Introduction to Evidence.

Evidence is defined as “the means by which any matter of fact, the truth of which is submitted to investigation, may be established or disproved. That which demonstrates, makes clear, or ascertains the truth of the very fact or point in issue, either on the one side or the other.”  Ballantine’s Law Dictionary, 2010.

The law of evidence is the set of rules which govern what testimony (oral or written statements), exhibits (physical documents, physical objects, video, etc.) and other material is allowed to be offered in a court or administrative proceeding in order to prove the elements of a claim, crime, or cause of action.

The rules of evidence operate together to keep any one person or entity from having full control of the courtroom. Attorneys find evidence as they develop their case and then present that evidence to the court, arguing which rules allows it to be presented or objecting when they believe a rule prohibits its introduction. Judges decide whether or not the rules allow or prohibit that piece of evidence, and the jury decides how much value that piece of evidence should have. As such, when dealing with evidence, court decisions rest in the hands of all parties to the case, instead of just one.

The current Federal Rules of Evidence evolved over time through common law precedent. In the early twentieth century James Bradley Thayer, an evidence professor at Harvard, began to organize the common law rules. His work was continued by Thayer’s student John Henry Wigmore who published a gigantic treatise on the law of evidence that is widely considered to be the most influential treatise on American jurisprudence ever written.

Congress adopted the first Federal Rules of Evidence in July of 1975 and codified the previous precedential rules in the process.  The Federal Rules of Evidence are mandatory in the federal courts and before federal magistrate judges and federal bankruptcy judges. The rules are also used as guidance in other federal proceedings such as administrative hearings, but are not mandatory. The States have used the Federal Rules of Evidence as a template for their own rules of evidence, so you will see a lot of similarities in the various jurisdiction. Beware, however, and do not assume all states adopted all the federal rules. There are subtle differences everywhere you look.

The primary focus of our Rules of Evidence is to determine what is the most reliable information we can present to the court to support our client’s side of the argument. When you are faced with these seemingly endless rules it is important to remember that they are basically a consensus concerning the types of statements, documents, physical objects, and other material we as a society consider to be the most reliable ways to find out the truth.

For example, in order to offer scientific information as evidence it must be information gained by a process that is recognized by a fair number of other scientists as reliable. It cannot be an unpopular fringe science that other scientists don’t believe is valid. We as a society have determined that a method supported by the majority of scientists is more reliable for discerning truth then a process or method that is supported by very few scientists.

Each of the Rules of Evidence deals with the validity and reliability of the information we choose to use in our courtroom to decide which side’s story is more believable.

So in plain English, what is Evidence?

There are two basic concepts to evidence, logical relevancy and legal relevancy. Logically relevant evidence is any fact that helps prove or disprove a fact “at issue” in a particular case. In other words, evidence is any fact that has a tendency to make the existence of any fact at issue in that particular case more probable or less probable than it would be without the evidence. Legally relevant evidence has to be logically relevant but it must also be more useful than it is prejudicial. We will discuss legal relevancy in more detail later, but an example would be the difference between producing the severed head of a murder victim, or the death certificate of a murder victim. Both items prove the person is dead, but one of them is so shocking that it is hard to think critically about the case once it has been introduced. Therefore the severed head, though logically able to prove the death of the victim, is not legally relevant.

There are four basic types of evidence:

1. Witness testimony (Sense evidence, Eye, Ear, Smell, Taste, Feel)

  • Layperson testimony– Jane was out on her daily run past the 7-11 when she heard a gunshot. She dove to the ground, looked up, and saw a man in a red jacket running away from the store with a plastic bag in his hand.
  • Expert Testimony — Testimony based on scientific, technical, or other specialized knowledge from a qualified as an expert.

2. Exhibits — Tangible items offered during trial.

  • “real evidence” — i.e. the smoking gun, the bloody glove, the severed head.
  • Demonstrative exhibits — a sketch of the intersection at the time of a car crash, photographs of the damage done to the car, etc.
  • Documentary exhibits —  business records, diaries, letters, etc.

3. Stipulations — Facts both parties agree to before the trial starts in order to speed up the process and lower the cost of litigation. (For example, a Defense attorney for a drunk driver may stipulate to the fact the driver was drinking if her defense centered on mistaken identity. (As in, he wasn’t driving so it doesn’t matter if he was drinking. )

4. Judicial Notice — The court will recognize notorious facts that are subject to common knowledge within the community and manifest facts that are capable of positive verification through readily accessible and undoubtedly accurate sources without requiring formal presentation of evidence.

  • How much rain fell in Colorado in 2009 is a manifest fact as it can be readily verified by looking at an Almanac.
  • The human gestation period of 280 days is a notorious fact as it is commonly known within the community.

There is also Direct versus Circumstantial Evidence.

Direct evidence includes eye witness testimony, confessions, admission of liability of the defendant. Example: “I saw the man shoot the woman with the gun outside the convenience store!” says the Witness

Circumstantial evidence is indirect and proves facts by implication or inference. Example: Finding your dog in your kitchen with a torn up empty package of hot dogs. Gee. Where did the hot dogs go?

Both Direct and Circumstantial evidence are admissible in court if the evidence in question is able to pass the tests of the other rules of evidence.

Much of the evidence used at trial is gathered through Discovery, the process during which each side asks the other questions and requests information from the other. Once it’s gathered, there are a variety of ways to attempt to exclude it from trial, the most notable of which is objection.

In order to understand how evidence works you have to understand all the rules and the manner in which they co-exist, from the rules designed to exclude prejudicial evidence to the exceptions designed to include it, all the rules work together. Additionally, the area of law in which the trial is founded may have an effect on the admissibility of evidence, as the elements of the argued claim are essential to the determination of relevancy. However, at its core the Rules of Evidence remain an eloquent codification of the facts our society deems to be the most reliability.


Sources for this Article include:

Karen Steinhauser’s Evidence Class, University of Denver Sturm College of Law.

Ballantine’s Law Dictionary, 201o Edition.

The Federal Rules of Evidence.

Expert Commentary from the National Institute for Trial Advocacy, 2011.

Evidence: Cases, Commentary, and Problems 2cnd Edition. David Alan Sklansky.


About Savvy Spoonie

I am an artist, writer, jeweler, and a Spoonie. Before becoming a Spoonie I was a very busy high achieving attorney and advocate bent on saving the world. Now I'm struggle to redefine my life to fit within my reduced energy level. Some days are better than others. I have fibromyalgia, trigeminal neuralgia, and chronic daily migraine.
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