Types of Evidence and Collection guidelines
Types of Evidence and Collection guidelines
By Adv. Shafay Haider
“ Evidence may be given of facts in issue and relevant facts.—Evidence may be given in any suit or proceedings of the existence or non-existence of every fact in issue and such other facts as are hereinafter declared to be relevant, and of no others.” Explanation:
As per the QANOON E SHAHADAT ORDER 1984 ‘evidence’ means and includes:
(1) Whatever statements witnesses make before the court about matters of fact under inquiry are called oral evidence; (2) Whichever documents and e-records produced to submit before the court are called documentary evidence.
Thus, the word evidence means statements/documents produced to present before the Court, based on which Court decides an action. The Act applies to both civil and criminal cases. So, the specific context in which evidence and its meaning are considered will depend on the facts, circumstances and the case which is being referred to. Illustrations
If X tries to rob Y. He enters Y’s house and loot his accessories. If Y is captured in CCTV cameras of the building while coming out of X’s house. Here, CCTV footage is considered as an ‘evidence’ Under Article 164 of Qanoon E Shahadat Order 1984 whereas Robbery is Y’s intention to commit crime.
Role of Evidences
The evidence aims at helping the Courts to assure the truth and to avoid the confusion of judges resulting from the admission of evidence in excess.
“The law of evidence is the lex fori which govern the Courts; whether a writer is competent or not; whether a certain fact requires to be proved by writing or not; whether a certain evidence proves a fact or not; that is to be determined by the law of the country where the question arises, where the remedy is sought to be enforced and where the Court sits to enforce it.”
The basis on which rules of evidence are framed are:
No matter how interesting the fact shared by someone who is not in connection with the matter in controversy, the court should not entertain it; and
All facts having rational probative value i.e., which helps the Court to conclude the existence or non-existence of the matter in controversy, are admissible in evidence, unless excluded by some rule of paramount importance.
Further, it is one of the basic principles of law that evidence to be admitted in a court must be relevant, material, and competent. Once any evidence is admitted as ‘relevant’, then the judge needs to determine the evidentiary value of that shred of evidence. Types of Evidence.
Direct evidence is evidence that the witness knows personally because they have seen, heard, touched or experienced it. It is directly about the real point in matter. It is witnesses’ testimony about the fact to be proved, e.g., the evidence of a person who says that he witnessed the occurrence of the act. It also includes the production of an original document. Direct evidence has a very high evidentiary value.
Examples of direct evidence include eyewitness testimony, an oral confession of a defendant, or the victim’s firsthand account of a criminal assault. Direct evidence paves the foundation for many cases. The eyewitness testimony or a victim’s testimony about certain crimes has a primary quality to be a shred of direct evidence. The weightage of direct evidence in any case decides whether the case is strong on Advocate’s side or not.
Circumstantial evidence allows a conclusion to be drawn from a set of circumstances or information. To do this the court and the jury must accept the evidence before them and conclude it, for example:
A is accused of shoplifting from a shopping mall
B is a witness who saw the accused running from the mall holding a bag.
Here, witness’ observation is considered as direct evidence where the conclusion drawn based on witness’ observation that the accused shoplifted is considered as circumstantial evidence.
Circumstantial evidence is not always weaker than direct evidence if number of circumstances comes together to lead the court or a jury on a guilty verdict. In the combination of several circumstances, each of them may not be able to prove a guilty verdict separately, but combining the circumstances altogether may prove a guilty verdict. It means, cases can also be solved based on circumstantial evidence.
Thus, if there is no eye-witness to a case of poisoning, the fact that A had the motive to poison B or A has been seen with a glass of drink which has poison, from B’s room where B was found dead immediately after B’s cries were heard would be circumstantial evidence as against A. If the evidence relates to a relevant fact, it is indirect or circumstantial. Proof of circumstantial evidence:
There are four points essential for proving guilt by circumstantial evidence:
(a)that the circumstances establishing guilt must be proved; (b)that all the facts must have consistency to the guilt hypothesis; (c)that conclusion must be drawn from all the circumstances; (d)that the circumstances should not include any other hypothesis than the one to be proved. Value of Circumstantial Evidence: Ordinarily, circumstantial evidence cannot be considered as satisfactory as direct evidence. The chain of circumstances may lead to particular inferences and the relation to facts may be more apparent than real. Hence, such evidence must be used with caution. Where the circumstantial evidence only showed that the accused and deceased met the previous night, is not sufficient.
Primary Evidence and Secondary Evidence CHAPTER V
Article 72. Of Qanoon E Shahadat Order 1984 provides Proof of contents of documents
“contents of the documents may be proved either by primary or secondary evidence”. Section 72 provides “primary evidence means the document itself produced for the inspection of the Court”.
Primary evidence is an original document and a statement about its contents. Primary evidence is usually required to prove the contents of a document.
Secondary evidence means that which can be given in absence of the primary evidence. Where a copy of the document is tendered in evidence and hence are called secondary evidence of the document. Where the original has been destroyed or lost, and when a party has made diligent search for it and exhausted all sources and means available for its production then the secondary evidence is admissible.
Secondary evidence is a copy of a document and verbal evidence about its contents.
Document as defined in Article 2 (B) of QSO-1984 means “any matter expressed or described upon any substance utilizing letters, figures or marks or by more than one of those means intended to be used, or which may be used, to record that matter”. Documentary evidence deals with evidence produced in the form of a document to prove a controversial matter. The subject-matter of documentary evidence can be divided into three parts:
In which way the contents of a document are proven?
In which way the document is proven to be authentic?
(iii) In how many and which cases the oral evidence is not included by documentary evidence? This is a written document or written statement which is intended to be produced or tendered before the court. A police officer will seize any documentary material as exhibit which has been used for committing the crime to be presented in court. For example bankers books, records and cheques, currency notes, passport, vehicle registration certificate, license, ATM card, credit/debit card which have been used to prove cases of fraud.
All statements made by witnesses before the court about the matters of fact under inquiry are called oral evidence. Further, oral evidence is the evidence confined to words either spoken by mouth or gestures, i.e, in case if witnesses are deaf and dumb. “Oral evidence” includes the examination-in-chief of the witnesses, on behalf of the party which called him, as well as the cross-examination of witnesses by the opposite party. If oral evidence is reliable, then it is sufficient to prove a fact or title without documentary evidence. Article 71 of QSO 1984 states that oral evidence must be direct, i.e. a witness can tell the Court of only a fact of which he has seen, heard, touched, experienced by himself and not by the third person or medium. For instance, the person recording the statement himself has heard screams of his neighbour and later, he witnessed from his balcony that the wife was killing her husband with a knife.
The verbal statements are made before the magistrate or the judge by a witness. This may either be an eyewitness testimony or experience by any other of the five senses while the crime was being committed. It is also viva voce or oral evidence given by a witness in person from the witness box.
Article 164 of Qanun-e-Shahadat Order, 1984.
"164. Production of evidence that has become available because of modern devices, etc. In such cases as the court may consider appropriate, the court may allow to be produced any evidence that may have become available because of modern devices or techniques". Clause (e) of Article 2 (Interpretation) of the Qanun-e-Shahadat is also noteworthy to a certain degree under which the expression "automated", "electronic", "information", "infor-mation system", "electronic document", "electronic signature", "advanced electronic signature", and "security procedure" means the meanings given in the Electronic Transactions Ordinance (Ref.2016 YLR 62) That includes ‘e-records’ within the same. An e-record means data, record or data generated, image or sound stored, (i.e, photo, audio, video, GIF, text, MMS, etc) transmitted in an electronic form or microfilm or computerised manner.
Due to advancements in electronic devices, nowadays, almost everyone carries a cell phone, tablet, PC, iPod, IPad, Pen Drive, Hard Disk Drive, etc. Many households and businesses have installed surveillance cameras, monitors and other recording equipment. Hence, Investigators should seize and acquire all these types of devices and any digital cameras, phone answering machines, video cameras, computers and data storage devices to get some facts related to the crime which might be already stored in them. Cell phone call records, text chats on various messenger applications and media transmit over it, e-mail messages, files recovered from computer hard drive, information in pen drive and videotape recorded from a bank security camera, stills acquired from CCTV, etc details can be used as an investigative lead in certain crimes.
Hearsay evidence means the statement of a witness based on what he heard from others and not on his knowledge. It is indirect, second-hand or derivative evidence. It is a statement made before Court by a witness who has not seen the happening of the but heard about it from someone else. Thus, it means that which a witness does not say of his knowledge but says that another has said or signified to him.
Medical knowledge is considered as a specialized kind of knowledge that a layman cannot have without proper education and training. So, Medical experts are seen as an essential part of the criminal justice system. The expert testimony given by a medical expert has proven helpful to the Court in passing the judgment in various cases, till now. Particularly, in case of death of a person, medical evidence is of great importance to find out time since death, causes of death, nature of injuries, the weapon with which the injuries were inflicted, handedness of the assailant, etc. Such evidence can be obtained through postmortem report examination and Autopsy. The results of the PM examination and Medical expert’s testimony makes it easy to decide the guilt of the accused.
The law of evidence is designed to ensure that the Court considers only that evidence which enables it to reach a reliable conclusion. The first and foremost requirement for expert evidence to be admissible is that it is necessary to hear the testimony of the expert evidence. The test is that the matter is outside the knowledge and experience of the layperson. Thus, there is a need to hear an expert opinion where there is a medical issue to be settled. The scientific question involved is assumed to be not within the Court’s knowledge. Thus cases where the science involved is highly specialised and perhaps even esoteric, the central role of an expert cannot be disputed.
Rules of Expert Evidence:
- Expert must be within a recognized field of expertise.
- The evidence must be based on reliable principles.
- Expert must be qualified in that discipline;
Once the Investigating officers reach the scene of crime, the first step is to preserve the crime scene by moving the curious onlookers aside and providing medical assistance, if needed. Later, photographing the crime scene and Searching for evidence need to be done. After that, those evidences need to be collected without getting tempered, contaminated or lost. This is a tedious task before the First Responding Officer to collect all the evidence according to their respective protocols as they can prove or disprove a guilty verdict.
Proper Order of Collection:
a. Perishable evidence should be collected first. b. If there’s no concern about destruction of evidence, then the officer should go through the scene collecting shreds of evidence in a logical sequence by avoiding tamper or contamination of other types of evidence. For each item listed, the following information will be noted: a. A complete description of the item, including make, model number, and serial Number. i. The source from which the item was obtained. ii. The name of the person collecting the item. iii. The date and time at which the item was collected. All items packaged for submission to the FSL will have a red coloured ‘evidence label’ stick on the seal of the specific container (envelope, box flap, etc.) Officer/investigator will place his initials over the red evidence label which ensures laboratory personnel that the item has not been tampered with in any way.
• Wearing non-powdered gloves and disposable lab coats to package evidence is compulsory. Also, it is advised to wear non-shedding clothes to a crime scene. • Change gloves, if contaminated. • Handle evidence as little as possible. Avoid unnecessary touching over surfaces at the crime scene as the important prints like fingerprints, palm prints, lip prints, footmarks, earmarks may be destroyed. • Record location of evidentiary items before removal or movement. • Tape lift bodies if contact with assailants is suspected. • Obtain known standards from evidence such as fibres, glass or soil. • Gather personal care items such as hair brush or toothbrush, clothes, cell phones for possible latent prints or DNA profiling. (In the case of missing persons.)
Identify and secure evidence in the container at the crime scene.
Paper bags/paper sheets/paper envelopes may prevent the destruction of a biological sample if not completely dried before packing.
Never use any printed paper as the ink may contaminate the exhibits. Each article should be separately packed and labelled.
Each exhibit should be labelled with necessary information like FIR no. and date, under section, name of IO, police station, district, state and should be duly signed and sealed by the IO with two witnesses’ signatures.
The labels should be numbered consecutively with the signature of the forwarding officer.
Labelling should be done on the cover instead of the evidence.
Collect the hair samples with the help of tweezers to pick up the hair and place in small paper bags. While collecting known hair samples, pluck them to not cut the root of that hair.
The dried stains can be either scrapped on a paper or fingerprint tape/cello tap can be used to lift the said dried stains of the blood. This can also be collected by using surface swab/gauze/filter paper / FTA card moistened with distilled water.
If the evidence is to be collected from a pool of blood then use dropper/syringes to lift the sample in EDTA (Ethylenediaminetetraacetic acid) vial and simultaneously lift on sterile tipped foam surface swabs.
The case forwarding note for forensic examination of exhibits should include information as per the proforma enclosed.
Collection of Hair sample
Collect hair samples as much as possible on the crime scene.
Collect 50 Scalp hair from all the people present on the crime scene at the time of its occurrence.
Collect 25 Pubic hair from the same people.
Do not cut the root of the hair while collecting a standard sample.
Do not dump all the hair sample encountered on the crime scene in a single zip-pouch
Collect hair present on hair-brush, clothes or nooks of the room.
Collection Of Fiber
As fibre evidence are considered as trace evidence as they are microscopic, tape lift critical areas like, clothes, victim’s body, ligatures, etc.
Also. Vacuuming can be done to collect fibre samples.
In case of Tape-lifting apply tape to the same area repeatedly.
Several tape lifts of the same object may be placed on the same transparency sheet.
Vacuuming is efficient but indiscriminate. Vacuuming are valuable in that they show the analyst the ‘population’ of trace debris that might have transferred, for example, from vehicle to victim.
Collection of Cordages
• Handle cordage carefully to avoid tampering and loss of trace materials. • Don’t untie the knots. • If you must cut, cut away from the knots and reattach ends with twist ties or plastic cable ties. • The ends cut during evidence recovery needs to be specified. • The entire rope or cord needs to be submitted.
Collection of Paint chips
• Examine the victim’s vehicle and the suspect’s vehicle/object for paint transfer. • Any loose chips should be collected with the help of tweezers. • Collect any paint transfers by chipping/ scraping with a clean razor blade. • Collect known paint from the same area away from the area of damage. • Place each sample in separate paper fold and individually seal in an envelope. • All paint layers are needed to be collected.
Collection of Glass
• Do not try to tape lift the glass samples, instead go for vacuuming. • Do not collect glasses with bare hand as it may cause injury. • All the glass samples at crime scene must be collected. • In case of hit and run, collect standard samples as it helps to perform ‘Physical Matching’.
Collection of Firearms
•Photograph (overall and close-up) the firearm in the same position as it was encountered at the crime scene • Unload weapon proper unloading technique and procedure by following all safety measures • Do not forget to collect cartridges and cartridge cases individually and separately • Use a cardboard box for packaging the firearm. • Collect biological samples present on the gun, if any, by swabbing. Also, collect GSR. • Indicate the brand name, model designation, serial numbers, and calibre.
Collection of Fire Debris/Ignitable Liquids
• Air-tight containers are used for packaging fire debris • Do not fill cans full, leave place for air • Collect samples from the edges by tweeters. Avoid touching evidences by bare hands. • Submit the leftover bottles, cans in which liquid was carried to the crime scene. • Be aware of other types of evidence present at the scene.
Collection of Seminal Stains
• wet Seminal stains – Collect in a vial. Avoid touching it by bare hands. Analysis should be possibly done within 24 hours to check sperm mobility. • Dry Seminal stains – These may usually be located by the use of a UV (black) light or laser. Fold the garment carefully to avoid abrasion of the stained area. Package in a suitable sized envelope or paper bag. • Collection of Soil Samples • Shoes should be thoroughly checked for mud or soil on them. • Scrapping the soil from the shoes is the easiest way of its collection. • Check for various trace evidences in the soil like fibre, hair, grass, seeds, etc.
- Collection of Document Evidence
Most documents such as stick-up notes, threatening letters, correspondence, etc. require no special handling procedures other than to mark them in a suitable location and seal them in an evidence envelope.
In case of Charred documents, special care must be taken. Those documents are first set properly by various spraying techniques and dried properly.
Avoid collecting documents with your bare hand because it may tamper already present fingerprints on it.
Handle documents by its corners instead of touching all over the documents.
Avoid ink spills or destruction by water, oil, etc.
Lillian Oetting (1960)
Three female socialites in Chicago were murdered in Starved Rock State Park, Illinois. All of them had skull fractures. Their bodies were found in a cave, bound with twine. The bloodied tree limb was found near the bodies and hence it was assumed that they were killed by tree limb. The staff of the lodge in which all those three women were living, was questioned. Chester Weger, a 21-year-old dishwasher at the lodge, had a bloodstain on his coat. When he was questioned about it, said it was animal’s blood. The blood test by State Labs had shown that it was of animal origin. Then, the blood on his coat was reexamined by the FBI Crime Lab and found to be human and matched with one of the victims. Lie detector test was conducted on Weger, he confessed. He was found guilty for the murder of Lillian Oetting, one of the three Lillian Oetting and sentenced for 45 years of imprisonment.
Here, the ‘bloodstains’ on Weger’s coat was collected as evidence and after investigation and analysis, he was proven guilty based on the exhibit’s submitted before Honourable Court.
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