Evidence (law)

Evidence (law)

Discussion
Ask a question about 'Evidence (law)'
Start a new discussion about 'Evidence (law)'
Answer questions from other users
Full Discussion Forum
 
Encyclopedia
The law
Law
Law is a system of rules and guidelines which are enforced through social institutions to govern behavior, wherever possible. It shapes politics, economics and society in numerous ways and serves as a social mediator of relations between people. Contract law regulates everything from buying a bus...

 of evidence encompasses the rules and legal principles that govern the proof of facts in a legal proceeding. These rules determine what evidence can be considered by the trier of fact
Trier of fact
A trier of fact is a person, or group of persons, who determines facts in a legal proceeding, usually a trial. To determine a fact is to decide, from the evidence, whether something existed or some event occurred.-Juries:...

 in reaching its decision and, sometimes, the weight that may be given to that evidence. The law of evidence is also concerned with the quantum (amount), quality, and type of proof needed to prevail in litigation.

The quantum of evidence is the amount of evidence needed; the quality of proof is how reliable such evidence should be considered. This includes such concepts as hearsay
Hearsay
Hearsay is information gathered by one person from another person concerning some event, condition, or thing of which the first person had no direct experience. When submitted as evidence, such statements are called hearsay evidence. As a legal term, "hearsay" can also have the narrower meaning of...

, authentication
Authentication
Authentication is the act of confirming the truth of an attribute of a datum or entity...

, admissibility
Admissibility
Admissibility may refer to:* Admissible evidence, evidence which may be introduced in a court of law.* Admissible decision rule, in statistical decision theory, a rule which is never dominated.* Admissible rule, in logic, a type of rule of inference....

, reasonable doubt
Reasonable doubt
Proof beyond a reasonable doubt is the standard of evidence required to validate a criminal conviction in most adversarial legal systems . Generally the prosecution bears the burden of proof and is required to prove their version of events to this standard...

, and clear and convincing evidence.

There are several types of evidence, depending on the form or source. Evidence governs the use of testimony
Testimony
In law and in religion, testimony is a solemn attestation as to the truth of a matter. All testimonies should be well thought out and truthful. It was the custom in Ancient Rome for the men to place their right hand on a Bible when taking an oath...

 (e.g., oral or written statements, such as an affidavit
Affidavit
An affidavit is a written sworn statement of fact voluntarily made by an affiant or deponent under an oath or affirmation administered by a person authorized to do so by law. Such statement is witnessed as to the authenticity of the affiant's signature by a taker of oaths, such as a notary public...

), exhibit
Exhibit (Legal)
An exhibit, in a criminal prosecution or a civil trial, is physical or documentary evidence brought before the jury. The artifact or document itself is presented for the jury's inspection...

s (e.g., physical objects), documentary material
Documentary evidence
Documentary evidence is any evidence introduced at a trial in the form of documents. Although this term is most widely understood to mean writings on paper , the term actually include any media by which information can be preserved...

, or demonstrative evidence
Demonstrative evidence
Demonstrative evidence is evidence in the form of a representation of an object. This is, as opposed to, real evidence, testimony, or other forms of evidence used at trial.-Examples:...

, which are admissible (i.e., allowed to be considered by the trier of fact
Trier of fact
A trier of fact is a person, or group of persons, who determines facts in a legal proceeding, usually a trial. To determine a fact is to decide, from the evidence, whether something existed or some event occurred.-Juries:...

, such as jury
Jury
A jury is a sworn body of people convened to render an impartial verdict officially submitted to them by a court, or to set a penalty or judgment. Modern juries tend to be found in courts to ascertain the guilt, or lack thereof, in a crime. In Anglophone jurisdictions, the verdict may be guilty,...

) in a judicial or administrative proceeding
Dispute resolution
Dispute resolution is the process of resolving disputes between parties.-Methods:Methods of dispute resolution include:* lawsuits * arbitration* collaborative law* mediation* conciliation* many types of negotiation* facilitation...

 (e.g., a court
Court
A court is a form of tribunal, often a governmental institution, with the authority to adjudicate legal disputes between parties and carry out the administration of justice in civil, criminal, and administrative matters in accordance with the rule of law...

 of law).

When a dispute, whether relating to a civil or criminal matter, reaches the court there will always be a number of issues which one party will have to prove in order to persuade the court to find in his or her favour. The law must ensure certain guidelines are set out in order to ensure that evidence presented to the court can be regarded as trustworthy.

In Scots law the rule of corroboration in criminal cases, requires that there must be two pieces of evidence, to prove each essential fact. For example, DNA evidence could corroborate an eye witness testimony, proving person X committed a crime. This corroboration requirement no longer applies in civil cases, with the exception of some areas of family law, such as divorce, when another individual, not party to the marriage, must act as 'witness', however this is not referred to as corroboration.(See Douglas Chalmers, Evidence, Law Essentials).

Relevance and social policy


Legal scholars of the Anglo-American tradition, but not only that tradition, have long regarded evidence as being of central importance to the law.

In every jurisdiction based on the English common law tradition, evidence must conform to a number of rules and restrictions to be admissible. Evidence must be relevant
Relevance (law)
Relevance, in the common law of evidence, is the tendency of a given item of evidence to prove or disprove one of the legal elements of the case, or to have probative value to make one of the elements of the case likelier or not. Probative is a term used in law to signify "tending to prove."...

that is, it must be directed at proving or disproving a legal element.

However, the relevance of evidence is ordinarily a necessary condition but not a sufficient condition for the admissibility of evidence. For example, relevant evidence may be excluded if it is unfairly prejudicial, confusing, or the relevance or irrelevance of evidence cannot be determined by syllogistic reasoning if/then logic alone. There is also general agreement that assessment of relevance or irrelevance involves or requires judgements about probabilities or uncertainties. Beyond that, there is little agreement. Many legal scholars and judges agree that ordinary reasoning, or common sense reasoning, plays an important role. There is less agreement about whether or not judgements of relevance or irrelevance are defensible only if the reasoning that supports such judgements is made fully explicit. However, most trial judges would reject any such requirement and would say that some judgements can and must rest partly on unarticulated and unarticulable hunches and intuitions. However, there is general (though implicit) agreement that the relevance of at least some types of expert evidence particularly evidence from the hard sciences requires particularly rigorous, or in any event more arcane reasoning than is usually needed or expected. There is a general agreement that judgments of relevance are largely within the discretion of the trial court although relevance rulings that lead to the exclusion of evidence are more likely to be reversed on appeal than are relevance rulings that lead to the admission of evidence.

According to Rule 401 of the Federal Rules of Evidence
Federal Rules of Evidence
The is a code of evidence law governing the admission of facts by which parties in the United States federal court system may prove their cases, both civil and criminal. The Rules were enacted in 1975, with subsequent amendments....

 (FRE), evidence is relevant if it has the "tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence."

Federal Rule 403 allows relevant evidence to be excluded "if its probative
Probative
Relevance, in the common law of evidence, is the tendency of a given item of evidence to prove or disprove one of the legal elements of the case, or to have probative value to make one of the elements of the case likelier or not. Probative is a term used in law to signify "tending to prove."...

 value is substantially outweighed by the danger of unfair prejudice", if it leads to confusion of the issues, if it is misleading or if it is a waste of time. California Evidence Code section 352 also allows for exclusion to avoid "substantial danger of undue prejudice." For example, evidence that the victim of a car accident was apparently a "liar, cheater, womanizer, and a man of low morals" was unduly prejudicial and irrelevant to whether he had a valid product liability
Product liability
Product liability is the area of law in which manufacturers, distributors, suppliers, retailers, and others who make products available to the public are held responsible for the injuries those products cause...

 claim against the manufacturer of the tires on his van (which had rolled over resulting in severe brain damage).

Presence or absence of a jury


The United States has a very complicated system of evidentiary rules; for example, John Wigmore's celebrated treatise on it filled ten volumes. James Bradley Thayer
James Bradley Thayer
James Bradley Thayer American legal writer and educationist.Born at Haverhill, Massachusetts, he graduated at Harvard College in 1852, and at the Harvard Law School in 1856, in which year he was admitted to the bar of Suffolk County and began to practice in Boston...

 reported in 1898 that even English lawyers were surprised by the complexity of American evidence law, such as its reliance on exceptions to preserve evidentiary objections for appeal.

Some legal experts, notably Stanford legal historian Lawrence Friedman, have argued that the complexity of American evidence law arises from two factors: (1) the right of American defendants to have findings of fact made by a jury in practically all criminal cases as well as many civil cases; and (2) the widespread consensus that tight limitations on the admissibility of evidence are necessary to prevent a jury of untrained laypersons from being swayed by irrelevant distractions. In Professor Friedman's words: "A trained judge would not need all these rules; and indeed, the law of evidence in systems that lack a jury is short, sweet, and clear." However, Friedman's views are characteristic of an earlier generation of legal scholars. Many respected observers now reject the formerly-popular proposition that the institution of trial by jury is the main reason for the existence of rules of evidence even in countries such as the United States and Australia; they argue that other variables are at work.

Unfairness


Under English
England
England is a country that is part of the United Kingdom. It shares land borders with Scotland to the north and Wales to the west; the Irish Sea is to the north west, the Celtic Sea to the south west, with the North Sea to the east and the English Channel to the south separating it from continental...

 and Welsh
Wales
Wales is a country that is part of the United Kingdom and the island of Great Britain, bordered by England to its east and the Atlantic Ocean and Irish Sea to its west. It has a population of three million, and a total area of 20,779 km²...

 law, evidence that would otherwise be admissible at trial may be excluded at the discretion of the trial judge if it would be unfair to the defendant to admit it.

Evidence of a confession may be excluded because it was obtained by oppression or because the confession was made in consequence of anything said or done to the defendant that would be likely to make the confession unreliable. In these circumstances, it would be open to the trial judge to exclude the evidence of the confession under Section 78(1) of the Police and Criminal Evidence Act 1984
Police and Criminal Evidence Act 1984
The Police and Criminal Evidence Act 1984 is an Act of Parliament which instituted a legislative framework for the powers of police officers in England and Wales to combat crime, as well as providing codes of practice for the exercise of those powers. Part VI of PACE required the Home Secretary...

 (PACE), or under Section 73 PACE, or under common law, although in practice the confession would be excluded under section 76 PACE.

Other admissible evidence may be excluded, at the discretion of the trial judge under 78 PACE, or at common law, if the judge can be persuaded that having regard to all the circumstances including how the evidence was obtained "admission of the evidence would have such an adverse effect on the fairness of the proceedings that the court ought not to admit it."

Authentication


Certain kinds of evidence, such as documentary evidence, are subject to the requirement that the offeror provide the trial judge with a certain amount of evidence (which need not be much and it need not be very strong) suggesting that the offered item of tangible evidence (e.g., a document, a gun) is what the offeror claims it is. This authentication
Authentication
Authentication is the act of confirming the truth of an attribute of a datum or entity...

 requirement has import primarily in jury trials. If evidence of authenticity is lacking in a bench trial, the trial judge will simply dismiss the evidence as unpersuasive or irrelevant.

Witnesses



In systems of proof based on the English common law tradition, almost all evidence must be sponsored by a witness
Witness
A witness is someone who has firsthand knowledge about an event, or in the criminal justice systems usually a crime, through his or her senses and can help certify important considerations about the crime or event. A witness who has seen the event first hand is known as an eyewitness...

, who has sworn or solemnly affirmed to tell the truth. The bulk of the law of evidence regulates the types of evidence that may be sought from witnesses and the manner in which the interrogation of witnesses is conducted such as during direct examination
Direct examination
The Direct Examination or Examination-in-Chief is one stage in the process of adducing evidence from witnesses in a court of law. Direct examination is the questioning of a witness by the party who called him or her, in a trial...

 and cross-examination
Cross-examination
In law, cross-examination is the interrogation of a witness called by one's opponent. It is preceded by direct examination and may be followed by a redirect .- Variations by Jurisdiction :In...

 of witnesses. Other types of evidentiary rules specify the standards of persuasion (e.g., proof beyond a reasonable doubt) that a trier of fact -- whether judge or jury -- must apply when it assesses evidence.

Today all persons are presumed to be qualified to serve as witnesses in trials and other legal proceedings, and all persons are also presumed to have a legal obligation to serve as witnesses if their testimony is sought. However, legal rules sometimes exempt people from the obligation to give evidence and legal rules disqualify people from serving as witnesses under some circumstances.

Privilege
Privilege (evidence)
An evidentiary privilege is a rule of evidence that allows the holder of the privilege to refuse to provide evidence about a certain subject or to bar such evidence from being disclosed or used in a judicial or other proceeding....

 rules give the holder of the privilege a right to prevent a witness from giving testimony. These privileges are ordinarily (but not always) designed to protect socially valued types of confidential communications. Some of the privileges that are often recognized in various U.S, jurisdictions are the marital secrets privilege, the adverse spousal testimony privilege, the attorney-client privilege
Attorney-client privilege
Attorney–client privilege is a legal concept that protects certain communications between a client and his or her attorney and keeps those communications confidential....

, the doctor-patient privilege, the psychotherapist-patient and counselor-patient privilege, the state secrets privilege
State Secrets Privilege
The state secrets privilege is an evidentiary rule created by United States legal precedent. Application of the privilege results in exclusion of evidence from a legal case based solely on affidavits submitted by the government stating that court proceedings might disclose sensitive information...

 and the clergy-penitent privilege. A variety of additional privileges are recognized in different jurisdictions, but the list of recognized privileges varies from jurisdiction to jurisdiction; for example, some jurisdictions recognize a social worker-client privilege and other jurisdictions do not.

Witness competence
Competence (law)
In American law, competence concerns the mental capacity of an individual to participate in legal proceedings. Defendants that do not possess sufficient "competence" are usually excluded from criminal prosecution, while witnesses found not to possess requisite competence cannot testify...

 rules are legal rules that specify circumstances under which persons are ineligible to serve as witnesses. For example, neither a judge nor a juror is competent to testify in a trial in which the judge or the juror serves in that capacity; and in jurisdictions with a dead man statute
Dead man statute
A dead man statute is a statute designed to prevent perjury in a civil case by prohibiting a witness who is an interested party from testifying about communications or transactions with a deceased person unless there is a waiver....

, a person is deemed not competent to testify as to statements of or transactions with a deceased opposing party.

Hearsay



Hearsay
Hearsay
Hearsay is information gathered by one person from another person concerning some event, condition, or thing of which the first person had no direct experience. When submitted as evidence, such statements are called hearsay evidence. As a legal term, "hearsay" can also have the narrower meaning of...

 is one of the largest and most complex areas of the law of evidence in common-law jurisdictions. The default rule is that hearsay evidence is inadmissible. Hearsay is an out of court statement offered to prove the truth of the matter asserted. A party is offering a statement to prove the truth of the matter asserted if the party is trying to prove that the assertion made by the declarant (the maker of the pretrial statement) is true. For example, prior to trial Bob says, "Jane went to the store." If the party offering this statement as evidence at trial is trying to prove that Jane actually went to the store, the statement is being offered to prove the truth of the matter asserted. However, at both common law and under evidence codifications such as the Federal Rules of Evidence
Federal Rules of Evidence
The is a code of evidence law governing the admission of facts by which parties in the United States federal court system may prove their cases, both civil and criminal. The Rules were enacted in 1975, with subsequent amendments....

, there are dozens of exemptions from and exceptions to the hearsay rule.

Circumstantial evidence


Evidence of an indirect nature which implies the existence of the main fact
Fact
A fact is something that has really occurred or is actually the case. The usual test for a statement of fact is verifiability, that is whether it can be shown to correspond to experience. Standard reference works are often used to check facts...

 in question but does not in itself prove it. That is, the existence of the main fact is deduced from the indirect or circumstantial evidence by a process of probable reason
Reason
Reason is a term that refers to the capacity human beings have to make sense of things, to establish and verify facts, and to change or justify practices, institutions, and beliefs. It is closely associated with such characteristically human activities as philosophy, science, language, ...

ing. The introduction of a defendant's fingerprint
Fingerprint
A fingerprint in its narrow sense is an impression left by the friction ridges of a human finger. In a wider use of the term, fingerprints are the traces of an impression from the friction ridges of any part of a human hand. A print from the foot can also leave an impression of friction ridges...

s or DNA sample are examples of circumstantial evidence. The fact that a defendant had a motive to commit a crime is circumstantial evidence. However, in an important sense all evidence is merely circumstantial because on no evidence can prove a fact in the absence of one or more inference.

Evidence that the defendant lied



Lies, on their own, are not sufficient evidence of a crime. However, lies may indicate that the defendant knows he is guilty, and the prosecution may rely on the fact that the defendant has lied alongside other evidence.

Burdens of proof



Different types of proceedings require parties to meet different burdens of proof, the typical examples being beyond a reasonable doubt, clear and convincing evidence, and preponderance of the evidence. Many jurisdictions have burden-shifting provisions, which require that if one party produces evidence tending to prove a certain point, the burden shifts to the other party to produce superior evidence tending to disprove it.

One special category of information in this area includes things of which the court may take judicial notice
Judicial notice
Judicial notice is a rule in the law of evidence that allows a fact to be introduced into evidence if the truth of that fact is so notorious or well known that it cannot be refuted. This is done upon the request of the party seeking to have the fact at issue determined by the court...

. This category covers matters that are so well known that the court may deem them proven without the introduction of any evidence. For example, if a defendant is alleged to have illegally transported goods across a state line by driving them from Boston
Boston
Boston is the capital of and largest city in Massachusetts, and is one of the oldest cities in the United States. The largest city in New England, Boston is regarded as the unofficial "Capital of New England" for its economic and cultural impact on the entire New England region. The city proper had...

 to Los Angeles
Los Ángeles
Los Ángeles is the capital of the province of Biobío, in the commune of the same name, in Region VIII , in the center-south of Chile. It is located between the Laja and Biobío rivers. The population is 123,445 inhabitants...

, the court may take judicial notice of the fact that it is impossible to drive from Boston to Los Angeles without crossing a number of state lines. In a civil case, where the court takes judicial notice of the fact, that fact is deemed conclusively proven. In a criminal case, however, the defense may always submit evidence to rebut a point for which judicial notice has been taken.

Evidentiary rules stemming from other areas of law


Some rules that affect the admissibility of evidence are nonetheless considered to belong to other areas of law. These include the exclusionary rule
Exclusionary rule
The exclusionary rule is a legal principle in the United States, under constitutional law, which holds that evidence collected or analyzed in violation of the defendant's constitutional rights is sometimes inadmissible for a criminal prosecution in a court of law...

 of criminal procedure
Criminal procedure
Criminal procedure refers to the legal process for adjudicating claims that someone has violated criminal law.-Basic rights:Currently, in many countries with a democratic system and the rule of law, criminal procedure puts the burden of proof on the prosecution – that is, it is up to the...

, which prohibits the admission in a criminal trial of evidence gained by unconstitutional means, and the parol evidence rule
Parol evidence rule
The parol evidence rule is a substantive common law rule in contract cases that prevents a party to a written contract from presenting extrinsic evidence that contradicts or adds to the written terms of the contract that appears to be whole...

 of contract law, which prohibits the admission of extrinsic evidence of the contents of a written contract.

Evidence as an area of study


In countries that follow the civil law system, evidence is normally studied as a branch of procedural law
Procedural law
Procedural law or adjective law comprises the rules by which a court hears and determines what happens in civil lawsuit, criminal or administrative proceedings. The rules are designed to ensure a fair and consistent application of due process or fundamental justice to all cases that come before...

.

All American law school
Law school
A law school is an institution specializing in legal education.- Law degrees :- Canada :...

s offer a course in evidence, and most require the subject either as a first year class, or as an upper-level class, or as a prerequisite to later courses. Furthermore, evidence is heavily tested on the Multistate Bar Examination (MBE) - approximately one-sixth of the questions asked in that test will be in the area of evidence. The MBE predominantly tests evidence under the Federal Rules of Evidence
Federal Rules of Evidence
The is a code of evidence law governing the admission of facts by which parties in the United States federal court system may prove their cases, both civil and criminal. The Rules were enacted in 1975, with subsequent amendments....

, giving little attention to matters on which the law of different states is likely to be inconsistent.

The doctrine of corroboration is required under Scots law meaning that there must be two different and independent sources in support of each crucial fact. Testimony from some experts, such as coroners or doctors, however, is accepted by the court on the basis of the expert's report alone, therefore requiring no corroboration.

See also

  • Adverse inference
    Adverse inference
    Adverse inference is a legal inference, adverse to the concerned party, drawn from silence or absence of requested evidence. It is part of evidence codes based on common law in various countries....

  • Anecdotal evidence
    Anecdotal evidence
    The expression anecdotal evidence refers to evidence from anecdotes. Because of the small sample, there is a larger chance that it may be true but unreliable due to cherry-picked or otherwise unrepresentative of typical cases....

  • Canada Evidence Act
    Canada Evidence Act
    The Canada Evidence Act is an Act of the Parliament of Canada, first passed in 1893, that regulates the rules of evidence in court proceedings under federal law. As law of evidence is largely set by common law, the Act is not comprehensive....

  • Digital evidence
    Digital evidence
    Digital evidence or electronic evidence is any probative information stored or transmitted in digital form that a party to a court case may use at trial...

  • Direct Evidence
    Direct evidence
    Direct evidence supports the truth of an assertion directly, i.e., without an intervening inference...

  • Discovery (law)
    Discovery (law)
    In U.S.law, discovery is the pre-trial phase in a lawsuit in which each party, through the law of civil procedure, can obtain evidence from the opposing party by means of discovery devices including requests for answers to interrogatories, requests for production of documents, requests for...

  • Electronic discovery
    Electronic Discovery
    Electronic discovery refers to discovery in civil litigation which deals with the exchange of information in electronic format . Usually a digital forensics analysis is performed to recover evidence...

  • Evidence under Bayes theorem
    Evidence under Bayes theorem
    Bayes' theorem provides a way of updating the probability of an event in the light of new information. In the evidence law context, for example, it could be used as a way of updating the probability that a genetic sample found at the scene of the crime came from the defendant in light of a genetic...

  • Expert witness
    Expert witness
    An expert witness, professional witness or judicial expert is a witness, who by virtue of education, training, skill, or experience, is believed to have expertise and specialised knowledge in a particular subject beyond that of the average person, sufficient that others may officially and legally...

  • Falsified evidence
    Falsified evidence
    False evidence, forged evidence or tainted evidence is information created or obtained illegally, to sway the verdict in a court case. Also, misleading by suppressing evidence can be used to sway a verdict; however, in some cases, suppressed evidence is excluded because it was found hidden or...

  • Forensic animation
    Forensic animation
    Forensic animation is a branch of forensic science in which audio-visual recreations of incidents or accidents are created to aid investigators. Examples include the use of computer animation, stills, and other audio visual aids. Application of computer animation in courtrooms today is becoming...

  • Hearsay
    Hearsay
    Hearsay is information gathered by one person from another person concerning some event, condition, or thing of which the first person had no direct experience. When submitted as evidence, such statements are called hearsay evidence. As a legal term, "hearsay" can also have the narrower meaning of...

  • Legal burden of proof
  • Omnibus hearing
    Omnibus hearing
    An omnibus hearing is a pretrial hearing. It is usually soon after a defendant's arraignment. The main purpose of the hearing is to determine the admissibility of evidence, including testimony and evidence seized at the time of arrest....

  • Proof (truth)
    Proof (truth)
    A proof is sufficient evidence or argument for the truth of a proposition.The concept arises in a variety of areas, with both the nature of the evidence or justification and the criteria for sufficiency being area-dependent...

  • Spectral evidence
    Spectral evidence
    Spectral evidence is a form of evidence based upon dreams and visions. It was admitted in court during the Salem witch trials by the appointed chief justice, William Stoughton. The booklet A Tryal of Witches taken from a contemporary report of the proceedings of the Bury St...

     (testimony about ghosts or apparitions)
  • Spoliation of evidence
    Spoliation of evidence
    In law, spoliation of evidence is the intentional or negligent withholding, hiding, altering, or destroying of evidence relevant to a legal proceeding...

  • Ultimate issue
    Ultimate issue (law)
    An ultimate issue in criminal law is a legal issue at stake in the prosecution of a crime for which an expert witness is providing testimony.-Example:...


External links