AuthorJudson W. Starr/Amy J. McMaster/John F. Cooney/Joseph G. (Jerry) Block/David G. Dickman
Page 91
Chapter 7:
This chapter describes aspects of the trial process that have proved signicant in prior environmental
criminal prosecutions.
I. Evidence
“Evidence,” in its most general sense, includes ever ything that is used to determine or demonstrate the
truth of an assert ion. Testimonial evidence covers what witnesses say under oath or armation. Real evi-
dence includes all types of tangible objects. Lawyers also may stipulate to facts upon which they agree, and
courts may take judicial notice of facts that are common knowledge.
e law further distinguishes between direct evidence and circumstantial evidence. Direct evidence
proves the point without the need to draw any conclusions, while circumstantial evidence requires the trier
of fact to draw a conclusion that some relevant fact occurred.
In most environmental crimes cases, the government bears the burden of proving that the defendant
is guilty be yond a reasonable doubt.1 e burden of proof is often associated with the latin maxim semper
necessitas probandi incumbit ei qui agit, which can be translated as: “the necessity of proof always lies with
the person who lays charges.”
e U.S. Supreme Court held in Jackson v. Virginia that the U.S. Constitution requires enough evidence
to justify a rational trier of fact in nding guilt beyond a reasonable doubt.2 is type of “legal burden” or
“burden of persuasion” remains on the government for the duration of the trial. us, the government must
introduce sucient evidence of a crime to overcome the presumption that the defendant is innocent. If the
government is able to meet its burden to the satisfaction of the trier of fact, the defendant will be found guilty.
In contrast, an “evidentiary burden” or “burden of production” shifts between the parties over the
course of the trial. If one party submits evidence that the court will consider a prima facie showing of some
element of the crime, the burden shifts to the other part y to present evidence to refute that presumption.
e frequent absence of smoking gun, i.e., direct, evidence in environmental crimes cases often results
in prosecutors having to rely on exper t witness testimony and circumstantial evidence to demonstrate the
severity of the environmental oense and to link the defenda nt to the crime. is can be benecia l to
defense counsel, as such evidence is more susceptible to attack.
Of course, not all evidence—smoking gun or otherwise—is admissible. In federal court, e vidence is
admitted or excluded based upon the Federal Ru les of Evidence, which attempt to safeg uard the parties
against injustice.
1. “Reasonable doubt” is the standard required in most criminal cases and constitutes the highest level of the burden of persuasion. It requires
that the proposition being presented by the government must be proven so that no reasonable doubt remains in the mind of a reasonable
person that the defendant is guilty. is standard leaves room for doubt, but only to the extent that it would not aect a reasonable person’s
belief that the defendant is guilty. Jury instructions typically explain that a reasonable doubt is a doubt based on reason and common sense.
See, e.g., Jackson v. Virginia, 443 U.S. 307 (1979).
2. 443 U.S. 307 (1979).

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