Criminal evidence includes any physical evidence or verbal evidence which is presented for the purpose of proving a crime occurred. Criminal evidence may come in many different forms and may be introduced in court by the prosecution to prove guilt and by the defendant to prove they are not guilty.

It is important to note that it is against the law to attempt to hide any type of evidence, called spoliation of evidence, from the other side of a court case or from authorities. In a criminal trial, the burden is on the prosecution to prove, beyond a reasonable doubt, that the defendant committed the crime with which they were charged.

What Are Some Forms of Criminal Evidence?

Criminal evidence comes in two basic categories, verbal evidence and physical evidence. Common examples of verbal evidence include:

  • Confessions made by the defendant;
  • Testimony offered by witnesses and expert witnesses;
  • Text of documents such as a search warrant or other files; and
  • Spoken evidence which is obtained using a wiretap or a similar type of technology.

Physical evidence includes any tangible evidence. It is typically presented as an exhibit. Common examples of physical evidence may include:

  • Weapons or other instruments which were used to commit a crime;
  • Illegal contraband, including:
    • drugs;
    • drug money; and
    • drug paraphernalia;
  • DNA, blood, or bodily samples;
  • Photographs or video footage;
  • Demonstrative evidence;
  • Footprints or other types of tracks; and
  • Scientific and forensic evidence.

Criminal evidence may also be further classified into subcategories of direct evidence or circumstantial evidence. Direct evidence provides the prosecution with information which is true beyond a reasonable doubt.

This may include evidence examples such as a videotape showing that the defendant injured the victim. Circumstantial evidence, on the other hand, does not prove the prosecution’s theory but, instead, merely suggests proof in support of their theory.

An example of this would be a knife which first the description of eyewitness testimony which was used as a murder weapon.

What Evidence is Admissible in Court?

In order for evidence to be admissible in court, that evidence must be:

  • Relevant;
  • Material; and
  • Competent.

The evidence must have a reasonable tendency to help prove or disprove a fact to be relevant. It is not required that the evidence makes a fact certain, but instead makes a fact which is of consequence more or less probable than it would be without that evidence.

Even if the evidence is relevant, it must be legally relevant, which means that the probative value of the evidence must not be substantially outweighed by the danger of unfair prejudice, confusion of the jury, waste of time, or misleading the jury.

What Evidence is Not Admissible in Court?

Although the majority of evidence is permitted to be used during a trial, there are certain rules, such as the hearsay evidence rule, which prevents certain types of evidence from being admissible. There are, however, special exceptions, which vary from state to state, so it is important to consult with an attorney prior to heading to court.

The following types of evidence are not admissible against a criminal defendant:

  • Out of court testimony. The Sixth Amendment provides criminal defendants the right to confront their accusers;
  • Character evidence. Prosecutors are not permitted to use evidence of a defendant’s personality to prove that the defendant committed the crime unless the defendant raises the issue first;
  • Plea bargaining. Statements which are made during a plea bargain cannot be used against a defendant at trial;
  • Self-incrimination. A defendant has the right not to take the stand during trial because the prosecutor’s cross examination could lead the defendant to incriminate themselves.

What Are Some Factors for Determining if Evidence is Admissible?

In general, relevant evidence will be admissible and irrelevant evidence will be inadmissible. In order to be admissible, each item of evidence must tend to prove or disprove a fact which is at issue in the case.

If the evidence is not related to a fact which is at issue in the case, it is irrelevant and, therefore, inadmissible. The four basic types of evidence include:

  • Demonstrative evidence is evidence which shows or demonstrates a fact at issue in the case. For example, a photograph of a damaged vehicle involved in a car accident is demonstrative evidence because it shows how the accident affected the vehicle;
  • Documentary evidence includes documents which are relevant to an issue in a case. For example, in a case of breach of contract, the contract would be a necessary item of evidence;
  • Real evidence is an actual object or thing relating to the case. For example, the actual bullet that was taken from the body of a victim of a shooting would be real evidence; and
  • Testimonial evidence includes statements of a witness who appears in court to tell what they know about the facts at issue in a case.

What is Electronic Evidence?

Electronic evidence includes any electronically stored information (ESI) which may be used as evidence in a trial or in a lawsuit. Electronic evidence may include:

  • Documents;
  • Emails; or
  • Other files which are stored electronically.

In addition, electronic evidence includes records which are stored by Internet or network service providers.

What Laws Govern Electronic Evidence?

There are two major sources of laws which govern the collection of electronic evidence, which include The Fourth Amendment and statutory privacy laws. The Fourth Amendment is the amendment which protects individual privacy interests by prohibiting unreasonable searches and seizures.

Pursuant to the Fourth Amendment, law enforcement is permitted to seize and search an individual’s computer if law enforcement has a valid search warrant. A valid search warrant allows law enforcement to take an individual’s personal computer and to search it.

Law enforcement may search an individual’s computer for incriminating evidence, in some cases, without a warrant giving them permission to do so. This type of warrantless search is constitutional if there is no reasonable expectation of privacy or there is an exception.

Statutory privacy laws include various federal laws which govern how and when electronic evidence may be collected. The Electronic Communications Privacy Act (ECPA) regulates how law enforcement is permitted to obtain the following:

  • Stored account records from network service providers;
  • Internet service providers (ISP’s);
  • telephone companies;
  • cell phone service providers; and
  • satellite service providers.

In addition, the ECPA limits how electronic surveillance may be conducted. Another federal law governing electronic evidence is The Patriot Act, which expands the power of law enforcement to collect electronic evidence.

This act eased the restrictions which were placed on investigators and provided law enforcement with easier access to ESI.

How Can Electronic Evidence Be Used Against Me?

A prosecutor may use electronic evidence to establish elements of a crime that a defendant is charged with. Items such as saved instant messages and emails may be incriminating, especially in cases of internet stalking or cyberbullying criminal cases.

An individual’s internet browser history may also be used to show that an individual researched topics which were associated with the offense. Spreadsheets or work processing documents may be used to prove elements of various white collar crimes.

Movies or digital photos may also be used as evidence of an individual’s involvement in a crime, especially in cases of revenge porn. Electronic evidence may be used against a defendant in the same ways as traditional tangible evidence.

Should I Get an Attorney if the Law Enforcement Has Seized Electronic Evidence?

It is essential to have the assistance of a criminal defense attorney if law enforcement has seized electronic evidence against you. It is important to contact your attorney as soon as you can.

Your attorney will review your case and determine if there are any defenses available to you, such as an illegal search or seizure of the evidence. They will also represent you throughout the legal process and defend you in court.