Gilbert Law: Evidence Gilbert Law

Gilbert Law: Evidence

Gilbert Law Summaries: Evidence

Introduction to Evidence

The Federal Rules of Evidence (FRE) is a code of evidence law governing the admission of facts by which parties in the United States Federal Court system may present their cases, both criminal and civil. In 1965, Chief Justice Earl Warren appointed an advisory committee of fifteen lawyers and legal scholars to draft new evidentiary rules. The Rules began as proposed rules pursuant to a statutory grant of authority, and the United States Supreme Court circulated drafts of the FRE in 1969, 1971, and 1972. After a long delay that was blamed on Watergate, the FRE became federal law on January 2, 1975. There have been several subsequent amendments. There are 67 individually numbered rules, divided among 11 articles: (1) General Provisions; (2) Judicial Notice; (3) Presumptions in Civil Actions and Proceedings; (4) Relevancy and Its Limits; (5) Privileges; (6) Witnesses; (7) Opinions and Expert Testemony; (8) Hearsay; (9) Authentication and Identification; (10) Contents of Writings, Recordings, and Photographs; and (11) Miscellaneous Rules. The purpose of the rules of evidence is to regulate the evidence a jury may use to reach a verdict and to ensure that the jury has adequate evidence to reach a verdict but not so much evidence as to be overwhelming, inflammatory, repetitive, or confusing. They center on a few basic ideas, such as relevance, unfair surprise, efficiency, reliability, and overall fairness of the adversary process. Individual U.S. states are free to adopt or maintain evidence rules different from the Federal Rules, but the majority have adopted codes based in part or in whole on the FRE. Several significant amendments to the FRE include Prior Inconsistent Statement, Privileges, and Impeachment by Conviction. Whenever a dispute, whether civil or criminal in nature, reaches the court there will be a number of issues which the opposing parties will have to prove or disprove in order to persuade the court to rule in their favor. The law must ensure that certain guidelines are set in order to that the evidence presented to the court can be regarded as trustworthy. The litigation process is dependent on rules of evidence in order to guarantee fairness and impartiality.

Chapter II: Types and Forms of Evidence

There are two basic types of evidence, direct evidence and circumstantial evidence. Direct evidence is evidence that proves a fact directly. Eyewitness testimony is the most common type of direct evidence. Circumstantial evidence proves a fact indirectly by first proving another fact, and from this other fact an inference may be drawn as to the original disputed fact. An example would be Jane hearing John yell "Help, I'm being stabbed!" And then running into the next room, where she sees Jim standing over John with a bloody knife in his hand. Circumstantial evidence suggests truth while direct evidence proves truth. There are three basic forms of evidence: real, demonstrative, and scientific. Real evidence is also referred to as physical evidence and consists of tangible materials such as hair, fibers, latent fingerprints, paint chips and glass, and biological material like blood, semen, and saliva. Physical evidence is objective and when collected, documented, and preserved properly is more reliable than testimonial evidence. Locard's Exchange Principle applies to physical evidence and states that whenever someone is present within an environment, something is added to it and something is removed from it. Demonstrative evidence is evidence that demonstrates, illustrates, or recreates evidence that has already been presented, such as a sketch, diagram, or photograph of an accident scene. Exculpatory evidence is evidence that tends to clear a party of blame or guilt.

Chapter III: Procedure for Admitting or Excluding Evidence

Admissibility refers to evidence that is relevant without being prejudicial and it must have some indicia of reliability. Admissible evidence is that which a court receives and considers for the purpose of deciding a particular case. Presenting evidence before the court differs from collecting evidence in very important ways. The presentation of evidence to prove or disprove the point at issue is strictly governed by rules, and failure to follow these rules results in a number of consequences, including but not limited to the refusual of the evidence to be entered into the record and considered in the decision of the case. The commissioner or judge will making rulings on whether or not specific evidence is admissible based on very specific standards of evidence, in what is known as rulings of admissibility at the trial level. A Brady Motion is a request to the judge to dismiss a case because evidence favorable to the accused has been suppressed by the state. Generally, evidentiary rules only apply to the trial court. The appellate court will review trial court rulings to determine issues of admissibility in regards to a fair and impartial trial and the right or need for a new trial based on admissibility of evidence.

Chapter IV: Relevancy and Its Counter Weights

Admissible evidence is any testimonial, documentary, or tangible evidence that may be introduced in a court of law in order to establish or support a fact proposed by a party to the proceeding. The three basic prerequisites of admissibility are relevance, materiality, and competence or reliability, also known as probativeness. Relevancy refers to evidence that has any tendency to make a fact more likely, or to increase the likelihood of the fact for which it is offered. Evidence does not need to make a fact certain to be relevant, or even more probable than not, it must only have the tendency to prove or disprove a fact. Materiality refers to evidence that will prove a fact that is being contested or is an issue in a case. Competency refers to specific traditional requirements of reliability. Evidence must meet a certain standard of reliability in order to be considered competent. If evidence is shown to be relevant, material, and competent, it is generally admissible. Evidence of character is generally not admissible in order to show action on a particular occasion, but evidence of habit is. Character is a generalized quality usually attributed to a person, such as truthfulness, violence, drunkenness, etc. A habit is a specific, regular, and consistently repeated behavior, for example the practice of always locking one's doors.

Chapter V: The Hearsay Rule and Its Exceptions

The general nature of 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. Such statements are called hearsay evidence and are generally not admissible in court as prohibited by the hearsay rule. The Federal Rule of Evidence 803 lists 23 exceptions to the hearsay rule, including excited utterance, recorded recollection, records of regularly conducted activity, public records and reports, marriage, baptismal, and similar certificates, family and property records, and judgment of previous conviction.

Chapter VI: Privilege

Under common law, privilege is afforded by any of a number of rules that excludes evidence that would be against the best interest of a relationship or would be adverse to a fundamental principle or relationship if it were disclosed. Privilege rules give the holder of the privilege a right to prevent the witness from giving testimony. The general principle applicable to all forms of privilege is to protect confidential communication between parties that are involved in a formal relationship in order to promote the freedom to communicate within the context of such relationship in order to facilitate the proper functioning of that relationship. Specific forms of privilege are attorney-client privilege, without prejudice privilege, public interest privilege, medical professional privilege, and clergy-penitent privilege, marital privilege or husband-wife privilege, and privilege against self-incrimination. The effect of privilege is the right on the part of a party in a case to allow him to prevent evidence from being introduced in the form of testimony from the person to whom the privilege runs.

Chapter VII: Competency to Testify

Competence refers to the mental capacity of a person to participate in legal proceedings. Defendants in criminal cases who lack competence are commonly excluded from prosecution, while witnesses who lack competence are not allowed to testify in either a civil or criminal trial. There are 11 landmark cases that have developed the standard of adjudicative competence, from 1960 to 2003, through a body of case law. Dusky v. United States determined the competency evaluation, which states that competency is determined by whether the accused has sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding, and whether he has a rational as well as factual understanding of the proceedings against him. Ford v. Wainwright determined that an inmate on death row has the right to be evaluated to determine whether he is competent enough for his death sentence to be carried out. Competency was used to determine whether individual Indians could use land that was allotted to them in the General Allotment Act, also called the Dawes Act.

Chapter VIII: Opinion Evidence and Expert Witnesses

Testimonial evidence relates to statements or the spoken word from the victim(s) and/or witness (es). This type of evidence includes perception and memory, is subjective, and can be inaccurate. Almost all evidence must be sponsored by a witness who has sworn or solemnly affirmed to tell the truth. 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. Witnesses are generally required to give their testimony in the form of statements regarding what they saw, heard, felt, tasted, or smelled, and they are generally forbidden to express opinion or draw conclusions. A person who is not testifying as an expert will be allowed to present an opinion as testimony if his opinion is both rationally based on his perception and helpful to an understanding of his testimony. Opinions of a competent layperson are specifically permitted by rule, statute, or case. In order to be accredited as an expert witness, academic qualifications and/or specific formal training is required and must be presented to the judge or jury. Qualification of an expert witness regards the witness's relative experience based on the complexity and subtlety of the subject matter. An expert witness is then permitted to state his opinions and draw conclusions within the scope of the issue at hand and his established field of expertise.

Chapter IX: Examination, Cross-Examination, and Impeachment

The Direct Examination, also called Examination-in-Chief, is the questioning of a witness by the party who called him/her in a trial, performed to elicit evidence in support of facts which will satisfy a required element of a party's claim or defense. Leading questions are usually prohibited, with the exception of the circumstance where a lawyer requests the judge to declare a witness to be a hostile witness. Cross-examination is the interrogation of the witness by the opposing counsel. In federal courts, most attorneys are not permitted to ask questions involving issues that were not raised during direct questioning, but most state courts do allow this type of questioning. The main purpose of cross-examination is to elicit favorable facts from the witness (es), or to impeach the testimony of the testifying witness to lessen the weight of unfavorable testimony. Redirect examination is the trial process where the party who offered the witness has a chance to explain or otherwise qualify any damaging testimony brought out by the opponent during cross-examination. Witness impeachment is the process of calling into question the credibility of an individual who is testifying in a trial. There are several methods of impeachment, including bias, inconsistent statement, character (specifically a community-recognized reputation for dishonesty or a prior criminal conviction for a crime involving dishonesty), competency, and contradiction.

Chapter X: Real, Demonstrative, and Scientific Evidence

Real evidence is also known as physical evidence and is any evidence introduced at a trial in the form of a material object that is intended to prove a fact in issue based on its demonstrable physical characteristics. Some examples are a written contract, the defective part or product, the murder weapon, trace evidence such as fingerprints or gunshot residue, and biological evidence such a blood, semen, or saliva. Admission of real evidence requires authentication, demonstration of relevance, and a showing that the object is in the "same or substantially the same condition" (Waltz and Park, 1998) now as it was on the relevant date. Authentication is achieved through witness statements or circumstantial evidence called the chain of custody. Demonstrative evidence is evidence in the form of a representation of an object, such as pictures, x-rays, diagrams, maps, graphs, simulations, and models. To be admissible, demonstrative evidence exhibit must fairly and accurately represent the real object at the relevant time. Scientific evidence is commonly presented by three separate types of witnesses: an educating witness, a reporting witness, and an interpreting witness. An educating witness, or teaching witness, teaches the jury or judge about the underlying scientific theory and instrument implementing theory. This witness is called to elicit an opinion that a theory is valid and the instruments involved are reliable. The reporting witness, usually the laboratory technician who personally conducted the test, is called after the teaching witness. This witness will describe both the test and its results. The interpreting witness, also called the evaluating witness, is used to complete the foundation of scientific evidence by stating the interpretive standard, applying the standard to the test result, and deriving a conclusion.

Chapter XI: 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. It is usually used for the simplest, most obvious common sense facts, such as which days of the week correspond to which calendar days. Federal Rules of Evidence allows judges to take judicial notice within two categories: generally known within the territorial jurisdiction of the trial court; and capable of accurate and ready determination by resort to sources whose accuracy cannot be reasonably questioned. Judicial notice may be permissive, in which the court may choose to accept judicial notice or reject the request and require the party to introduce evidence in support of the point, or mandatory in which the court must accept judicial notice. The effect of judicial notice is different in civil and criminal cases. In a civil action the court will instruct the jury that it must accept as conclusive any fact judicially noted. In a criminal case, the court will instruct the jury that it may, but is not required to, accept as conclusive any fact judicially noted.

Chapter XII: Burdens and Effect of Evidence

Proof can be defined as evidence that compels acceptance of fact or truth. The burden of proof refers to the burden of providing sufficient evidence to shift a conclusion from an oppositional opinion. Whoever does not carry the burden of proof carries the benefit of assumption, and the initiating party, which is the plantiff in a civil suit or the accusing agent - namely a county, city, or state - in a criminal case, normally carries the initial burden. This means that the bearer of the burden must present sufficient evidence to move the conclusion to their own opinion, which must be done in two ways - by establishing positive evidence and negating oppositional evidence. The concept of burden-shifting is the requirement that if one party produces evidence that tends to prove a point, the burden shifts to the other party to produce superior evidence to disprove that point. Different types of proceedings require parties to meet different burdens of proof, typically beyond a reasonable doubt, clear and convincing evidence, and preponderance of the evidence.

Chapter XIII: The Parol Evidence Rule

The Parol Evidence Rule is a substantive common law rule in contract cases that prevents a party from presenting extrinsic evidence that contradicts or adds to the written terms of the contract that appears to be whole. The supporting rationale is that since the parties have reduced their agreement to a single and final writing, the extrinsic evidence of past agreements or terms should not be considered when interpreting that writing as the parties ultimately decided to leave it out. The rule applies to parol - meaning oral - evidence as well as other extrinsic evidence regarding a contract. What this means is that in a contract dispute, such as one regarding the price of a vehicle, if the signed written contract states that the purchase price of the vehicle is $1,000 the contesting party cannot then testify that the seller offered to sell him the vehicle for $800. There are numerous exceptions to this rule, such as partially-integrated contracts or agreements with separate consideration, and extrinsic evidence can be admitted for a number of reasons, including to resolve an ambiguity, to disprove validity, to correct mistakes, and to show wrongful conduct such as misrepresentation, fraud, duress, unconscionability, or illegal purpose. The Parol Evidence Rule has a direct effect on consumers, for example in health club contracts, automobile sales contracts, and time share purchases, in that any spoken promises made to a consumer by a sales agent are generally not enforceable or admissible after a contract is signed by both parties.

Essay

Evidence law influences the information-gathering process. Laws affect every aspect of how information is obtained and presented through evidence in the trial process. There are laws that establish how much evidence is necessary to constitute a legal action and how much evidence is required to prove a case. The gathering of information and evidence must be focused on establishing the elements to a legal action and meeting the burden in proving that action at trial. There are rules that govern the admissibility of any evidence gathered. These rules also determine which evidence will not be admissible. For example, information will be excluded as evidence when it does not pertain to the matter at issue. Even when it is important to the matter at issue, information may be excluded if it is unreliable, confusing, or prejudicial. Information will not be admissible if it violates some public policy that protects a special communication like husband and wife or an attorney and his client. The importance of examining these rules in detail is to understand that evidence law and rules form a framework that guides what information should be gathered and how that information must be obtained.

To effectively gather evidence to be presented at trial, it is necessary to understand what constitutes evidence and what needs to be looked for when obtaining information. Evidence is defined as something that tends to prove or disprove a fact or matter at issue. Evidence is classified by type and form. The two basic types of evidence are direct evidence and circumstantial evidence, and the three basic forms of evidence are real evidence, demonstrative evidence, and scientific evidence.