When the State decides to prosecute someone for a violation of a criminal law, the State has the burden of proving the defendant’s guilt beyond a reasonable doubt. To do that, the State (through the prosecuting attorney) must present sufficient evidence to convince a judge or jury of the defendant’s guilt. The defense can attack and try to discredit that evidence at trial; however, it is even better for the defendant if the defense can prevent that evidence from ever being introduced at trial. In legal terms, this is referred to as “excluding” evidence. An Omaha criminal attorney explains the basic rules regarding the exclusion of evidence.
Criminal Law Basics – Gathering Evidence
In a criminal investigation, the primary objective of law enforcement officers is to gather sufficient evidence for the prosecuting attorney to believe charges should be filed against the suspect. Although the prosecuting attorney will analyze the strength – and legality – of the evidence acquired by the police, it is ultimately the job of the defense to challenge any of the State’s evidence if a challenge appears warranted. The State is required to “discover” the evidence it intends to use at trial to the defense during the discovery phase of the case.
The type of evidence gathered in a criminal case can vary widely, depending on the type of crime involved. Physical evidence includes things such as fingerprints, weapons, or blood. Documentary evidence might include written records of transactions, receipts, or anything else in writing. In more recent years, digital evidence, such as emails, photos stored on a computer, or text messages, has become more common. Experts might be called on to give scientific evidence while anyone else could be called as a witness to give testimonial evidence. All types of evidence must conform to the Federal Rules of Evidence and must not have been acquired illegally by the police for that evidence to be admissible at trial.
The vast majority of police officers are hard-working civil servants who make every attempt to do their job within the confines of the law and without violating the Constitutional rights of a suspect. That does not, unfortunately, always means they don’t violate a suspect’s rights, only that they do not do so intentionally. Then there is a small percentage of officers who blatantly ignore the rights of suspects and pay very little attention to the law. Either way, it happens that evidence is sometimes obtained illegally. Examples of illegally obtained evidence include, but are not limited to, the following:
- Search and seizure – the 4th Amendment generally requires a law enforcement officer to first obtain a warrant, based on probable cause and signed by a judge, before searching your home. If a search was conducted without a valid warrant, and none of the narrow exceptions to the warrant requirement applied, the search may have been illegal. Therefore, any evidence seized as a result of the search may be inadmissible at trial.
- Questioning – a suspect in custody has the right to an attorney if the police want to question that suspect. If the police fail to inform a suspect of that right, or they continue to question a suspect after the suspect asks for an attorney, any answers could be inadmissible at trial.
- Chain of custody – once the police take possession of an item of evidence, they must be very careful with that item and be able to prove the “chain of custody,” meaning who had the evidence at all times to ensure it was not tampered with after the police took possession of it. If the chain of custody is broken, the evidence may be tainted. Even the possibility of that may cause the evidence to be inadmissible.
If the defense has reason to believe that evidence is inadmissible, for any reason, the defense attorney will file a motion with the court challenging the evidence and explaining why it should not be admitted at trial. The State must also be notified of the challenge and given the opportunity to respond. Typically, the court will set the matter for a hearing and allow both sides to make their arguments. If the judge is convinced that the defense’s argument prevailed, the evidence will not be excluded from use at trial.
Contact an Omaha Criminal Attorney at Petersen Law Office
If you have been charged with a criminal offense in the State of Nebraska, do not hesitate to consult with an experienced criminal defense lawyer as soon as possible to ensure that your rights are protected. In Nebraska contact Petersen Criminal Defense Law 24 hours a day at 402-509-8070 to discuss your case.
Latest posts by Tom Petersen (see all)
- Free Holiday Sober Rides - Monday, August 19, 2019
- Omaha Drug Crime Attorney Explains Search and Seizure Law Basics - Friday, August 2, 2019
- Will I Have to Register As a Sex Offender in Nebraska? - Friday, July 26, 2019