National Certified Investigator & Inspector Training Basic Program

1. Principles of Evidence National Certified Investigator & Inspector Training Basic Program Instructor Name Agency

2. Session Introduction

3. Learning Objectives • Upon completion of the session, you will be able to: • Identify the classifications, types and forms of evidence. • Identify the uses of each type of evidence. • Understand the rules of evidence and uses in administrative proceedings.

4. Session Map

5. Introduction to Principles of Evidence

6. I<Clicker Question • Do you collect/handle evidence as a part of your investigations? • Yes • No • Unsure

7. General • The Law of Evidence • Why have Rules of Evidence? • Consistency • Reliability • Fairness

8. Principles of Evidence Terms • Evidence • The means by which any contested factual matter may be established or disproved in a legal proceeding • Probative • That which furnishes, establishes, or contributes toward proof of an issue to be decided. • Admissibility • Evidence that is proper to be considered in reaching a decision.

9. Classifications of Evidence

10. Classifications of Evidence • Two main classifications of evidence • Direct • Circumstantial

11. Direct Evidence • Eyewitness • Other Forms – i.e. photos, records • Photographs • Records • Signed Statements

12. Circumstantial Evidence • Cases around circumstantial evidence • Difficulties • Circumstantial evidence requires inferences to be drawn from the evidence in order to prove the case • Requires proof that interpretation of evidence is only reasonable conclusion • Must rule out other reasonable possibilities

13. Circumstantial Evidence Example • Drugs are missing • Only when one nurse was on duty • Only at the end of his/her shift • Only this nurse had access to the medicine cabinet during times in question • Patients complained: • Did not receive medications or, • Medications didn’t work • The nurse had slurred speech during his/her shift

14. Forms of Evidence

15. Forms of Evidence • Real Evidence • Testimonial Evidence • Demonstrative Evidence • Judicial Notice/Stipulations

16. Real Evidence • Documentary Evidence • Example: Email communications • Physical Evidence • Example: A gun • Scientific Evidence • Example: Lab test results

17. Testimonial Evidence • Personal knowledge is generally required • Must testify under oath or affirmation • Two main types of witnesses • Lay Witnesses • Expert Witnesses

18. Testimonial Evidence • Lay Witnesses • Generally, only allowed to testify to facts they observed • No opinions, unless they apply to observable facts like appearance, handwriting, or behavior

19. Testimonial Evidence • Expert Witnesses • Often used when case involves technical issues or issues of professional standards • Court/hearing officer determines if the witness qualifies as an expert • Competence of experts is never presumed

20. Demonstrative Evidence • Used to support testimonial evidence • Makes evidence more understandable to the trier of fact • Examples include: • Maps • Photos • Diagrams

21. Judicial Notice and Stipulations • Judicial Notice: • Commonly known facts • Information that is accepted as true without the need to present other forms of evidence • Example: Time of sunrise or day of the week • Stipulations: • Information and evidence agreed upon in advance by both parties • Once in place, accepted as true and requires no additional proof

22. Principles of Evidence Affecting Investigations

23. General Admissibility Concerns • Materiality • Having some logical connection with the consequential facts • Relevancy • Logical Relevance • Legal Relevance Admissible What is allowed into the record Inadmissible What’s not allowed into the record

24. General Admissibility Concerns • Competency • Generally competent to testify if able to: • Observe • Recollect • Communicate and understand the oath to tell the truth • Adult vs. child requirements • Adults are competent unless they are of unsound mind • Child age requirements usually determined by statute

25. Privileges • Rationale • Admissible evidence not admitted due to negative affect on legally protected relationship • Established by legislation or through case law • Not created simply to keep information private or confidential

26. Examples of Privileges • Physician-Patient privilege • Clergyman-Penitent privilege • Marital • Attorney-Client privilege • Other Relationships • Trade Secrets

27. Hearsay • An out of court statement that is presented at a hearing for the truth of the matter asserted • Generally permitted in administrative hearings but given limited weight • Only if of sufficient reliability • Make sure your evidence is first-hand information

28. Hearsay Example • James tells you that Angie is stealing medication • Name three ways how James knows this • First-hand, direct knowledge • James saw Angie take the pills • Circumstantial • James saw Angie near where medications are kept. Later, medication was found missing. • Hearsay • A nurse told James that she saw Angie take medication

29. Hearsay Exercise • Exercise: Telephone • Purpose: to demonstrate the unreliable nature of hearsay

30. Authentication of Evidence • Establishes that the evidence is what you claim it to be • Requires a process of thorough documentation on collection and maintenance of evidence • Source of evidence • Chain of custody • Must permit authentication of evidence for months to years after collection

31. Best Evidence Rule • The most original document is best • Secondary evidence acceptable when: • Original document unavailable • Presenting party did not make original document unavailable or if original document is unavailable, done so with no bad intent • Doesn’t apply to fact to be proven; has existence independent of any writing • Example: births, marriages, or deaths

32. Impeachment Evidence • Used to question the credibility of a witness • Demonstrating Bias • Self-Contradiction • Poor Character • Poor Perception • Prior Conviction/Bad Acts • Contradictory Evidence

33. Sufficiency of Evidence in Administrative Proceedings

34. Burdens of Proof • Defines who must present sufficient evidence to prevail • Generally rests upon the administrative agency or regulatory authority

35. Standards of Proof • Defines amount of credible and persuasive evidence required to meet burden of proof • Preponderance of the Evidence • Most commonly used in administrative hearings • Clear and Convincing Evidence • Highly probable that elements of the violation occurred • Different than standard in criminal proceedings • Beyond a reasonable doubt

36. Session Review

37. Knowledge Check The Best Evidence rule means: • The most original document is best • The trier of fact will weigh the different types of evidence • Circumstantial evidence will not be allowed if there is direct evidence available • The original owner of the evidence must be present

38. Knowledge Check Which of the following sources of evidence is not considered privileged? • Attorney/Client • Employer • Marital

39. Knowledge Check Which standard of proof is used most often for deciding administrative law issues? • Proof beyond a reasonable doubt • Preponderance of evidence • Clear and convincing evidence

40. Learning Objectives Review • You should now be able to: • Identify the classifications, types and forms of evidence. • Identify the uses of each type of evidence. • Understand the rules of evidence and uses in administrative proceedings.

41. Questions

42. Session Evaluation

43. In general, this instructor: • Is Unacceptable • Needs Improvement • Is Good • Is Very Good • Is Excellent

44. The style of delivery: • Is Unacceptable • Needs Improvement • Is Good • Is Very Good • Is Excellent

45. The content: • Is Unacceptable • Needs Improvement • Is Good • Is Very Good • Is Excellent

46. The amount of material covered: • Is Unacceptable • Needs Improvement • Is Good • Is Very Good • Is Excellent

47. The usefulness of this session: • Is Unacceptable • Needs Improvement • Is Good • Is Very Good • Is Excellent