Admissible evidence refers to any type of testimony, document, or tangible evidence that is used at trial. While evidence can be presented at either a civil or a criminal trial, it is more commonly associated with criminal trials.
Additionally, there are three types of admissible evidence: testimonial, real, and demonstrative. In order to better understand fleeting or evanescent evidence, it is helpful to first discuss demonstrative evidence specifically.
Demonstrative evidence refers to any sort of evidence that is intended to clarify facts for a jury and/or judge. An example of this would be a car accident reconstruction model. Other common examples of demonstrative evidence may include, but not be limited to:
- Physical objects;
- Models; and/or
- Enlarged documents.
To reiterate, the importance of demonstrative evidence is to make it easier for the judge or jury to understand specific information as it pertains to the case. Some examples of such information include, but may not be limited to:
- How the crime occurred, or could not have occurred;
- The damages that were inflicted by the carrying out the crime;
- The reliability of other evidence that is being presented; and
- The method that the defendant used in the crime that they have been accused of committing.
Something else to note is the difference between demonstrative evidence and real evidence. Real evidence is evidence that was at the scene of the crime when the crime occurred. Some examples of what is considered to be physical evidence would be a knife, bloody clothing, and DNA.
Other physical evidence, such as photographs of the crime scene, would be considered demonstrative evidence. This is because it is not “real” evidence, as it only illustrates the point that the criminal attorney is trying to make. An example of real evidence would be the blood-soaked mattress upon which the victim was killed, because that mattress existed at the scene of the crime and helps prove how and where the victim died.
What Is Fleeting Or Evanescent Evidence?
Fleeting or evanescent evidence refers to evidence that is at risk of being destroyed or disappearing, and cannot be easily reconstructed through demonstrative evidence. Destroying this evidence is a crime in and of itself, known as spoliation of evidence. Evanescent evidence is generally referred to in association with warrantless searches. An example of this would be how the term is usually stated as “the evanescent evidence exception to the warrant requirement.”
Generally speaking, the police are legally required to obtain a search warrant before they can seize evidence of a crime. However, under the evanescent or fleeting evidence exception, police can seize evidence without a warrant if the evidence is at risk of being lost. The intention here is that the evanescent must be seized immediately, and as such, the police do not have the time in which to secure a formal warrant. This would be especially true if the suspect has made attempts to destroy evidence before a warrant can be secured.
The concept of fleeting or evanescent evidence is considerably similar to the idea of “hot pursuit” in that police also do not need an arrest warrant if the suspect has taken flight, and as such they are in “hot pursuit” of the culprit.
What Are Some Examples Of Evanescent Evidence?
It is important to note that there is no set definition for what constitutes evanescent evidence. Generally speaking, the term can include any item that must be obtained quickly before it is no longer available. Additionally, fleeting or evanescent evidence generally refers to physical, tangible objects as opposed to verbal testimony.
Some of the most common examples of fleeting or evanescent evidence include, but may not be limited to:
- Drugs or drug paraphernalia that may be discarded or destroyed, such as flushing drugs down a toilet;
- Food that may spoil or rot, to be used as evidence in food poisoning cases;
- Blood samples or blood marks that could evaporate;
- Delicate substances such as DNA, hair, or skin samples; and
- E-mails, text messages, or other electronic files that can be deleted quickly.
Evanescent evidence is more commonly associated with the suspect’s motives in tampering with the evidence. Evidence is more likely to be classified as evanescent if the suspect has displayed an intention to destroy, conceal, and/or dispose of the evidence.
Because of this, even if the evidence is not generally subject to decay or destruction by its physical nature, it could be considered fleeting or evanescent evidence depending on how the suspect has treated it.
What Should I Do If The Police Have Illegally Seized My Property?
Although police do not need a warrant in order to seize fleeting or evanescent evidence, it is not uncommon for the police to make a mistake when identifying evidence. In order to proceed with a warrantless seizure, the police must have a reasonable belief that the evidence will be destroyed if they do not take immediate action.
If you have been subject to an illegal warrantless search or seizure, you would need to prove that the police made an unreasonable search in taking your property. An unreasonable search occurs when law enforcement conducts a search with no warrant and no probable cause. Probable cause exists when it is more likely than not that evidence of a crime can be found in the area that is being searched.
A search warrant is a court order issued by a judge which gives police permission to search for specific evidence. Searches without an issued warrant are considered to be unreasonable under the Fourth Amendment, and as such, any evidence that is found during these searches will most likely not be used against a defendant in court.
The appropriate remedy in such a situation would generally be for the judge to exclude the evidence during trial. The evidence will be suppressed under the exclusionary rule, which means that the prosecutor cannot use the evidence against the defendant in court. However, if the evidence is suppressed, that does not necessarily mean that the case has concluded. The police may have other evidence that can be used against the defendant. Additionally, just because evidence is suppressed does not mean that no one will know about the evidence.
Some examples of situations in which suppressed evidence may still be used include:
- When the judge is determining a sentence for the defendant;
- When the case is either civil or involves deportation; and
- To impeach or otherwise discredit a witness who is testifying.
The exclusionary rule applies to any evidence that is discovered as a result of an illegal search. This evidence is referred to as “the fruit of the poisonous tree,” and cannot be used against the defendant at trial.
An example of this would be if an officer illegally searches your car and finds a note with an address on it. The address is the location in which you have stored counterfeit money; as such, the money may not be admissible as evidence at your trial. The illegal search of the car, as well as the finding of the note, are considered to be the “poisonous tree,” while the counterfeit money is considered to be the “fruit.”
Do I Need An Attorney For Issues With Fleeting Or Evanescent Evidence?
If you are being accused of committing a crime, you will need to contact an experienced and local criminal defense lawyer. An attorney will be most knowledgeable in terms of your rights and legal options according to the laws of your state, especially regarding the evidence that can be used in court. Additionally, an attorney will also be able to represent you in court, as needed.