Page 169 - Deception at work all chapters EBook

170 Deception at Work

Real evidence is a physical item that is relevant to the facts in issue, for example a gun in a
murder case, a fraudulent invoice or a screwdriver used in a burglary. Real evidence is produced
as an ‘exhibit’ by a witness who has first-hand knowledge of its relevance.

THE NEED TO ESTABLISH CONTINUITY

Witnesses must be able to establish continuity or the ‘chain’ between the time an exhibit came
into their possession and its production in court. For example, an investigator will need to show
how, when, where and by whom a document was recovered and how it was handled from that time to
its production in court. This makes it imperative that accurate records are maintained. Equally
as important, the witness must satisfy the court over the integrity of the exhibit, confirming
that it has not been altered in any way.

HEARSAY EVIDENCE

Evidence in criminal cases must usually be given – under oath – by a witness who has first hand
knowledge of the facts in issue. For example, if A who is accused of a crime, makes an admission
to B who repeats it to C:

• B can give evidence against A stating what A told him;
• C cannot give evidence against A because he was not present at the conversation between

A and B. Thus his evidence is ‘hearsay’.

In some civil cases, hearsay evidence will be admitted at the discretion of the judge.
Equivalent rules apply to documentary and other evidence. For example,

Example. A clerk who prepared a purchase order can go into the witness box, produce it as
an exhibit and can be cross-examined by the opposing side about its contents. Any evidence
from the clerk’s manager (who has no first-hand knowledge of the document) may be
excluded under the ‘hearsay’ rules..

There are some important exceptions to the hearsay rule. Some witnesses, who are recog-
nized by the court as experts, are able to express an opinion.

Example. A document examiner may express his opinion that a certain person’s handwriting
is on a document. Computer evidence may be exhibited by a witness who has no first-hand
knowledge of the transactions concerned, but who is able to prove to the court that the records
concerned were produced in the ordinary course of business by a system of proven reliability.

ENTRAPMENT AND AGENT PROVOCATEUR

Lawyers will sometimes argue that their clients have been entrapped into committing a crime
by an unscrupulous investigator or confidential informant. Again the allegation is easily
made but far more difficult to sustain. Entrapment means cajoling someone into committing
a crime they would not otherwise commit. If the crime – or a continuum of dishonest activity
– is ongoing and an investigator or informant infiltrates it, this is not entrapment.