Evidence in CourtEvidence in Court

Holy Trinity LawHoly Trinity Law

Audrius StonkusAudrius Stonkus

EvidenceEvidence

The The lawlaw of of evidenceevidence governs the use of governs the use of testimonytestimony (e.g., oral or written (e.g., oral or written statements, such as an statements, such as an affidavitaffidavit) and ) and exhibitsexhibits (e.g., physical objects) or other (e.g., physical objects) or other documentary material which is documentary material which is admissible (i.e., allowed to be admissible (i.e., allowed to be considered by the considered by the trier of facttrier of fact, such as , such as juryjury) in a ) in a judicial or administrative proceedingjudicial or administrative proceeding (e.g., a (e.g., a courtcourt of law). of law).

EvidenceEvidence Your textbook defines “evidence” as follows; “ Your textbook defines “evidence” as follows; “

information that tends to prove or disprove the information that tends to prove or disprove the elements of an offence”. elements of an offence”.

This definition is not quite complete because it This definition is not quite complete because it does not take into account civil cases where there does not take into account civil cases where there is no necessary “offence”.is no necessary “offence”.

Also that information must be ADMISSIBLE before Also that information must be ADMISSIBLE before the court.the court.

It is mainly on the basis of the evidence that a It is mainly on the basis of the evidence that a judge or a jury will make its decision on who wins judge or a jury will make its decision on who wins the case.the case.

But also by argument, where a lawyers for the But also by argument, where a lawyers for the parties will persuade the judge or jury how to parties will persuade the judge or jury how to interpret the evidence they have heardinterpret the evidence they have heard

There are 2 types of evidence; 1) Oral There are 2 types of evidence; 1) Oral and 2) physical evidence.and 2) physical evidence.

Oral or spoken evidence is normally Oral or spoken evidence is normally presented to a court in the form of presented to a court in the form of sworn testimony by a witness.sworn testimony by a witness.

Oral evidence is in form of answers to Oral evidence is in form of answers to question made by lawyers to question made by lawyers to witnesses.witnesses.

Admissibility and RelevanceAdmissibility and Relevance In every jurisdiction based on the English common law In every jurisdiction based on the English common law

tradition, evidence must conform to a number of rules and tradition, evidence must conform to a number of rules and restrictions to be admissible. Evidence must be restrictions to be admissible. Evidence must be relevantrelevant –  – that is, it must have a tendency to make a fact at issue in the 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 proceeding be more or less probable than it would be without the evidence.the evidence.

However, the relevance of evidence is ordinarily a necessary However, the relevance of evidence is ordinarily a necessary condition but not a sufficient condition for the admissibility of condition but not a sufficient condition for the admissibility of evidence. For example, relevant evidence may be excluded if evidence. For example, relevant evidence may be excluded if it is unfairly prejudicial, confusing, or cumulative. it is unfairly prejudicial, confusing, or cumulative.

Furthermore, a variety of social policies operate to exclude Furthermore, a variety of social policies operate to exclude relevant evidence. Thus, there are limitations on the use of relevant evidence. Thus, there are limitations on the use of evidence of evidence of liability insuranceliability insurance, , settlement offerssettlement offers, and , and plea negotiationsplea negotiations..

"Relevant evidence" means evidence having any tendency to "Relevant evidence" means evidence having any tendency to make the existence of any fact that is of consequence to the make the existence of any fact that is of consequence to the determination of the action more probable or less probable determination of the action more probable or less probable than it would be without the evidence.than it would be without the evidence.

Evidence must come through Evidence must come through sworn witnesses testimonysworn witnesses testimony

In systems of proof based on the English common law tradition, In systems of proof based on the English common law tradition, almost all evidence must be sponsored by a almost all evidence must be sponsored by a witnesswitness, who has , who has sworn or solemnly affirmed to tell the truth. sworn or solemnly affirmed to tell the truth.

The bulk of the law of evidence regulates the types of witnesses The bulk of the law of evidence regulates the types of witnesses is conducted during is conducted during direct examinationdirect examination and and cross-examinationcross-examination of of witnesses. witnesses.

A lawyer will do a direct examination of his own witness and gets A lawyer will do a direct examination of his own witness and gets to cross examine witnesses presented by his/her adversary.to cross examine witnesses presented by his/her adversary.

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

Today all persons are presumed to be qualified to serve as Today all persons are presumed to be qualified to serve as witnesses in trials and other legal proceedings, and all persons are witnesses in trials and other legal proceedings, and all persons are also presumed to have a legal obligation to serve as witnesses if also presumed to have a legal obligation to serve as witnesses if their testimony is sought. their testimony is sought.

However, legal rules sometimes exempt people from the However, legal rules sometimes exempt people from the obligation to give evidence and legal rules disqualify people from obligation to give evidence and legal rules disqualify people from serving as witnesses under some circumstances.serving as witnesses under some circumstances.

PrivilegePrivilege rules give the holder of the privilege a right to prevent rules give the holder of the privilege a right to prevent a witness from giving testimony. These privileges are ordinarily a witness from giving testimony. These privileges are ordinarily (but not always) designed to protect socially valued types of (but not always) designed to protect socially valued types of confidential communications. confidential communications.

Some of the privileges that are often recognized are the Some of the privileges that are often recognized are the marital secrets privilegemarital secrets privilege, the , the adverse spousal testimony privilegeadverse spousal testimony privilege, the , the attorney-client privilegeattorney-client privilege, the , the doctor-patient privilegedoctor-patient privilege, the , the psychotherapist-patientpsychotherapist-patient and and counselor-patient privilegecounselor-patient privilege, the , the state secrets privilegestate secrets privilege and the and the clergy-penitent privilegeclergy-penitent privilege..

The only absolute one is solicitor clientThe only absolute one is solicitor client A variety of additional privileges are recognized in different A variety of additional privileges are recognized in different

jurisdictions, but the list of recognized privileges varies from jurisdictions, but the list of recognized privileges varies from jurisdiction to jurisdiction.jurisdiction to jurisdiction.

Witness Witness competencecompetence rules are legal rules that specify rules are legal rules that specify circumstances under which persons are ineligible to serve as circumstances under which persons are ineligible to serve as witnesses. For example, neither a judge nor a juror is witnesses. For example, neither a judge nor a juror is competent to testify in a trial in which they are serving in that competent to testify in a trial in which they are serving in that capacity.capacity.

Privilege and CompetencePrivilege and Competence

HearsayHearsay Hearsay is one of the largest and most complex areas of Hearsay is one of the largest and most complex areas of

the law of evidence in common-law jurisdictions. the law of evidence in common-law jurisdictions. The default rule is that hearsay evidence is inadmissible. The default rule is that hearsay evidence is inadmissible.

Hearsay is an out of court statement offered to prove the Hearsay is an out of court statement offered to prove the truth of the matter asserted. truth of the matter asserted.

A party is offering a statement to prove the truth of the A party is offering a statement to prove the truth of the matter asserted if the party is trying to prove that the matter asserted if the party is trying to prove that the assertion made by the declarant (the maker of the pretrial assertion made by the declarant (the maker of the pretrial statement) is true. For example, prior to trial Bob says, statement) is true. For example, prior to trial Bob says, "Jane went to the store." "Jane went to the store."

If the party offering this statement as evidence at trial is If the party offering this statement as evidence at trial is trying to prove that Jane actually went to the store, the trying to prove that Jane actually went to the store, the statement is being offered to prove the truth of the matter statement is being offered to prove the truth of the matter asserted. AND IS THEREFORE INADMISSABLE AS HEARSAYasserted. AND IS THEREFORE INADMISSABLE AS HEARSAY

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

Hearsay continuedHearsay continued

Just some quick exceptions to the Just some quick exceptions to the haersay rule:haersay rule:

An admission against interest (like An admission against interest (like confession)confession)

A dying declarationA dying declaration Part of the “Res Gestae” –meaning Part of the “Res Gestae” –meaning

part of the thing that is being part of the thing that is being litigated. litigated.

Circumstantial EvidenceCircumstantial Evidence

Evidence of an indirect nature which implies the Evidence of an indirect nature which implies the existence of the main fact in question but does existence of the main fact in question but does not in itself prove it.not in itself prove it.

That is, the existence of the main fact is deduced That is, the existence of the main fact is deduced from the indirect or circumstantial evidence by a from the indirect or circumstantial evidence by a process of probable reasoning. process of probable reasoning.

The introduction of a defendant's fingerprints or The introduction of a defendant's fingerprints or DNA sample are examples of circumstantial DNA sample are examples of circumstantial evidence. evidence.

The fact that a defendant had a motive to commit The fact that a defendant had a motive to commit a crime is circumstantial evidence.a crime is circumstantial evidence.

Circumstantial evidence continuedCircumstantial evidence continued

According the “According the “RULE IN SHELLYS RULE IN SHELLYS CASECASE””

Although it is still possible to find guilt Although it is still possible to find guilt “beyond a reasonable doubt” in a “beyond a reasonable doubt” in a criminal case, based completely on criminal case, based completely on circumstantial evidence, the trier of circumstantial evidence, the trier of fact must take into account the fact fact must take into account the fact that the evidence is circumstantial that the evidence is circumstantial and not direct.and not direct.