On the Nature of Evidence

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.