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Evidence means anything that tends to prove ordisprove any fact during any legal proceeding.

Evidence law is the system that determines whichof these facts may be brought up during a trial orhearing.

Evidence law often differs depending on thenature of the proceeding and sometimes basedon the subject matter of the trial or hearing.

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A fundamental question concerning evidence law is why have it at all? If a trial is supposed to be about the search for the truth, why not just let everything in and let the trier of fact sort it out?

In our common law system, we want:◦ To avoid confusing and diverting the attention of the

trier of fact;◦ Efficiency of the trial process, in terms of time and

expense;◦ To minimize the risk of unfair prejudice;◦ To the extent possible, avoid admitting false evidence;◦ To protect other important interests such as privileges.

In the civil law system (parts of Europe), thesystem focuses on the search for the truth aboveall else.

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Federal Rules of Evidence (federal court only)

Uniform Rules of Evidence ◦ They were written by experts in the evidence law

field and have been enacted in many states.

Other state rules or codes Case law (state and federal) for issues not

dealt with in the codes or rules

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Constitutional law◦ This applied particularly to the rights of

criminal defendants to avoid beingsubjected to certain types of evidence. Forexample: Hearsay may violate the right to confront

one’s accuser (6th Amendment). Allowing in fruits of an illegal search

might violate the 4th Amendment. Right to remain silent (5th Amendment).

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Oral testimony◦ Fact witnesses◦ Expert witnesses◦ Character witnesses◦ The parties

Real (direct) evidence◦ Physical as opposed to circumstantial

Documents Demonstrative evidence Stipulations Judicial notice

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Testimonial Evidence◦ Can generally only be testified to by someone with

first hand information, unless one of the hearsayexceptions apply.

Documentary Evidence◦ Including writings, photographs, etc.

Demonstrative Evidence◦ Charts and sketches; not really evidence in and of

themselves - just visual aids for the trier of fact

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Photographs and videos◦ Can be “real” or “direct” evidence or demonstrative

evidence

◦ Example: footage from a bank security camera

Physical Evidence◦ E.g., fingerprints, blood, the murder weapon, etc.

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All evidence can be placed into two basic categories:◦ Direct Evidence

◦ Circumstantial Evidence

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Direct Evidence◦ This relies directly on the sense or perception of

witnesses actually testifying or being presented. For example: Eyewitness testimony

Videotape or audio tape

Circumstantial Evidence◦ This is evidence or circumstances that require the trier

of fact to infer that something happened. For example: Fingerprints at the crime scene

Blood and DNA evidence

◦ Note that circumstantial evidence is not only admissible,it can often be very strong - often even stronger thandirect evidence!

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Requires the trier of fact to make inferences connecting the evidence with the disputed fact

Direct evidence vs. circumstantial evidence

Example: ◦ Direct evidence: witness testifies that she saw the

defendant stab the victim

◦ Circumstantial evidence: witness testifies she saw the defendant wiping blood off his hands shortly after the victim was stabbed

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The Rules of Evidence do NOT distinguish between direct and circumstantial evidence.

The judge will instruct the jury to weigh all evidence in the case.

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The judge or the jury is the trier of fact.

Only the judge may determine the admissibility of evidence.

The jury considers all evidence admitted and deliberates to reach a verdict.

A jury may choose to ignore evidence it finds irrelevant and may give weight to some evidence over other evidence.

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The Federal Rules of Evidence trust the adversary system to identify inadmissible evidence.

Generally, parties raise the objections beforeand during trial.

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(a) Preserving a Claim of Error. A party may claim error in a ruling to admit or exclude evidence only…◦ (1) if the ruling admits evidence, a party, on the

record:

(A) timely objects or moves to strike; and

(B) states the specific ground…

◦ (2) if the ruling excludes evidence, a party informs the court of its substance by an offer of proof…

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Any motions about admissibility of evidence canbe brought during trial. At trial, the mostcommon way to challenge evidence is to waituntil it’s being introduced and then state an…

Objection; It can be◦ As to substance; such as hearsay, privilege, opinion, etc.◦ As to form; including:

Leading question (discussed more, later in the course) Non responsive answers

Motion to strike◦ If a witness already said something inappropriate, the

judge can strike the answer from the record.

Any of these decisions may require a hearingoutside the presence of the jury if the judge saysso.

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In response to an objection, the judge can◦ Sustain the objection

◦ Overrule the objection

◦ Strike testimony or evidence already introduced

In an extreme case, if the damage from evidencealready offered cannot be undone, the judge mayorder a mistrial!◦ Either party may ask for a mistrial if it feels that the jury

cannot render an impartial judgment based on testimonyit heard but should not have heard.

If an objection is not made in a timely andspecific manner, it can be waived and may evenbe barred from appeal based on that issue.

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Sometimes, to determine whether testimony ofevidence will be admissible, it first has to bedetermined what the testimony or evidence willbe.

In such a case, the jury will be excused and theparty will introduce the evidence and makehis/her arguments in favor of its admissibility.

The judge will then make the determinationwhether the evidence is admissible.

Offers of proof are part of the record and canform a basis for appeal.

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(d) Preventing the Jury from Hearing Inadmissible Evidence. To the extent practicable, the court must conduct a jury trial so that the inadmissible evidence is not suggested to the jury by any means.

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If the court admits evidence that is admissible against a party or for a purpose – but not against another party or for another purpose – the court, on timely request, must restrict the evidence to its proper scope and instruct the jury accordingly.

NOTE: This is one of the few circumstances in which the judge has no discretion.

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For admission of evidence (or denial of evidence) to be appealed:◦ There must have been an objection made in a

timely and specific manner.

The basis for the appeal must be an error oflaw, not an argument as to the facts orcredibility of the witnesses.

Appeals courts are not triers of fact and willnot generally examine the strength of evidence.They only determine whether the judge appliedthe correct law in the case.

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Harmless Error Rule

◦ To be a basis for overturning a verdict, even if a judge made a bad decision, appellate courts will not overturn a verdict if the error was “harmless.” This means that were the decision made correctly by the

judge, there’s a substantial likelihood that the verdictmay have been different.

In this way, appeals courts do try “facts” to a degree.

However, even if not properly objected to, the“plain error” rule may allow an appeal if the judge’sdecision was such a bad mistake that issubstantially affected the rights of the party.◦ This applies especially to criminal cases, where there are

constitutional protections to be concerned with.

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