Evidence Law Fundamentals
A fundamental understanding of evidence law is crucial in order to properly present your case in a legal proceeding. Whether through witness testimony, documentary evidence or physical exhibits, the presentation of facts in a manner that complies with legal standards of evidence helps attorneys seek the fair and just resolution to a dispute. Evidence is generally the proof of a fact that a party seeks to establish in court.
Evidence law acts as a means to ensure that the rights of the parties in a court proceeding are adequately protected or afforded in the course of a trial. Courts will generally consider evidence if it is relevant, reliable and probative. The idea behind this rule is that the likelihood of the evidence leading to the resolution of the case generally outweighs any undue prejudice caused by the admission of the evidence.
Not all types of evidence are necessarily admissible in a court proceeding. Generally , evidence must be relevant to the issue at hand. This means evidence should tend to make a particular fact or facts more or less probable. Evidence must also be reliable or trustworthy. Further, evidence should generally be probative of the point for which its offered. This means that the material fact must logically tend to prove or disprove the point for which its being offered. In other words, there must be an apparent connection between the evidence and the matter sought to be established. While usually evidence may not be admissible to prove character, there are certain instances when admissible evidence may show motive, opportunity, intent preparation, plan, knowledge and identity. Further, evidence may be admissible to prove the absence of mistake or accident.
The rules governing the admissibility of evidence can become quite technical. Understanding and abiding by proper legal rules in the presentation of your case, therefore, can ensure that your case is effectively presented in an effort to achieve the results you desire.
What Are the Types of Evidence
Evidence is a cornerstone of the legal system. During litigation, three kinds of evidence are submitted to the court: testimonial, documentary and physical. Digital evidence, such as chat transcripts and credit card transactions, are also admissible in court. How the evidence is presented to the judge or jury is as important as the evidence itself. For example, the way in which the evidence was obtained can determine whether it will be allowed at trial. Complaints about how the evidence was obtained can be made in a motion to suppress evidence.
Testimonial evidence is what people give when they are asked what they know or saw. Because a witness must have seen, heard or experienced the information described in his or her testimony, some expert help may be needed to get the testimonials into evidence. If the testimony is about a specialized subject matter, an expert witness must authenticate it by testifying that he or she is an expert in the subject area and can competently give that testimony. If the testimony is from a non-expert witness, the witness must authenticate that he or she has direct knowledge of the information reported in the testimony. Direct knowledge means that the person saw, heard or experienced what he or she is testifying about.
Documentary evidence consists of written documents that are used to pass information to the court. Copying, faxing and emailing are all acceptable for documentary evidence. For instance, the removal order for an immigrant is usually in the form of a documentary piece of evidence. In a restraining order case, the petition for a restraining order is in documentary form. Documentary pieces of evidence may contain testimonial as well as documentary elements.
Physical Evidence includes any tangible evidence brought to the court to try to prove the case. Pictures, videos and even physical objects that help prove the case are considered physical evidence. If the case is involving a restraining order, physical evidence may be a video of physical violence or an object used in that violence.
Digital evidence is information contained in metallic strips on credit cards, invisible ink on passports, hard drives of computers, thumb drives, iPads, Chats on the Internet, and many other places as determined by the creativity of each attorney. The rule of thumb is that if it can be typed onto a laptop, a desktop computer, iPad, cell phone, Wi-Fi device or even a typewriter, it is digital evidence.
Rules of Admissibility
The supreme rule for admissibility is that the proffered evidence must be relevant. Courts will usually admit evidence at trial if it is relevant. Relevant means that the evidence makes a fact at issue in the case more or less probable than without the evidence. The main problem with relevant evidence is that in most cases it can be bolstered or disputed. So courts adopt other rules in the name of efficiency and accuracy to exclude evidence that either uses too many resources or may confuse the jury.
Courts often exclude evidence that is unreliable. There is no point in presenting evidence that has little or no connection to reality. So, courts exclude, for example, lie detector evidence as unreliable evidence of truthfulness. Courts also exclude junk science, for example pre-schoolers’s ability to identify child abusers, as unreliable. Also, courts exclude evidence of witnesses’ opinions about very technical matters like speeds, distances, dates, etc. as unreliable.
Also as a efficiency concern, courts may exclude evidence if it is cumulative. That is, courts may exclude identical evidence if it is offered by multiple people. Courts may also exclude evidence that is unnecessarily time consuming or voluminous. Courts want juries to focus on the main evidence, not waste their time on really minor issues. Finally, evidence that misleads the jury because the jury over-values the evidence, courts will also exclude.
Another reason, courts will exclude evidence is that it is hearsay. Hearsay is an out-of-court statement that is offered in court to prove the truth of the matter offered. Courts generally exclude hearsay because it is unreliable. Most people will naturally not remember all of what they have heard or seen, and so it doesn’t make sense to rely on what someone else recalls of their own recollection of what someone else has said. However, courts have numerous exceptions to the ban on hearsay, you can find the complete list in any good Evidence Law treatise.
Importance of Evidence in Criminal v. Civil Trials
Evidence, regardless of the matter at hand, can be broken down into three classes: substantive law, rules of procedure to ensure that the court can process the case in a timely fashion, and the rules that govern the admissibility of evidence in court, or Evidence Law. Evidence Law should be divided into what one might call civil and criminal. The distinction between civil and criminal is very important, so let’s review it here: Civil cases are controversies between people. Criminal cases are offenses against the State. By that we mean that if I kill someone, I may be charged with murder, but the prosecuting attorney is going to argue on behalf of the State of Kentucky, not on behalf of the individual who was killed. The State is the complainant. The aggrieved party is merely a witness. The burden of proof is different in criminal court. In a civil case, the burden of proof is by preponderance of the evidence; in a criminal case, the burden of proof is beyond a reasonable doubt. In civil cases, the jury’s job is to weigh the evidence. In criminal court, it is an all or nothing proposition. The implications of the difference are enormous. If you ask the question – is the accused guilty of a crime – you either must find them innocent or guilty. If the answer to the question is ANYTHING other than straight out innocent of all charges, or guilty of ALL charges, you cannot return a verdict of guilty. The proper verdict under those circumstances is "not guilty". The jury is admonished by the judge that the burden of proof lies with the prosecution and they must prove guilt beyond a reasonable doubt and to a moral certainty. If you have any doubt about guilt, say the words "not guilty". If you are convinced beyond reasonable doubt, then you are duty bound under the law to convict. Thus, if the prosecution has several charges, and the jury believes that one is guilty of one charge but not the others, the proper verdict is not guilty. In a civil case, the jury’s job is to weigh the evidence. If the jury finds that all the evidence concerned weighs in favor of one side, then the verdict is in favor of that side. In that case, the jury is NOT bound to find in favor of the accusing party. Should it determine that the claims made by the accuser are not proven, then the verdict is in favor of the accused party. Hence, the civil verdict’s are always either/or. If you cannot fully believe either side’s claims in a civil suit, the answer is not guilty.
Issues in Providing Evidence
Lawyers routinely encounter a number of procedural challenges and practical obstacles brought against them by opposing counsel when attempting to present evidence to the judge or jury at trial. Often, an opposing lawyer will attempt to prevent the Court from considering a certain piece of evidence by objecting on the grounds on chain of custody, hearsay, character, ambush, relevance, privacy, or privilege. An objection based upon improper chain of custody, for example, is intended to put opposing counsel to their proof that the offered exhibit is exactly what it purports to be, and that in the interim the exhibit has not been altered or tampered with by any person. The law does not require perfect chain of custody to support admissibility; rather, it only requires sufficient proof to establish that the exhibit is what it purports to be and that it has not been altered or changed. Thus, where a party tries to present documents, computer records, or photographic evidence at trial , if the proffering party cannot show through witness testimony that the offered evidence is exactly what he or she claims it to be and that the evidence has not been altered since its creation, the Court will strike or exclude the evidence. Similarly, an objection to evidence on the basis of hearsay is an objection by the party that the proffering witness is attempting to come into evidence statements made by witnesses who are not subject to cross-examination by the objecting party. A hearsay objection, for example, precludes the trier of fact from considering out-of-court statements made by a witness as evidence because the opposing party has been deprived of the right to cross-examine the witness regarding the accuracy of the offered statement. Because of this, a witness cannot come into evidence and offer an out-of-court statement unless that statement falls within one of the evidentiary exceptions to the hearsay rule. Not surprisingly, lawyers will often quibble over which evidentiary exception best applies to the statement being offered into evidence, and will almost certainly oppose because no witness is available to be cross-examined.
Latest Developments in Evidence Law
In recent years, the law of evidence has been evolving in several interesting ways. For instance, in many jurisdictions, there has been a trend toward allowing the use of social media posts as evidence, as well as other digital communications that may have evidentiary value. In some cases, courts have applied the rules of evidence in a more permissive manner to allow such evidence to come before the court with a lesser degree of authentication and verification than is normally required of non-digital communications. This reflects a growing awareness that technology has transformed the way that people communicate and that, as such, rules of evidence need to adapt.
A related trend is a growing judicial willingness to interpret the hearsay rule broadly and in line with its purpose to exclude unreliable evidence. In some cases, this has allowed statements made electronically to be admitted under the hearsay exceptions for present sense impression or excited utterance. Still another trend is in the law governing authentication and the use of demonstrative evidence. Courts tend to view digital communications as more immune from manipulation or alteration than is the case with analog communications, and courts have permitted their use as evidence in whole new ways that were previously unimagined.
It also bears mention that courts are grappling with new ethical issues with the advent of electronic communications. The need for lawyers to preserve their electronic directly relevant documents and electronically stored information (ESI) hardly points to new law, but the nature of how communications are now frequently stored and transmitted has created some unique issues that has required rulings. One example is the issue of lawyer-initiated spoliation of ESI.
This comes up where an attorney is required or permitted by law to retain a document for a specified period of time. Lawyers have an ethical duty to preserve and retain certain evidence and documents, but a lawyer may mention, edit, or even erase something preserved in electronic form that was not intended for discovery in a way that might affect the piece of evidence. Courts are aware of this, and have begun to closely scrutinize the actions of lawyers with respect to such evidence.
Final Thoughts and What Lawyers Should Do
As we have seen, evidentiary rules form the cornerstone of our justice system. They provide structure to an otherwise chaotic system. Though these rules and how they should be applied can be complex, there are some simple best practices that every lawyer should keep in mind when dealing with evidence.
Be thorough: When preparing for a trial, be sure to collect as much evidence as possible that will support your case. The more supporting evidence you have, the better your case can stand up to any challenges. However, in the gathering process, avoid overwhelming the judge or jury with too much information. In this, it is essential to keep the information logical and clear, as opposed to just more. When only relevant information is admitted, they will be able to face and dismiss frivolous or redundant evidence while focusing on the evidence that matters.
Be strategic: In addition to gathering evidence to support your case , think strategically about any weaknesses in your case. Being forthright about those weaknesses will demonstrate that you are presenting evidence objectively, thereby enhancing your credibility. Scrutinizing your own evidence will also help you to fine-tune your strategy and bolster your argument even further. Finally, being prepared for a challenge and having alternative strategies in place can save you time and money while staying ahead of the game.
Ask questions: Asking the right questions can reveal where additional evidence is needed to support a claim. Sometimes, when the judge has a question, they will direct it to the lawyer whose evidence is being challenged. Don’t hesitate to ask clarifying questions about what evidence has been admitted when a witness is on the stand and why this evidence is relevant to the case at hand.