Innocent Until Proven Guilty: Using Direct and Indirect Evidence in Your Stories (FightWrite™)

Your character stands accused of a most heinous crime. His guilt or innocence all depends upon you and the evidence you provide … or hide. Before you are able to do either, you need to know what types of evidence exist. In today’s FightWrite™ post on the WD blog, we are going to look at the types of evidence presented in court and the problems that might be associated with each.

(Creating the Most Dangerous Character in the Room (FightWrite™))

Before we go any further, I am not a lawyer. I am not your lawyer. The information presented in this article is not intended as legal advice. I know all the lawyers out there are applauding me for saying that. If you have read my Writer’s Digest book Fight Write, How to Write Believable Fight Scenes, you know that I have lawyer friends. (Yes, lawyers do have friends.) One of those friends wrote a chapter in the book regarding the legalities of self-defense. I do not ever presume to carry the mantle of legal expert.

I do however consider myself an expert in lawyer jokes, which lawyers love. First, how many lawyer jokes are out there? Just one. The rest are true stories. Two, why did the lawyer bring a ladder to court? To reach a higher standard of proof.

And on the note of proof, let’s look at some evidence.

There are only two types of evidence: direct and indirect. They are both in your story, whether you realize it or not. Both carry immense weight in court.

Direct evidence is evidence that directly proves a factual link between a crime and a suspect. You may also hear direct evidence called factual proof, direct proof, primary evidence, hard evidence, conclusive evidence, physical evidence, and explicit evidence. Direct evidence includes eyewitness testimony, video footage/photographs, confessions, and physical items.

Eyewitness Testimony: In order to be credible, the witness providing the testimony must be in good physical health. They must have the mental capacity to recount the events in a competent and compelling manner. And if the character is connected to the crime in any way, that level of connection must not be such that it would taint the evidence that they provide. If a defending lawyer can disprove any of those sufficiently, that eyewitness testimony can be destroyed on the witness stand or not even make it to trial.

Also, memory can be malleable and deeply impacted by both suggestion and adrenaline.

According to The Innocence Project, faulty eyewitness testimony is the leading contributing cause to wrongful conviction. Nationally, 69 percent of DNA exonerations—252 out of 367 cases—have involved eyewitness misidentification.

Video Footage/Photographic Evidence: Any video/photographic evidence must pertain to the case and declared authentic and accurate. That often requires eyewitness or expert testimony. The evidence must also be obtained legally. Surveillance footage in public places, private businesses, private residences, police body-cam footage, crime scene footage, and video of property damage are generally allowed in court.

If your work is set in modern day, remember that those compromising photos or videos that your character has posted on social media can be brought in as evidence. And before your character tries to delete those posts, trying is about as far as they will get. The internet doesn’t really have a delete button. Also, video/photographic evidence can be altered. One popular example of video alteration was in both Karen Read cases. Video footage of a vehicle inspection was visually flipped and presented as unaltered to favor the prosecution.

Confessions: If your character voluntarily confesses, it will be direct evidence. If there is any question that the confession was coerced, that can nullify it being used in court. Also, if your character was not informed of their Miranda rights, which many countries have in some form, their confession may be thrown out. Miranda rights are only required when someone is officially in custody, meaning not free to leave and subject to police interview.

Physical Evidence: Physical evidence is evidence that the jury can see, touch, and observe. Just be sure that physical evidence accomplishes what you hope. Like just about any evidence, in the right hands, physical evidence can be turned on its end. Case in point, the infamous “bloody gloves” in the O.J. Simpon trial.

Indirect evidence is direct, or observable, evidence that requires a reasonable assumption to connect it to the crime. It is sometimes called circumstantial evidence which can make it seem as if it isn’t as valid as direct evidence. That is not the case. Scott Peterson was convicted of murder based largely upon indirect evidence.

The requirement of reasonable assumption in connection to the direct evidence is where indirect evidence can go awry in the jury box. What’s reasonable to one juror may not be to another, no matter how much sense the evidence makes. Fingerprints are a good example.

Fingerprints at the scene of a crime are direct evidence that can indirectly link someone to the crime. Let’s say that Character Jo is murdered while making a cake. Fingerprints, not matching Jo’s, are found in flour on the counter just above Jo’s body. If those the fingerprints in the flour match Character Lee’s fingerprints, we can reasonably deduce that Lee was at that scene relatively close to the time of the murder.

Is it possible that someone out there, with the same fingerprints as Lee’s, was at the scene of the crime. Yes, it is possible. It has never been proven that no two people do not have the same fingerprints. Is it reasonable? Well, that depends upon your story, but, usually, it is not reasonable.

Do the prints alone prove that Lee committed the crime? No. Presence at a crime is not synonymous with perpetrating a crime. Do the prints reasonably make Lee a suspect? Absolutely. When added to other evidence, can the prints reinforce Lee’s guilt? Well, it depends upon jurors. Some jurors can get so hung up on the fact that the prints don’t prove that Lee committed the crime, they dismiss it as valid support that he could be. And that could be valuable to your work.

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And there you have it, direct and indirect evidence. I go into more detail about them, in my second book, Fight Write, Round Two. I even discuss how you can use each to help your character get away with a crime. I can directly and indirectly, but not legally, guarantee that the information I present will make your work criminally good. Until the next round with Fight Write on the WD blog, get blood on your pages.