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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.)
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