ML; A MODEL APPROACH TO CRIMINAL INVESTIGATION Thesis for the Degree of M. S. MICHIGAN STATE UNIVERSITY DAVID H. LEFLET 1971 LIBRARY ‘I 'Michigan State Univenity . °UDULFIIIFI AI 5%;th ., :.-- ?§fi “1”} L 3'"; ‘1 is {\K . 3:: FJOr-J'!’ «'1 cur-9 I“ I J , ‘.,,' {tin “I '0. W5,“ , o . in par MACI: A MODEL APPROACH TO CRIMINAL INVESTIGATION BY David H. Leflet AN ABSTRACT OF A THESIS Submitted to Michigan State University in partial fulfillment of the requirements for the degree of MASTER OF SCIENCE School of Criminal Justice 1971 APPROVED: PLACE expres se 5 mere descri; | the reader of fieinVQstig; MACI . ‘A h's.~. ”9:106 “1t...“ “220mm, inv Hose-SS of Criminal iI ABSTRACT MACI: A MODEL APPROACH TO CRIMINAL INVESTIGATION BY David H. Leflet MACI is a unique model designed specifically to pro- mote investigative efficiency. Unlike other approaches, MACI expresses a procedure for investigation as opposed to a mere description of the events which occur during the course of an investigation. While description may inform the reader of "how crimes are solved," methodology apprises the investigator of "how to solve crimes." MACI has been created by integrating the scientific method with general systems theory. Using the systems ap- proach, investigations can be viewed as a structure and process of interrelated parts. The investigator viewing criminal investigation as a conglomerate mass of indepen— dent parts will often fail to perceive significant relation- ships between the various events. The scientific method utilizes the element of rational logic to coordinate and define the relationships between the elements of empirical observation and experience with the elements of law and legal value. The scientific method can be used to super- impose order on what would otherwise tend to remain in a disorganized state of flux. MACI incorporates both the advantages, and certain disadvantages, of general systems 23C?" and the S The COT‘IC 5,-1.3: 3:; are si.~ :f criminal im‘ re simply a 5': iIe case of prc :favored stat” anamts to ree tier. of the cr The cap degend primari feztiveness o aetiroach; and EEEIopriate “131 a “set 169396 OE re tiOI‘I GHQ .11 - . 1311c fEc+ David H. Leflet theory and the scientific method. The conditions which encourage effective problem- solving are similar to those which promote the effectiveness of criminal investigation. Basically criminal investigations are simply a specialized type of problem—solving. As in the case of problem-solving, the investigator starts with an unfavored state of conditions (the unsolved mystery), and attempts to reach a more favorable state of conditions (solu- tion of the crime). The capacity of the investigator to solve crimes will depend primarily on the same factors which determine the ef- fectiveness of any problem—solver: the correct "set" or approach; and the ability to compile and manipulate the appropriate information. MACI will provide the investigator with a "set for problem-solving" which offers the highest degree of reliability and objectivity possible with any ap- proach because of MACI reliance on the scientific method. Further, not only is MACI designed for collecting informa- tion which is available in the system and relevant to the case in issue, because of its relationship to systems theory, MACI also provides for the collation of new information as it becomes available throughout the course of the investiga- tion. Once the information has been assembled, the model will indicate where and how the data can be used most ef- fectively. Even with MACI however, detrimental character- istics of the investigator may limit the effectiveness of the investigation. S'mce It}. iteI investig- at Issue at this 'estigation wi‘. ;::eess 0E inv-I 139 models 15;. static) be suff While s :5 investigat; 3’3: haVe fail be related tc Vi"? ' c ”m“ 1118er .c . , “‘ Rimmed The I 395.15th9 kfi: is a: as a Prot. 'Stin David H. Leflet Since MACI is a new approach to the problem of crim- inal investigations, the potential of this method is not known at this time. While the techniques of criminal in- vestigation will remain substantially the same, the actual process of investigation will be significantly altered by the models approach. This change in procedure however, should be sufficient to improve the quality of investigations. While some investigators may themselves use a method of investigation which is both logical and systematic, these men have failed to articulate the method in a form which can be related to other participants in the investigative field. MACI itself is singular and without precedent in the field of criminal investigation. The greatest obstacle facing the use of MACI is the resistance on the part of investigators to innovations. Yet rather than resist a new idea, every effort should be made to perfect and improve the foundation laid by MACI. While MACI is assuredly at a primitive state in its development, as a prototype, it may have the potential for future contri- bution. Certainly any possibility which might increase in- vestigative efficiency should be seriously considered. The major phases of MACI have been presented as separate chapters. The reader should note the correspon- dence between the steps in the model and the titles of various chapters in the thesis. MACI: A MODEL APPROACH TO CRIMINAL INVESTIGATION BY .4 P" Q \ David HLHLeflet A THESIS Submitted to Michigan State University in partial fulfillment of the requirements for the degree of MASTER OF SCIENCE School of Criminal Justice 6:) David H. Leflet 1971 While a. 3: indirectly " cite the EC :all of duty . 3.31:9. financed Austen c.1135 assed him w: :erbers of I ('3' 219. who Tumel’ for tions; to ACKNOWLEDGEMENTS While many people have contributed either directly or indirectly to the writing of this thesis, I would like to cite the following people for service far beyond the call of duty. Sincere appreciation goes to: my family who have financed large portions of this thesis; to my chairman, Winston Gibson, who has had much patience when I have har- assed him with problems related to the thesis; to the other members of my thesis board, Robert Trojanowicz and Clarence Romig, who have also given their time and consideration to this thesis; to Leon Weaver, Victor Strecher, and Ralph Turner for allowing me to subject them to my ideas and ques- tions; to Detective Staff Sergeant Charles Weirman, Detec- tive Sergeant Ray Valley, and Corporal LeRoy Fladseth from Michigan State Police for encouragements and constructive criticism; to Lieutenant James Nelson from Meridian Township Police for the Opportunity to discuss MACI; and to Miss Sherry Wells for undertaking the onerous task of proofread- ing the first draft of this thesis. To all these people I offer my deepest thanks. I would also like to thank Phyllis Groenewoud for typing the final draft of this thesis, the quality of which speaks for itself. ii ”"3"“? .31. a an I. INTRODZ Scie AUDAIA w 5*E. aka: I. but :i‘: I 3 A .,3'I>.vc1.r.ants v] T h a W“ IAI BACK OF BOOK TABLE OF CONTENTS CHAPTER PAGE I. INTRODUCTION . . . . . . . . . . . . . . . . . 1 Scientific Method . . . . . . . . . . . . . 6 Systems Theory . . . . . . . . . . . . . . . 9 Definition of Terms Used . . . . . . . . . . 13 Further Considerations . . . . . . . . . . . 15 II. SITUATION GENERATES A PROBLEM . . . . . . . . 20 III. PRELIMINARY INVESTIGATION . . . . . . . . . . 22 IV. FORMULATE OBJECTIVES . . . . . . . . . . . . . 30 V. COMPILE INFORMATION . . . . . . . . . . . . . 36 Collection of "Facts" Relevant to Problem . 40 Observation and Experience . . . . . . . . . 48 Sources of Information . . . . . . . . . . . 55 VI. PREPARE INPUT DATA . . . . . . . . . . . . . . 63 Forms of Evidence . . . . . . . . . . . . . 64 Real evidence . . . . . . . . . . . . . . 64 Documentary evidence . . . . . . . . . . . 66 Testimonial evidence . . . . . . . . . . . 67 Judicial notice . . . . . . . . . . . . . 68 Types of Evidence . . . . . . . . . . . . . 68 Direct evidence . . . . . . . . . . . . . 68 Circumstantial evidence . . . . . . . . . 69 iii Me Ix Ex?) X As; A I D E XII. (f) CHAPTER Cumulative evidence . . . . . . Corroborative evidence . . . . . VII. PROCESS INPUT DATA . . . . . . . . . Relevancy . . . . . . . . . . . . Materiality . . . . . . . . . . . Competency . . . . . . . . . . . . Opinion evidence . . . . . . . . Hearsay evidence . . . . . . . . Secondary evidence . . . . . . . Privileged communications . . . Evidence concerning character or VIII. FORMULATE HYPOTHESES . . . . . . . . Methods of Formulating Hypotheses Experimental method . . . . . . Intuitive method . . . . . . . . Chance . . . . . . . . . . . . . Reconstruction of crime scene . IX. EVALUATE HYPOTHESES . . . . . . . . X. ANALYZE INFORMATION . . . . . . . . XI. DEPARTMENTAL ACTION . . . . . . . . Alternatives . . . . . . . . . . . Recycle . . . . . . . . . . . . Case closed or inactive . . . . Satisfy objectives . . . . . . . XII. SATISFY OBJECTIVES . . . . . . . . . iv PAGE 71 71 73 74 76 76 77 79 81 82 83 86 88 89 94 97 98 100 109 116 121 121 122 122 124 gr‘ “I” "R IL“ A L. m. CASE E W. CONCL EISLI’JG RAP HY CHAPTER Recover Stolen Pr0perty . . . . . Provide Evidence of Guilt . . . . Apprehend Suspect . . . . . . . . Promote Porsecution and Conviction XIII. CASE PREPARATION . . . . . . . . . . Final Report Outline . . . . . . . Courtroom Testimony . . . . . . . Prosecutors . . . . . . . . . . . XIV. NEW INFORMATION . . . . . . . . . . XV. CONCLUSION . . . . . . . . . . . . . BIBLIOGRAPHY . . . . . . . . . . . . . . . . PAGE 124 125 126 128 130 136 137 137 139 142 151 Cr mine tejudicial ; “to adjudicate :aeinto cus iirected tow; him, and pro' "PEStigations PrCCESS is E Elected, i Ves+ ~19ator‘I . Crim ICE. '1- Offence depend the fox aFPIOa¢ he de‘ has-lg Not deterrent tIEament Ia“ ' J‘hemlSe “-““‘-“ . 1v. Illinois CHAPTER I INTRODUCTION Criminal investigation is the preliminary phase of the judicial process. While investigators are not supposed to adjudicate or punish, they are supposed to apprehend and take into custody. Investigation for the prosecution is directed towards identifying the perpetrator, apprehending him, and proving his guilt beyond a reasonable doubt. In- vestigations provide the framework within which the judicial process is exercised; prosecutors must rely on the evidence collected, analyzed, summarized, and presented in the in- vestigator‘s report. Criminal investigation is the keynote of police serv- ice. The detection and apprehension of the criminal offender and production of evidence against him all depend upon it. It is the point at which society brings the forces of law and order into sharp focus in its approach to the problem of crime and the criminal. The detective function--crimina1 investigation--is the basic feature of modern police service. Not only does apprehension and conviction have a deterrent effect on crime, the process can also lead to treatment and rehabilitation of an individual who would otherwise remain deviant. Other functions of apprehension lV.-A. Leonard, The Police Detective Eunction (Illinois: Charles C. Thomas, Publisher, 1970). p. l. adconviction geogle for a : Axiom \pxmis‘r Moon Ix oiinproving The pc ily respc derable I very litt operation Prelimina Commissic related ' further police 6 and date 0f arres that arI not be “95$ as and conviction include incapacitation (removal of those people for a time who are a threat to society) and retri- bution (punishment for criminal offenders). Much research is now being conducted on the possibility of improving the investigative function. The police patrol and detective forces are primar- ily responsible for apprehension. Despite the consi- derable resources committed to apprehension operations, very little is known about what aspects of these operations lead to high apprehension probability. Preliminary studies conducted for the National Crime Commission indicated that response time was closely related to apprehension, but even that conclusion needs further verification. More careful studies in selected police departments should explore the aspects of patrol and detective operations that now are most productive of arrests. The study should identify those activities that are inherently fruitless so that resources need not be wasted on them, or alternatively, so that their weak aspects can be bolstered. In response to the need for improving the effective- ness and efficiency of criminal investigation, the following study proposes the use of an investigative model which has been constructed specifically for the needs of the criminal investigator. Models in ordinary language are frequently used in systems theory where a system of ideas cannot be formulated mathematically or as a mathematical construct. The value of a verbal model should not be underestimated. It should be emphasized that in many important problems it is not possible to build really quantitative models. The primary function of a model is "explanatory," to organize our thinking. As I have already stated, 2Alfred Blumstein, A National Program of Research, Development, Test, and Evaluation of Law Enforcement and Criminal Justice (Arlington, Virginia: Institute for De- fense AnaIySis, 1968). PP 36- 37. the essenc; techniques not follow to compare terms wheni that can 12 The PACE itat it exhib; ;Lained, crim; 'mless there i fine model and eerily change EID‘I-‘ide a me t. 3.5. alternati Though tion from amc 51015 must S1 'iational be] the 310511 sat era‘s one has decis'lons, t 1fi~ "“1 Ench de< the essence of systems analysis is not mathematical techniques or procedures, and its recommendations need not follow from computation. What counts is the effort to compare alternatives systematically, in quantitative terms when possible, using a logical sequence of steps that can be retraced and verified by others. The most obvious prOperty of a satisfactory model is that it exhibits an analogy with the phenomenon to be ex- plained, criminal investigation. Models are not useful unless there is some correlation between the structure of the model and the phenomenon. While models will not neces- sarily change the substance of the phenomenon, they will provide a methodology for identifying problems, objectives, and alternatives. Though models may suggest a preferred course of ac- tion from among possible alternatives, the hard—core deci- sions must still be made by those people in authority. "Rational behavior" can be defined as carefully selecting the most satisfactory available means to whatever reasonable ends one has in mind. While models cannot make hard-core decisions, they can provide a rational methodology for mak- ing such decisions. The model constructed for criminal investigation has been devised by combining steps and procedures found in both the scientific method and systems analysis techniques. The similarities between the scientific method, systems analysis 3E. S. Quade, "Systems Analysis Techniques for Planning- Programming— Budgeting," in Planning Programming and Bud etin : A Systems Approach 22 Management, F. Lyden 553 E. M11 er, editors (Chicago: Markham Publishing Com- pany, 1970), p. 303. emiqoes , ar. {‘4 '1) ,J J) g: (D U) (D r f F. *4 m r4 U) r} techniques, and the investigative model can be seen by com- paring these two other approaches with "MACI." (Note: A "MACI" is an acronym formed from the first letters of the phrase "Models Approach to Criminal Investigation." Hence- forth, the investigative model will be referred to as "MACI.“) I. SCIENTIFIC METHOD4 Problem Preliminary hypotheses Collect additional facts Formulate hypotheses Deduce further consequences Test consequences Application \IOSU'l-waI-J II. SYSTEMS ANALYSIS TECHNIQUE5 1. Formulate the problem 2. Select objectives 3. Design alternatives 4. Collect data 5. Build models 6. Weigh cost against effectiveness 7. Test for sensitivity 8. Question assumptions 9. Reexamine objectives 10. Open new alternatives (return to step one) MACI is presented diagrammatically on the following page. While MACI is an integration of the above approaches, there is nothing to preclude the possibility of using MACI in conjunction with systems analysis. Step five under "Systems Analysis Techniques" calls for the construction of 4Irving Copi, Introduction to Logic (London: Mac- millan Company, Collier-Macmillan fImited, 1969), PP- 387-94. 5Quade, pp, cit., p. 298. TEA IN- FLEBTION NEW IN- FORMATION W .___,. PRELIMILRY *———> COMPILE -——-> PREPARE .____, PROCESS '“——* FORMULA I--—§ ANALYZE Diagram of MACI SITUATION GENE RATE S PROBLEM INVESTIGATION CRIMINA: PROBLEM r-——’ FORMULAIE OBJECTIVES ¢————- INFORMATION ‘———- INPUT DATA Q——— INPUT DATA +——-—- E HYPOTHESES +— I l l i ‘—-’ CONF IRM lHYPOTHESES INFORMATION ——-—-> SITUATION GENERATES <————' I, SITUATION GENERATES NON-CRIMINAL PROTEM ACTIVITY REPORT 'F—F EVALUAT HYPOTHESES——> REJECT HYPOTHESES RELEASE REPORTS OR INACTIVE RECYCLE6—DEPARTM1NTAL ACTION—9 CASE CLOSED l RECOVER SATI SFY lOBJECTIVES 1. PROVIDE EVIDENCE STOLEN PROPERTY NO JUDGMENT REL SE SUSPECT p. APPREHEND SUSPECT OF GUILT CASE P RE1PARAT ION‘ ADJUDICDlTION—-> CONVICTION—~p CLOSE CASE NO CONVICTION xiels. MACI fact. '[Tlhe *~ construct and tion of the r- 33 the same t tens analysis MACI h ficiency. Cc systems them :f the model 13 a Separat “Sci PYOCEed IOg reasonable to CSe the reaSOni exP‘eIie CEived OI Rezard to models. MACI can be used to satisfy this directive. In fact, "[Tlhe essence of the method [systems analysis] is to construct and operate within a 'model,‘ a simplified abstrac- tion of the real situation apprOpriate to the question."6 By the same token, MACI can be used independently of sys- tems analysis technique. MACI has been designed to promote investigative ef- ficiency. Consideration of both scientific method and systems theory will provide some insight into the nature of the model. Each major phase of MACI will be discussed in a separate chapter. Scientific Method "Scientific" refers to any reasoning which seeks to proceed logically from observable facts of experience to reasonable explanations for those facts. Anyone can be said to use the scientific method who follows a general pattern of reasoning from evidence to conclusion which can be tested by experience. Experience can be defined as anything per- ceived or lived through. WOuld any type of investigator hazard to exclude either the empirical element of observa- tion or the rational element of logical reasoning from his investigative function or process? The fact that empirical observation and logical reasoning are both intrinsic and principal parts of the scientific method would indicate 6Ibid., p. 295. that such a I“ sciences. The sc ledge, and sc inactive an: sad to esta’; facts of expe fast . Deduc exfoliate in; tion cannot be used to t infer what 4 reasoning a cal reasonj Mile indm EY“. ‘. VJ; ence t 13 draw '1: lnéuCtiOn. that such a method should not be confined to the natural sciences. The scientific method, built on logic, tested know- ledge, and scientific principles provides for use of both inductive and deductive reasoning. Inductive reasoning is used to establish true or factual propositions concerning facts of experience, and is based upon the observation of such facts. Deduction, on the other hand, is used to deduce or exfoliate implications from accepted truths. While deduc- tion cannot be used to acquire genuinely new truths, it can be used to test propositions, to predict the future, and to infer what the past must have been. Inductive and deductive reasoning are not mutually exclusive; both methods of logi- cal reasoning are indispensable to the criminal investigator. While induction is primarily concerned with the adequacy of evidence to establish its conclusions, deduction can be used to draw implications from the prOpositions established by induction. At least one author would suggest that deduction is more difficult for the criminal investigator than induction. To lend direction to the investigative process, the investigator for the prosecution uses his reasoning powers and the known facts to construct hypotheses and to draw conclusions relating to the problems of who com- mitted the crime and how it was accomplished. He may use inductive reasoning, passing from particular to general in order to logically interpret the events under scrutiny; or he may reverse the order and reason deduc- tively, testing the validity of the particulars in relation to the general theory. This is the most dif- ficult phase of investigation, for it calls upon the investig at tangibles . While I its discovery attee comp let. or fact inde; interpret atic and inference i13115 to make DeSpiI achieving ab used to achi PIObabllistj tainty is n: fish Provi 35 the evid fit the fac the One th. E'Ve C": identif Mos Cons'lc eYideI tlon ‘ t g A, investigatgr to evaluate both the tangibles and the in- tangibles. While the scientific method has proven successful in the discovery of truth, no method of investigation can guar- antee complete objectivity; truth cannot exist as an object or fact independent of the mind. Any perception involves interpretation and inference. Nor are these interpretations and inferences free from bias; both rely on ideas and para- digms to make experience intelligible. Despite human frailty and the impossibility of achieving absolute certainty, the scientific method can be used to achieve high degrees of certainty by accepting the probabilistic theory of verification. Because absolute cer- tainty is not possible, the alternative or theory is true which provides the highest degree of probable truth in light of the evidence which actually exists. Several theories may fit the facts more or less, but the most probable theory is the one that fits the facts better. Even fingerprints cannot provide absolute certainty of identification. Most law enforcement officials, judges, and juries consider that a fingerprint can constitute conclusive evidence by serving as a means of positive identifica- tion of a person. The point often overlooked is that the positive identification rests merely gn‘a very large {3er ability. 3 “—— 7William Turner, (cons. ed.), Case Investigation (San Francisco: Aqueduct Books, A Division of the Lawyer Co- Operative Publishing Company, 1965). p. 6. 8Paul Kirk, Crime Investigation (New York: Inter- science Publisher, Inc., 1953), P. 20. Fortune it not requir: decry is acc» satisiaction . ration is Sti‘; verdict may I. ruled by a bi theory can ej the facts so To re VEStigator I to require 'v’iCtion of Of the irLI‘. Fortunately for the criminal investigator, the courts do not require the production of absolute certainty. A theory is accepted as true when it can be proven to the satisfaction of a legal tribunal (judge or jury). Confir- mation is subject to the vicissitudes of time; an accepted verdict may be refuted by new information or simply over- ruled by a higher court. Once refuted, the old verdict or theory can either be modified or completely abandoned if the facts so demand. To require absolute certainty from the criminal in- vestigator would preclude the possibility of conviction. Yet to require less than certainty may result in the unjust con- viction of an innocent suspect. To provide for protection of the innocent as well as for conviction of the guilty, the court has decided to allow conviction only where evidence is sufficient to support a high degree of probable guilt (guilt beyond a reasonable doubt in a criminal trial). Since the scientific method is the most assured technique yet devised for establishing high degrees of probable truth, this method should promote justice for both innocent and guilty parties. Systems Theory "System" can be defined as an assemblage of objects united by some form of regular interaction or dependence and performing a common function or group of functions. While systems have been studied for centuries, something new has emerged in the last few decades: the tendency to study a s-Isten as a 1‘ tart . The bi. as a living c sanction of Xothing pl tradition for princ spective sociologi venientlj models, eralized elements USin< built Which “estisatior reasonabh. .t. “ “‘e PIOCES £111 have Recess r Erowth’ c AG" Vv u ya! ajlc Etch as I +‘-\ EVE fOuI‘I 10 system as a living organism rather than as a conglomerate of parts. The belief that criminal investigation can be viewed as a living organism is largely responsible for the con- struction of MACI. Nothing prescribes that we have to end with the systems traditionally treated in physics. Rather, we can ask for principles applying to systems in general, irre- Spective of whether they are of physical, biological or sociological nature. If we pose this question and con- veniently define the concept of system, we find that models, principles, and laws exist which apply to gen- eralized systems irrespective of their particular kind, elements, and the "forces" involved. Using the living systems framework a model can be built which is applicable to any organization. Criminal in- vestigations when viewed as a living system will have a reasonably well defined organizational structure. Many of the processes performed by the investigative organization will have counterparts in the living system: input/out process relationships; adjustment processes; evolution; growth, cohesiveness and integration; pathology; and finally, decay and termination. Living systems theory and notions such as wholeness, growth, and differentiation have provided the foundation upon which MACI was built. While classical systems theory applies to classical mathematics, general systems theory has much wider applica- tion. The subject matter of general systems theory is the formulation and derivation of those principles which are 9Ludwig von Bertalanffy, General Systems Theory (New York: George Braziller, Inc., 1968), p. 33. valid for “SS Genera rive, frc tion , cer. to app 1y Not or deration the also he give; "File 8 organize directly that ex< insuffi tional the inf goal ac EN 9‘. Siro‘gld no I IRmd in ijectivE 11 valid for "systems" in general. General systems theory . . . [is an attempt] to de- rive, from a general definition of "system" as a complex of interacting components, concepts characteristic of organized wholes such as interaction, sum, mechaniza- tion, centralization, competition, finality, etc., and to apply them to concrete phenomena. 0 Not only does the systems approach take into consi- deration the objectives of an organization, thought must also be given to related problems and methods of solution. The system model explicitly recognizes that the organization solves certain problems other than those directly involved in the achievement of the goal, and that excessive concern with the latter may result in insufficient attention to other necessary organiza- tional activities, and to a lack of coordination between the inflated goal activities and the de-emphasized non- goal activities. Even so, the importance of formulating objectives should not be underestimated in systems theory. Goals must be defined before collateral problems can be determined. Quade identifies five elements of analysis which must be found in every systems theory model with formulation of the objectives being the first and most essential task. 1. The objective (gr objectives). Systems analysis is undertaken primarily to help choose a policy or course of action. The first and most important task of the analyst is to discover what the decision-maker's objectives are (or should be) and then how to measure the extent to which these objectives are, in fact, at- tained by various choices. This done, strategies, policies, or possible actions can be examined, compared, 1°Ibid., p. 91. 11Amitai Etzioni, Modern Organizations, Foundations In Modern Sociology Series (New Jersey: Prentice-Hall, 1964), p. 17. by which may be pc for each 3. '1'? tive f0? tain Spe' purposes A. P: stylized the cans question 5. I by whici bility. effecti 5€fore one test solut Etiate obj filly Cons; cantingen 12 and recommended on the basis of how well and how cheaply they can accomplish these objectives. 2. The alternatives. The alternatives are the means by which it is hoped the objectives can be attained. They may be policies or strategies or specific actions or in- strumentalities and they need not be obvious substitutes for each other or perform the same specific function. . . 3. The costs. The choice of a particular alterna- tive for accomplishing the objectives implies that cer- tain specific resources can no longer be used for other purposes. These are the costs. . . 4. A model (or models). A model is a simplified, stylized representation of the real world that abstracts the cause-and-effect relationships essential to the question studied. . . 5. A criterion. A criterion is a rule or standard by which to rank the alternatives in order of desira- bility. It provides a means for weighing cost against effectiveness. Before one can define the right problems and discover the best solution it will be necessary to identify the appro- priate objectives. While objectives are certainly not the only consideration, solution to derivative problems will be contingent on formulation of the objectives. Once the objec- tives have been identified, systems analysis will provide a methodology for identifying the essential features of com- plex problems associated with the objectives and indicate areas for investigation of the problems. In addition to input, conversion processes, and out- put, other parameters of systems theory include components as feedback, restriction, and control. Feedback, which is one of the special characteris- tics of the system. It is that process which measures the quality of the output. It represents a control sub- system which permits a comparison of the output with 12Quade, gp. cit., pp. 296-97. systems p fornance in raisin feedback the input to which I; MCI, not of the output, 33’ 0f the o; conviction (1.; fications WP; Ship-Cave, < Rest gsklthal irii‘lg enous :aint a i n ‘ bfien de Ve QYYa bi‘yr’ doe 13 systems performance criteria. If the criteria of per— formance in the system are effectiveness and efficiency in raising financial and social status of the poor, feedback will Show the results achieved in relation to the inputs. Feedback can be structured as a spg-system to which cost-benefit analysis can be applied. In MACI, not only will feedback be used to measure the quality of the output, feedback will also have an effect on the qual- ity of the output. As the potential for prosecution and conviction develops, feedback can be used to initiate modi- fications which further promote realization of the terminal objective, conviction of the guilty party. Restriction refers to exogenous limitations on the system such as those imposed by legal, social, moral and political considerations. Control, on the other hand, is indigenous to the system. The purpose of control is to maintain or improve standards of performance which have been developed and accepted. The necessity of control how- ever, does not preclude the possibility of cooperation. Definition g£_Terms Used Investigator. The term "investigator" in this study will be used in preference to such titles as "detective" or "agent" because of its more general nature. The investiga- tor will commonly be a member of a department or agency who is assigned to investigative tasks. The function of the l3Helen O. Nicol, "Guaranteed Income Maintenance: A Public Welfare Systems Model," in Planning Programmigg and Bud etin : A Systems Approach to Management, F. Lyden 533 E. MIIIer, editors (Chicago: MEEkham Publishing Company, 1970), p. 317. investig ator locate, and - to prove gui T the process criminal off Black‘ s Law in; manner -. To 1 servat' to exa find C taking Wh: inVestiga P3611311“; blt at t indici al \ ‘9 ; Jr‘s 5e an S'ys ti: ‘ Se 14 investigator will be to identify the perpetrator; trace, locate, and apprehend him, and provide evidence sufficient to prove guilt beyond a reasonable doubt in a criminal trial. Investigation. "Investigation" can be defined as the process of gathering evidentiary material relating to criminal offenses for use in future judicial proceedings. Black's Law Dictionary defines investigation in the follow- ing manner: To follow up step by step by patient inquiry or ob- servation; to trace or track mentally; to search into; to examine and inquire into with care and accuracy; to find out by careful inquisition, examination, and the taking of evidence. While prosecuting offenders is not a direct or primary investigative function, investigation should be viewed as a preliminary phase of the judicial process, separate from it but at the same time providing a framework within which the judicial process is to be exercised. Webster's New Twentieth Century Dictionary offers this definition for investigation: an investigating; careful search; detailed examination; systematic inquiry; as, the investigations of a scien- tist; the investigations of a district attorney. Syn.--examinatign, inquiry, inquisition, research, search, scrutiny. 14Henry C. Black, Law Dictionary (St. Paul: West Publishing Company, 1951), p. 960. 15webster's New Twentieth Centurnyictionary, 2nd ed., revised under the supervision of Jean L. McKechnie (New York: The World Publishing Company, 1968), p. 966. Comb in ". A he define Further Cons i First @1101 i 0! Ce n .inal inves1 2‘9 1PESEDOI‘is ienses, It “Ch Simp: 15 Combining both of these definitions, investigations can be defined within the sc0pe of this study as: the care- ful and systematic examination of facts and taking of evi- dence. The word "case" in this study will be used inter- changeably with and as a synonym for "investigation." Further Considerations First, MACI can, and should, be used by both uniformed patrol forces as well as by detectives. This method of cri- minal investigation can be used by any investigator who has the responsibility for investigating specified criminal of- fenses. It should not be used solely by the detective unit which simply provides follow-up investigative service after unsuccessful investigation by the uniformed patrol force. Both uniformed patrol forces and detectives do engage in the practice of criminal investigation. The detective division was created primarily for the purpose of assisting the patrol force to accomplish its mission; the goals of the patrol force and the detective division are essentially the same. Regardless of which group performs the actual opera- tion, investigation will still remain the process of gather- ing evidentiary material relating to criminal offenses for use in judicial proceedings. Second, while investigation for the prosecution is directed towards providing evidence of guilt sufficient to prove criminality, the actual success of the criminal investig ation inal. lt wi station of ti“. failed its pr Most c investigation crime. Yet w activities a: The f EStablishim; are two €18: ted: the C “CY 13 1 Eroven the Sléle {Or \ ufl“. : . " Crlme . 16 investigation must ultimately be determined by a legal tri- bunal. It will be the contention of this study that if con- viction of the suspect does not occur, the investigation has failed its primary function. Most criminal investigators would agree that criminal investigation is designed to connect the criminal with the crime. Yet what does this mean in a society where police activities are theoretically governed by the law? The fact that a crime has been committed is proved by establishing the corpus delicti (body of the crime). There are two elements of corpus delicti which must be demonstra- ted: the criminal act itself; and the fact that a human agency is responsible for having committed the act. Having proven the grime, at what point is the human agency respon- sible for the crime proven a criminal? Webster's New Twentieth Century Dictionary defines "criminal" in the following way: "1. one who has committed a crime. 2. one who has been legally convicted of a crime." 6 From the investigator's perspective, a person is often classified as a criminal from the moment enough evi- dence has been accumulated to satisfy the investigator that a given person is guilty of a given crime. From the legal vieWpoint however, this does not constitute a valid defini- tion of criminality. 16 , Ibid., p. 431. “ wally conv Aw“ I iefendant ls; eyes of the ‘ A defend= shown, h“ this pres oi prov i1 17 Legally, a man is not a criminal until he has been "legally convicted of a crime." Prior to conviction, the defendant (suspect) is legally innocent of the crime in the eyes of the law. A defendant in a criminal action is presumed to be in- nocent until the contrary is proved; and in case of a reasonable doubt whether his guilt is satisfactorily shown, he is entitled to an acquittal. The effect of this presumption is to place upon the state the hyrden of proving him guilty beyond a reasonable doubt. The conclusion, therefore, is inescapable: the in- vestigator has not legally connected the criminal with the crime until the suspect has been prosecuted and convicted of the crime in a court of law. Merely identifying a sus- pect or arresting him for a crime proves nothing, crimin- ality cannot be determined until after prosecution and con- viction. MACI has been designed to promote the possibility of prosecution and conviction. The concept of "solving a crime" does not satisfy the requirements of a completed investigation. To the general public, this term describes merely the process of discovering the identity of the suSpect and appre- hending him. These achievements, however, are but two of the objectives of an investigation and leave the in- vestigator far from his ultimate goal of presenting sufficient evidence in a court of law to warrant con- viction. Finding the perpetrator is frequently the simplest phase of the investigation; obtaining the evi- dence to support the charge in court is often an ex- ceedingly complex task, the difficulties of which are greatly increased by the requirements placed by the 17Paul B. weston and Kenneth Wells, Criminal Inves- tigation, Basic Perspectives (New Jersey: Prentice-HaII, 970)] p. 38. court on troductic While are intrinsic that most cry z'estigation t for solving :ezer ence to senssarily u E: intellige “A r C indicate crime remai investigatj 18 court on the character, suf£§ciency, and mode of in- troduction of the evidence. While it may be fallacious to assume that all crimes are intrinsically soluble, it will be assumed in this study that most crimes can be solved and that the method of in— vestigation described here, MACI, offers the most potential for solving the crimes. Though the verdict of the court in reference to the guilt or innocence of the accused does not necessarily prove that the investigation was conducted in an intelligent manner, conviction of the accused does tend to indicate investigative effectiveness. The fact that the crime remains unsolved does not prove a deficiency in the investigation, although a preponderance of unsolved crimes would tend to signify investigative failure. Using the percentage of convictions of the total num- ber of crimes investigated is perhaps the most valid cri- terion for measuring the effectiveness of the investigation. Some people would maintain that no normative criteria can be used for judging the success or failure of an investiga- tion.19 If true, this situation would obviate the need or even the possibility of perfecting investigative technique. To say one technique is better than another would have no sensible meaning. It will be assumed in this study that 18Charles E. O'Hara, Fundamentals g£_Criminal Inves- ti ation (Springfield, Illinois: Charles C. Thomas, Publisher, 1970), p. 6. 19Ibid., p. 5. certain appr: tive than ot‘: Eor inprovin 19 certain approaches to criminal investigation are more effec— tive than others and that MACI offers the greatest promise for improving effectiveness. Every develop whic situation ge identified a If t'n respond dire served by a ation, Or a 05 the situ CHAPTER II SITUATION GENERATES A PROBLEM Every problem has a background. If circumstances develop which are sufficiently perplexing or difficult, the situation generating these circumstances may be observed and identified as a criminal problem. If the situation is observed by an officer, he may respond directly or call for additional resources. If ob- served by a civilian, the same civilian may report the situ- ation, or another civilian may report it after being apprised of the situation. In any event, the investigator should endeavor to identify those people responsible for discover- ing the crime and those responsible for reporting it. Few responses are based on the personal observation of the officer. In most cases, the officer is directed to the situation by the dispatcher. Since the officer person- ally views comparatively few crimes, much of his work will depend on reports from civilians. In areas where community relations are poor, failure of the citizens to report crimes will seriously undermine police effectiveness. Failure of citizens to cooperate with investigators will seriously con- strict investigative effectiveness. Needless to say, the officer must be aware of a 20 §roblenatic 5 response is at the Scene establiShed' noblem- Much iepend on hi past events. seldom dead dence left is! Inves information genuineness is no perfe relevant ma cloning seve Should atte seldom if I Plain past backstround will Start we re gene: 21 problematic situation before he can respond to it. Official response is characterized by the officer's physical presence at the scene of the incident. Until corpus delicti has been established, the incident is technically not a criminal problem. Much of the investigator's search for the truth will depend on his ability to recover and interpret evidence from past events. Fortunately for the investigator, the past is seldom dead or completely irrecoverable; from clues and evi- dence left behind, the truth can frequently be discovered. Investigators should try to collect as much relevant information as possible; this will aid them in assessing the genuineness and proper significance of the evidence. There is no perfect substitute for total acquaintance with the relevant material just as there is no perfect way of over- coming severe losses of evidence. Ideally the investigator should attempt to know all the evidence; this, unfortunately, seldom if ever happens. The investigator's ability to ex- plain past events will depend heavily on his collection of background information. For this reason, good investigators will start by considering all problems from the time they were generated in the past. Not only should the investigator consider "when" and "how" evidence came into existence, he should also consider "why." Not uncommonly evidence is "planted" specifically to delude or divert the investigator. Not criminal in problem to a criminal ficer may < though the nature. :3 fresuentiy 2h0059‘s tc resRouse 1 CHAPTER III PRELIMINARY INVESTIGATION Not all problems the officer responds to will be criminal in nature. The police officer must examine the problem to determine whether or not the situation generates a criminal or non-criminal problem. In some cases the of- ficer may decide not to define the problem as criminal even though the situation could legally be defined as criminal in nature. Domestic quarrels and certain juvenile offenses are frequently "defined" as non-criminal because the officer chooses to take no further legal action. Since official response has been made to the problem, most departments re- quire the officer to enter the incident on his daily activ— ity report. Unless the case is reopened on new information, this action will be terminal and the problem officially closed. If the officer makes the decision to define the prob- lem as criminal, further legal action must be taken. The criminal problem must then be formulated in a precise and specific manner. Such a formulation must also allow for the possibility of solution. Information needed to formulate the problem in more precise terms is commonly gathered during the preliminary 22 incestigatic A pre- of somet scene tc events c An ef clear, a: happenef More of:' their fC The ; rportant pk scene; and y otjective 01. whether or 1 SPEleiC Cr Comm SPORSib le f Crime , " CC committed . 33815 Of a 23 investigation. A preliminary investigation is the first examination of something that has happened. It is conducted at the scene to discover facts and to reconstruct all the events of the occurrence. An effective preliminary investigation leads to a clear,accurate, unbiased, and complete picture of what happened. It will sometimes give the whole picture. More often it will give the de§8ctives a foundation for their follow-up investigation. The preliminary investigation is made up of two equally important phases: the physical investigation of the crime scene; and written reports of the investigation. The primary objective of the physical investigation is to establish whether or not a crime has been committed, and if so, the specific crime. Commonly, the first officer at the scene will be re- sponsible for establishing the corpus delicti or "body of the crime." Corpus delicti refers to the fact that a crime was committed. It must be shown that the situation forms the basis of a criminal act and, that a human agent has caused the state of the fact to exist. The phrase "corpus delicti" essentially means "the actual commission by someone of the particular crime charged." CORPUS DELICTI: An important rule of evidence in criminal cases requires proof of the corpus delicti (body of the offense). The term is defined in Black's Law Dictionary, 4th Edition, literally as the "sub- stance or foundation of a crime; the substantive fact a crime has been committed." 20John Nelson, Preliminary Investigation and Police Beggrtigg (California: GIencoe’Press, 1970), p. 3. " Gene: pound fa certain charge. existen: or resu; accused trator, Conf; delicti. l: roborated b; A pe; all the is true had act‘ mistake! Causes 1 Corp to prove th D Cid. Was CO 1101'}, it is it is the l The Point in th a criminal asstanCeS Problem ‘1 s If, 24 Generally speaking, "The corpus delicti is a com- pound fact made up of two things: the exIStence of a certain act or result forming the basis of the criminal charge, as the occurrence of an injury or loss; and the existence of a criminal agency as the cause of this act or result. . . As a general rule the connection of the accused with the crime, or the identity of the perpe- trator, is not an element of the corpus delicti."2 Confessions alone are not sufficient to prove corpus delicti. In most jurisdictions, confessions must be cor- roborated by additional evidence. A person cannot be found guilty of a homicide unless all the elements of "corpus delicti" are proved. This is true even though the defendant might confess that he had actually killed somebody. The defendant might be mistaken. The death might have been due to naEural causes or, perhaps, there was no death at all. 2 Corpus delicti evidence is that evidence which serves to prove the criminal act itself. Evidence proving a homi- cide was committed is the victim's body; in narcotics viola- tion, it is the drug itself; and in a burglary or robbery, it is the loot. The preliminary investigation is the first turning point in the model. If the situation is found to generate a criminal problem, then reports must be written up (cir- cumstances permitting) indicating precisely what the criminal problem is (i.e., corpus delicti). If on the other hand, the problem initially defined 21A. C. Germann, F. Day, and R. R. J. Gallati, Intro- duction 22 Law Enforcement and Criminal Justice (Illinois: Charles C. Thomas, Publisher, 1970), pp. 201-202. 22Douglas Hazen, Ohio Police Officers' Manual (Indiana: The Allen Smith Company, 1968), p. 79. as criminal retains is report and ternative i case will i: duced whic‘r. As a as criminal the situati in all prob be if a prq be remember er bY Commi COPPletely able t0 cor! Certain, me dEI‘LCe, pre. of this pa; the guilty the plaCe fOCuS On Of the aCt 25 as criminal is later found to be non-criminal, then all that remains is to enter the investigation on the daily activity report and complete other forms if required. When this al- ternative is selected, official action in reference to this case will be terminal unless new information is later intro- duced which causes the case to be reopened. As a general rule, when in doubt, define a situation as criminal and conduct the preliminary investigation. If the situation is later found to be criminal, then evidence, in all probability, will not be lost to the extent it would be if a preliminary investigation was not made. It should be remembered at all times that once evidence is lost, wheth- er by commission or omission, it will, in many cases, be completely irretrievable and the investigator may not be able to compensate for the loss. When criminality is un- certain, maintain the scene and protect the possible evi- dence. Preliminary investigation as defined within the scope of this paper will not be concerned directly with arrest of the guilty person or persons at the scene or in flight from the place of the crime. Once the investigation begins to focus on a particular individual as the probable perpetrator of the act, the investigation shifts from "preliminary in- vestigation" to "continuing investigation." Both the re- covery of clues to identify the perpetrator and reconstruc- tion of the crime scene will be considered as part of the continuing investigation. Duri should be c Listing cor recording 0 pcnenent of of the inve be continue has been cq by categoriJ As 5 take steps :O'ifi‘d on t] Summoning In the Crime it may be ZECtim3 t] £0 :3 O H / /r*. :3 (D m ('1' O n) U) sl/bmwmaw N ‘0 o -o Clo-IQ). rfu H O CCU Do f') (I) /. (D H :1 IU c‘ (I) ( 26 During the preliminary investigation the investigator should be concerned with protecting the scene and with estab- lishing corpus delicti. Initial crime-scene processing and recording of factual data should only be attempted when post- ponement of the work may jeopardize the successful completion of the investigation. The preliminary investigation should be continued until it has been established whether a crime has been committed. The type of crime should be determined by category, and if possible, by specific classification. As soon as the officer arrives at the scene, he should take steps to protect the scene. If an injured person is found on the scene he should be given adequate medical treat- ment. This may mean administering first aid immediately, summoning a doctor, or calling an ambulance. In order not to vitiate the possibility of solving the crime (prosecution and conviction of the perpetrator), it may be necessary to heed the following rules while con- ducting the preliminary investigation. 1. Write down names of witnesses and other persons who are known to have entered the crime scene. . . 2. [Determine] Iw]ho was at the crime scene when the officer arrived. . . 3. Establish basic facts. . . 4. Keep suspect and witnesses separate whereever possible. 5. Instruct witnesses not to discuss the events. . . 6. Do 223 discuss the crime —with Witnesses or—Ey - standers. . . 7. Listen attentively but unobtrusively. . . 8. Protect ev1dence which 18 1n danger of being des- troyed. _—‘_- '—_ 23Arne Svensson and Otto Wendell, Techniques of Crime Scene Investigation (New York: American Elsevier Publishing Company, Inc., 1965), pp. 10- ll. As a final continued e gation. Duri oust locate scene for t be searched be made f0] conditions glainant s] Signed sta All tie aPpI‘Op 1y and pre known) and reliably e The prelimina] 7:38:13 is inal-y inve in the SC: ends appn identifn SP‘ECified ‘1‘ . “'4le Hum O 27 As a final rule, protection of the crime scene should be continued even after completion of the preliminary investi- gation. During the preliminary investigation the investigator must locate and identify witnesses at or about the crime scene for the purpose of interviews. The crime scene should be searched to the extent necessary, and arrangements should be made for collection and preservation of evidence. All conditions, events, and remarks should be noted. The com- plainant should be interviewed, his story recorded, and signed statements taken. All of the information gathered should be recorded in the appropriate manner and if possible, written up accurate- ly and precisely in a report. The time of the crime (if known) and the time of other incidents should be recorded as reliably as possible. The continuing investigation will begin after the preliminary investigation has been completed and reviewed. There is no clear line of demarcation between the prelim- inary investigation and the continuing investigation. With- in the scope of this paper, the preliminary investigation ends approximately at the time the investigation focuses on identifying and apprehending a particular individual for a specified criminal offense. No attempt will be made to fix maximum or minimum time limits on either the preliminary investigation or the continuing investigation. In MACI, the continuing investigation will begin after completion of the step title; “ALHTO‘ . DI J;ba.a 4L Sonia ta 3 inves: | I based on t’: to the det: aia'antages i used as a c the amount varies fro] :6 ponsibi r] 28 step titled "PRELIMINARY INVESTIGATION" and end with "ADJU- DICATION." Some attempts to differentiate between the prelimi- nary investigation and the continuing investigation have been based on the shifting of responsibility from patrol forces to the detective unit. While this practice may have certain advantages, especially in large departments, responsibility used as a criteria is not very reliable. In the first place, the amount of responsibility given to officers and detectives varies from department to department. In the second place, responsibility does not reflect the procedures and practices which characteristically take place during the two different phases of investigation. Finally, MACI does not provide for making a distinction between patrol forces and detectives. Whether the patrol officer or a detective investigates the crime, the procedures and sequence of events will remain roughly the same. A continuing investigation begins after the prelimi- nary investigation is completed and reviewed. While the continuing investigation encompasses all work which has taken place during the preliminary investigation, the continuing investigation is primarily concerned with identification and apprehension of the offender and full development of the case. The findings of the preliminary investigation will determine whether the case warrants further consideration. If the investigator defines the problem as non-criminal rising the ‘ vestigation the daily a investig ati the other a- 29 during the course of the preliminary investigation, the in- vestigation will be terminated and the incident recorded on the daily activity report. The first phase of the continuing investigation will begin only if the investigator selects the other alternative and defines the situation as criminal. Eve goals or a timate go criminal j l. P] 2. I. Ethe- hum fi‘eaSure COnCerne dEnce of until e\ ficiEnt may We; subjEQt ter t0 attitud CHAPTER IV FORMULATE OBJECTIVES Every criminal investigation entails certain Specific goals or objectives which must be satisfied prior to the ul- timate goal of prosecution and conviction. The goals of criminal investigation can be stated as follows: 1. Provide evidence of guilt. 2. Identify guilty party. 3. Trace and locate guilty party. 4. Apprehend guilty party. It should be mentioned that these broad objectives will not appeal to all investigators. In departments where "the number of cases cleared by arrest" is the statistical measure of effectiveness, many investigators will be more concerned with making apprehensions than with providing evi- dence of guilt. In MACI, apprehension will be postponed until evidence of guilt has been developed to a degree suf- ficient to support the arrest. Investigators concerned primarily with apprehensions may overlook evidence which tends to prove innocence of the subject. As the saying goes among some investigators, "Bet- ter to arrest and lose than not to arrest at all." This attitude tends to depreciate the concept of innocent until 30 proven gui 1' Idea tie invest; has been es apprehendec or probable sonable grc proof comm Fond a rea ZESt be me first Obje up. the follo 1.; 3l proven guilty. Ideally, the suspect should not be apprehended until the investigator feels that proof beyond a reasonable doubt has been established. Legally however, a subject can be apprehended on reasonable grounds (arrest without a warrant) or probable cause (arrest made with a warrant). Both "rea- sonable grounds" and "probable cause" constitute a level of proof commonly much lower than is needed to prove guilt be- yond a reasonable doubt. In light of this, a distinction must be made between the two levels of guilt subsumed by the first objective, "Provide evidence of guilt." "Provide evidence of guilt" can be broken down into the following subgoals: 1. Provide evidence of guilt. A. Provide evidence of guilt sufficient to support reasonable grounds or probable cause. B. Provide evidence of guilt sufficient to support proof of guilt beyond a reasonable doubt. With these two additional subgoals, the objectives can be redefined in the following manner: 1. Provide evidence of guilt sufficient to support reasonable grounds or probable cause. 2. Identify guilty party. 3. Trace and locate guilty party. 4. Apprehend guilty party. 5. Provide evidence of guilt sufficient to support proof of guilt beyond a reasonable doubt. And finally the ultimate goal thus completing the revised objectives: 6. PIC Will maximum ant tion oi the logical sec or seguenc cases. Cor delicti h tion. cir 3551 is re stances r grounds . SPEle ic 32 6. Promote adjudication and conviction. While these steps do not represent a temporal sequence, maximum and minimum time limits have not been set for comple- tion of the objectives, the steps do characterize a chrono- logical sequence. These steps are arranged in a certain order or sequence which should be adhered to in both "hot" and "cold" cases. Consider if you will the "hot" case. After the corpus delicti has been formulated during the preliminary investiga- tion, circumstances develop which tend to indicate a certain man is responsible for the Specific crime. These circum- stances may or may not be sufficient to support reasonable grounds. If reasonable grounds can be established, then a specific person can be identified as a prime suspect. On prima facie evidence the suspect is presumed to be the guilty party. (Note: By definition, without "some" evidence of guilt, the suspect could not be identified as the probable "guilty party.“) Once the suspect has been identified, he must be traced and located. In a "hot" case this could mean tracing the suspect down a dead end alley and locating him somewhere between the tOp and bottom of a chain link fence. Having traced and located the suspect, he can now be apprehended. While this entire sequence may occur almost simultaneously, it must, according to the law, occur in the above order if a legal arrest is to be made. It should be noted that some officers do, under certain cir reasonable a person i: significant should be c say, at tir ;er.sation i Hopefully i quirements The]. sufficienti dC'dbt" Ob ary time F six. Int M195 pr: EO‘JI' as Elect CUr On the in 33 certain circumstances, apprehend a person before they have reasonable grounds or probable cause. If apprehension forces. a person into custody or deprives him of his freedom in any significant way without the required evidence of guilt, it should be considered an illegal arrest. While illegality may, at times, be classified as necessary or practical, com- pensation for illegality has not been provided for in MACI. Hopefully this method will promote adherence to legal re- quirements. There is no set time for "providing evidence of guilt sufficient to support proof of guilt beyond a reasonable doubt," objective five. This objective can be developed at any time prior to adjudication and conviction, objective six. In the ideal situation, objective five should be sat- isfied prior to apprehension of the guilty party, objective four, as stated previously. MACI however, designed to re-r flect current legal practices, will not impose restrictions on the investigator beyond those required by the legal system. On the schematic diagram representing MACI, page 5, it should be noted that objectives two and three ("Identify guilty party," and "Trace and locate guilty party" respec- tively) have not been explicitly stated. Because these ob- jectives must necessarily be satisfied prior to apprehension, it will be assumed that they are implied by the expressly stated objectives. Needless to say, the first five objec- tives must be accomplished prior to prosecution and convic- tion. In E35089]: bL | formulate 5 terms of "r in goals : Cri recove work, line u is, on But be invest prehei tiates prose Th EVE/Mowing 34 In cases where stolen pr0perty is involved (i.e., robbery, burglary, larceny, etc.), it will be necessary to formulate a second set of broad objectives. Even so, in terms of "making" a case, these objectives are secondary to the goals first stated. Criminal investigation is a world of suspects and recovered stolen property. It is a world of leads, leg- work, information (much of which proves of no value), line ups, conjecture, paper work, and peOple. And it is, on precious occasions, a world of "making" a case. But before making a case and finding stolen goods, an investigations staff must identify a suspect and ap- prehend him. Then, if further investigation substan- tiates the charges, the case must be prepared for prosecution.24 The second set of objectives can be stated by the following sequence: 1. Confirm the fact that property was stolen. 2. Identify the stolen property. 3. Trace and locate the stolen property. 4. Recover stolen property. 5. Dispose of stolen property in appropriate manner. While stolen property, when recovered, can also be used to deveIOp evidence of guilt, stolen property will not be a consideration in every case. Where recovery of stolen property is not involved, MACI provides for simply by-passing these objectives. (You will note that on the diagram of MACI, page 5, only the fifth objective in the above sequence is 24George Eastman and Esther Eastman, (eds.), Munici- pal Police Administration (Washington, D.C.: The Inter- national City Management Association, 1969), p. 137. rertly t: are imp] e;l '. 16 listed : l ‘ ISE‘Y 03 SC' in this ch, the mod 1 , stated nd 35 overtly stated; it will be assumed that the remaining goals are implied by this objective.) The reader will observe that some of the objectives listed in this chapter appear beneath the step titled "SAT? ISFY OBJECTIVES" in the model. Those objectives not listed in this chapter which appear under "SATISFY OBJECTIVES" in the model are implied by the original objectives and are stated under "SATISFY OBJECTIVES" for clarity. Be‘ 'u‘ill be n make has 1 EISlc obse: some is t data Ed (,4 tho: Whic have Colt the. 0th. C011 is CHAPTER V COMPILE INFORMATION Before any serious collection of data can begin, it will be necessary to formulate a working hypothesis. As a matter of fact, it is strictly impossible to make any serious attempt to collect evidence unless one has theorized beforehand. As Charles Darwin, the great biElogist and author of the modern theory of evolution observed: ". . . all observation must be for or against some view, if it is to be of any service." The point is that there are too many particular facts, too many data in the world, for anyone to try to become acquaint— ed with them all. Everyone, even the most patient and thorough investigator, must pick and choose, deciding which facts to study and which to pass over. He must have some working hypothesis for or against which to collect relevant data. It need not be the completed theory, but at least the rough outline must be there. Otherwise how could one decide what facts to select for consideration out of the totality 3f all facts, which is too vast even to begin to sift? 5 Since it is far too early at this point to theorize on such objectives as identify, trace, locate, and apprehend the guilty party, the working hypothesis must be Specific enough to guide collection of data, but broad enough to ex- clude premature theorizing on these objectives. AS Sherlock Holmes has suggested: "The temptation to form premature theories upon insufficient data is the bane of our profes- sion" (The Valley of Fear") 25Copi, pp. cit., p. 389. 36 l- a earned Wit Anc judgment . in ' namel; Wthh is the avoid How the] aVOi de 6 Zing? Ships \ Suspec befOre hYPOtE hYPOt‘: hiémfi qutj 37 Another famous sleuth, Hans Gross, was equally con- cerned with the fact that premature theorizing can bias judgment. The method of proceedings just described, that, namely, in which parallel investigations are instituted, which to a certain extent mutually control each other, is the best, and one is tempted to say the only, way of avoiding the great danger of a "preconceived theory"-- the most deadly enemy of all inquiries. . . When one delves into the case with enthusiasm one can easily find a point to rely on; but one may interpret it badly or attach an exaggerated importance to it. An opinion is formed which cannot be got rid of. In carefully examin- ing our own minds we shall have many opportunities of studying how preconceived theories take root: we shall often be astonished to see how accidental statements of almost no significance and often purely hypothetical have been able to give birth to a theory of which we can no longer rid ourselves without difficulty, although we have for a long time recognized the rottenness of its foundation.26 How then can the problem of preconceived theorizing be avoided without sacrificing the need for preliminary theori- zing? Hypotheses state the existence of facts or relation- ships which are not yet known, but which are believed or suspected to exist. While a working hypothesis is necessary before a serious attempt can be made to collect data, this hypothesis need not be the complete hypothesis or the only hypothesis. In fact, it may be necessary to formulate sev- eral hypotheses before presentation of the completed theory. By specifying which hypotheses are to be answered at 26Hans Gross, Criminal Investigation, Adapted by John Adam and J. Collyer Adam, Edited by Roland M. Howe (4th edition; London: Sweet & Maxwell, Limited, 1949): PP. 7-8. which sta< discourag in essen the metric the most oi MACI guilt" ) the fa c hypo the §Uilt c guilty 38 which stages of the investigation, it Should be possible to discourage the investigator from making premature judgments. In essence, MACI leaves the case to develop itself. While the method of solution suggested by Hans Gross is probably the most effective (i.e., parallel investigations), the use of MACI offers a much more practical alternative. From the first objective (i.e., "Provide evidence of guilt") and from the corpus delicti (i.e., the act itself and the fact a criminal agent is responsible for the act), a hypothesis can be formulated which states: Evidence of guilt can be provided which will prove a given party is guilty of committing a Specified criminal act. While this hypothesis will not be true in every case, the assumption must be made that every case is potentially soluble if the investigation is to be meaningful. While this hypothesis does introduce one preconceived assumption, the fact that all crimes are potentially soluble, it does not allow preconceived theorizing of the type which would bias judgment. Three basic postulates are assumed by the hypothesis: elements of the crime exist; a human agent is responsible for those elements; and, evidence of guilt can be provided which will link the criminal with the criminal act. Nothing has been stated in this hypothesis which would require the investigator at this stage of the investigation to specifi- cally theorize in regard to the objectives: "Identify guilty party"; "Trace and locate guilty party"; and "Apprehend guilty pa conside re Lace goc r3 should t tries i s I it has 39 guilty party." In MACI, none of these objectives are to be considered until data has been collected which provides evi- dence good and sufficient to support reasonable grounds or probable cause. The problem of determining what data is relevant and should be collected is difficult even with the working hypo- thesis. Basically it can be said that data is relevant when it has the potential to prove the truth of the fact at issue. The following explanation of relevant evidence will give some indication of the type of data which is relevant and should be collected. Bear in mind that not all relevant evidence will be admissible in court. Relevant evidence which may unduly prejudice the jury, cause great confusion, or cause wasteful digression may be excluded from court. The investigator, at this point however, should not be concerned with the distinction between logical relevancy and legal relevancy. Any data or evidence which may have probative value and which may logically tend to prove the proposition for which it is offered, should be collected by the investigator. While this does not mean the investigator Should resort to illegal collection of data, it does mean he should collect any data which appears relevant regardless of the fact it may not be admitted in court. With these quali- fications in mind, consider the following explanation of relevant evidence. If the evidence has a connection, it is said to be relevant. Relevant evidence is that which tends to prove or disprove any fact in dispute. It is evidence which volve; exact‘ best ( throu' that wheth' is gu relev. break vant iound dence In aid evide relevancy ray be co t1I-Qator a 50338 or date may If! 't.’ '(1 k4; ' (3 (D N H LA) (I) I N A N 40 which tends to eXplain or Shed light on the issues in- volved in the case. It is difficult to establish an exact test of relevancy. It has been stated that the best test is one of good common sense and logic. If through good common sense and logic it is determined that the evidence offered will assist in establishing whether a crime was committed and whether the accused is guilty of that crime, the evidence is said to be relevant. The testimony of a witness who saw a man break into a building during the night would be rele- vant evidence to prove a burglary. The burglary tools found in possession of this man would be relevant evi- dence to prove intent to commit theft in the building. In some cases it will be necessary to collect clues and evidentiary traces without Specific regard for their relevancy or relation to the crime. Clue or trace material may be collected simply because it is viewed by the inves- tigator as an abnormality, a thing which is foreign to the scene or Simply out of its accustomed place. This type of data may be collected even though its logical relationship to the investigation is not clear. AS a general rule: If data seems even remotely rele- vant, it Should be collected and preserved. Collection pf "Facts" Relevant Ep_Problem While most investigators have used or heard the old cliche, "I want the facts and nothing but the facts," it is questionable just how many investigators actually know what a "fact" is. Yet few investigators would deny that facts are essential to criminal investigation. 27Gilbert Stuckey, Evidence for Law Enforcement QE- ficers (New York: McGraw-Hill Book Companyfvl9687, pp. 23-24. fit true. While thi and three appears t truth. Ir or is tri in Space our theoi facts sir facts ex. t0 the f T.‘ fact the (jud SlOn as t on u dSkE P- ' ‘ true i! ) ] JUstiCe 1 €th“ 8, ‘ 7U J- D 41 "Fact" is defined in Webster's New World Dictionary as: l. a thing that actually happened or is true. 2. rgglity; truth. 3. something stated as being true. While the investigator uses "fact" primarily in senses one and three, not uncommonly he assumes that everything which appears to him as factual represents absolute reality or truth. In the first sense ("a thing that actually happened or is true"), the word "fact" is used for those existences in space and time which are what they are, independent of our theories, knowledge, and beliefs about them. These facts simply wait to be discovered. We assume that these facts exist exactly as we see them. Wigmore is referring to the first category of facts when he states: Evidence represents any knowable fact or group of facts, not a legal or logical principle, considered with the View of its being offered before a legal tribunal (judge or jury) for the purpose of producing a persua- sion, positive or negative, on the part of the tribunal, as to the truth of a proposition, not of law or logic on which the determination of the tribunal is to be asked {gigmore on Evidence, Third Edition, Vol. I, p. 3). "Fact" in the third sense ("something stated as being true") refers to an established or accepted truth. AS .Iustice Blackstone has stated: 28David B. Guralnik (gen. ed.), Webster's New World IDictionary (New York: Popular Library Inc., 1968), pp. I97- 98. 29Hazen, pp. cit., p. 68. Evider tains eithe: p. 365 ”Fact" he: be determ: Whi and "fact two types in the £1. '3‘; obsem i0: 8X53; Case, th may be c} I< detS an E903 evi fiCal fa do not C the trie Of t he < \ 42 Evidence signifies that which makes clear or ascer— tains the truth of the very fact or point in issue, either on the one side or the other (Commentaries III, p. 367).30 "Fact" here is the point or issue of the trial which is to be determined by a legal tribunal. What is the relationship between "fact" as evidence and "fact" as the issue of a trial? For Simplification, the two types of facts discussed above will be redefined. "Fact" in the first sense will be referred to as an "empirical fact," and fact in the second sense as an "established fact." In the purest form, empirical facts can be publicly verified by observation and universally agreed upon. Legal tribunals, for example, are responsible for establishing the fact of a case, the ultimate fact. The truth or reality of this fact may be challenged by higher courts. Ideally, evidence should be based upon empirical facts and, the facts at issue or the fact of the case based upon evidence. Evidence which does not correspond to empi- rical facts cannot be true. Legally established facts which do not correspond with the evidence cannot be valid. Since the triers of fact are not likely to have direct knowledge of the case, two periods of highly subjective judgment must intervene between sense data and the fact of the case. Failure to observe empirical facts accurately can result from predispositions which bias judgment, from the 3°Ibid., pp. 67-68. emotional he situa hesitua he. Fa: by the ad The secon fact are iSpresen Su tain auth truth hey facts are E\ fact. dilfi ted, forg hand f9n+ Q fact of t trie fact it facts 43 emotional state of the observer, or from unfamiliarity with the situation. The same person who has failed to observe the situation correctly may also fall victim to memory fail- ure. Failure to remember the facts observed can be caused by the addition, substitution, or transposition of details. The second period of subjectivity begins when the triers of fact are forced to observe and remember the evidence which is presented before them during the trial. Surprisingly enough, there is a tendency among cer- tain authors to elevate established facts to a level of truth beyond that of the fallible evidence upon which the facts are based. Evidence is not the same as, or synonymous with, fact. Evidence may be ambiguous, that is, subject to different interpretations. It may be false--exaggera- ted, planted, or perjured. It may be modified by forgetfulness, inattention, or silence. On the other hand, a fact pp the truth. A fact (truth) pp the pff fect p: evidence, and §§_dependent pp evidence. A fact is established from the very personal evaluation of the evidence presented in a particular case by the trier of fact (emphasis added). 1 While certain people may hold that the ultimate fact (the fact of the case) represents the "truth," the "facts in issue" are seldom agreed upon by even the par- ties concerned. The "facts in issue" refer to those matters of fact which the plaintiff posits and the defendant at- tempts to controvert. If legally established facts are to 1x3 taken as commensurate to "truth," it must be remembered 31Weston and Wells, pp. cit., pp. 33-34. that sucii tion. "P between e hm case. Pr estai Proo: requ will fact the J observat jectivej should ; CO‘drt‘ S Perfect CEItair is fin; be no 1 44 that such a distinction is simply a matter of legal conven- tion. "Proof" is the intervening variable which exists between evidence and the "fact in issue" or the "fact of the case." Proof is [also] the effect of evidence. It is the establishment of a fact by the production of evidence. Proof requires quality in evidence, but it may also require quantity. It is the amount of evidence that will test a fact to the satisfaction of the triers of fact. .The final measurement of proof3§s the impact of the ev1dence upon the triers of fact. Just as the subjective element may enter into the observation of empirical facts, so too is the evidence sub— jectively evaluated by the judge or jury. The investigator should realize that subjectivity may be a factor in the court's verdict. Evidence is the medium of proof, and proof is the perfection of evidence. Theoretically there must be a certain degree of evidence presented before such evidence is finally regarded as proof. Without evidence, there can be no proof, although, there may be evidence presented which does not amount to proof. In civil cases it is required to prove guilt only by a preponderance of evidence, or greater weight of evidence. In equity cases proof must be clear, certain, and convin— cing. The highest degree of proof is found in criminal cases where the defendant must be found guilty beyond any 321bid., p. 40. reasonahl' In estah state vise: the . "it rela evid It i tong the “0‘; cer 1'19 {160- reasoru ' [I )4 0) Eu. latte I /’T1 1...] ((1 (7 -l A 45 reasonable doubt. In criminal cases the guilt of the defendant must be established "beyond reasonable doubt." In a number of states (California Penal Code Section 1096; Ohio Re- vised Code Section 2945.05) the trial judge reads to the jury the statutory definition of reasonable doubt: "It is not a mere possible doubt; because everything relating to human affairs, and depending on moral evidence, is open to some possible or imaginary doubt. It is that state of the case, which, after the entire comparison and consideration of all the evidence, leaves the minds of the jurors in that condition that they can- not say they feel an abiding conviction33to a moral certainty, of the truth of the charge." The degree of proof required to support guilt beyond a reasonable doubt will depend on the mind of the reasonable and just man who is considering the particular subject matter. The fact of criminality (case results in conviction) is true legally when the triers of the fact decide that evi- dence is sufficient to be regarded as proof of guilt. While most investigators accept conviction as a fact of criminality, many investigators are less prone to accept acquittal as proof of non-criminality. First, from the investigator's perspective, it may appear that evidence is sufficient to support proof of guilt (established fact). In fact, many investigators will not promote prosecution unless they feel evidence is sufficient to support proof of guilt beyond a reasonable doubt. MACI is designed to encourage this prac- tice. There is no place in MACI for the investigator who 33John Klotter and Carl Meier, Criminal Evidence for Police, Police Text Series (Ohio: W. H. Anderson Company, 1971), p. 56. simply prom which case ted on a te court are : nit the of or may not the invest losing a < practices 3113’. 40m non-crimi Case in < “0““; ma} liSized t‘ truth, is QVerI b laughs1 ‘ders t Spinion see It COr tec the 46 simply promotes prosecution in an effort to close an un- 'wieldy case. Secondly, in some cases, a man will be acquit- ted on a technicality when both the investigator and the court are reasonably certain the suspect actually did com- mit the offense he was charged with. The technicality may or may not have resulted from illegal police practices. For the investigator who does use illegal police practices, if losing a case is not enough, he should remember that such practices simply encourage further legal restriction. Fin- ally, some investigators may refuse to accept the fact of non-criminality because it is easier to admit you lost the case in court than to admit you arrested and prosecuted the wrong man. In any event, the decision of the court estab- lished the fact of the issue and consequently the legal truth. This truth still remains final unless the decision is overruled by a higher court. Not only should the investigator understand the re- lationship between fact, evidence, and proof, he should also understand the relationship between fact, evidence, and Opinion. It is not, as a general rule, permissible for a wit- ness to tell his opinion about facts in issue because it is not in the province of the witness to draw a conclusion; rather it is the duty of the court or jury to draw the final conclusion from the evidence presen- ted. It is the judge's duty to interpret and determine the law and the jury's duty to weigh the evidence and determine the facts. 34Hazen, gp. cit., p. 84. As a gene sent mere cial offi opinion, lying Ci] arrest we mubelie' m. J. offi soug dete afte enat com; for Similar out onl- Cau cir tal fid his Ste 47 As a general rule, investigators will not be allowed to pre- sent mere opinion before a judge, jury, magistrate, or judi- cial official. If the investigator is required to present opinion, the facts available should be offered and the under- lying circumstances eXplained. The requirements for a valid arrest warrant state that no warrant shall be issued solely on belief. The magistrate may not accept without question the officer's conclusion that the person whose arrest is sought has committed a crime, but on the contrary must determine for himself the existence of probable cause after having been apprised of the relevant facts. To enable the magistrate to perform this function, the complaint must indicate in detail some of the reasons for the officer's belief.35 Similar requirements apply to a search warrant. This is not to say that probable cause can be made out by affidavits which are purely conclusory, stating only the affiant's or informer's belief that probable cause exists without detailing any of the underlying circumstances upon which that belief is based. Reci- tal of some of the underlying circumstances in the af- fidavit is essential if the magistrate is to perform his detached function and not serve merely as a rubber stamp for the police.3 The difference between fact and opinion may be simply a matter of degree in some cases. Just as a hypothesis which holds good under all circumstances may be elevated to the category of fact, an Opinion supported by conclusive evidence can also be classified as a fact. In other words, 35John Klotter and Jacqueline R. Kanovitz, Constitu- tional Law for Police, Police Text Series (Ohio: The W. H. Anderson Company, 1968), p. 60. 36Ibid., p. 107. "Wren we pm the investiq sufficient i tion. Lega- This because it aPpfiars rel: factual qua Inve pose, i format; 0i in gather COurt infOrg a Case to it and s polic to ru 913?} in PC evi® \ 48 "When we prove our opinion, it becomes a fact."37 What the investigator must realize however, is that it is seldom sufficient for him to establish a fact to his own satisfac- tion. Legal requirement must be considered. This does not mean that data should be excluded simply because it may be opinion. On the contrary, data, if it appears relevant, should be collected regardless of its factual quality or potential as admissible evidence. Investigations, regardless of type or ultimate pur- pose, involve the task of gathering and evaluating in- formation. The investigation process must be thought of in terms of gathering information, rather than of gathering evidence. Information which is presented in court represents only a small fraction of the total information developed during an investigation. Before a case ever reaches a courtroom, information related to it has been subjected to examination, evaluation, and screening. Much of the information which the police gather is not acceptable to a court according to rules of evidence. However, rumors, tips, poly- graph examinations and the like can be of great value in pointing the way towards what will be acceptable evidence.3 Observation and Experience In seeking to solve a problem, the investigator will normally have a fund of previous experience which can be used to guide and deveIOp the investigation. Observation is the source of experience, and experience is the source of 37Lionel Ruby, Logic (United States: J. B. Lippin- cott Company, 1960), p. 364. 38Charles G. Vanderbosh, Criminal Investigation (Washington, D. C.: International Association of Chiefs of Police, 1968), p. 2. knowledge . All Using ience intern receix Ye tor of in perceived which all more ment ment ual) part ”in 49 knowledge. A11 knowledge proceeds originally from experience. Using the name in a wide sense, we may say that eXper- ience comprehends all that we feel, externally or internally--the aggregate of the impressions which we receive through the various apertures of perception. . . 39 Yet observation is more than mere sensation, the fac- tor of interpretation is also involved. The way things are perceived will depend on sensation and on past experience which allows for the interpretation of sensory data. It is important to realize that observation is much more than merely seeing something; it also involves a mental process. In all observation there are two ele- ments: (a) the sense-perceptual element (usually vis- ual) and (b) the mental, which, as we have seen, may be partly conscious and partially unconscious. 0 Failure to observe a situation correctly often results from faulty interpretation of sensory data. Perception of the skilled investigator is often more acute than perception of the amateur because even when they both receive the same sensory stimulation, the skilled investigator commonly has more eXperience and thus tends to make better interpretations of the same data. Facts do not simply speak for themselves. A basic postulate of scientific method is that all data are derived from sensory impressions. This does not deny, however, that impressions may be purely men- tal, for one way of defining thought is all the mental manipulation of sensory impressions. The data of science, therefore, from this perspective, are mental 39Stanley Jevons and Ernest Nagel, The Principles of Science (New York: Dover Publications, Inc., 1969), p. 399. 40W. I. Beveridge, The Art gf Scientific Investiga- tion (New York: Vintage Books, 1950), p. 135. impres from etc . "mean mind‘ PG data. A ?eople 5 Stan win ted by of pec 5‘“ ta: SW H t1 YC> tr: SE / m ("D r‘f 50 impressions of sensory experiences--i.e. ideas derived from seeing, hearing, smelling, tasting, touching, etc. . . . Facts do not speak for themselves; only the "meaning" of thosilfacts makes an impression on the mind's awareness. Perception does not always correspond with sensory data. As Goethe has suggested, "We see only what we know." PeOple frequently see what lies behind their eyes rather than what appears before them. This point is well illustra- ted by the following anecdote: A Manchester physician, while teaching a ward class of students, took a sample of diabetic urine and dip- ped a finger in it to taste it. He then asked all the students to repeat his action. This they did reluc- tantly, making grimaces, but agreeing that it tasted sweet. "I did this," said the physician with a smile, "to teach you the importance of observing detail. If you had watched me carefully you would have noticed that I put my first finger in the urine but licked the second finger!"42 People tend to see what they want to see. The students ex- pected to see the physician taste the diabetic urine and consequently, this is what they saw. Even apparently random observation often involves some prior theorizing. When modern man sees a fixed point of light among the other heavenly bodies he may claim to see a star. Perhaps he would be less ready to maintain that he simply and literally sees a star if he were to remember how comparatively recent in human history the explanation is for what it is he claims to see. 41Carlo Lastrucci, The Scientific Approach (Massachu- setts: Schenkman Publishing Company, 1963), p. 156. 42 Beveridge, op, cit., p. 133. ineffal observ me ce vi ti depenc tingu: nemor: obser' as wh tatio based the c A Hill 51 Unless observation is identified with the immediate, ineffable experience of raw, unstructured sense data, the observation will involve some theorizing or interpretation. In significant observation we interpret what is im- mediately given in sense. We classify objects of per- ception (calling this a "tree" and that a "star") in virtue of noted similarities between things, similari- ties which are believed to be significant because of the theories we hold.43 This theorizing or interpretation of sense data will depend largely on past experience. The factor which dis- tinguishes past experience from immediate eXperience is memory. While experience can be defined as what we have observed or lived through, past experience can be defined as what is remembered about these experiences. While significant observation may require interpre- tation of what is given by the senses, this theorizing based on past experience may not always be appropriate for the given sense data. Significant observation requires that we look for something specific, that we have a "point of view." But this method of "purposeful observation" also in- volves a pitfall. There is the danger that precon- ceived notions may lead to a biased point of view. The observer may then see only what he wishes to see, in line with his wishful thinking. He may not note the negative instances or exceptions to the rule he seeks to verify. Observation, in other words, should be selective, but it should not be "subjective."44 Reliance on past eXperience or preconceived notions in 43Morris Cohen and Ernest Nagel, An Introduction 32 Logic and Scientific Method (New York: Harcourt, Brace and Company, 1943), p. 216. 44Ruby, op. cit., p. 362. referen pietely Charles server or the vation Parti "thin act. innoc be t} atto: 52 reference to observation may cause the investigator to com- pletely sacrifice objectivity in certain instances. Though Charles Darwin has suggested that no one can be a good ob- server unless he is a good theorizer, too much theorizing or the wrong type of theorizing may critically bias obser- vation. The predispositions of the observer will markedly affect the accuracy of observation. There predisposi- tions are made up of stereotypes, prejudices, and leg- ends which persist in the mind of the observer. He will see what he is "set" to see. For example, false interpretations of what is seen may be brought about by projecting imagined characteristics into the situ- ation. This is especially true where the observation is of persons in actions into whom certain character- istics are projected. Where this is done, the observer will err in interpreting the acts of these peOple.45 For example, white witnesses may accuse a black subject of participating in a violent act merely because the witness "thinks" the subject is the "type" who would engage in the act. In some cases the jury may hand down a verdict of innocent simply because the defendant does not "appear" to be the "type" that would commit such an offense. Defense attornies will often work to create such an image. Not only can past experience cause observation to be prejudicial, it may also influence perception in another way. Past experience may in large measure determine what factors in the subject matter are noted. Bertillon has wisely said, "One can only see what one observes, and one observes only things which are 45William Dienstein, Techniques for the Criminal In- vestigator (Illinois: Charles C. Thomas, Publisher, 1952), p.5. alrea many but v momer tentf best E: experien data. L serve tn 9—1 experier accurate taining as in t] detail. only wh influen will b: Of rele SidEr E What WE day ma) b ehaVic 53 already in the mind.“ Unfortunately, there are often many details which are important for the investigation but which were of no interest to the witness at the moment he perceived them. He simply did not pay at- tention to them and as a rule does not know them or at best has only a meager knowledge of them.46 Educational background and training combined with experience will aid the investigator in noting the prOper data. Limited knowledge often results in failure to ob- serve the relevant and necessary information. The validity of knowledge depends on the validity of experience. Maintaining the wrong theories may promote in- accurate observation as in the case of prejudice; or main- taining inadequate theories may result in non-observation as in the case of the witness failing to note an important detail. To counteract prejudice, theorizing should be done only when necessary and even then it should not preclude the influence of data. Education, training, and intelligence will broaden the range of theories and allow for observation of relevant and necessary sense data. Finally, the investigator must be prepared to recon- sider past eXperience in the light of changing circumstances. What was considered a valid interpretation of sense data one day may suddenly be considered invalid the next. Habitual behavior based on past experience which was quite rational Yesterday may be viewed as highly irrational tomorrow as 6Harry Soderman and John O'Connell, Modern Criminal Investigation (5th edition; New York: Funk & Wagnalls, 1962), p. 42. 54 situations change. Past eXperience is valid and useful only if it remains current with the times; those who resist change will often find themselves subject to frustration and alienation. Consider Supreme Court rulings handed down in the area of search and seizure. What would have been viewed as a legal search and seizure by state officials prior to 22252 2' United States, 232 U.S. 383, 1914, would now be viewed as quite illegal with the decision handed down in Mapp 1. Ohio, 367 U.S. 643, 1961. While the physical process of search and seizure may remain relatively the same, the way in which the operation is perceived by the court has changed radi- cally subsequent to Mapp. In essence, the court no longer observes the same situation in the same way. While much has been stated concerning the pitfalls to accurate observation which affect the investigator, per- haps too little has been said presenting the positive side of observation. The following quote offers some suggestion as to what observation theoretically should be. Observation implies a clear mental picture of what is seen. It requires a seeing of detail, a study of detail, and a recognition that the whole picture is composed of many details. Observation includes seeing both detail and generality. . . Too much emphasis cannot be placed upon the impor- tance of observing as nearly as is humanly possible everything that can be observed, not merely in a gen- eral way, but to the minutest detail. No one can tell in advance what bit of observation will prove to be of importance. 47Dienstein, op, cit., p. l. 55 Sources g£_Information Information can be gathered from many different sources. Which source is used will depend on availability of the source, and on the relevance of the source to the crime being investigated. The value of the information will depend on the type of information which can be supplied, on the accuracy of the information, and on the ability of the investigator to interpret and apply the information. While there are many sources of information available to the criminal investigator who is willing and able to take advantage of them, this of course presupposes that he knows what sources of information are available. In essence, the investigator can be no better than his source of information. Sources of information can be grOuped into four general categories: instrumentation and physical evidence; interviews and interrogation; records and documents; and surveillance. The most common use of instrumentation is in connec- tion with the collection, preservation, processing, identi- fication, and presentation of physical evidence. Instrumen- tation refers to the application of the instruments and methods of science to the investigation of crime. Criminal- istics or forensic science can be defined as the scientific application of techniques to the measurement and analysis of evidence. Any of the following techniques can be used by forensic science in the examination of evidence: specto- graphy; microscopy; petrography; metallurgy, radiation 56 analysis; neutron activation, etc. Instrumentation also includes technical methods such as fingerprinting (dactylo- scopy), photography, plaster casting, etc. Technical methods might also include various aspects of the crime scene search and the sketching of the crime scene. Instrumentation can be used in answering the following questions: (1) Has a crime or tort been committed?. . . (2) In some cases, if the answer to question (1) is affirmative, another question follows: How and when was the crime committed?. . . (3) What information can in a general way be ob- tained as to the identity of the perpetrator?. . . (4) The ultimate and most vital question is of course: Are the accused man and the person character- ized as having committed the crime in fact one and the same person? This question is most commonly answered in two ways: (a) It may be possible to establish a connexion between some physical evidence associated with the crime and some personal characteristic of the accused-—blood group, hair colour, fingerprints, etc. (b) It may be possible to show a connexion between the scene of the crime and something which is defini- tely linked with the accused--scratch marks made by his "jimmy," figers from his jacket caught on a projecting nail, etc. Instrumentation and physical evidence can be used to link a person (suspect or defendant) with a place (scene of the crime) or with related objects (fruits or instrumentali- ties of the crime). The ultimate purpose of instrumentation is to connect the criminal with the crime. The possibili- ties for using forensic science to process evidence (pri- lnarily physical evidence) are almost unlimited. 48H. J. Walls, Forensic Science (New York: Frederick .A. Praeger, 1968), pp. 8-9. 57 Some authors seriously question the comparative value and usefulness of instrumentation. There has been a tendency in recent years to place too great a relative value on the contribution of instru- mentation to the detection of crime. The inexperienced are especially prone to place their faith in technical methods to the neglect of the more basic and generally the more effective procedures of information and inter- rogation. . . For example, although the precinct detec- tive may perform 95 per cent of the work in a homicide investigation, it is the remaining 5 per cent contri- buted by the medical examiner and other technical experts which often receives the publicity and which impresses the unititiated [sic].49 Even if instrumentation is overemphasized, its relative impact on the court (judge or jury) should not be under- estimated. It might also be suggested that instrumentation could be used to a greater extent during an investigation by the investigators themselves if they were more willing and qualified to use the potential resource. Interviews and interrogations provide a second source of information for criminal investigators. The numerous techniques of interview and interrogation are used to glean information from victims, witnesses, suspects, informers, or informants. While the techniques of interrogation and interview are primarily the same, the term "interrogation" commonly refers to the questioning of suspects. Persons suspected of a crime are interrogated. The purpose of interrogation is to secure a confession of guilt. It is an offensive-defensive situation in which the investigator probes, pries, and pushes to climax his investigation with a confession. The suSpect, guilty 49O'Hara, op. cit., pp. 11-12. 58 . . . 50 or innocent, eXplains, lies, or stands mute. The techniques of interrogation are calculated to obtain information which will further the investigation. Interrogation is designed to induce the suspect to reveal his movements at the time of the crime, his confederates, if any, and his activities in general. Interrogation can also be used as a means of discovering other evidence. Some of the functions and purposes of interrogation can be found in the following list. a. To obtain information concerning the innocence or guilt of a suspect. b. To obtain a confession to the crime from a guilty subject. c. To induce the subject to made admissions. d. To learn facts and circumstances surrounding the crime. e. To learn of the existence and locations of phy- sical evidence such as documents or weapons. f. To learn the identity of accomplices. 9. To develOp information which will lead to the fruits of the crime. h. To develop additional leads for the investiga- tion. i. To discover the details gf any other crimes in which the suspect participated. In most cases a greater part of the investigation is devoted to interviews. Persons interviewed are commonly those persons who have been identified as individuals with a knowledge of the crime or related circumstances. Lie detectors and truth serum can be used as aids to interrogation and interview when the veracity of the subject 50Weston and Wells, op. cit., p. 175. 51O'Hara, op, cit., p. 107. .1 '6 f\ 1P1 . I: V s A,» EH. 3 l. t in I) .. l m ‘1‘ tr all: Ili I: 1 at 59 is in question. Some authorities would also include hypno- sis as a useful technique which should, on occasion, be used by criminal investigators: It is in the investigative and preparatory phases of' criminal cases that hypnosis can be most useful. Sub- jects may be witnesses to a crime, the victims in some instances, arresting officers and possibly previous in- vestigators who failed to include minor details in written reports. While these techniques can be used to corroborate statements made by subjects, admissions and confessions based on poly- graph, truth serum, or hypnosis will probably not be admis- sible in court. The use of records and documents constitutes the third source of information. In addition to standard police records and records from other institutions or agencies, consideration should also be given to such things as tele- phone directories, city directories, geographic telephone lists or street address directories, cross reference direc- tories, social registers, etc. Public agencies which should be considered when searching for records and documents include: federal agencies; state agencies and local agencies. Semi-public agencies which may be of use include telephone companies; banks, building and loan associations; brokerage houses; public utilities; transportation companies, etc. Private agencies include bonding companies; churches; stores; 52Harry Arons, Hypnosis in_Criminal Investigation (Illinois: Charles C. Thomas, Publisher, 1967), p. 27. 60 professional and social organizations; finance and loan companies; hospitals; hotels and motels; private business establishments; private investigative agencies; etc. Records and documents can be used as a means of dis- covering or identifying various people, as a source of evi- dence, or as a source of clues and leads. Modus operandi files are especially useful where they can be applied. M. 0. files are most useful where the suspect is believed to be a habitual criminal. Such files can be used to develop possible suspects in such crimes as robbery, forgery, confidence games, sex offenses, etc. Modus operandi files may contain such things as methods of operation of known criminals; methods of operation from past and possibly unsolved crimes; physical descriptions of the subject; personal characteristics of the subject; etc. Modus Operandi files can be used to develOp suspects; to link unknown perpetrators with past unsolved crimes; or simply to store data for future reference. Surveillance is the fourth and final source of infor- mation. Surveillance can be defined as the close observa- tion of a place, building, or person. Surveillance and plants are especially important when the crime is one against property where leads have not materialized or where the crime is one without a Victim as in the case of many vice crimes. Surveillance can be divided into two basic cate- gories: fixed surveillance ("plant"), and roving 61 surveillance. A plant may be established upon the home or apartment of a person, to cover a certain place of business, or may even extend to a neighborhood--an area of several blocks in some instances. . . Naturally the first requirement of any plant is ob- servation. On inside plants telesc0pes, binoculars and telephoto lenses on cameras are all aids to observation. Such aids permit establishment of an inside plant at some distance from the premises to be observed.53 Roving surveillance ("tailing" or "shadowing") can further be divided into two types: close roving surveil- lance and loose roving surveillance. Before endeavoring to tail any person the investi- gator must know in his own mind and must thoroughly instruct his assistants as to whether a "close" or a "loose" tail is desired. In a close tail it is impor- tant that contact be maintained; discovery by the sus- pect that he is being followed is a secondary considera- tion. A loose tail is the exact opposite--under no circumstances must the tail be revealed to the suspect.54 In addition to the forms of physical surveillance mentioned above, surveillance might also include undercover investigations ("rOping") and technical surveillance. Undercover agents are used to infiltrate the criminal envir- onment in an effort to obtain information. Normally the undercover agent assumes a different and unofficial identity which will allow him to observe and gain confidence of the subject or subjects. Technical surveillance includes the use of such things as electronic eavesdropping devices, 53Col. Maurice J. Fitzgerald, Handbook of Criminal Investigation, edited by Paul B. Weston (New York: Green- berg, Publisher, 1953), pp. 65-66. 4 5 Ibid., p. 68. a“ n——.—- 62 recording and amplifying devices, closed circuit television, wiretapping devices, etc. While electronic surveillance can be very useful and highly effective in monitoring sub- jects, the legality or illegality of the methods tends to restrict its application. The information secured by surveillance can be used for several purposes: obtaining evidence, supplying a basis for search warrants or arrest warrants, determining the ac- tivities and contacts of suspects, promoting the apprehen- sion or arrest of suspects, and developing witnesses. The above sources of information (i.e., instrumen- tation and physical evidence, interviews and interrogation, records and documents, and surveillance) are not mutually exclusive and they may overlap. Which particular sources are used will vary from case to case. _g-. C .0] er: fire the iOi '1 3‘? (D CHAPTER VI PREPARE INPUT DATA The investigator's next step is to organize his in- formation into categories of evidence. "Evidence" is the means of ascertaining the truth or falsity of the fact in issue. Regardless of admissibility, this definition of evidence includes any material from which inferences can be drawn to establish or disprove the alleged matter of fact, the truth of which is submitted to investigation. The fol- lowing are basic definitions of evidence. In general, evidence is anything that may be presen- ted in determining the truth about a fact in question. Evidence is that which supplies the means of arriving at the truth. Evidence may be any 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. From Black's Law Dictionary: EVIDENCE. Any species of proof, or probative mat- ter, legally presented at the trial of an issue, by the act of the parties and through the medium of wit- nesses, records, documents, concrete objects, etc., for the purpose of inducing belief in the minds of the court or jury as to their contention. There are many species of evidence, and evidence can 55Dienstein, op. cit., p. 16. 56Henry C. Black, Black's Law Dictionary (St. Paul: West Publishing Company, 1910), p. 446. 63 m. In L) IN 64 be classified on various different principles. The fol- lowing classification will distinguish between forms of evidence and types of evidence. Forms of evidence will include: Real evidence, Documentary evidence, Testimonial evidence, and Judicial notice (classified by some as a sub- stitute for evidence). Types of evidence will include: Direct evidence, Circumstantial evidence, Cumulative evi- dence, and Corroborative evidence. Forms of Evidence Real evidence. Evidence furnished by things themselves, on View or inspection, as distinguished from a description of them by the mouth of a witness; e.g., the physical appear- ance of a person when exhibited to the jury, marks, scars, wounds, finger-prints, etc., also the weapons or implements used in commission of a crime, and other inanimate objects, and evidence of the physical appear- ance of a place (the scene of an accident or of the commission of a crime or of prOperty to be taken under condemnation proceedings) as obtained by a jury when they are taken to view it. The term "real evidence" is used synonymously with the term "physical evidence." Tangible objects which can be seen or felt when presented for inspection to the trier of fact can be classified as real evidence. While real evidence is said to "speak for itself,‘ the real value of physical evidence may be in its identification, and such identification must naturally be based on testimonial 58 . . . evidence. Examples of real eVidence, ev1dence which can 57ibid., p. 449. 58William A. Rutter, Evidence (California: Gilbert Law Summaries, 1970), p. 2. 65 be exhibited to the senses of the judge and jury, also include such things as blood test samples and urine test samples. The trier of fact may be unable to appreciate or evaluate these types of real evidence without expert tes- timony. Physical evidence may be found at any place where some elements of the crime occur. This may be where the crime was committed, along the getaway route, on the suspect, in his car, or in his home. Physical evidence may be (1) fruits of the crime, (2) instrumen- talities used in commiting the crime, or (3) objects which aid in identifying the accused with the crime. . . For a witness to connect an object with the issues of a case, he must be able to identify the object as one which was found in connection with the crime. This may be done by (l) maintaining complete custody and control of the object; (2) recording the chain 96 pos- session; or (3) marking for future recognition. ' Real evidence is often considered to be the most persuasive type of evidence and courts have encouraged its use. For the purposes of criminal investigation, real evidence can further be classified into three basic sub— groups: 1. Corpus delicti evidence. This evidence serves to prove the crime itself. In a homicide it is the victim's body; in a narcotics violation it is the drug itself; in a burglary or robbery it is the loot. 2. Associative evidence. This evidence connects the accused with the crime or crime scene. Finger- prints, bloodstains of the burglar who cut himself on a broken window, and heelmarks are examples. 3. Tracing evidence. This evidence aids in loca- ting the suspect. Examples include laundry marks in 59Stuckey, gp. cit., pp. 202-203. 66 clothing and tire impressions left by a vehicle.60 It should be noted that these subgoals partially reflect certain steps in MACI. After completion of the preliminary investigation (corpus delicti evidence), three of the primary objectives which must be satisfied prior to prosecution include: "Provide evidence of guilt" (corpus delicti evidence and associative evidence); "Identify guilty party" (associative evidence); and "Trace and locate guilty party" (tracing evidence). Documentaryfievidence. Evidence supplied by writings and documents of every kind in the widest sense of the term; evidence derived from conventional symbols (such as letters) by which ideas are represented on material substances.61 Documentary evidence is related to physical evidence, but it consists of a writing, public or private, which "speaks for itself" as to its contents. Documentary evidence, sometimes classified under real evidence, is said to account for approximately seventy per cent of the physical evidence which will be encountered.62 Although the writing "speaks for itself" as to its contents, testimonial evidence again is usually re- quired to identify the document, or to establish its authenticity. Furthermore, testimonial evidence may be necessary to define terminology used in the document, or in certain cases to estab§ish the circumstances sur- rounding its execution. . 60Turner, pp. cit., p. 9. 61Black, 1910, pp. cit., p. 448. cit. 62O'Hara, pp. , p. 733. 63 Rutter, pp. cit., p. 2. _‘_ 67 Special problems which arise in relation to the ad- missibility of documentary evidence will be discussed under chapter six, "Process Input Data." Testimonial evidence. Evidence of a witness; evidence given by a witness, under oath or affirmation; as distinguished frog4evi— dence derived from writings, and other sources. Oral testimony, given in court or by deposition, can either be factual testimony or opinion testimony. Testimonial evidence is normally presented by a witness as a result of having had some personal knowledge about the facts of the case under investigation. Witnesses may be classified as expert or lay. Lay witnesses may relate facts only and not opinions with few exceptions. There are some eXperiences within the common knowledge of mankind from which a lay witness may draw conclusions. The eXpert witness is used as an aid to the jury in its search for truth. An expert wit- ness is one having skill and knowledge beyond the average man in a certain art, trade, science, or pro- fession. As an expert he may state his conclusions from an examination made by him or from a set of hypothetical facts presented to him. Expert witnesses must qualify as such before they are per- mitted to testify. During a preliminary examination conduc- ted by the attornies known as voir dire, the prosecutor will attempt to show the eXpert is qualified while the defense attorney will endeavor to show he is not. The final deter- mination whether a person qualifies as an expert witness is 64Black, 1910, pp. cit., p. 1150. 65Stuckey, pp. cit., p. 79. 68 commonly made by the trial judge. Judicial notice. judicial notice. . . The recognition of facts which are deemed in their nature to be already known to the court and jury and which therefore need not be proved, since they are "judicially noticed." Judicial notice of such facts takes the place of proof and is of equal force. It displaces evidence since it stands for the same thing.66 Judicial notice refers to the right of the trial judge to determine certain facts as a matter of his own knowledge without the introduction of any independent evidence. Ju- dicial notice is permitted because certain types of facts are so commonly known or accepted that requiring proof dur- ing trial would be an absurd waste of time and resources. The following are some of the facts which can be introduced under judicial notice: public statutes; geogra- phical facts; historical facts; court records; notice of time, days,and dates; scientific or medical facts, etc. Note: for a scientific or medical fact to fall within the realm of judicial notice, it must be an established fact, not merely hypothesis or speculation. Types pf Evidence Direct evidence. Evidence given by witnesses who testify directly of of their own knowledge of the main facts to be proven.67 66James Ballentine, The College Law Dictionary (second students edition; New York: The Lawyers Co—operative Publishing Company, 1948), p. 459. 67Ibid., p. 249. 69 Direct evidence points immediately to a question at issue without intervention of proof of any other fact. Dir- ect evidence proves a fact directly without intervention of inference or presumption. An inference is a deduction of fact made by the jury from the evidence presented. It is the reasoning pro- cess by which the trier of fact comes to conclusions as to the significance of the evidence. . . A presumption is a deduction which the law requires to be made from particular facts in evidence. The trier of fact must make this deductipn in the absence of a sufficient contrary showing. 8 Direct evidence has been described as the recital of facts by eyewitnesses to a transaction or testimony by wit- nesses who have actual knowledge of the facts. Direct evi- dence would refer to the facts presented by a witness who actually observed the accused commit the crime. Direct evidence is obtained directly through one or more of the five senses: sight, smell, hearing, taste, and feeling. Circumstantial evidence. This is proof of various facts or circumstances which usually attend the main fact in dispute, and therefore tend to prove its existence, or to sustain, by their consistency, the hypothesis claimed. Or as otherwise defined, it consists in reasoning from facts which are known or proved to establish such as are con- jectured to exist.6 Circumstantial evidence is directed to the attending circumstances and proves a fact in issue only indirectly by inference or presumption. From facts which are known, 68Rutter, pp, cit., p. 7. 69Black, 1910, pp, cit., p. 447. 43- 70 inferences can be drawn to establish other facts of the case . Circumstantial evidence is the proof of facts which have a legitimate tendency from the laws of nature, the usual connection of things, and ordinary transactions of business, etc., to show reasonable minds that a dis- puted fact was or was not in existence. . . Circumstan- tial evidence is the result of inferences to be drawn from a combination of real and direct evidence from which collateral facts may be inferred. While the existence of any fact may be established by circumstantial evidence as well as by direct evidence, cir- cumstantial evidence requires that the triers of fact weigh probabilities as to matters other than merely truthfulness of the witness. "It is necessary that the circumstances shown by the evidence fairly and reasonably warrant the con- clusion reached and the conclusion must be a natural infer- ence from the facts proved."71 The trier of fact must also decide whether the inference which connects the proven facts with the facts to be established is fair, reasonable, and natural. Circumstantial evidence can be broken down into the following subgroups: 1) Motive. It may be inferred from circumstances and from statements of witnesses that the suspect could have been motivated by a desire for revenge or personal gain. . . Closely related to motive is a desire for criminal action formed by a pathologicaly [pip] dis- ordered mind. . . 2) Opportunity. It must have been physically possible 70Hazen, pp, cit., pp. 71-72. 711bid., p. 72. 71 for the suspect to commit the crime. He must have had access to area, have been in the vicinity, and have had the means available. It must be shown that the suspect could have been in the vicinity of the crime scene in the sense that it was not improbable for him to have been there. . . 3) Associative Evidence. The physical evidence may serve to identify the criminal by means of the clue materials, personal property, or the characteristic pat- tern of procedure deduced from the arrangement of ob- jects at the crime scene. . 2 Cumulative evidence. Additional or corroborative evidence to the same point. That which goes to prove what has already been established by other evidence. . . All evidence material to the issue after any such evidence has been given, is in a certain sense cumulative; that is, is added to what has been given before. It tends to sustain the issue . . . Cumulative evidence is additional evidence of the same kind to the same point.73 Cumulative evidence is evidence which simply repeats or verifies direct or circumstantial evidence. Corroborative evidence. Strengthening or confirming evidence; additional evi- dence of a different character adduced in support of the same fact or proposition. Corroborative evidence can be defined as additional evidence of a different character posited to uphold or sup- port the same point. "While having no direct bearing on the facts in issue, it [corroborative evidence] tends to 72O'Hara, pp. cit., pp. 14-15. 73 Black, 1910, pp. cit., pp. 447-48. 74 Ibid., p. 447. 72 buttress other evidence by showing the reliability of the sources from which it was obtained."75 75Rutter, pp. cit., p. 4. W'—fl‘q CHAPTER VII PROCESS INPUT DATA The possibility of conviction will depend heavily on the evidence presented to the court. For prOper presenta- tion of evidence, courts have developed a system of rules and principles which are referred to as the "rules of evi- dence - " A failure through ignorance on the part of the in- vestigator may lead to rejection of a vital piece of evidence by the court with the result that a conviction cannot be sustained. Since the investigator is occupied constantly with the business of evidence, it is an in- dispensable part of his training to understand the pur- Pose of evidence and the rules that control its admis- sibility. It is only in this way that he can serve the Cause of justice efficiently. The rules of evidence lie at the heart of modern judicial systems and their Understanding is necessary for an intelligent participa- tion in prosecutive procedures. The rules of evidence are designed to exclude evidence that is lacking in validity and reliability. Theoretically, these rules are designed to protect unskilled jurors from being persuaded by inconclusive evidence. "Rules of evi- dence" are guidelines which assist in determining how the t o rlal is to be conducted; what persons may be witnesses; the m at":ers about which they can testify; the method by which 61 . rtlcles found at the crime scene and elsewhere are collected, \ 76O'Hara, pp. cit., p. 561. 73 74 preserved, processed and presented; and finally, what is admissible and what is not.77 "Rules of evidence" regulate the mode and manner of proving the competent facts and cir- cumstances upon which the party relies to establish the fact in dispute by ruling on the admissibility, relevancy, and significance of evidence. All evidence, to be admissible, must be obtained in a lawful manner. There is a marked sensitivity to the admissibility of evidence in areas of inquiry in which the techniques of investigation previsouly practiced have resulted in adverse court decisions critical of such investigative practices. These areas are search and seizure, interrogation, eavesdropping or wiretap- ping, and lineups for investigation. Modern investiga- tors are alert to the standards required in these areas and exercise particular care to avoid any grounds for a claim that proffered evidence is tainted with any procedural illegality and, therefore, inadmissible.78 Not only must evidence be legally obtained to be ad- missible, it must also be relevant, material, and competent. The substance of evidence can be objected to, and possibly excluded, if the evidence is irrelevant, immaterial, or presented by an incompetent witness. Relevancy Relevant evidence. Such evidence as relates to, or bears directly upon, the point or fact in issue, and proves or has a tendency to prove the proposition a1- leged; evidence which conduces to prove a pertinent theory in a case.79 77Stuckey, pp, cit., p. 21. 78Weston and Wells, pp. cit., p. 36. 79 Black, 1910, pp, cit., p. 449. “my... n—I—n-q 75 Relevant evidence is evidence which touches upon the fact in issue and which aids in getting at the truth. Relevant evidence must, to some degree, advance inquiry by demonstra- ting the existence of a relationship between the fact which is offered in evidence and the fact in issue. This relation- ship is commonly based on logic or common sense, and should render probable or improbable the fact in issue. Relevant evidence has probative value and tends to prove or disprove the matter in dispute by allowing for legitimate presump- tions or inferences. While relevant evidence is prima facie admissible, in some cases even relevant evidence may be excluded: The general rule that all relevant evidence is ad- missible is subject to several exceptions. The judge, in his discretion, may exclude evidence if he finds that its probative value is substantially outweighed by the risk that its admission will necessitate undue consumption of time, create substantial danger of undue prejudice, confuse the issues, mislead the jury, or unfairly and harmfully surprise a party who has not had reasonable opportunity to anticipate that such evidence would e offered. . . (Uniform Rules of Evi- dence, p. 45). There is little question that most courts hold irrelevant evidence to be inadmissible and subject to the exclusionary rules. There is no absolute test for relevancy. The only test [for relevancy] is logic. The trial court must determine simply on the basis of common sense and experience, whether the offered evidence has the requisite degree of probative value. 80Klotter and Meier, pp. cit., p. 28. 81Rutter, pp, cit., p. 19. 76 Materiality Material evidence. Such as is relevant and goes to the substantial matters in dispute, or has a legitimate and effective influence or bearing on the decision of the case.82 Material evidence is that evidence which has great importance or significance to the facts of the case. Great weight is placed upon material evidence because it offers a substantial material fact which tends to prove or disprove the fact in dispute. In recent years the trend in law has been to define "relevancy" and "competency" as a single principle. Tech- nically, however, evidence can be relevant, having some bearing on the case, but immaterial, having no major signi- ficance to the matter in dispute. Competency Competent evidence. Broadly speaking, all evidence is admissible if it is relevant, material, and compe- tent. Therefore, if evidence is relevant and material and is excluded, it is excluded because it is incompe- tent.83 Essentially, competent evidence is any evidence that is qualified to be admitted in evidence (i.e., relevant and material). "Competency" is also used as a means of determining whether a witness is qualified to testify in a trial proceeding. 82Black, 1910, pp, cit., p. 448. 83Klotter and Meier, pp. cit., p. 39. 77 As a general rule, all evidence is prima facie ad- missible except for the following evidence which is only admissible under special circumstances: opinion evidence, hearsay evidence, secondary evidence, privileged communica- tion, and evidence concerning character or reputation. gpinion evidence. Evidence of what the witness thinks, believes, or infers in regard to facts in dispute, as distinguished from his personal knowledge of the facts themselves; not admissible except (under certain limitations) in the case of experts. As a general rule, a witness is permitted to testify only to the facts which are known by direct knowledge; not to their effect or result, or to his conclusions or opinions based on the facts. The reason for this restriction lies in the fact that it is the duty of the judge or jury to draw final conclusions from the facts presented. For this reason the witness is not commonly permitted to express his opinion about the facts he presents or about the facts in issue. Further, where the witness adds opinion to fact, the jurors may be unable to distinguish between what was observed as fact and what was derived from the witness's interpretation of these facts. The purpose of eXpert opinion is to help the jury to arrive at a logical conclusion from the facts presented. Experts may give opinion and other testimony on mat- ters which are peculiarly beyond the knowledge of a 84Black, 1910, pp. cit., p. 448. 78 jury. A doctor may testify as to the results of a blood test or urinalysis examination of a drunken dri- ver and state an opinion as to the degree of intoxica- tion. A doctor may testify as to medical matters; a surgeon may testify about surgical operations; a physi- cist may testify about nuclear fission, etc. . . An expert is supposed to be a disinterested witness, and he is usually asked questions which are hypothetical. The hypothetical question may contain all the facts in issue as such, and the expert may answer such hypothe- tical question. The jury may weigh the answer to the hypothetical question and accept it as truth, or dis- regard it completely.85 Since the court recognizes that certain simple judg- ments based on observation of sensory data often involve interpretation which is more reliable than the term "opinion" tends to suggest, courts will, to a limited extent, even accept "opinion" from lay witnesses. The layman may express an opinion on matters of com— mon observation. This exception arises in cases where an opinion is the only logical way to receive the in- formation concerning the fact, since a recounting of all the facts which caused the formation of the opinion would tend to confuse the jury. Necessity and expe- diency dictate the exception. These opinions, of course, are permitted only concerning subjects in which the average man has considerable experience and know- ledge.86 Examples of matters in which lay opinion may be expressed include such things as physical properties (i.e., color, size, visibility, etc.); gross estimate of a person's age; implications of race, nationality, and language; the appar- ent physical condition of a person, etc. Just as in the case of expert opinion, this evidence can be challenged by 85Hazen, pp, cit., p. 84. 86O'Hara, pp, cit., p. 566. 79 both sides, and the evidence can be accorded its own credi- bility and weight by each member of the court. Hearsayrevidence. Hearsay. A term applied to that species of testimony given by a witness who relates, not what he knows per- sonally, but what others have told him, or what he has heard said by others. . . Hearsay evidence is that which does not derive its value solely from the credit of the witness, but rests mainly on the veracity and competency of other persons. The very nature of the evidence shows its weakness, and it is admitted only in specified cases from necessity.87 Exceptions to the hearsay rule: 1. Confessions. A confession is a direct statement made by a person acknowledging the fact that he has committed an offense. Confessions may be repeated in evidence by the person to whom they were made. Confessions are admitted be- cause of the strong probability that a person would not com- mit himself to an offense if he was not guilty of the crime. To be admissible, any confession must be freely and voluntarily given. The requirement that the confession must be given freely and voluntarily serves a dual function. First, unless the confession is so given, there may be a doubt about its trustworthiness, and second, unless it is given freely and voluntarily, the accused's right against self-incrimination may be violated.88 2. Admissions. Admissions are competent as hearsay on the same theory as are confessions. Unlike confessions, admissions apply to all cases, civil and criminal. 87B1ack, 1910, pp. cit., p. 564. 88Stuckey, pp, cit., p. 134. 80 A confession is an acknowledgement of all the material elements of the crime charged, if it is believed, whereas an admission may be a statement of only one or more facts against the interest of the speaker and may be explained. 89 Admissions include more than oral declarations of the accused. Admissions can be defined in the broad sense as any "act" or "declaration" of the accused which is inconsis- tent with the allegation of innocence. Admissions may be implied by silence, conduct, testimony in other cases, etc. 3. Declarations against interest. Declarations differ from admissions in that the dec- 1arations are made by other than the parties to the action, or their agents or representatives. This ex- ception applies mainly to civil cases. 4. Business records. Records kept in the ordinary course of business are admissible if the person who made the record, or the person under whose supervision the record was made, identifies it and describes its mode of prepara- tion. Such records must have been kept in the regular course of business at or near the time of the act. 5. Dying declarations. Three conditions are neces- sary to gain admission of dying declarations: it must be shown that the declaration was made on the verge of death; the declarant must have realized his condition; and death must have followed. The dying declaration is admissible only insofar as it relates to the circumstances immediately surrounding or leading up to the conduct which caused death. A 89Hazen, pp, cit., p. 73. 9°Ibid., p. 74. 81 dying declaration may be made in answer to a leading question or urgent solicitation. It is not necessary to prove expressions indicating apprehension of death, if it is clear that the victim does not expect to survive the injury.91 Dying declarations are still hearsay and they are not equiv- alent to nor do they carry the weight of testimony given by a witness under oath in open court. 6. Other exceptions to the hearsay rule include: sworn statements not made at trial; declarations concerning pedigree; spontaneous and excited utterances ("res gestae"); certain matters of public notoriety; etc. Secondary evidence. "Secondary evidence" is all evidence which falls short of the standards ascribed to "best evidence" or "primary evidence" and it is evidence which in its nature suggests that there is better evidence of the same fact. 2 "Best evidence" is the evidence which is the most natural and satisfactory proof of the matter of fact under investigation. Problems with secondary evidence normally arise when attempts are made to introduce documents which are not the original documents. When the contents of a document become an important part of a trial, the document itself must be introduced to prove its content. This provision is known as the "best—evidence rule." Legally, the rule provides that "there can be no evidence of the contents of a writing other than the writing itself." This rule means that 91Klotter and Meier, pp, cit., p. 170. 92Hazen, pp, cit., p. 70. 82 if information is to be offered during a trial concern- ing what is contained in a document, the best evidence or best proof, of the contents of the document is the document itself, and so it must be introduced.93 Where it is either impractical or impossible to in- troduce the original document, guidelines have been estab- lished for using a substitute. The substitute is then entered as "secondary evidence" and not as "primary evidence." Privileged communication. Information obtained in certain confidential rela- tionships will ordinarily not be received in evidence. The court considers such information to be privileged communication and in the interest of public policy will refuse to receive evidence by the person whom it bene- fits. The court may, however, receive thti evidence from a person not bound by the privilege. Communications made during conversations between certain persons in strict confidence may be privileged, although, if the conversation takes place in the presence of a third person, the third person might be permitted to testify. Privileged communications are commonly not admissible in court unless the privilege is waived by the person whose interest or relationship is sought to be protected. Privileged communications may occur between: husband and wife; attorney and client; physician and patient; or priest and penitent. 93Stuckey, pp, cit., p. 270. 94O'Hara, pp. cit., p. 572. 83 Evidence concerning character p£_reputation. "Character" can be defined as what a man is while "reputation" is what other people think about him. As a general rule, testimony concerning a person's character and reputation cannot be introduced for the purpose of raising an inference of guilt. This exclu- sion is based on the difficulty that the jury may ex- perience in separating the fact that a defendant has a previous record of crime from the question of his guilt in the crime under consideration.9 If the defendant happens to call a character witness, the prosecution can introduce a character witness who will contradict such testimony. Even where the defendant does not call a witness to testify to his good character, the prosecutor may introduce previous acts of crimes of the ac- cused if they tend to show that he probably committed the crime for which he is being tried. Modus operandi from past crimes of the accused may be used to identify the defendant with the modus operandi used by the criminal in the present case. Evidence of prior crimes by the accused is also admissible to show guilty knowledge, motive or intent. In general, the following categories of evidence will meet the requirements for admissibility in terms of relevancy and materiality. Whether the evidence is finally admitted will also depend upon the other rules of evidence governing the admissibility of evidence. 951bid., p. 567. 84 1. Evidence which tends to establish the identity of persons involved or of things connected with the crime. 2. Evidence which relates to circumstances or events which have occurred prior to, during, or subse- quent to the criminal act. 3. Evidence which relates to defenses claimed by the accused. 4. Evidence concerning guilty knowledge, motive or intent. "Admissible evidence" is the third and most selective class of information which has been discussed. "Information" is the broadest category of data equal to or encompassing the category of "evidence." While both "information" and "evidence" are useful, if not necessary, to consider, it will be the "admissible evidence" which ultimately deter- mines the fact of the case. In terms of prosecution and conviction, both information and general evidence should be seen primarily as guides for developing evidence which will be admissible in court. There is a danger, however, in overemphasizing the value of admissible evidence. In terms of compiling infor- mation, the investigator's first duty is to collect infor- Ination which appears relevant to the crime (within legal limits). This information will then be classified into more functional categories of general evidence. In most cases all of the information assembled will be appropriate for one category of evidence or another. Evidence which seems relevant should be maintained irrespective of 85 materiality and competency. Failure to collect information or to preserve evidence may result in an irreversible in- vestigative error. While the investigator does not have the authority to determine which evidence will be admissible in court, he can make an effort to anticipate the potential for admis- sibility. In formulating hypotheses concerning the crime, the investigator must bear in mind that information which is simply relevant and trustworthy may not be admissible. This fact, however, should not stop the investigator from legally compiling such information, nor should it prevent him from using the information to develop his case. If good sufficient evidence cannot be presented at trial to support prosecution then you have wasted both time and resources. Not only will the suspect go free, he will probably be immune to future prosecution for the same crime. Hopefully the use of MACI will encourage the investigator not to wait until prosecution before he considers how im- portant the rules of evidence are in regulating the use of information. CHAPTER VIII FORMULATE HYPOTHESES Hypotheses suggest the possibility of satisfying the stated objectives in MACI. Though theoretically unproven at this time, hypotheses can be formulated and tentatively accepted on the basis of data which has been collected. Up until this point the preliminary hypothesis has been used to guide the collection of relevant information. The pre- liminary hypothesis states that "Evidence of guilt can be provided which will prove a given party is guilty of com- mitting a specified criminal act." This hypothesis did not provide for a complete theory, but only for a rough outline to guide the collection of data. As explained in Chapter V of this thesis, significant observation requires some form of working hypothesis. Once the investigator has compiled information suf- ficient to satisfy the preliminary hypothesis, he will then be in a position to formulate hypotheses which are directly responsive to the six basic objectives of criminal investi- gation: 1. Provide evidence of guilt sufficient to support reasonable grounds or probable cause. 2. Identify guilty party. 86 87 3. Trace and locate guilty party. 4. Apprehend guilty party. 5. Provide evidence of guilt sufficient to support proof of guilt beyond a reasonable doubt. 6. Promote adjudication and conviction. Two primary hypotheses can be formulated from an in- tegration of the first four objectives: I. Evidence of guilt against party (X) is sufficient to support reasonable grounds or probable cause. II. It is physically possible to trace, locate, and apprehend party (X). (Note: it is assumed that party (X) has been identi- fied.) A third hypothesis can be formulated from an integra- tion of the fifth and sixth objectives: III. Evidence of guilt is sufficient to support adju- dication and conviction of party (X). While the criminal investigator will commonly have the authority to propose and evaluate the first two hypothe- ses, at best he can only influence the outcome of adjudica- tion. Ideally the investigator will not encourage prosecu- tion until he has good and sufficient evidence to confirm the third hypothesis in his own mind. The final truth of this proposition, the fact of the case, can only be deter- mined by a legal tribunal. The investigator will be in a position to satisfy the six primary objectives when all three hypotheses can be answered in the affirmative. Confirming the first hypothesis will mean that the first two objectives can be satisfied; 88 confirming the second hypothesis will allow for satisfying objectives three and four; and affirming the third hypothe- sis will indicate that objectives five and six can and should be discharged. The objectives directly concerning recovery of stolen property can be stated as one hypothesis: A. Stolen property can be identified, located, and recovered. Confirming this hypothesis will indicate that the following objectives can be satisfied: 1. Confirm the fact that property was stolen. 2. Identify the stolen property. 3. Trace and locate the stolen property. 4. Recover stolen property. The fifth objective under stolen property states: 5. Dispose of stolen property in appropriate manner. This objective does not warrant statement of a hypothesis. Methods pf_ Formulating Hypotheses The methods of formulating hypotheses can be broken down into two categories: those which make conscious use