The Relevance of Evidence

Evidence: today, that word is often thrown around as a byword for ironclad, damning proof.  The knife in the hand, the blood on the clothes, the smoking gun – all of these have been dramatized to create an impression of clear-cut evidence in criminal cases.  The truth is, however, that evidence can be a much more subtle adversary.  At times, the most mundane actions might result in a criminal conviction, even without the perpetrator realizing that they are creating the evidence law enforcement requires to prosecute and convict them.  From a choice of words to something as mundane as body odor, the risks of inadvertently giving evidence are almost limitless.  So what’s the best way to avoid self-incrimination?

1) Don’t Commit the Crime

The most obvious way to avert incrimination by evidence in any criminal case is, of course, not to be involved in criminal activity.  Although a person might be stopped, investigated, interrogated or even charged with criminal activity, innocence is an ideal defense; indeed, it is perhaps the strongest defense.  Nevertheless, the saving grace of innocence is not to be depended upon to protect you from criminal charges; the standards of evidence in our society are almost unbelievably low, and even if you are acquitted of criminal charges for which you are ultimately found to be innocent, the costs of such a defense can be extreme – socially, psychologically and financially.


2) Understand the Standards

The truth of the matter is that most people don’t understand what actually constitutes evidence of criminal activity.  Law enforcement officers and prosecutors have a myriad of indicators, resources and even simple instincts on which to draw for the express purpose of bringing criminal charges against an individual.  Of course, it is not possible to cover each and every possible source of evidence in this article, but it is worth understanding the basic standards the government has required law enforcement and prosecutors to adhere to.


a. Reasonable Suspicion

Reasonable suspicion of criminal activity is perhaps the most basic and frequently exploited avenue for the acquisition of evidence in criminal law.  The official line established by the Utah Legislature for an activity that might rise to the legal standard of reasonable suspicion is that “a peace officer may stop any person in a public place when he has a reasonable suspicion to believe he has committed or is in the act of committing or is attempting to commit a public offense and may demand his name, address and an explanation of his actions.” 

In practice, this statute empowers law enforcement officers with what amounts to free range to stop and question whomever they want, whenever they want, and to investigate them for criminal activity.  The legality of the decision to stop and investigate – along with whatever evidence is gathered – is ultimately left to the court, but by then evidence has been gathered, charges have been filed and the damage has often already been done.  At the very least, the accused has already suffered the inconvenience of appearing in court or of hiring a defense attorney.  At worst, whatever evidence law enforcement officers might have gathered from this stop is brought to bear and the accused defendant is convicted.

b. Probable Cause

Whereas the “reasonable suspicion” of criminal activity grants law enforcement the right to stop and question an individual almost without restraint, in order to effectuate an arrest or intrude on private property (among other things), the legislature has set forth a standard known as “probable cause.”  Explored in detail in Utah Code 77-7, probable cause is required to affect the “actual restraint of the person arrested or submission to custody.”  Generally this means that an active warrant for arrest must have already been issued by a court, though law enforcement agents are often able to obtain these warrants at the scene from on-call magistrates.

Like reasonable suspicion, challenges to the legality of probable cause – along with any evidence obtained as a result of such an “arrest or submission to custody,” – are left to the court to determine.  Yet, through vagaries such as the so-called “totality of circumstances (i.e. taking all the known facts into consideration),” probable cause is often easily “proved” in court: everything from google searches to “expert campers” might justify an arrest, search and gathering of evidence by law enforcement.


3) Consult an Attorney

Given the almost numberless possibilities for providing law enforcement officers and prosecutors with condemning evidence, possibly the best choice to protect oneself is to consult with an individual experienced in handling criminal defense – i.e. an attorney.  Generally these attorneys will have experience in analyzing the collected evidence and determining whether or not it was obtained legally; whether or not the evidence was gathered in violation of either the reasonable suspicion or probable cause standards.  Although such violations never guarantee a successful defense in a criminal defense case, they can often be vital for a criminal defense attorney in securing a reasonable plea bargain or, on occasion, bringing a criminal case to dismissal.

Yet, perhaps more important than overcoming improperly obtained evidence is the prevention of its acquisition altogether.  An individual being investigated for criminal activity may not be able to determine whether or not law enforcement have reached either the reasonable suspicion or the probable cause necessary to glean evidence from them or their belongings.  In this, a trained criminal defense attorney is invaluable, and might make the difference between everything from a citation, to arrest, to a conviction in court.

“The Fruit of the Poisonous Tree” is a concept well known by all educated attorneys in the State of Utah.  As with the biblical reference, while evidence might come in all kinds of forms, if it is not properly acquired, that evidence can be rendered harmless.  Nevertheless, do not anticipate getting a case thrown out or making a successful defense on the grounds of lack of evidence.  You might not know it, but almost any action might implicate you in criminal activity.  Always consult a criminal defense attorney before you expose yourself to investigation for criminal charges.

Photo Courtesy of: Courtesy of: Simon

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