Evidence (law)
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The law of evidence governs the use of testimony (e.g. oral or written statements, such as an affidavit) and exhibits (e.g. physical objects) or other documentary material which is admissible (i.e. allowed to be considered by the trier of fact, such as jury) in a judicial or administrative proceeding (e.g., a court of law).
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[edit] Relevance and related social policy concerns
Legal scholars of the Anglo-American tradition, but not only that tradition, have long regarded evidence as being of central importance to the law, but not only to the law. As James Wilson notes in Chapter XIII of his famous inaugural lectures on law, "Of the nature and philosophy of evidence,": "Evidence is a subject of vast and extensive importance in the study and practice of the law: it is of vast and extensive importance, likewise, in the business and general management of human affairs.” (See also Victor v. Nebraska, 511 U.S. 1 (1994), where Justice O'Connor, in the Opinion of the Court, cites Wilson's discussion of the distinction between demonstrative and moral evidence.)
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 — that is, it must have a tendency to make a fact at issue in the proceeding be more or less probable than it would be without the evidence.
However, relevance 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 cumulative. Furthermore, a variety of social policies operate to exclude relevant evidence. Thus, there are limitations on the use of evidence of liability insurance, subsequent remedial measures, settlement offers, and plea negotiations, mainly because it is thought that the use of such evidence discourages parties from carrying insurance, fixing hazardous conditions, offering to settle, and pleading guilty to crimes, respectively.
Relevance, thus, is neither strictly to be determined scientifically nor by strict legal rules of interpretation. This is not meant to suggest that the concept of relevance is merely a social construct. Wilson made clear that he saw this dilemma when he wrote: “Many philosophers of high sounding fame, deeming it inconsistent with their character to believe, when they could not furnish an argument for belief, have endeavoured, with much learned labour, to suggest proofs for the doctrine – that our senses ought to be trusted.” (Chapter XIII.) It would seem that Wilson, with a nice touch of cool comic irony, did not fail to allow good old Scottish common sense to prevail. It is suggested that relevance is emphatically a natural phenomenon, one we do not need to prove, but rather one that we feel. Any juror should be able to understand this, theoretical social policy to the contrary. But how does this relate to the emphatically legal doctrine of evidence? Can a judge allow as relevant anything that feels relevant to him? Neither the far stretches of legal positivism nor organic legal conservatism defend such a position. Nor does Wilson completely. The eighth section of the thirteenth chapter of his law lectures (as published by his son, Bird Wilson) is headed by the statement: “Evidence arises from reasoning.” But, as we should be aware, the law and mere reasoning, let alone feeling, are not the same. Wilson did not articulate a complete theory of evidence. He wished merely to carry the torch forward into the new American generation of prominent legal thinkers by making them aware of the importance and problematic character of evidence. But he closes the chapter by giving us some perspective on the matter. “Evidence is the foundation of conviction: conviction is the foundation of persuasion: to convey persuasion is the end pleading.” What lawyer could disagree?
Under the Federal Rules of Evidence (FRE) Rule 401: "Relevant evidence" means evidence having any 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 value is substantially outweighed by danger of unfair prejudice, confusing or misleading the jury or waste of the court's time. California Code §352 also allows for exclusion to avoid "substantial danger of undue prejudice."
[edit] Presence or absence of a jury
The United States of America has a complicated system of evidentiary rules. Some observers believe 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 (such as the infamous Chewbacca Defense). For example, legal historian Lawrence Friedman wrote that "[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." Other observers disagree and assert that the institution of trial by jury is not the reason for many of the rules of evidence found in countries such as the United States and Australia. See, for example, Frederick Schauer, "On the Supposed Jury-Dependence of Evidence Law," vol. 155 University of Pennsylvania Law Review pp. 165-202 (November 2006). See also 1 John Henry Wigmore, Evidence in Trials at Common Law Section 4d.1 (P. Tillers. rev. 1983) and P. Tillers, "Rules of Evidence in Nonjury Trials" (Nov. 7 2006) at http://tillerstillers.blogspot.com/search?q=rules+jury
On the question of what evidence is, Lord Coke says: “"Evidence, in legal understanding, doth not only contain matters of record, as letters patent, fines, recoveries, enrollments, and the like; and writings under seal, as charters and deeds; and other writings without seal, as court rolls, accounts, which are called evidences, instrumenta; but, in a larger sense, it containeth also testimonia, the testimony of witnesses, and other proofs to be produced and given to a jury, for the finding of any issue joined between the parties. And it is called evidence, because thereby the point in issue is to be made evident to the jury.” (1. Ins, 283.) So far is Coke from relying entirely on a trained judge to keep matters as simple as possible, he appears to go to the extreme of saying that evidence is evidence by virtue of the very appeal to the jury. Continental legal scholars would, no doubt, take issue with such an extreme view. But at this point the legal concept of evidence and the scientific concept converge.
[edit] Authentication
Certain kinds of evidence, such as documentary evidence, may be subject to further restrictions such as the best evidence rule, which requires certain documents to be produced unless they can be shown to be unavailable.
Aside from technical rules of authentication, and their various competing interpretations, one may consider the implicit connection between the need to authenticate and law as protector or enabler of social policy. Again, James Wilson suggests this connection: "Consciousness furnishes us with the most authentick and the most indubitable evidence of every thing which passes within our own minds." (XIII, ii.) The connection becomes more clear upon consideration of the extension of the legal term "writing" to include photographs, x-rays, and films. [Citations needed, please. Thank you.] One with sufficient imagination can well picture future evidence consisting of magnetic images of the human mind in action accompanied by explicatory expert testimony in cases both civil and criminal.
[edit] Witnesses
In systems of proof based on the English common law tradition, almost all evidence must be sponsored by a witness, 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 during direct examination and cross-examination of witnesses. Other types of evidentiary rules specify the standards of persuasion (e.g., proof beyond a reasonable doubt) that a trier of fact such as a 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 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 are the marital secrets privilege, the adverse spousal testimony privilege, the attorney-client privilege, the doctor-patient privilege, the psychotherapist-patient and counselor-patient privilege, the state secrets privilege 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 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 they are serving in that capacity; and in jurisdictions with a dead man statute, a person is deemed not competent to testify as to statements of or transactions with a deceased opposing party.
[edit] Hearsay
Hearsay 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, there are dozens of exemptions from and exceptions to the hearsay rule.
[edit] Circumstantial evidence
Evidence of an indirect nature which implies the existence of the main fact 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 reasoning. The introduction of a defendant's fingerprints or DNA sample are examples of circumstantial evidence.
Some people believe that all evidence is circumstantial because -- some observers think (and some thoughtful judges agree) -- no evidence ever directly proves a fact. For this reason, "rules, unsatisfactory because unfounded, have been heaped upon rules, volumes have been heaped upon volumes, and evidence has been added, and divided, and subtracted, and multiplied, like pounds, and shillings, and pence, and farthings. In the parliament of Toulouse, we are told by Voltaire, [Com. on Bee. c. 22] they admitted of quarters and eighths of a proof. For instance, one hearsay was considered as a quarter; another hearsay, more vague, as an eighth; so that eight vague hearsays, which, in fact, are no more than the reverberated echos of a report, perhaps originally groundless, constitute a full proof." (Wilson, Lectures, II, vi, "The subject continued. Of juries.")
[edit] Burdens of proof
Different types of proceedings require parties to meet different burdens of proof, the typical examples being reasonable doubt, clear and convincing, 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. 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 to Los Angeles, 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.
[edit] 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 of criminal procedure, which prohibits the admission in a criminal trial of evidence gained by unconstitutional means, and the parol evidence rule of contract law, which prohibits the admission of extrinsic evidence of the contents of a written contract.
[edit] Evidence as an area of study
In countries that follow the civil law system, evidence is normally studied as a branch of procedural law.
Nevertheless, because of its importance to the practice of law, all American law schools 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") - of the 200 multiple choice questions asked in that test, approximately one sixth will be in the area of evidence. The MBE predominantly tests evidence under the Federal Rules of Evidence, giving little attention to matters for which state law is likely to be inconsistent.
[edit] References
^ Lawrence M. Friedman, American Law in the Twentieth Century (New Haven: Yale University Press, 2002), 266.
[edit] See also
- Burden of proof
- Expert witness
- Hearsay
- Falsified evidence
- Spectral evidence (testimony about ghosts or apparitions)
- Evidence under Bayes theorem
- Direct Evidence
