Protecting the integrity of
evidence collected is vital in law enforcement. If the integrity of the
evidence is in doubt, its use in legal proceedings could be jeopardized,
possibly allowing a guilty person to escape prosecution.
Countries with a history of
the rule of law have a framework of rules and procedures stipulating how
evidence is to be collected, used and preserved. Evidence is admissible in
court only if the rules have been followed. The accused have procedural rights,
giving them protection from evidence tampering to manipulate the outcome of an
investigation or trial. It is important that anyone who handles evidence during an
investigation know and follow the rules concerning the admissibility of
evidence.
Legal
Seizure of Physical Evidence
Specific procedures must be
followed for obtaining physical evidence. The investigator must first inform
the suspect of his or her rights. Most legal systems give suspects the right
not to incriminate themselves. They are therefore not required to provide to
the investigators information or evidence that could be used against them. If a
suspect voluntarily provides requested documents or information even though not
required to do so, the investigators are required to make sure that the suspect
signs a statement waiving this right. The requirement ensures that suspects
understand their rights and cannot later claim to have been deprived of them.
If a person refuses to provide
information, investigators may apply to a judge for a search warrant. The
warrant allows investigators to search for evidence.
The documents gathered must usually be identified to safeguard their integrity. In most systems an official
receipt is issued to the owner of the documents. That person may also have the
right to keep a copy of the seized papers.
Protection
of Evidence
Proper procedures for handling
and storing evidence can help ensure that it is not tampered with or lost. The
following is an example of procedures used to protect evidence:
- Identify evidence as soon
as it is seized. Each piece of evidence is given a specific reference
number and described. Also to be noted is the date and time when each
piece was seized. A receipt is given to the person who provided the
evidence and a copy is kept on file.
- Seal original documents
and other evidence in boxes or containers, and use only photocopies for
the investigation.
- Keep an inventory of the
evidence. The inventory lists the reference number of each piece, the
number of the box in which it is locked and the location where the box is
stored. Evidence should be stored in a fireproof location with limited and
controlled access.
- Keep written records of
the handling and movement of evidence, and of the persons who have had
access to it. A control sheet should be attached to each piece of
evidence, and any activity should be recorded by the person in charge of
the location where the evidence is stored. The control sheet should show
the date and time when material was removed, the name of the person taking
the material, and the reason for the removal. The record must be signed by
the person in charge of the storage room and the person taking the
material.
- Keep records on the
handling of evidence separate from the complaint file.
- Return evidence to the
owners at the end of the process. The owners sign a receipt certifying
what was returned. They are given a copy of the receipt and the original
is kept on file.
Seizure
of Electoral Records
Electoral records include the
voter registry, applications for absentee ballots, tally sheets, protocols from
the tabulations, or any other document used in an election. They may also
include the administrative records of the electoral management body, including
personnel files, time sheets, official vehicle logbooks, warehouse inventory
books or other documents used for election administration.
The problem with seizing
electoral records is that they are usually needed to conduct the elections
successfully. There could be a conflict between the need to collect evidence
and the need to retain these documents in order to successfully complete the
electoral process.
In other cases, the courts or other
institutions may determine whether an allegation is serious enough to
compromise the entire electoral process. In these cases, the need to ensure the
integrity of the process through an immediate investigation might take priority
over immediate election needs.
In the Former Yugoslav Republic of Macedonia parliamentary elections in 2002 – the first after a relatively
short but intense civil war between ethnic Albanian and ethnic Macedonian
factions – occurred without major incident.
(In large part this was due to adoption of a new method of election –
regional proportional representation – which tended to lessen the political
rivalries between parties representing the different ethnic groups.) The results on the ethnic Macedonian side
favored the Social Democratic (SDSM) party, and the Prime Minister, from the
governing Nationalist party (VMRO-DPMNE), initially accepted the party’s
defeat. Soon thereafter, however, the Ministry of Interior (MoI), under its
minister, Ljube Boŝkoski,[1] began
a series of investigations that put considerable pressure on election
administrators.
With respect to the latter,
uniformed and non-uniformed police, some of whom were heavily armed, demanded
to enter and search the printing house for the ballot-papers in the elections. VMRO-DPMNE
officials alleged that extra ballot-papers had been printed, and that other
election materials may have been destroyed. Criminal referrals against senior
electoral officials, including the SEC Chair, followed. Additional demands were also made for
electoral documents, including minutes of SEC meetings. These actions were characterized by
international observers as an attempt to influence the electoral process
through intimidation, and an abuse of State power for partisan purposes.[2] They were also characterized by the observers
as violations of the OSCE/ODIHR Copenhagen Document, 1990.[3]
[1] (In
a separate development, Mr. Boŝkoski
was subsequently indicted for “superior responsibility” for war crimes by the
International Criminal Tribunal for the Former Yugoslavia [ICTY], but was
acquitted; later he was charged and sentenced for illegal funding of an
election campaign during the 2011 FYROM parliamentary elections.)
[2]
OSCE/ODIHR, Final Report, Parliamentary Elections, 15 September 2002, Former Yugoslav Republic of Macedonia (Warsaw, 20 November 2002),
pp. 16-18
[3] Document
of the Copenhagen Meeting of the Conference on the Human Dimension of the CSCE.
Under Paragraph 5.4, the participating States agreed to maintain “a clear
separation between the State and political parties; in particular, political
parties will not be merged with the State.”
