Rules of Evidence
There are many rules of evidence, and most of the rules have exceptions.
Besides the federal rules of evidence, there are also state rules, most of which are patterned after the federal rules. You won't need to memorize these — your attorney will handle that — but it's important to gain a general knowledge of the rules that are seen most often in the courtroom. It's also important to know how to research a rule when you need to. These rules play a large role in whether or not your collected evidence is admissible in court.
The Federal Rules of Evidence govern the way evidence is allowed to be introduced in Federal courts, both civil and criminal. In judging whether evidence is acceptable, most courts look first at its relevance.
Rules of Admissibility
There are three basic rules concerning the admissibility of evidence. Evidence must be relevant, material, and competent.
Relevancy is the logical connection that one thing has to another. In most cases, fingerprints on a weapon found at the scene would be relevant to a murder case, and therefore, admissible as evidence.
Material evidence must be proven to have bearing on the case. If it's proven to be snowing on the day a valuable artifact was stolen, that fact wouldn't be admissible unless it had some bearing on the theft. The truth of the snow has nothing to do with proving who stole the artifact, so the fact is true but immaterial.
Competency means that evidence must meet traditional proofs of reliability. Since this section concerns testimonial evidence, the four criteria for a competent witness will be discussed. To be competent, the witness must:
Take the oath and understand it
Have personal knowledge about his testimony; he must have experienced it with his senses — touched, smelled, tasted, heard, or seen it
Be able to remember what he has experienced
Be able to communicate what he experienced
Even relevant, material, and competent evidence can be ruled inadmissible and can be excluded if, in the court's opinion, the following conditions exist:
Evidence is prejudicial
Evidence may confuse the jury
Evidence is speculative — if many different conclusions can be drawn from it
The sheer amount of the same evidence is unnecessary and wastes the court's time. Evidence can be ruled admissible for one purpose or party and not another; the jury will be instructed to consider it relevant regarding only the party or person to whom it is ruled admissible.
State courts aren't bound by federal rules, but many states have used them as a foundation for developing their own rules of evidence. While differences in civil and criminal court exist, federal rules apply to both.
What's the difference between civil and criminal trials?
Civil trials are concerned with resolution of claims by individuals or groups against other individuals or groups. In reaching a decision, the burden of proof is governed by “a preponderance (or weight) of evidence.” Criminal trials deal with prosecuting those accused of violating criminal law. The burden of proof (for proving guilt) in a criminal trial is “beyond a reasonable doubt,” a stricter standard.
How Rules Work in Court Procedure
Civil procedure, or courtroom conduct and etiquette during a civil case, is governed by the Federal Rules of Civil Procedure (
The first attorney (usually the defense) will begin by questioning a witness during what's called direct examination. Cross-examination follows, where opposing counsel either questions the witness or passes. Only subjects brought up or introduced during direct examination can be questioned in cross-examination, unless the judge chooses to allow it. In re-direct, the original attorney can again question a witness to clear up anything that's unclear or has been introduced or distorted by cross-examination. This can be followed by re-cross. During questioning, either side can object to specific questions. Responses to objections are as follows:
Judge can overrule — witness is permitted to provide the answer
Judge can sustain — question must be asked again in a different way
Judge can ask for further information so she can decide how to rule
When an objection is made, it's important that you stop talking immediately and wait for the judge's response. Once a ruling is made, you'll know what to do. If the question is sustained, you must answer. If it's overruled, you must wait for the next question. The most common objections you'll hear in court follow:
Leading the witness. A leading question suggests the answer: Didn't you see the subject driving erratically? Nonleading: Did you see the subject driving? In your opinion, how was she handling the vehicle?
Hearsay. A statement made by someone other than the testifying witness. There are many exceptions, some of which will be discussed later.
Relevancy. Questions and statements may be challenged if they do not directly relate to the case.
Leading questions are allowed on cross-examination when the attorney is questioning an unfriendly witness. They aren't allowed during direct questioning, when the attorney for whom you work questions you, because leading questions suggest the answer for the witness to supply. However, when your attorney asks a leading question, knowing it'll probably be objected to and overruled by the judge, it's a clue as to where he wants you to go with your answer.
Hearsay evidence may be accepted under several conditions:
Dying declaration. Although it is hearsay because the person declaring isn't in court, a person who heard a dying person's statement may repeat that statement because of the general belief that someone aware of dying doesn't have any reason to lie. For example, “I heard her say, ‘John stabbed me.’”
Excited utterance. It is still hearsay if the person who uttered the statement isn't in court, but this is admissible testimony because in the heat of an exciting incident, a witness may blurt out something that he refuses to testify to later. For example, “Look, that blue car ran over that little boy!”
Admission against interest. A witness can testify that she heard a party in a lawsuit make a statement that runs counter to the party's case. For example, a witness can testify she heard the suspect admit he committed the crime for which he is on trial.
Business records. These must be introduced by a qualified witness who can identify them and testify how they were recorded.
Official government records that have been properly maintained.
Notes. These must be made close to the time of an event and can be used during testimony to refresh the memory of a witness.
Judgments in other cases.
Statement explaining a person's future plans. For example, “I'm going to choke the life out of her and keep her from hurting anyone again.” The person who heard this can testify to what was said.
There are many other exceptions to the hearsay rule. Besides these exceptions, the judge always has power to declare an exception at his discretion.
Direct evidence, sometimes called real evidence, is the evidence to which you can testify — what you know or have seen or done. Direct evidence is tangible and requires nothing to prove the truth of its existence. Examples are the production of a receipt identifying the defendant as the purchaser of a specific firearm. This doesn't prove that the defendant used it to kill anyone, but it does prove he purchased that weapon. Direct evidence is usually ruled admissible.
Hearsay or Indirect Evidence
Indirect evidence is evidence that you've heard from someone else. It can be hearsay, but not always. The most common exception is the party opponent exception. When a party to the lawsuit says something that you actually hear her say, your testimony concerning the statement is admissible. For example, the following statements are not hearsay and are admissible:
“He said, ‘I agree to your offer.’” Because this isn't a statement of fact that can be proven true or untrue, you can testify that you heard it; the issue is not whether the statement is true, but whether it was said.
“She yelled, ‘Help me!’” It's a cry for help; some say the excited utterance exception applies here.
“Jones told me that Smith is a thief and a liar.” If this is offered as testimony that Jones had motive to kill or assault Smith, it's acceptable as evidence. If it's offered as testimony that Smith is a thief and a liar, then it's considered hearsay.
There are many more exceptions to the hearsay rule, and you may hear them from time to time, but not as often as the ones discussed here.
This type of evidence doesn't prove the existence of a fact — at least not directly. It does, however, provide logical suspicion that the fact exists, but reasoning is required to prove its existence. The general belief is that circumstantial evidence is weak, but often this type of evidence proves a case, as physical evidence isn't always available.
The compilation of inferential evidence can lead to the belief that no other conclusion is possible. For example, the defendant may have been seen in the area around the time of the murder. He may have been heard threatening the deceased and may have owned the weapon that killed her. He may also have hurt the deceased in the past. His prints may even be in the house, but they are considered circumstantial if he has been in the house before. All of these things are circumstantial, but together they begin to point to a strong conclusion. If you have enough of them, they make a case.
Photographs or video recordings of evidence are important to your case. In order to be admissible, someone must testify that they reasonably represent the thing or person that was photographed or filmed. The person giving testimony concerning the item either must have taken it herself or been present when it was taken, so she can verify that the film or photograph accurately represents what it is purported to represent.
Charts, models, and maps, sometimes called demonstrative evidence, are not evidence in and of themselves; they must be authenticated, usually with the testimony of the person using these objects. They are used in court to make a point or to demonstrate a fact, and marks made on these items may be used to prove a fact. If so, they may be admitted into evidence. Again, admissibility is at the discretion of the judge. See Chapter 12 for information about types of evidence.