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The Basics Of Evidence


It is no satisfaction for a witness to say that he thinketh, or that he perswadeth himself about a matter…”

 --  Sir Edward Coke 


Evidence is the raw material of legal claims. With your evidence, arranged and presented correctly, you will assemble your facts, which will flesh out the elements of your cause of action and win the case for you. Simply stated, evidence is composed of witness testimony, exhibits rightly introduced and material previously stipulated to by the opponents. Remarks and statements by the advocates are not evidence, nor are their questions or objections.


Properly admissible evidence can be difficult to come by and will require painstaking care to assemble in all but the most basic of court cases. Probably the easiest kinds of facts you will come by as you prepare your case for trial are stipulations, which are essentially agreements between you and your opponent negotiated before trial that clarify some fact as true without the need to establish it formally with witnesses and so forth. They are time and cost savers and, helping to quickly establish uncontested facts early on.


There are four main types of evidence, which most jurisdictions recognize and treat similarly. Some rules of evidence apply to all four types while others only apply to one or two.


Real evidence:  This type of evidence is something relating directly to the case, such as the broken dog collar in the case of the dog that ate your roosters, or the actual pages of a contract or agreement in a breach of contract claim. Not only would such pages serve as the core element of the action itself but the pages themselves may offer further insights into the states of mind of the signatories or even glimpses at the nature of the dispute if there are areas that are scratched out or redacted.


Real evidence must be authenticated before it can be admitted. The easiest was to do this is with a witness who can categorically identify an intended real evidence exhibit as what it is. Another way to authenticate an exhibit for presentation at trial is to have the witness who will establish the item’s relevance to the case mark or scribe the item and allow him to distinguish the item from all others.


Demonstrative evidence:  These are, as the title suggests, exhibits that demonstrate, replicate or portray the testimony of a witness. They can also be visual aides that will help the witness explain issues relevant to the trial but which will not themselves be entered into evidence. Typical examples of demonstrative evidence include maps, photographs, animations, models, diagrams and similar representations.


Demonstrative evidence must be authenticated before it can be admitted as an exhibit for the jury to see. Witnesses authenticating exhibits should be able to testify that the prospective exhibit is exactly similar and substantially the same as the object or area it represents.


Obviously, demonstrative exhibits must be accurate and reasonable reproductions of the original. Your opponent can and certainly should – given how effective and convincing demonstrative exhibits can be – attack the accuracy or authenticity of the representation.


Documentary evidence:  Documentary evidence can and often is another kind of real evidence – an example would be the contract in the breach case we discussed earlier – which has been set down in writing or other recording media. The record can be imprinted on paper, film, disk, microfiche, magnetic tape, stone, wood, hay straw, whatever. Anything that can bear a record can be an admissible document once it is authenticated.


Documentary exhibits have to pass legal muster through authentication and because human beings using human language created them, they have some additional hurdles to overcome. They can’t be irrelevant with the intention of varying from an agreed upon contract (parol evidence rule). Documentary exhibits have to be the original of a thing and a rendition or copy where the original is readily available (best evidence) and they have to clear the hearsay rule hurdle (discussed below).


Testimonial evidence:  This is the primary, foundational form of evidence because it does not require some other form of authentication in order to be admitted to evidence. This relevant information comes from witnesses who have either been deposed prior to trial or who have come to court to report directly the events they’re attesting to.


The witness has to clear four tests to be considered authentic. 1) He or she has to swear to and understand the oath or a substitute. 2) He or she has to have personal, on-site knowledge of the events being examined. 3) He or she has to be competent and must remember what he or she perceived at the time and place in question. 4) He or she has to be able to communicate what was perceived at the time and place in question.


Witnesses are called to testify as to what they experienced personally about the time and place in question and may not generally offer opinions or draw conclusions. Since the lines between fact and opinion often become blurred as a witness recollects events and sometimes it is impossible for certain witnesses to offer only fact without language that smacks of judgments and opinion, an exception to the rule is allowed.


The lay person opinion rule allows people who are not testifying as experts for the purposes of authenticating or disputing evidence to offer their opinions in testimony if the opinion is both rational and rather necessary and helpful to understand his testimony.


Rules of Admissibility: If evidence is shown to be relevant, material and competent it will generally be admitted by the court. Generally judges do not like to keep evidence out of a trial unless it is highly prejudicial. 

Evidence is considered relevant if it has a tendency to directly reinforce or undercut a disputed fact. To be relevant, an element of evidence doesn’t have to prove a thing completely or really even a little. It just has to have some tendency toward either proving or disproving the fact in dispute.


Evidence is material when it directly effects the events or facts under dispute. Evidence can easily be relevant, but it must also be material to be of admissibility caliber.  

Evidence must also be considered competent in terms of its reliability to be considered admissible. This rule protects the judge and jury from inherently unreliable information.


Think about it…

An old trial proverb maintains that if the judge is ruling against you on the evidence, you are probably going to win. If the judge is ruling in your favor look out, because you are probably going to lose. This is because there cannot be an appeal by the loser when all the rulings went their way.


Hearsay:  Evidence of a statement that was made other than by the witness while testifying at the hearing in question and offered to prove the truth of the matter stated. Because second-hand information is often suspect and because hearsay is not sworn under oath nor accountable under sanction of perjury, courts have taken a dim view to the point of excluding hearsay historically.


Exceptions do exist and some critics believe that more hearsay is actually admitted into evidence than excluded, under rules that consider some forms as more reliable. The federal rules contain at least 27 exceptions to allow for the admissibility of statements or documents determined to be hearsay.


These include present statements by a witness that are at odds with prior testimony, statements uttered in spontaneous or excited exuberance, statements revealing the speaker’s then existing mental, physical or emotional state as well as some two dozen other such exceptions.


The federal hearsay rules also include one great “catch-all” exception allowing statements to be rendered admissible as evidence if “the general purpose of these rules and the interests of justice will be best served by admission of the statement.”


[1] How and When To Be Your Own Lawyer, Robert Schachner, Marvin Quittner, Avery Publishing Group, Inc., 1993.

[2]   Judge Or Jury Trial: Which Is Better, Nolo, 2003.

[3] How and When To Be Your Own Lawyer, Robert Schachner, Marvin Quittner, Avery Publishing Group, Inc., 1993.

[4] State Farm Mutual Automobile Insurance Co. v. Campbell, No. 01-1289, as summarized by the Center for Individual Freedom, April 10, 2003.

[5] “Represent Yourself In Court: How to Prepare and Try A Winning Case, Paul Bergman, Sarah Berman-Barrett,” Nolo Press, 1998

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