Process of Evidence

Most of the time when crimes are committed, the criminal leaves physical evidence behind, for example, documents, fingerprints, DNA, etc. Documents are the most probable evidence when it comes to forensic auditing.

The best opportunity to collect evidence is at a crime scene, sometimes giving the investigator the only opportunity to recognize, collect, and record physical evidence.

Investigators should recognize, collect, and record evidence as they see logical or relevant to a case, as there are no rules to what may be collected as evidence, but the evidence collected has to have scientific and legal value. Because physical evidence is extremely important in a legal proceeding, investigators should be familiar with the basic principles and procedures surrounding physical evidence and should be able to collect and preserve this evidence competently.

Experts are needed to process some evidence such as fingerprints or any other laboratory related processes, documents on the other hand need little or no processing, and it is crucial that an investigator collect, package and mark, and identify all the relevant evidence needed to investigate a case successfully. The evidence collected has to be given in court, if called upon to do so.

The following process is used by the South African Police Service, although its not the only acceptable process to collect evidence and present it to court, it is a good guideline to forensic auditors:

1. Recognition:

According to the Locard principle, all crime scenes have evidence, and as soon as a forensic investigator arrives at a crime scene, he/she should start looking for any physical evidence related to a crime. It is crucial to collect and package all evidence for storage, as the original files should be copied and the copies should be used in an investigation instead of the originals. The reason for this is that dockets get lost and stolen, and if the original evidence was included in the docket, the originals will be gone, and the case will most likely be lost.

2. Protection:

It is crucial to ensure that evidence is preserved and protected by safeguarding it until it is necessary to provide the collected evidence in court, so that no evidential losses are suffered in a case. The steps taken to preserve evidence from being tampered with must also be recorded as it may be required in court.

3. Recording:

Examples of recording physical evidence are by use of photographs, sketches, video tapes, voice recordings, and written notes. The recordings of physical evidence of a crime scene are an assurance that the evidence is reliable and can be presented successfully in court. Recordings must contain a date, location, time, and the persons at present.

4. Packaging:

Packaging evidence depends on the type of evidence, for instance, documents can be preserved by placing it in a plastic sleeve, evidence such as fire arms can be preserved in a paper folder, and small evidence can be placed in small plastic zip-lock bags, ensuring that the evidence does not get tampered with or contaminated.

Samples that have to be compared should be separate from examples that have to be analyzed, for example hair samples. A piece of hair should be sent to a laboratory for analysis to determine what specie the hair is from (dog, cat, human) and what other substances are found on the hair (chemicals, fibers, dirt). Another sample of hair should be preserved to be compared with the hair of suspects or victims.

The less people handle evidence, the better it is preserved. The less people handle samples before and during packaging, the better the sample will be preserved, giving clearer indications during analysis or comparison.

Evidence should be kept in storage for a minimum of five years after the case has been closed, because the case can be reopened due to new evidence found or a new investigation related to the stored evidence. Stored evidence should have an index number with a detailed description about the inclusive exhibits for easy referencing.

5. Marking physical evidence:

All evidence should be marked with an exhibit number, as soon as it is discovered, in such a way that it does not deteriorate or harm the value of the evidence. The exhibit number should also be documented so that you can refer back to it, with regards to the location it was found and how it fits into the puzzle pieces of an investigation, when the exhibits are presented in court.

Personally, I think all evidence should be placed in a folder or plastic sheet or zip-lock bag with an exhibit number tagged or labeled on the container. Writing an exhibit number on a document might influence the evidential value, and should rather be done on a copy of an evidence document.

6. Preservation of integrity:

Constantly safeguarding evidence assures the court that evidence or exhibits have not been tampered with, keeping the evidential value in tact is a high priority from when it is collected until the time it needs to be presented in court and accepted as evidence. Convincing the court that the evidence has not been tampered with, I think, can be gained by documenting where evidence has been stored or locked up.

7. Maintenance of continuity of possession:

It is crucial in a court proceeding that evidence is not questionable but reliable. By making sure that a minimum amount of people handle evidence, and that all persons who handled the evidence in question are recorded, the evidence stays highly reliable.

Although evidence may be collected, marked, packaged, and sealed in accordance to court standards, doubt in the persons who handled the evidence may make the evidence questionable, which is why the integrity of physical evidence is so crucially important to a forensic investigator.

All persons who handled evidence have to appear in court and testify about the condition of the exhibit whilst they handled it.

8. Presentation in court:

The forensic investigator who collected evidence will be asked questions in court by the court and the defense about the evidence presented. The investigator will also have to identify and confirm the evidence and the relevance to the case.

When the evidence is presented successfully and the questioning has gone successfully, then only will the court accept the evidence as reliable and relevant.

Fraud

Fraud is the unlawful and intentional making of a misrepresentation which causes actual prejudice or which is potentially prejudicial to another.

There are four elements of the crime of fraud, namely:

1. A misrepresentation;
2. Prejudice or potential prejudice;
3. Unlawfulness and;
4. Intention.

The crime of fraud is originally known in Roman law as stellionatus and crimina falsi. Stellionatus was the criminal-law equivalent of the delict dolus, and developed from the actio de dolo in private law. It involved intentional misrepresentations resulting in harm or prejudice to others. Crimina falsi was the collective term for a number of crimes relating to falsification, almost all of which were derived from the rex Cornelia de Falsis. These different forms of falsification were, however, never unified into one generic crime. Examples of the crimina falsi are the falsification of will, of weights and measures, and of evidence. In the crimina falsi it was not required that somebody should necessarily have been prejudiced by X’s conduct. In stellionatus there seems to have been some form of prejudice in most of the examples mentioned in the sources, but it doubtful whether the prejudice necessarily had to be actual or of a proprietary nature: potential or non-proprietary prejudice seems to have been sufficient.

Roman-Dutch writers did not differentiate clearly between stellionatus and crimina falsi. At the beginning of this century the distinction between these two crimes became blurry; the courts combined stellionatus and crimina falsi and formed a new crime known as fraud. In fact, fraud has sometimes even been referred to as falsitas or “falsiteit”. The most important result of this merging has been that fraud may now be committed even where there is no actual proprietary prejudice: even non-proprietary or potential prejudice may be sufficient to result in a conviction.

Because the prejudice need not necessarily be proprietary in a character it follows that the interest protected by the crime is not exclusively property; it may sometimes be an interest of another nature, such as legal certainty.

1. Misrepresentation:

The form of misrepresentation can be in writing, the spoken word, or any gesture like the nodding of the head.

The conduct of the perpetrator will also imply the misrepresentation by his action.

When a person books into a hotel, he thereby implies that he will be/or is in a position to pay for accommodation. When he disappears without paying, his conduct by booking in, was a misrepresentation by implication.

The misrepresentation can be made by either the commission or omission.

Another form could be a promise about the future. When a person pays for goods with a post dated cheque, and there is good faith that he would have sufficient funds by then, it would not be a misrepresentation. But if a person was fired from his workplace and he is without income, then it would be a misrepresentation.

2. Prejudice or potential prejudice:

There must be real or potential prejudice. The mere telling of a lie would be the difference when as result of the lie could lead to the harm of another. The lie would be the misrepresentation, and the harm would be the prejudice. An example of prejudice would be when you buy goods with a stolen cheque, and get away with it.

Potential prejudice is when the harm was avoided by any type of intervention. When there was a possibility that you could have suffered any loss, but it did not manifest, that is when it is a potential loss or prejudice. An example of potential prejudice would be when you buy goods with a stolen cheque, and the store owner verifies the validity of the cheque, and you did not obtain any benefit.
The question is not if someone would suffer any loss, but rather if someone could suffer any loss.

3. Unlawfulness:

In the case of fraud, unlawfulness means making a misrepresentation with the intention of prejudicing another person. The state must prove this element beyond reasonable doubt. Here one should ascertain what the law prescribes. “Fraud is the unlawful and intentional…” To profit from someone by means of a misrepresentation is unlawful.

4. Intention:

The perpetrator must be aware of the fact that that the representation is false. The investigator must make sure that the intention was to defraud and not to deceive.
Negligence can not be equated with intention.

The intention will always be to profit from another by means of a misrepresentation.

5. Casualty:

Casualty is the relationship of cause and effect between two incidents: if one incident leads to another, there is a “casual relationship” between the two. In the case of fraud, the misrepresentation must cause actual or potential prejudice, in other words there must be a casual relationship between the misrepresentation and the prejudice.

Perjury

Perjury consists in the unlawful and intentional making of a false statement in the course of a judicial proceeding by a person who has taken the oath or made an affirmation before, or who has been admonished by, somebody competent to administer or accept the oath, affirmation or admonition.

There are six elements of the crime of perjury, namely:

1. The making of a declaration;
2. Which is false;
3. Under oath or in a form equivalent to an oath;
4. In the course of a juridical proceeding;
5. Unlawfulness and;
6. Intention.


Perjury can only be committed when;

• The statement is false. The deponent must be aware that his statement is not the truth.

• Statement need not to be material. The statement can be in the form of verbal evidence. Since 1935 it is no longer necessary for the prosecution to allege or proof the materiality of the statement. .must have been administered by a person who is competent to administer the oath or in a form equivalent to an oath

• The statement must form part of a judicial proceeding. The judicial proceeding could either be in a criminal matter or civil matter.

• Court need not have jurisdiction. No decision could be found that perjury can only be committed before a court having jurisdiction. One can accept that if a false statement is made before a ‘tribunal’ which does not have the same powers of a court of law, no perjury is committed.

• On oath, affirmation or admonition. The deponent must be under oath or in a form equivalent to an oath.

• Unlawfulness: It is unlawful to make a false statement in the course of a judicial proceeding. The norm will be to prosecute witnesses who falsely testify to mislead the proceedings. When the accused has made a false statement in order to benefit him, but he is convicted on the original charge against him, he would not be charged for perjury. His conviction and sentence would generally deem to be sufficient punishment for the perjury itself.

• Intention: The deponent must have the intention in the form of mens rea to mislead the judicial proceeding by giving a false statement.

Culpability

The Latin expression mens rea means “guilty mind”. The Latin expression culpa means “punishable”. If you take the two Latin expressions in mind it could ascertain what the intentions of the perpetrator was.
The whole question of culpability may be reduced to one simple question namely “could one in all fairness have expected X to avoid the wrongdoing?”
Culpability arises only once it has been established that there was an unlawful act. It would be nonsensical to attach blame to lawful conduct.

The unlawfulness of the act is determined by the criteria which are applicable to everybody in society, whether rich or poor, young or old, clever or stupid. The law also refers to these criteria as “the reasonable man”. This is the reason why it is just as unlawful for somebody who is poor to steal as for somebody who is rich and why it is just as unlawful for psychopaths, who find it very difficult to control their sexual desires, to commit sexual offences as it is for normal people. Criteria employed to determine unlawfulness do not relate to the perpetrator’s personal characteristics.


However, when the question of culpability arises, the picture changes, the focus now shifts to the perpetrator as a person and as an individual, and the question here is whether a particular person, in the light of his personal aptitudes, gifts, short comings and knowledge, and of what the legal order may fairly expect of him, can be blamed for his wrongdoing. If this is the case, it means that the wrongdoing can be attributed to X personally, he is charge with the account arising from the wrongdoing. The question to be asked is what the reasonable man would do in the same circumstances.

Culpability could be simply described as the punitive consequences when committing an offence.

Unlawfulness

The mere fact that there is an act which complies with the definitional elements does not mean that the person who performs the act is liable for the particular crime. Satisfying the definitional elements is not the only general requirement for liability. The next step in the determination of liability is to enquire whether the act which complies with the definitional elements is also unlawful.

An act which complies with the definitional elements is not necessarily unlawful. This will immediately become clear if one considers the following example:
The definitional elements of murder: Nevertheless a person is not guilty if he/she kills somebody in self-defense; the act is then justified and therefore not unlawful.

It is a common phenomenon that an act which presumably falls within the letter of the law (in other words, which corresponds to the definitional element) proves upon closer scrutiny not to be contrary to the law as The Law tolerates the violation of the legal norm, because the law does not consist merely of commands and prohibitions contained in the definitional elements but also of rules or criteria which is contrary to such command or prohibition. An act is unlawful if it is in conflict with the rules or criteria of the legal order as a whole, and not merely with the particular definitional elements.

In Criminal Law the definition of a crime normally comprises of the following introduction “…the unlawful and intentional…” It is clearly defined in the act that a certain transgression is punishable due to the action of a perpetrator.

Conduct

The unlawfulness of an act will be the conduct of the perpetrator. It will either be the positive conduct “commission” or negative conduct “omission” that would be a transgression of the law. Commission is when you act willfully in a positive manner against a certain law that prohibits your action. You will be guilty of contravening the law when your commission is unlawful. We can use assault as a good example, or theft of cash. Omission is your conduct where you fail to act when you were supposed to act as set out in a specific law. This means it is to neglect a prescribed act of the law. Here we can think of a mother neglecting to care for her sick child, or a person failing to submit his revenue to SARS when it is obligated to do so.

The act of your conduct means the type of act described in the definitional elements.
Criminal law does not prohibit a mere act in /abstract to /. Put differently, there is no rule of law declaring “you may not act”. At every conscious moment of a person’s existence he/she performs some act or another, such as walking, opening a door, or simply sitting and staring etc.

It stands to reason that “act” as the word is use in criminal law does not refer to the “events” just mentioned, it refers only to the type of act mentioned in definition of the crime with which X is charged, an more specifically the type of act set out in the definitional elements of the relevant crime. The law does not concern itself with any other possible “act” committed by X (i.e. an act other than the one mentioned in the definitional elements). Thus if X is charged with arson, the act required- is setting a fire to a certain type of structure.

The difference between intention and negligence

In crimes of intention the accused is blameworthy because he knew or foresaw that his conduct was forbidden and that is was unlawful but nevertheless proceeded to engage in the conduct. In crimes of negligence, on the other hand, the accused is blameworthy because he did not know or foresee something or did not do something, although according to the standards of the law he should have known or foreseen something or should have performed an act.


Intention therefore always has a positive character: the accused willed or knew or foresaw something. Negligence, on the other hand, always has a negative character: the accused did not will or know or foresee something, although according to the standards of the law he should have known or foreseen it.