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How Can I “Win” My Criminal Case? A Discussion Of Pre-Trial Evidentiary Issues – Physical Evidence And Statements

How Can I “Win” My Criminal Case? A Discussion Of Pre-Trial Evidentiary Issues – Physical Evidence And Statements

Often you may hear of a criminal defendant getting his or her case dismissed, whether it be in “real life,” on the news, or in a television show or movie. You may wonder why it seems like some individuals accused of crimes “get off” when it seems like the odds are stacked against them while others, under seemingly similar circumstances, negotiate for a plea agreement that may include being incarcerated or go to a jury trial and ultimately get convicted. While there may be a variety of reasons for the differences in these hypothetical scenarios, one possible answer is the changing landscape of the evidence for or against a criminal defendant from the time that the criminal defendant is charged with a crime to the time leading up to trial. Effective criminal lawyers can really shine during this period, and this blog series examines several scenarios that may play out during the time between a criminal case being filed and trial that may result in a favorable outcome for a defendant in a criminal case. This post specifically focuses on statements and physical evidence. For a prior post in this series, visit our post HERE regarding a discussion of issues pertaining to witnesses in criminal matters.

Often, when eyewitnesses are not present or the crime with which a person is charged is a possession crime, the primary evidence against a criminal defendant comes from either physical evidence (things) or statements that the criminal defendant himself or herself makes to law enforcement officers. Law enforcement officers, in performing their duties in investigating alleged criminal conduct, interview alleged perpetrators and/or take statements from them, and they may attempt to search for physical evidence. A law enforcement officer may then sign an affidavit of probable cause in support of the charges that are brought against the criminal defendant. This probable cause affidavit is the “support” for the charges that the prosecutor is bringing against the criminal defendant, and the probable cause affidavits often contain quotes or summaries of the information that the officer or officers obtained from interviewing the criminal defendant and may include reference to finding physical evidence during a search (weapons, narcotics, paraphernalia, etc.).

There are a couple of critical concepts concerning statements and physical evidence that touch on key constitutional rights that individuals have.

Statements Made by a Criminal Defendant. The first concept mostly concerns statements made to law enforcement during an investigation and/or during an arrest. Many are familiar with the term “Miranda rights” but may not know specifically what these rights entail. The United States Supreme Court case of Miranda v. Arizona, 384 U.S. 436 (1966) held that statements made by a defendant in a criminal case in response to interrogation while in the custody of law enforcement will not be admissible at trial if the prosecution cannot show that the defendant was informed of the right to consult with an attorney before and during questioning and of the right against self-incrimination (as provided by the Fifth Amendment to the United States Constitution) before questioning. The prosecution must show both that the defendant understood these rights and voluntarily waived them. Sometimes the question of whether a criminal defendant is “in custody” is very fact-specific,1 but skilled attorneys may be able to establish that certain statements made by a defendant were in fact made while in custody before a defendant was notified of his or her Miranda rights, and such statements may be able to be suppressed from being offered as evidence.2

Physical Evidence Collected by Law Enforcement. In addition to Miranda rights, individuals in Indiana are typically provided what are called Pirtle rights. As opposed to Miranda rights that apply to statements under interrogation, Pirtle rights apply mainly to searches of your property.3 A person who is asked to give consent to search while in police custody is entitled to the presence and advice of counsel prior to making the decision whether to give such consent. Criminal defendants can certainly waive this right, but the prosecution must show that the waiver was explicit. Note that this applies to people who are in custody. Again, there can be a big question as to whether someone is in custody; in a simple sense, a good question to contemplate as to whether you are “in custody” or not is whether you could just drive off or walk away from the law enforcement officers with whom you are interacting. Note that if you are not “in custody,” then you are not entitled to a Pirtle warning; the theory behind this is that if you are not in custody, then you can just say “no” and go on with your business. In general, it is usually better to exercise caution and either (a) consult with an attorney and/or (b) refuse to consent to a search of your property if there is some question regarding the above. If you assert your Pirtle rights, law enforcement will then likely have obtained a search warrant based on a judicial finding of probable cause for the search.

Certain exceptions exist for searches and seizures that often come into play in criminal cases, and it would be a very long blog post indeed to cover all of them. However, a common exception to the Pirtle decision is the ruling that came from the United States Supreme Court in Arizona v. Gant, 556 U.S. 332 (2009). This case stands for the proposition that law enforcement can search a passenger compartment of a car (think of a glove box) if the person being arrested is unsecured and that evidence of a crime may be in that glove box. The general thought behind a Gant exception, and other evidentiary exceptions in general, is that we don’t want people (1) having weapons or items that may hurt the investigating officers, and (2) destroying evidence because they have access to it while law enforcement does not. These issues only address a couple of the arguments that a defendant may have for suppressing damning evidence in a criminal case, and skilled defense counsel can work to assist criminal defendants in obtaining the best possible outcome to criminal charges through suppressing evidence under the law. This blog is written by attorneys at Ciyou & Dixon, P.C. who handle the full spectrum of criminal cases throughout Indiana. This blog is not intended as legal advice or a solicitation for services. It is an advertisement.


  1. There is a litany of case law on whether a defendant is “in custody” which turns on several subjective and objective factors. Just because someone is not in handcuffs at a police station does not mean that they are not “in custody.”
  2. In general, Miranda only applies so far. What this means is its usually not the best idea to refuse to provide your name or birth date to law enforcement. Additional, Miranda governs law enforcement investigation and interrogation – not incriminating statements that a criminal defendant just offers to law enforcement.
  3. See Pirtle v. State, 323 N.E.2d 634 (Ind. 1975).
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Ciyou & Dixon, P.C., is a law firm located in Indianapolis, Indiana. We serve clients in six core practice areas: family lawappellate practicefirearms lawgeneral practicepersonal injury and criminal law.

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Based in Indianapolis and founded in 1995, Ciyou & Dixon, P.C. is a niche law firm focused on successfully dealing with the complexities of divorce, high-conflict child custody and family law. Known for their ability to solve extremely complex situations with high quality work and responsiveness, Ciyou & Dixon will guide you every step of the way. The family law attorneys at Ciyou & Dixon, P.C. will help you precisely identify your objectives and the means to reach your desired result. In addition, this practice focus is augmented by the firm's other three core areas, namely appellate advocacy, civil practice, and firearms law. Life is uncertain. Be certain of your counselSM.

Indianapolis Divorce Attorneys, Ciyou & Dixon, P.C. of Indianapolis, Indiana, offers legal services for Indianapolis, Zionsville, Noblesville, Carmel, Avon, Anderson, Danville, Greenwood, Brownsburg, Geist, Fortville, McCordsville, Muncie, Greenfield, Westfield, Fort Wayne, Fishers, Bloomington, Lafayette, Marion County, Hamilton County, Hendricks County, Allen County, Delaware County, Morgan County, Hendricks County, Boone County, Vigo County, Johnson County, Hancock County, and Tippecanoe County, Indiana.