In summary the situations looks like the following: the only survived victim of a series of robberies and murders was able to positively identify a perpetrator from an array of photographs; later the victim being in sound mind was able to clearly identify the defendant at the preliminary hearing and respond to cross-examination. After these events the victim died. Police did not find the weapon or fingerprints, ballistic fingerprints could not identify the weapons.
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Generally, police can use several methods so as to identify a suspect as a perpetrator: lineup – identification from the group of people with similar patterns, showup – “one-on-one identification procedure” and photo identification – it “consist of witnesses looking at photos of suspects… most persons whose photos are displayed in photo identifications have prior criminal records” (Bergman & Bergman-Barret, 2003, section 4/19). Positive identification resulted by any of the above methods can be a reason to file criminal charges against suspect. Positive identification is also admissible as evidence at the trial, but the attorney can argue and further the court to exclude such evidences. The reasons for excluding identification as evidence may vary and the one that can be used in this particular case is that the witness was frightened.
The purpose of preliminary hearing is to determine whether the defendant should be tried and the prosecutor has any evidences that can prove the guilt of the defendant. This procedure does not imply prosecutor has to provide all the evidences available “but only enough evidence to convince the judge that there is probable cause to hold the defendant for trial” (Bergman & Bergman-Barret, 2003, section 16/3). All testimonies given at the preliminary hearing may be used at trial but in specific way – if somebody changes given before testimonies and the court needs to select which testimonies are more reliable. In addition, all testimonies given at preliminary hearing are subject to be repeated at trial under oath. Our victim has died before the trial and his testimonies could not be proved under oath. Of course they will be used in the court but the defendant’s attorney, probably, will be able to exclude them or dissolve their value for prosecution because there are no evidences available. The fact that victim responded to cross-examination works for prosecution because defense lawyer was not able to further the court to exclude them. Hence the testimony of the deceased victim could not be used as direct evidence at trial but as indirect only in the form of written transcript. This testimony is not proved under oath so far and the lawyer can insist that the victim may refuse to confirm this testimony at trial. “At trial, the prosecution has the burden of proving each element of the charged offense(s) beyond a reasonable doubt” (Bergman & Bergman-Barret, 2003, section 16/4) and in our case prosecution will not be able to do this without the victim despite victim’s testimony looks to be very likely.
The fact that series of robberies and murders stopped with the arrest of the defendant is not evidence. Under the presumption of innocence prosecution is to prove the guilt of the defendant, not the defendant prove his innocence. In addition, the defendant can “get” alibi if somebody is able to verify the defendant’s location at the time of felony. Defense lawyer can draw many reasons for the series of robberies and murders being stopped without arresting the defendant.
Ballistic fingerprints are the sort of scientific evidence. The concept of ballistic fingerprints implies all weapons to be identified before going on sale and stored in the database so as to have a possibility of identifying the weapon in future. In our case the weapon was not identified. This means the police is not able to find the owner of the weapon. The only practical value of ballistic fingerprints in this case is connecting the series of robberies and murders into the single case. If the police could find the weapon with fingerprints of the defendant it would be incontrovertible evidence of the defendant’s guilt.—————————————————————————–
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