice, unless such copying is expressly permitted by the relevant copyright law. Translation: Linda Baleta (Albania), Julija Ivanovic (Serbian) Special Assistance: Benina Kusari Printing: Xhad Studio, Pristina 347.97/99 Smibert, Jon Principles of Evidence / Jon Smibert ; translacion Linda Baleta (albania), Julija Ivanovic (serbian).- Pristina : United States Department of Justice, Office of Overseas Prosecutorial Development, Assistance and Training, 2014.- 238 f. : ilustr. me ngjyra ; 21 cm. Glossary : f. 225-238 1. Baleta, Linda 2. Ivanovic, Julija ISBN 978-995-8686-2-4 2 To Arta 3 4 Principles of C riminal Evidence Introduction 7 Part I – Understanding Evidence and its Qualities 1) What is proof? 13 2) How is proof obtained? 25 3) Inferences and Objectives. 45 4) What is the quality of proof? 59 5) Review 81 Part II – Challenges and Inferences 6) How can proof be challenged? 89 7) Inferential Evidence: Judicial Notice, Judicial Admissions, and Presumptions. 111 8) Inferential Evidence: Statistical Evidence 125 9) Inferential Evidence: Expert Opinion Evidence 161 Part III – The Body of Evidence 10) The Essence of Evidence: Critical Thinking and Logic 189 11) A Holistic Approach to Evidence 211 12) Epilogue 219 Glossary 225 5 6 Principles of C riminal Evidence Introduction Any legal action requires evidence, especially in a criminal proceeding. In some systems, evidence is gathered and evaluated by the court, providing less opportunity for litigants to challenge or analyze evidence. In systems which are more adversarial, there are more opportunities to challenge evidence. In either system, though, the judges, prosecutors, defense attorneys and representatives of the injured parties can all benefit from a deeper understanding of evidence. That deeper understanding of evidence permits the practitioner to describe the evidence more clearly, understand the weakness or strength of evidence, and to test the evidence in court. It is particularly important that the judge, prosecutor, defense attorney and others have a similar vocabulary and similar understanding when discussing evidence. If people can all describe the weakness or strength of particular kinds of evidence using the same language and principles, then it allows the adjudication of a case to be done with clarity and a depth of fairness. Principles of evidence are often more familiar to lawyers in common-law countries, especially those with juries. The court uses exclusionary evidentiary rules to prevent juries from hearing and being prejudiced by improper evidence. In inquisitorial systems, instead, the principle of "free proof" has dominated and there has not been a tradition of excluding evidence. This does not mean that inquisitorial systems do not have traditions or guiding principles of evaluating evidence.1 They simply are not focused on exclusion of evidence. Indeed, both systems strive for judges or juries to consider a wide degree of evidence which is 1 In fact, many inquisitorial systems developed in the wake of canon law, which assigned weight or priorities to different kinds of evidence. The idea of "free proof" rejected those strict categories from canon law. Some inquisitorial systems also had constraints on the use of certain classes of evidence. See Jackson J. and Summers S., The Internationalisation of Criminal Evidence, Beyond the Common Law and Civil Law Traditions, Pp. 30‐31 (Cambridge Univ. Press 2012). Canon law and the roots of inquisitorial legal systems were, at the time, progressive because it sought evidence and did not simply test innocence by subjecting the defendant to oaths or tests. However, it created capricious and strict evidentiary procedures. By 1215 the Fourth Lateran Council forbade trial by ordeal in European church courts, but courts had already begun adopting modes of proof in civil and criminal cases in accordance with ordo iudiciarius, or Romano‐canonical procedure. This ordo required an accusation in writing, the presentation of legitimate witnesses, a conviction only after a confession or presentation of evidence, and a written court decision. The ordo also lead to inquisitorial procedure, most likely by Pope Innocent III (1198‐1215) in Qualiter et quando (c.8)(1215), a document which compiled the developing procedural rules. Those procedural rules included the right of defendants to defend themselves with testimony, witnesses and exceptions, as well as the option for courts to give oaths and require compurgation. It also required substantial proof, although the system did permit brutal measures to obtain the proof. In Germany, for example, the standard of proof for a conviction was "certainty," with a high premium placed on confession. The procedural rules, the Constitutio Criminalis Carolina of 1532, permitted torture, but mandated that questioners solicit answers and did not provide them. See Shaffern, R. Law and Justice from Antiquity to Enlightenment, pp. 195‐201. (Rowman & Littlefield 2009). However, by the time these procedural laws developed into the 1808 Napoleonic Code of Criminal Procedure in France and the 1877 StraffprozessordnunG (StPO) in Germany, judicial inquiry was focused on obtaining evidence without such extreme measures. 7 relevant to the allegations. In any system, however, it is necessary for practitioners to have a common language and a common framework to understand and discuss evidence. In this book, that vocabulary and those principles of evidence are examined and explored. It begins with basic principles of evidence and builds upon those principles to explain why they are important and how they can have a practical impact in criminal investigations, indictments and during a criminal trial. These principles are important for simple cases, but become critical while investigating, prosecuting, defending or adjudicating a complicated case. One of the first questions that a practitioner needs to ask is what needs to be proven? If a prosecutor is investigating a crime, he or she needs to find evidence that is relevant to that crime, but may also need to find evidence that a victim was harmed. He or she may need to find evidence that supports the confiscation of property or an asset. He or she may need to find evidence to convince a court to order detention on remand. He or she may also find evidence to convince a court to issue a higher sentence for the defendant. For a defense attorney, the goals are different. He or she may want to find evidence to support an alibi, or to show that a victim wasn't harmed. He or she may also want to find evidence that convinces a court to issue a lower sentence. For a judge, the goal is also different. He or she wants to evaluate the evidence to determine if it is relevant, believable and convincing. The judge may also realize that the criminal charges were not proven. Thus, it is important to understand what needs to be proven. As he or she seeks evidence, a practitioner should realize that evidence is not simply a witness or document that you mechanically present to the court. A witness can describe an event. A document may also describe the event. A video of that event can also be available. If they describe something different, which one is more believable? If they all describe the same set of events, does that make the story more convincing? Evidence can thus be obtained in a number of different ways, and each way can be more or less effective. It is important to understand that an investigation rarely uncovers "the truth." Rather, it uncovers different kinds of evidence that may tell different stories. It is up to the court to eventually decide which "truth" is the most probable. As the practitioner gathers evidence and then evaluates it, he or she should understand how each piece of evidence can be more or less important. He or she should understand how relevant the evidence is to the case. Something that doesn't matter to the case is far less important than something that directly affects some decision by the court. The practitioner should understand how credible the evidence is. In other words, are there reasons to believe the evidence? Are there reasons to mistrust it? If evidence isn't trustable, it shouldn't be very important to a final decision by the prosecutor or the court. Finally, is the evidence convincing? Does the body of evidence as a whole compel the judge to decide in a certain way? Is it internally consistent and well-corroborated? Does it make sense? A lawyer can often be faced with evidence that he or she believes isn't right. How do you challenge that evidence? One way to challenge the evidence is to find contradicting evidence. Another way to challenge evidence, however, is to examine its qualities. Can you question its credibility and make the 8 judge believe it less? Can you challenge whether it is even relevant? Can you make the evidence seem less convincing? Another dimension of evidence is to consider what it proves. Some evidence provides direct proof of guilt or directly shows that someone was injured by the crime. Other evidence suggests that someone may be guilty, or proves something that supports a theory that someone is guilty. Direct evidence and indirect evidence are examples of how a judge determines whether something is more or less probable.