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I love this question.
The police would say, in my opinion, that the phone being somewhere was evidence if they needed it to be and say that it didn't prove the owner was there if they didn't want it to be useful.
To make matters more complex, if I were to murder someone I would leave me phone at home, maybe leave it playing videos. It would be much less likely that my phone is randomly at the house of someone who was just murdered if I am truly innocent. That alone does not prove me guilty, of course, but it sure doesn't look good.
You are completely right, but I would hope the defense would submit it as evidence.
Do you not understand the concept of a defence attorney? It's not just the police that decide what is and isn't evidence.
Does the defense attorney go out to the scene, conduct interviews, photograph items of interest, or secure custody of any evidence gathered?
It's the police that decide what is "evidence" and attorneys argue over what they found later. A good attorney might go out and look for some of those things after the fact, but the vast majority will not. You either gather your own evidence or roll the dice with the police actually doing their jobs.
Attorneys can and do hire independent investigators in the course of their work.
Are you seriously suggesting a police force will not secure a murder suspect's phone as part of their enquiries?
Or that, if they didn't, this would work against them in court later?
Im suggesting that police will find the evidence that best fits the narrative they're trying to portray. If the phone helps their case, sure. If it doesn't, or contains evidence to the contrary, there's a decent chance it'll get "accidentally" misplaced if it's even collected at all. They're out to prove your guilt, not suggest your innocence.
You act like police never withhold or tamper with evidence. The persons point was that police have an inherent advantage because they get the first look at evidence, for a good long while, until itβs turned over to any defense team.
Which is part of the reason the burden of proof is on them.