07/26/2011

Moe GreenbergDetective's Notebook
with Moe Greenberg

Investigating a circumstantial criminal case

Circumstantial cases are often too quickly stigmatized as being too difficult to prove in court, but there are some ways in which you can build a very strong circumstantial case

Investigating a crime has often been compared to assembling a jigsaw puzzle. Investigators are supposed to gather and assemble all the pieces so that, in the end, there is a clear picture describing what happened and identifying the person(s) responsible. Despite their best efforts, sometimes detectives and investigators find themselves without all of the puzzle pieces. They may be lacking the “evidence piece,” the “victim piece,” the “confession piece” or some other piece in order to finish their work. Despite the missing pieces the investigator may still feel certain that he or she knows who is responsible. The question is, how to prove it…

When there is a likely suspect but little evidence and no confession, we have a situation which isn’t discussed enough — the circumstantial case.

As long as you are not adverse to a little hard work and you still enjoy the thrill of the chase... I have a few tips to help steer your efforts in the right direction and hopefully lead you and your circumstantial case to a successful prosecution.

Lies and Alibis
A lot of interview and interrogation training teaches us to shut down denials and redirect our suspects from deception to the truth and in most cases that works very well. In a circumstantial case however, where you have nothing else, lies and alibi’s become important. Allow your suspect to lie, allow them to provide an alibi. Then, and this is the key, immediately begin work on breaking down the lie and refuting the alibi. While one detective continues to interview the suspect, other detectives should be out in the field attempting to confirm or dispel the information provided.

If it is three o’clock in the morning and you need to refute the suspect’s alibi, then someone is going to be woken up by a loud knock on their door! The goal of this effort is to confirm or dispel the information before the suspect is released from the interview/interrogation; so that he or she doesn’t have a chance to contact others to fabricate an alibi, destroy evidence or conjure up other deceptive details (more on this below).

Allow the suspect to believe that he or she has mastered the crime. Watch their behaviors and make note of them. Allow them to lie again and again. As long as the suspect is willing to talk to you, use this to your advantage. Interview the suspect a second or third time or more. Cover some of the same ground you did in the first interview or two and see if new lies are born or the one’s already told begin to change or deteriorate. Suspects have a tendency to want to add more over time in their effort to “tighten up” their deception.

If the time seems right, discuss any inconsistencies you noted with the suspect. Monitor and note their reactions and comments. The more a suspect tells you, truthful or not, the more you have to work with. In a circumstantial case, the thing to remember is that there is no need for a suspect to lie (presuming innocence) when the truth would do.

Be patient. When your investigation lacks those things we normally hope for in an open and shut case, you will need to readjust your expectations a little bit. Realize that you are in this for the long haul. Most cases wrap themselves up in a day or two while circumstantial cases can take weeks, months or longer. Just keep compiling information; keep collecting the pieces to the puzzle.

Disprove All Other Possibilities
One of the biggest tasks in a circumstantial case is disproving all of the other possibilities. In some of these cases we need to shift our emphasis from what the suspect did, to what they didn’t do. A brief example: A suspect may say that he couldn’t have committed the crime because he was out of town. Investigators will need to spend some time proving that he wasn’t. Not quick, not easy but necessary.

Circumstantial cases undoubtedly require more work. Disproving possibilities takes more time and effort than cases bearing direct evidence but the work, in the end, is worth it. Circumstantial cases, in some instances, can be stronger than “standard” cases because they are not subject to a person’s ability to perceive. What I mean is, in a case with direct evidence…a rape case for example, some of the evidence such as the victim’s identification of the suspect is subject to the victim’s perceptions at the time of the crime. DNA evidence, for example, can be subject to the perceptions of a judge or jurors as they listen to forensic and/or expert testimony in a case. Judges and jurors not only have their own perceptions to contend with but they also must weigh, in their decision-making, the accuracy of the victim’s perceptions at the time of the crime.

Circumstantial cases are a bit different. They allow a judge or jurors to put on their thinking caps, use their common sense, become engrossed in the assembly of the puzzle and make informed inferences based upon the ability that you have worked to give them; the ability to eliminate all other possibilities or likely scenarios leaving them with only two options to believe…everyone but the defendant is lying or the defendant did it.

Talk to Everyone
In breaking down lies or disproving other possibilities several things become important. Witnesses are a critical component in circumstantial cases... witness testimony sometimes comprises nearly 50 percent of a case’s weight. An important note: Eyewitnesses are always a great source of information but in a circumstantial case, you may not have them. The witnesses in circumstantial cases need not be people who have observed a crime but instead people who can tell you things about the victim, the suspect and their “normal” or “abnormal” patterns of behavior.

For example, a victim may love the car that she drives. She may spend every opportunity washing and waxing it or otherwise meticulously caring for it. If the victim were to turn up missing and the car is later recovered on the parking lot of a shopping center then the testimony of witnesses who would say, “the victim would never leave her car abandoned on a shopping center parking lot” becomes a key component of the case.

Witnesses help us to establish a suspect or victim’s normal routines and habits, their behaviors both usual and unusual, their relationships, relationship dynamics and most importantly, with respect to the suspect(s), behaviors consistent with having committed a crime. Some examples might be: Has a suspect altered their physical appearance or the appearance of their property? Has the suspect unexpectedly disposed of any carpeting, furniture or purchased an excess of cleaning supplies? Is the suspect spending money extravagantly when they didn’t have it to spend before the crime occurred? Is the suspect now avoiding a particular place or area that they used to frequent? And so on…

Although a witness in a circumstantial case may not be able to answer for us the classic question, “who done it?” They can still provide us a wealth of other important information that would lead a reasonable person to conclude that no one but the suspect had the means, opportunity or motive to commit the crime.

Our Ever-Shrinking World
Thanks to technology, our world seems to be getting smaller every day and when you are searching for a needle in the haystack, the smaller the better. Three things in particular have helped to contribute to this phenomenon:

mobile phones
video surveillance cameras
social networking sites and services

It seems like you can’t go anywhere these days without being recorded on video or seeing someone talking on a cell phone. Likewise, it seems that everyone is “Tweeting,” “blogging” or posting their personal information somewhere on the web. These three things can each be advantageous in a circumstantial case.

Cell phones can be a wonderful source of information for investigators. On a basic level, they can provide us a lot of information including, call detail records, subscriber information, and the frequency or duration of certain calls. With a court order (electronic information) or search warrant (contents of the phone) we can obtain much more information including text messages, photographs, videos, internet activities, last known location of a victim, last person victim spoke with, a precise location for whomever you are looking for based upon cell sites or GPS coordinates, who is calling whom, call volume, where calls are being made from in real time and personal associations. With this information, new targets can be developed and in the case of an approved wire tap, call content can be monitored. Cell phones help you delve into the minutia of a case and in circumstantial cases, the minutia is often very important.

Surveillance video can aid in the identification of suspects, victims, witnesses and vehicles in your investigation. It can also help to cooberate any information we receive, such as a suspect’s alibi and it can help us better understand or determine a suspect or victim’s actions before, during or after a crime. Through the use of video we may be able to see an otherwise unknown unique identifying characteristic on a person or vehicle and, in an effort to further the investigation, publish those details via the media. In some instances we may even be able to see the weapon allegedly used in the commission of the crime.

Surveillance video is a very powerful item to present in court. When a judge or jurors have the opportunity to see firsthand what prosecutors have been trying to compel them to understand with words, they are able to dismiss doubts easier than if they had not seen the video.

Social networking has exploded in popularity and it too can be an investigative tool for detectives. People post and report all sorts of things on social networking sites including details of a crime, bragging about a crime to friends, where they were, where they are, who they were with, who they are with now, photos of themselves, their friends, etc... without apparent concern of discovery. The best part is that this information is generally posted by the person of interest and in his or her own words. Social networking information also allows the investigator to delve into the minutia of a suspect or victims social life and this is often invaluable and could end up being a larger piece of your puzzle. (Note: In order to obtain information, most social networking sites require either a court order or search warrant.)

One very important thing to remember in a circumstantial case is, you don’t need all of the pieces of the puzzle in order for your case to be successfully prosecuted. In a circumstantial case you only need to locate the number of puzzle pieces necessary to form enough of “the big picture” to allow a judge or jurors to make an educated inference using their common sense to determine out of all the possible things that could have happened, only one scenario makes sense…the defendant committed the crime!

There are certainly other investigative efforts that can be used to obtain information or ultimately acquire evidence in a circumstantial case. Unfortunately, I don’t have enough space in this one article to include everything. Know your case, be creative, be persistent, and continue to collect puzzle pieces.

About the author

Detective Morris Greenberg serves as a proud member of the Baltimore County Police in Baltimore, Maryland. Most of his career has been spent conducting criminal investigation in specialized units including Robbery, Violent Crimes and Homicide. He has also served on the department’s Hostage Negotiation Team. Detective Greenberg possesses a Master’s Degree from the Johns Hopkins University, Division of Public Safety Leadership and teaches within the Criminal Justice Programs at two local colleges.

Contact Moe Greenberg.

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