EVIDENCE – On the
Nature of Evidence
By William Kelly
When he wasn’t working
as a policeman, detective, lieutenant and chief of detectives for the Camden
County (NJ) Prosecutors Office, my father enjoyed reading pulp paperback novels
– westerns and private eye mysteries, but two of the books on his permanent
shelf – behind the glass door bookshelf, were some hardbound police manuals,
including a few that I picked up – “The
Detection of Murder” by William F. Kessler, MD and Paul Weston (1953
Greenberg), and “Techniques for the Crime Investigator,” by William Dienstein
(Charles C. Thomas Publishers, Ill,
1952, 1965).
Although textbook
manuals for “policemen, investigators, detectives, prosecutors, lawyers and
judges,” these books read in parts much like the sparse but direct vocabulary
of Sam Spade.
In their “Detection of Murder,” Kessler and Weston
explain quite clearly that there are four cases of death – natural, suicide,
accidental and murder, and “it is the duty of the police to investigate the circumstances
attending the death by examination of the crime scene and questioning
witnesses. His object is to explore the
events that led up to it and to seek a reconstruction of the last hours spent
on earth of the deceased. From this portion of the initial investigation, it is
expected that a reasonable conclusion as to the possible mechanism of death can
be made.”
“Experienced police
officers and medical examiners are astounded by the ease with which the
untrained and the incompetent make positive statements at a death scene –
statements which are entirely at odds with the manner in which these
inexperienced individuals can readily recognize a suicide or an accidental
death but have trouble in marshalling the evidence that points to murder.”
“A corpus delici is the
essential elements of a crime and the criminal agency. In homicide it is
divided into two component parts, the first of which is the death of the
person, and the second is that the death is produced through a criminal
agency.”
“In this connection the
New York Penal Law provides that the following proof of death is required in
all homicide cases: ‘No person can be convicted of murder or manslaughter
unless the death of the person alleged to have been killed and the fact that
the killing by the defendant, as alleged, are each established as independent
facts; the former by direct proof, and the latter beyond a reasonable
doubt…That someone is dead is directly proved whenever a body is found…However
in determining guilt or innocence from circumstantial evidence, there are two
general rules to be observed: 1) The hypothesis of guilt should flow naturally
from the facts and be consistent with them all; 2) The evidence must be such as
to exclude, to a moral certainty, every hypothesis but that of guilt. In other
words, the facts proved must all be consistent with and point to guilt, and
must be inconsistent with innocence.
In “Techniques for the Crime Investigator,”
William Dienstein is more specific and writing directly to the first responding
investigator when he writes: “The job of the investigator is to discover…what
specific offense has been committed, how it was committed, by whom it was
committed, where it was committed, when was it committed and, under certain
circumstances, why it was committed.”
The investigator,
Dienstein said, “must have the ability to stick to a task in spite of the
monotony of it and in spite of many obstacles…. He must have a certain native
ability, an intelligence which enables him to acquire information easily and readily
and which enables him to use this information. He should have a capacity to
think through situations….The investigator must be as intelligent as the
offender.”
“A primary factor of
personal integrity is a sincere desire to arrive at a conclusion based upon
facts. The investigator must be free of bias or prejudice, and cannot let these
emotions interfere with his objective efforts to arrive at the facts.”
“Another requisite is
an understanding of people and the environment in which they live. It is through
this understanding that an investigator is often able to develop leads which
might otherwise escape his attention. The investigator must know what prompts
people to act as they do in various situations. He must know the weaknesses and
strength of people so that he can use them to his advantage, particularly
during interrogations. A knowledge of psychology of human behavior is essential
to the investigator…He must possess that knack of being able to get along with
people, that quality which enables people to confide in him.”
“Investigation requires
thinking and acting, acting based on continual thinking. One mistake may make
invalid months of tedious effort. An investigator cannot seek personal
aggrandizement….does not seek personal credit, but rather seeks to give credit
to others who have assisted him…Commendation is due them for their part in the
administration of justice.”
“The clues that lead to
the solution of an offense lie in the scene of the crime. Therefore, the
investigator must be aware of what constitutes evidence, what are the clues,
where they may be found, and how they may be produced, collected and
preserved.”
“Evidence is anything that may be presented in
determining the truth about a fact in question. Evidence is that which supplies
the means of arriving at the truth. Evidence may be a matter of fact from which
another matter of fact may be inferred.”
“So far as the investigator is concerned, everything
at the scene of a crime that can be used in ascertaining what in fact occurred
constitutes evidence.”
“Evidence is obtained through one or more of the
five senses – seeing, hearing, feeling, smelling or tasting. It is this
evidence, unearthed by the investigator through the use of these senses during
the course of an investigation that enables him to reconstruct the happening,
to identify the person or person involved, and to destroy the alibi of
suspects. From the crime scene, evidence is gathered to establish the fact of
the offense and to identity of the perpetrator. To prove commission of an
offense, the steps which constitute the crime must be taken. These steps are
considered the elements of the crime.”
“The investigator must establish each step of the
crime in order to prove the offense, and in order to establish each step, he
must be aware of the elements in each offense. The elements of a crime are the
aggregate of those factors necessary to constitute the particular offense. Two
elements most common to all offenses are the act and the intent. The elements
are indicated in the statutory definition of the particular offense.”
“the elements of the crime of murder are that the
victim named or described is dead; and the death of the victim resulted from an
act or an omission of the accused; that the accused had a premeditated design
to kill, or intended to kill or inflict great bodily harm, or was engaged in an
act inherently dangerous to others, such as an act which shows wanton disregard
of human life. Unless all three of the above elements are established through
investigation, the crime of murder is not proved, although some other offense
may be proved.”
“Physical evidence found at the scene of an offense
may permit the investigator to reconstruct the manner in which the act was
committed. Such evidence may also identify the perpetrator. He may have left a
personal article which can be traced to him….he may have left his trademark of
operation.”
“There are two types of evidence found at a crime
scene; fixed or immovable evidence and moveable evidence….If the possession of
the evidence is unaccountable for a moment, the evidence is rendered
inadmissible. A general rule to be followed by every investigator is: Nothing
at a crime scene is too insignificant for proper treatment. Cases are never
lost because too much evidence has been gathered and preserved.”
“…Too often an investigator will close a case when
he has secured enough proof to convince himself that the accused is guilty…His
findings must be such as to convince a court that the accused committed an
illegal act. The most common error made by investigators is to pass up evidence
as immaterial and unnecessary. Later, the evidence so passed may be of great
importance. No investigator can tell what observation will be important in the
future.”
“Evidence is always present at the scene of the
commission of any crime. Whether or not the evidence is found is another
matter. That it is not found, does not prove its absence….The perpetrator of a
criminal act must leave traces of his actions. Those traces are part of the
crime scene.”
“One person must be in charge of a crime scene. He
will direct the protection and search….The names and addresses of all persons found
on or adjacent to the scene are obtained…and questioned….and later
interrogated….Witnesses should not be permitted to talk to each other and
complete statements taken.”
“The first act of the search commander, after
witnesses have been detained, is to protect the area not only against curious
bystanders but against curious officials….The next step is a preliminary survey
of the scene to orient the investigator and enable him to get the whole
picture. The investigator will start “cold.” That is, he will have no
preconceived notions of what happened, how it happened, and who might have done
it. What he finds and where he finds it will be the facts upon which he does
his thinking…Starting an investigation with a preconceived notion will lead an
investigator into gross errors by causing him to look for those things which
establish his preconceived idea and to overlook the things which disprove it.
This is usually an unconscious working of the mind…Conclusions must arise from
the findings; findings cannot arise from conclusions.”
“Photography plays a very important part in this
stage of the investigation….for an accurate and paramount record.”
“The investigator cannot belittle the fact that the
actual solution of the offense is in the scene of the crime. It is from the
search of the crime scene and adjacent areas that the means of the approach to
the scene of the perpetrator is established and the means of escape from the
scene is discovered.”
SOURCES OF INFORMATION
“Information is secured from two primary sources:
recorded sources and persons. Investigative activity is made up largely of
searching records and talking to people. Records are consulted as a means of
securing documentary corroboration of verbal information and as a direct means
of obtaining information and unearthing leads. People are consulted for the
purpose of getting information about the subject and situation under
investigation. This information may establish certain suspicions or may direct
the investigator along other lines of inquiry. The ability to secure
information is the chief asset of any investigator.”
“…When evidence is
presented factually and graphically, the judge and jury are in a far better
position to arrive at a logical conclusion than if the evidence is indefinite
and inaccurate. There is no danger of securing too much accurate and detailed
information about a situation that is the subject of an investigation. The
trail of a criminal case should not be a guessing match in which witnesses and
investigators alike participate. The trial should be an accurate and scientific
presentation of the facts. The judge or jury is expected to decide a case on
the basis of fact. To do so, the judge or jury must get the facts. Justice is
dependent upon the presentation of all the facts. The absence of some of the
facts may result in the drawing of unfounded conclusions.”
THRESHOLD TO MURDER
“In trying to arrive at some conclusion as to just
what creates the criminal impulse that drives the knife home or presses on the
trigger of the murder weapon, two major factors must be considered.
The first factor is the circumstances surrounding
the killing. These may involve a period of several years prior to the crime or
they may concern only the situation at the time of the murder. Secondly, the
natural tendencies of the murderer or the suspects in the case must be
considered, as the characteristics of individuals are indicative of the manner
in which they will react in most situations.”
“The investigation into the circumstances of a
murder will reveal the situation which confronted the individual guilty of the
killing, and a knowledge of the characteristics of each suspect will give the
investigator some knowledge of how each of them would react to such a situation.”
“Each of us has a ‘threshold to murder,’ a point at
which our reaction to a situation may result in a killing. An individual born
in the South will seek to avenge a real or fancied insult by the use of arms
much faster than one born in the North. Yet there are ‘fighting words’ which
may result in an altercation ending in murder in any section of the country. It
all depends on the individual and the situation with which he is confronted.”
MOTIVE VS. INTENT
“Motive is that which stems from within the
individual, rather than from without. It is that which incites an individual to
certain actions. Motive is the ‘why’ of an act, the reason for it. Intent is
the result of the motive, and is the bridge between motive and action. Without
intent, no action would be taken.”
“When plans are made to do some act then an intent
to do that act has been made as the result of some motivation. The intent in
murder is to kill. The motive might be anything. Motive or its absence may be
of considerable importance in determining the intent of the defendant.
Murderous intent may be inferred from motive clearly established, while absence
of motive is more than pertinent to the question of intent where it is an
issue.”
IMPORTANCE OF MOTIVE
“In securing convictions for first degree murder it
is imperative that the correct motive be shown to the jury. Conviction for
‘Murder One’ must be supported by proof beyond a reasonable doubt that the
homicide was committed by the accused from a premeditated and deliberate design
to the effect the death of the person killed. It must be shown that there was a
deliberate premeditated intention to kill, and that the killing followed.”
“Proof of premeditation and deliberation requires
proof of some reflection preceding the actual murder. If a killer thinks about
the killing and makes a choice as a result of such mental action, then there is
sufficient deliberation within the law.”
“If the killer was motivated by any of the motives
classified in this chapter, then the possibility of a first degree murder
conviction is enhanced.”
CLASSIFICATION BY MOTIVE
“The motivations for murder can be divided into
seven definite groups:
1) Profit
2) Elimination 3) Revenge 4) Jealousy 5) Conviction 6) Sadism 7) Sex
CONVICTION
Anarchists excuse their crimes, their sometimes
wanton slaughter of the innocent, because of their political beliefs. It is
their fixed conviction that anything, including murder, necessary to carry out
their plans for world domination is permissible because of the importance of their
plans. ‘Political’ crimes, from single murders to mass murder, are likewise
excused by those concerned on the grounds of conviction.”
ELIMINATION
“Removal of the person who happens to be ‘in the
way’ is the determining factor in a great number of murders. In the true
elimination murder the continued existence of the victim is inconvenient or
dangerous to the killer.”
“Lovers remove a husband or a wife who is in the
way, a youth kills a former mistress so he may marry the girl of his dreams,
and the girl of someone’s dreams may kill an unwanted child in order to smooth
the path of a proposed marriage. A blackmailer may be killed as the only
feasible method of denying continued demands for money. These, and the killing
of professional criminals, are the murders motivated by a desire to eliminate
the victim.”
“Professional criminals do not usually kill for any
other motive than elimination. Certainly, they may kill in a rage, for revenge,
or out of jealousy, but they are a group with a cautious attitude towards
murder.”
“And those concerned with organized crime, vice,
gambling, and narcotics, will also kill. Perhaps it’s a stool pigeon who is to
be eliminated, a business competitor, or the ‘boss’ himself. Murder is the
method of discipline among the gangs of the organized underworld. It is also a
regular technique of such business.”
“Elimination killings which occur among gangsters
and other criminals are truly difficult to unravel. A body is found and police
know of several people who would profit from the elimination of the dead man,
others who may have threatened to ‘get him,’ and some who may have thought him
as a man that ‘had to go.’”
“However, in over 90 percent of these gang killings
the persons who have the motive for killing never handle the gun that fires the
fatal shots, nor drive the car that may be used in the killing. They are
involved in the conspiracy and are guilty of murder because they procured the
‘trigger men’ who did the actual killing, but they have an alibi to prove they
were many miles away from the scene of death at the time of the homicide.”
“There are few witnesses, fewer that are willing to
testify, and even this number is reduced by murder when it becomes known they
are willing to ‘finger’ a killer.”
MODUS OPERANDI
“Modus Operandi was developed early in this century
by Major General Sir Llewelyn W. Atcherley of Yourkshire, England. Modus
Operandi means method of operation. The modus operation file consists of
records that describe the manner in which a criminal operates. These records
are classified and filed in such a way as to assist in identifying the crime as
one committed by a known criminal or as one of a series committed by an
unidentified criminal.”
“People have a tendency to do particular things in
individual ways. They develop habits of action from which they seldom vary –
habits in doing their jobs, habits in traveling, habits in the everyday,
routine activities…The way in which an offender commits an offense will
distinguish him from others committing the same offense…He leaves his calling
card at the scene of every offense. The place and method of attack identify
him. The modus operandi system is a useful tool in identifying a crime as
having been committed by an unknown criminal.”
“The success of the Modus Operandi system depends
upon the ability of the investigating officers and the ability of the operator
of the file. The investigating officers must be able to discover and report
methods and facts essential to the proper classification of the crime. The
operator of the file must be able to classify the data secured and to make
searches for data already available.”
RECONSTRUCTION OF LAST HOURS
“One of the important factors in an initial
investigation is to reconstruct the last hours, even the last days, of the
deceased. Who saw him last? With whom did he eat his last meal? Who spoke to
him over the telephone in his last hours? Where he went and what he did in the
period preceding death are what must be reconstructed. And it is the
reconstruction of this period that most often reveals the true facts
surrounding unexplained and unexpected death.”
INTERROGATION
“The interrogation of persons concerned in a
suspicious death is directed towards exploring the circumstances that lead up
to the moment of death, and possibly the facts surrounding the killing.
Friends, associates, as well as relatives are questioned. Neighbors are
interviewed for what they may know of the victim and for information as to
persons who may have visited the deceased. “In some instances a house-to-house
canvas of the neighborhood is of value. Someone may have noticed a stranger in
the neighborhood or a resident acting strangely. Someone who saw the murderer
enter or leave a block may be found. Perhaps a canvas may reveal that the
murder is a resident of the neighborhood. Sudden flight, agitation, etc. are
warning signs. Photographs, address books, letters, and other personal papers
are examined minutely for the names of individuals who may through light upon
the case.”
INTERROGATION OF SUSPECTS –
BK Notes: New Yorker Magazine (Dec. 2013) has an
article about the nature of police interrogation techniques – and why the
procedure practiced by most American law enforcement agencies – by matter of
policy, is that called the Reid Technique – by former Chicago policeman John
Reid?Sp., which promotes bogus psychological techniques that attempts to obtain
a confession from suspects, often obtaining false confessions.
I believe that this technique was practiced by
Dallas homicide chief Capt. Will Fritz.
When it was realized – primarily by the British –
that the techniques advanced by Reid were based on bad psychology – since
proven wrong – they – the British devised an alternative interrogation
technique that is more persuasive in obtaining accurate information, develops a
personal narrative and is conducive in detecting and unraveling lies.
The Reid technique, according to the author of the
New Yorker article and new book on the subject, was written by a lie detector
operator – machine technician based on a science that falsely believed that
detection could be determined by measuring anxiety and body language, and the
subject (suspect) manipulated into confessing to the crime, which they did even
if innocent.
Those who were in Captain Fritz’s office when Lee
Harvey Oswald was interrogated, all expressed the belief that Oswald was not
only a cool and composed customer, but that he had been trained in
counter-interrogation techniques.
