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What is Evidence?

Updated on August 17, 2015

Evidence is at one and the same time (1) proof, (2) facts capable of introduction in a tribunal, and (3) that body of rules by which testimony is admitted or rejected. Evidence law in the United States is a complex process, established both by courts and statutes.

The development of rules of evidence in Anglo-American law closely follows the development of the judicial system, especially the jury system.

The Norman Conquest added two new forms of trial to those of ordeal and compurgation existing in Saxon England: trial by battle and trial by inquisition. In the latter, jurors were called to serve because of their knowledge of the facts, a circumstance that would disqualify jurors in modern practice. It was from trial by inquisition that the modern jury system with its accompanying rules of evidence originated.

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Evidence In The United States

A trial court is characterized by the presence of judge, jury, and counsel for each adversary.

Judges act as impartial arbiters. They regulate and preside over the proceedings, issue rulings on issues of law and of fact that form the basis of objections to evidence by counsel, and assure orderly progress of the case. Lawyers produce facts on which each side relies for victory. The jurors consider these facts, along with instructions on the law applicable to the facts, and reach a verdict for one of the litigants.

Purpose and Use of Evidence

Pleadings are written assertions, successively filed by each party. In civil cases, the plaintiff, who initiates the action, must prove his prima facie case before the defendant is required to offer evidence.

The defendant, in turn, must establish a prima facie case in defense, as the burden of going forward with the evidence has passed to him.

Each side then presents evidence designed to meet the effect of the evidence of his adversary and to create an issue of fact for the jury to decide. In civil cases, moreover, each side has a burden of proof that continues throughout the trial-that is, the plaintiff must produce a preponderance of evidence if he is to win. This is sometimes referred to as evidence that would reasonably satisfy the jury of his right to prevail.

By proving a prima facie case, the plaintiff has met his burden of going forward with the evidence and his burden of proof.

In criminal cases, the burden of going forward with evidence, called the burden of persuasion, is the same as it is in civil cases.

However, the burden on the prosecution is to prove guilt "beyond a reasonable doubt"; otherwise the accused cannot be convicted.

Uses of Evidence

There are several types of evidence. It may be direct, as when a witness states that he saw an act occur, or Circumstantial, as when a witness swears that he saw a certain person alone at a particular time and place and so creates an inference that the person there observed did such an act. Or it may be real, such as a physical object, or demonstrative, as in an exhibition of an injured arm . Fundamentally, all evidence is testimonial in the sense that it is either exclusively verbal or documentary.

To be admitted, documentary evidence must usually be authenticated by a witness who identifies it. Moreover, if the contents of a writing are questioned, the original must be produced or a satisfactory accounting made for its absence before secondary evidence, such as copies or verbal evidence, may be elicited.

Occasionally, the written deposition of an absent witness is offered into evidence.

Direct and Cross-Examination

If a witness testifies on direct examination, that is, in response to questions from his proponent, the lawyer who has called him to testify, he is subject to cross examination by his opponent. These procedures may be followed by another direct examination (redirect) and then another cross-examination. The purpose of direct examination is to elicit testimony favorable to the proponent of the witness.

Cross-examination may be used either to develop substantive evidence favorable to the cross-examiner or to affect adversely the credit of the witness. In some jurisdictions the witness may be cross-examined on various substantive issues. In others, his cross-examination is limited solely to the subject matter of his direct examination. In either type, the witness may be impeached or discredited if the opponent can show his bias or prior self-contradictory statements.

Fact and Opinion

Lay witnesses must limit their testimony to facts within their personal knowledge, unless the occurrence is difficult to describe, thus permitting the layman to express his opinion. Expert witnesses, given license when testifying on subjects beyond the knowledge of the layman, are permitted to give their opinions based either on known facts or hypothesized facts.

Character evidence generally is inadmissible because it is irrelevant. Usually it makes no difference in establishing a basis of recovery that a party has a certain bent or disposition. A witness giving testimony may be impeached, if he is shown to have a poor reputation for telling the truth. Moreover, in civil cases, some jurisdictions .permit a showing of a trait of character that is in issue by citing a general reputation for that trait or by giving proof of specific acts, as when these show mental incompetence. Proof of specific acts indicative of bad character is not permitted in criminal cases, because of the risk of confusion with the alleged present offense.

Character evidence is admissible in criminal cases through proof of the accused's general reputation for that trait that led to the action involved in the indictment or charge, but only if the accused first puts it in issue by introducing evidence of his good general reputation. For example, a defendant charged with larceny is permitted to call a "character witness" to give testimony of his good general reputation in his community for honesty.

Hearsay Evidence

Hearsay evidence is also inadmissible unless it possesses some guarantee of truthfulness. Hearsay is an oral or written assertion made out of court by someone who was not subject to cross-examination when the assertion was made. Its reliability depends not on the oath of the testifying witness but on the credibility of the absent utterer.

There are exceptions to the rules on hearsay evidence. Out-of-court assertions are often admitted, not to serve a hearsay purpose-that is, not to prove the truth of the statement- but to prove that the statement was made. Thus, in order to prove that a certain woman was alive at a given time, it would be permissible to prove that she screamed, "My husband is beating me!"

Because the purpose is not to prove that her husband was beating her, the utterance is not hearsay. Among examples of frequent exceptions are those permitting admission of official records, excited utterances, statements by a person regarding his family pedigree, and dying declarations made by one who is conscious of impending death. In each of these exceptions there is a special circumstance that guarantees truthfulness, besides the need for using the evidence.

Permissibility of Evidence

Certain kinds of evidence are privileged and cannot be disclosed, such as confidential communications between spouses, statements to governmental agencies, and confidences between physician and patient and between attorney and client. These and certain others, such as deliberations of grand jurors, frequently are defined by statute. Federal and state constitutions grant a privilege against the admission of evidence obtained through illegal search and seizure and also extend to an accused the privilege of not becoming a witness against himself. Likewise, one called as a witness is privileged not to respond to questions whose answers might incriminate him, although a previous grant of immunity from prosecution removes the privilege.

Evidence In Other Countries

Modern rules of evidence are less restrictive in other countries. In England, which, like the United States, has a common law system, juries are utilized less than panels of judges. The judges' sensitivity to relevance is considered more acute, so that restrictive rules are few. In continental countries, the absence of evidentiary rules is pronounced, owing to the different nature of the fact-finding process in civil law systems.

German law permits the introduction of documents without authentication unless specifically challenged, and almost all civil law codes contain no exclusionary rules, such as those against hearsay or opinion evidence. Indeed, continental judges are given the power to evaluate freely the weight of the evidence.

Nature of the Trial

Trials in civil law countries are a succession of proceedings and hearings, during some of which testimony is taken.

In general, the parties themselves are incompetent as witnesses, but they may be judicially examined to assist the court. Usually any party's statement is unsworn, but some countries, such as France and Italy, allow a decisory oath- that is, a request by a party that his opponent affirm under oath that a certain fact within the opponent's knowledge is false. Failure or refusal of the opponent to take this oath conclusively establishes the disputed fact, but the opposite is true should the oath be taken. Other countries, such as Germany and Austria, permit interrogation of the parties, after which an oath is taken.

However, the testimony is not thereby rendered conclusive but depends on the court's evaluation of the witness' credibility. There is no cross examination because the judge himself conducts practically all of the examination. He may do so in separate hearings over a period of time, developing new lines of investigation and bringing in additional witnesses in the process, with or without aid of counsel.


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