What is Real Evidence?

Real Evidence in Criminal Court Proceedings

It would be hard to imagine a criminal court proceeding that did not involve at least some form of real evidence. In legal terms, this type of evidence refers to objects that have a direct relationship with the events under consideration. Real evidence is not to be confused with demonstrative or documentary evidence even though those types of evidence do involve the use of visual and audio objects.

What Sets Real Evidence Apart?

Real evidence is a tangible object that is believed to have a connection with the course of events that led to the criminal charges. The purpose of introducing the object is to confirm information that is already presented to the court or is in the process of being presented. In short, this kind of evidence can support testimonies and provide another level of information that is needed to determine what really took place.

For example, if a criminal case revolves around the use of a knife to stab the victim, real evidence could be a knife with the type of blade necessary to make the wound sustained by the victim. During the introduction of the knife as evidence, it may also be established that it belonged to the victim and that there is evidence of several people holding the object prior to the stabbing. Depending on the type of testimony provided at the time of the presentation, the object may be accepted into evidence as the weapon used by the assailant.

Another example of real evidence could be clothing worn by the victim or abandoned by the assailant and recovered by the authorities. Introducing the clothing as evidence paves the way for seeking expert testimony about the blood stains on the clothing and whether the stains are a match for the victim or the defendant.

Other Examples of Real Evidence

Real evidence is sometimes referred to as physical evidence. That means any physical object that has a relation to the events under consideration qualifies as real evidence. Along with things like clothing and weapons, there are other forms of real evidence that may be relevant to the case and help to establish who was present when the crime was committed.

Jewelry belonging to the victim is a good example. If the jewelry the victim is seen wearing shortly before the crime occurs is found in the possession of the accused party, the court could consider that to be real evidence.

Accessories like hats or gloves may also fall into this category. The objects may have been found at the crime site or found in the possession of someone other than the owner. Even decorative objects like lamps or fireplace pokers found at the scene may serve as physical evidence if they have some connection to the wounds sustained by the victim.

How Important is Real Evidence?

Even with a number of eye witnesses and strong testimonies, real evidence brings a level of clarity to any criminal court action. It’s not just a matter of providing some type of visual artifact that has some bearing on the case. This type of evidence can help clear up apparent differences between the testimony of two witnesses.

Consider what could happen when two people viewed an event from different vantage points. While they observed the same course of events, their perceptions may vary based on the line of vision and anything that could be interfering with the view. Both individuals are recounting events to the best of their ability but the testimonies don’t agree on all points.

In this scenario, the introduction of real evidence could affirm parts of those testimonies while also explaining why one party observed something the other did not. Perhaps one party thought there was a single gun involved while the other is convinced there were two. Shell casings at the scene may confirm there were two while other evidence demonstrates why the one witness would only have seen a single weapon.

The bottom line is that real evidence is crucial to the outcome of a criminal trial. The evidence has the potential to clear an innocent person charged of a crime as well as point in the direction of the individual who is responsible. When combined with other kinds of evidence, the potential to ensure the truth comes out and justice is rendered increases significantly.

What is the Plain View Search and Seizure?

The Constitution places many limits on the government and law enforcement to make arrests, seize property, and search people and their possessions when they are accused of committing a crime. As with most things, there are exceptions to this protection.

The Fourth Amendment of the Constitution protects citizens from unreasonable search and seizure. Perhaps the greatest exception to this is the “plain view” doctrine.

What is the Plain View Doctrine?

Under the plain view doctrine or the plain view seizure, law enforcement is allowed to seize evidence of a crime without a search warranty if the evidence is within the officer’s plain view. As an example, if an officer pulls someone over for speeding and sees a baggie with what appears to be drugs in the backseat, the officer can seize the evidence. The officer can also proceed with a warrantless search of the vehicle for other drug-related evidence after finding the baggie as the evidence in plain view provided probable cause to search for additional incriminating evidence.

This does not give the officer the right to search the vehicle indiscriminately. If an illegal weapon is found in plain view in the car and the officer finds a packet of drugs in a passenger’s wallet, the officer will most likely be found to have overstepped the boundaries of the law.

When is a Plain View Search and Seizure Legal?

Under plain view search and seizure, the following must take place for the search and seizure to be lawful:

1. Law enforcement had a legal right to be where the evidence was seen. This means an officer can conduct a lawful warrantless search and seizure if he sees marijuana plants growing in your backyard while he is standing on the sidewalk, but not if he trespassed onto your property before he saw the evidence. As another example, a defendant may exit the car and express their desire to return to turn off the lights and close the door. The officer has the legal right to do so in the defendant’s place for safety reasons but if the officer then sees contraband while doing so, he has a right to be in the position from which he sees the evidence.
2. Law enforcement can legally access the evidence. Law enforcement must be able to plainly see the object and have probable cause that it’s illegal or connected to a crime. A law enforcement officer cannot move other objects to get better look at the evidence to make this determination. A plain view search and seizure cannot violate the person’s expectation of privacy.
3. It can be immediately known whether the evidence is relevant or illegal. This means law enforcement must have probable cause the evidence is either illegal (such as an illegal weapon or drugs) and connected to a crime. If it is, the search that follows must then be within the scope of looking for additional evidence that’s related.

Law enforcement can use a flashlight to see what would otherwise be hidden in darkness and evidence will still be considered in plain view. If the evidence could have been seen plainly in daylight, using a flashlight will not be considered an unreasonable search.

“Plain View” Also Includes Hearing and Smelling

A lawful plain view seizure and search does not only include evidence that a law enforcement officer can see; it also includes evidence that may be heard or smelled. If police officer has a police dog, many jurisdictions uphold that an officer can legally conduct a search without a warrant if the drug-sniffing dog signals it has found drugs. The doctrine also extends to evidence an officer hears after a traffic stop, for example, or while walking down a street.

While the plain view doctrine gives police a broader scope with which to conduct search and seizures, there are still rules that must be followed for the seizure and search to be legal. If you have been charged with a crime in connection with a plain view search and seizure, it’s important to consult with a criminal defense attorney as soon as possible.

What is Documentary Evidence?

The law, or rules, of evidence govern articles of truth in legal proceedings. These articles are essentially the proof presented in a case. The law of evidence determines which articles or items can be presented in a legal proceeding and is very important as these articles are used to affect the legal decision, or outcome, of a case. A special type of evidence is documentary evidence.

Evidence is considered documentary evidence when it is reviewed for its content in terms of documentation rather than for its physical properties. Documentary evidence is often misunderstood to mean only written documents. It is certainly true that written documents can be presented as documentary evidence, but the term encompasses many more forms of recorded information. Some examples of documentary evidence include:

• Official documents (i.e. contract, will)
• Business records
• Invoices and billing statements
• Public records (i.e. newspapers, periodicals, court documents)
• Transcripts
• Web pages
• Email
• Voice recording
• Video recording
• Photographs
• Written witness description or confession
• Other recorded documentation

Documentary evidence should not be confused with physical evidence. To be considered documentary evidence, an exhibit must be admitted for its content in terms of documentation. That is, the content rather than a physical property is being examined. At times, an article may present both physical and documentary evidence. For example, if a threatening letter with a fingerprint was found at a crime scene, the fingerprint would be a physical property and thus physical evidence. The content of the letter, however, would be documentary evidence.

Documentary evidence may be considered in a civil or criminal matter. For documentary evidence to be admissible in court, a foundation must be laid prior to presentation of the article as evidence. Failure to do so could cause the evidence to be ruled inadmissible. When laying the foundation, council must consider factors such as identification and authentication, relevance and no undue prejudice, hearsay and the best evidence rule.

When laying the foundation for the introduction of documentary evidence, the evidence must be identified and authenticated through one or more means. Such means include witness testimony, handwriting analysis, voice analysis, distinctive characteristics, public filing or other means of confirming authenticity. Documentary evidence must also be relevant to be admissible. It can be used as direct or circumstantial evidence, but its use must also not cause undue prejudice. That is, documentary evidence is not admissible if the prejudicial factors outweigh its value as evidence or if its admission is intended to cause shock, to mislead, or to confuse the issues.

Many documents also contain some level of hearsay. Conversations in business records, for example, may be recorded by a third party at the time of the transaction. These types of documents must be examined carefully to determine if they meet hearsay exemptions prior to introduction. Finally, to be admitted, documentary evidence must meet the best evidence rule. In most cases for documentary evidence to be admissible, the original must be presented under the “best evidence rule.” Now that file copying is commonplace, the best evidence rule is less important than it once was. However, the opposing party may still raise an objection under this rule. Generally, copies or reproductions are unacceptable as evidence as they raise doubt about the existence or authenticity of the original document.

When the foundation has been successfully laid, documentary evidence is admitted as an exhibit. Testimony may be given to familiarize the judge or jury with the exhibit, but is not documentary evidence in and of itself. Testimony cannot alter the content of the documentary evidence but is rather used to authenticate it. Documentary evidence may be used to present documentation of an object – such as an injury – rather than the object itself. Some examples of documentary evidence exhibits include:

• Medical bills as proof of damages in a personal injury case
• Threatening emails sent to a victim in a protection order case
• Bank statements in a tax evasion case
• Voice recordings of a person discussing the details of a crime
• A diagram of a defective automotive parts in a civil injury case

Documentary evidence can be admitted to meet the burden of proof in a court proceeding. The guidelines governing documentary evidence are in place to ensure that the evidence is trustworthy and relevant to the issues at hand.

What is Demonstrative Evidence?

When a criminal case reaches a courtroom, much of the evidence has to do with the testimonies of witnesses. Those witnesses provide information about what they saw, heard, and experienced as it relates to the case at hand. While this type of testimony is essential in terms of establishing how certain events came to pass, there is another kind of evidence that will also be included during the course of the case. That type of information is known as demonstrative evidence.

What is Demonstrative Evidence?

This approach to presenting evidence relies on the use of objects to provide more comprehensive information about the course of events that led to the present case. The reason behind using objects is allowing jurors and judges the opportunity to harness more of their senses in understanding each aspect of the case. Given the gravity of criminal charges, both the prosecution and the defense may seek to use some sort of object or collection of objects in order to clarify the setting, tone, and sequence of events so that justice is served.

Examples of Demonstrative Evidence

One of the most common examples of this type of evidence are exhibits that are presented to the court and allowed to be entered into the proceedings. In many cases, items of this type are alleged to have some relation to the crime and the site where the event took place. For example, a weapon that is believed to have been used in an assault on the victim may be presented to the court and allowed to be marked as part of the evidence. Depending on the nature of the case, the jurors may be allowed to examine the exhibits during the trial or while the jury is in deliberation.

Photographs are also introduces as this type of evidence. The photographs may be images of the site where the alleged crime took place, of the victim, or candid shots taken just before the action under consideration took place. The goal is to provide a better understanding of the setting in which the action took place and what the results of those actions happened to be.

Sound recordings, especially of interactions between the victim and the defendant, can also prove helpful in a court of law. The ability of jurors to hear what is said and the tone used by each party can have an affect on how they perceive the words exchanged between the two.

Simulations can also be used in a court of law and serve as this type of evidence. Whether using people or utilizing digital technology, the simulation provides a real-time recreation of what the prosecutor or defense attorney perceives as what occurred just before, during, and after the crime took place. This approach requires strict attention to detail in terms of scale, placement of furnishings, and the position and actions of the people involved. Presentations of this type have been known to shed additional light on the case and ultimately impact the decision of a jury.

Laying a Foundation

The use of demonstrative evidence in a court of law requires that it be relevant to the case. Attempting to introduce anything from an item to be identified as an exhibit to asking the court permission to stage a reenactment of an event requires that the legal counsel provide a foundation for the action. In other words, there must be a reason to introduce the evidence and the court must be convinced that doing so will bring additional clarity to the deliberations.

In order to lay that foundation, the lawyer will build on testimony and other forms of evidence already introduced into the trial. Doing so provides a basis for considering the exhibit or demonstration in light of what has already taken place during the proceedings. In the best-case scenario, it will be easy to show why such an action is directly related to the case, the previously presented evidence, and has the potential to make the proper interpretation of the evidence easier for everyone involved.

The ultimate goal of any court is to ensure that those responsible for the criminal offense are convicted and receive a just sentence. That aim also includes avoiding the conviction of a person who is not guilty as charged. By making use of all forms of evidence, including demonstrative evidence, a criminal lawyer is in a better position to ensure those goals are achieved.

If you or a loved one is facing criminal charges, it is crucial to have an experienced criminal defense attorney on your side. The attorneys at Spodek Law Group understand the complexities of evidence law and how to effectively utilize real evidence, documentary evidence, and demonstrative evidence to build a strong defense strategy. Contact us today for a consultation and let us fight for your rights and freedom.