Evidence
From Encyclopædia
Evidence is a legal term meaning the information that a jury is permitted to consider in resolving disputed questions of fact. Evidence includes the oral statements of witnesses produced by the parties to the litigation; documents such as deeds and written
contracts; objects such as an axe allegedly used in a slaying; and data gathered from scientific tests, such as blood grouping, and technical appliances, such as police
radar equipment, if the test or appliance has been authenticated to the court's satisfaction. Since
lie detectors have not been so authenticated, the results of
lie detector tests are usually not admissible. Scientific tests and appliances inevitably involve experts, but expert testimony is not limited to tests and appliances. As a general rule, the opinions and conclusions of a
witness judged to be an expert will be allowed in evidence whenever the expert is better qualified than the jury to assess the facts of a particular situation.DIRECT AND CIRCUMSTANTIAL EVIDENCEEvidence is either direct or circumstantial. Direct evidence, if true, immediately establishes the fact that was to be proved, while circumstantial evidence, even if true, still requires that the fact be inferred. Thus, the statement "I saw John and Jane married in a magistrate's office 20 years ago" is direct evidence of the
marriage; if true, this evidence immediately establishes the fact of
marriage, at least at the time stated. On the other
hand, "John and Jane have lived in our community as man and wife for 20 years," is only circumstantial; the fact of
marriage remains to be inferred even if it is accepted that John and Jane did live as man and wife for 20 years. This is not to say that direct evidence is more reliable or always more persuasive. Its persuasiveness derives not from its directness but from its ring of truth and accuracy. If it does not ring true, direct evidence is often outweighed by evidence that is wholly circumstantial.The principal requirement of evidence is that it be relevant. That is to say, the information offered must have some tendency to prove or disprove some disputed question of fact. Direct evidence is always relevant. The offer of circumstantial evidence, on the other
hand, forces a court to examine its probative quality. In some instances, the decision to admit circumstantial evidence will turn altogether on precedent. In prosecutions for murder, for example, courts long ago determined that evidence of flight has some tendency to prove a
consciousness of guilt and that
consciousness of guilt in turn has some tendency to prove guilt itself. Accordingly, a judge will admit such evidence without freshly examining its relevance. Where precedent is lacking, a judge must rely on
logic, experience, and common sense.RULES EXCLUDING EVIDENCEThe requirement of relevance has obvious advantages. It concentrates the jury's
attention on the problem at
hand, saves valuable time, and, most importantly, minimizes the possibility that the jury's verdict will be influenced by prejudice or bias. But relevance is not the only criterion applied to determine if evidence may be admitted. Most of the law of evidence has to do with exlusionary rules that keep a jury from hearing admittedly relevant evidence. The reasons for these rules vary. The three principal ones involve hearsay, privilege, and evidence obtained illegally.HearsayThe best known, and perhaps least understood, of the exclusionary rules is that dealing with hearsay. The Federal Rules of Evidence define hearsay as "a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted." First, then, hearsay is a statement not made at a trial or a hearing but merely reported there. But the second requirement of hearsay is even more important: the reported statement will be hearsay only if it is offered in an attempt to prove the truth of the matter asserted. Thus, in a prosecution of B for assaulting A, an investigating officer might testify that A said that B assaulted him. If this report is offered for the purpose of showing that B did in fact assault A, it is plainly hearsay. But if it is offered merely to establish A's physical condition at the time in question (for example, that he was able to speak) the evidence is not hearsay; it does not matter that the reported remark was made outside the courtroom, because the accuracy of the remark is of no consequence.The principal reason why hearsay is frequently inadmissible is that the party against whom it is offered has no opportunity to
cross-examine the person who reportedly made the remark. In the example given, if the only purpose is to show that A was able to speak, the law will permit a jury to conclude, on this evidence, that A could speak. The officer so testifying is present and can be
cross-examined. His opportunity for observation can be tested, and any possible bias can be exposed. But the law will not permit a jury to conclude from this evidence that B did assault A. A is not on the
witness stand and the jury has no chance to judge his truthfulness in the
light that
cross-examination would shed.Hearsay is not always rejected. The law recognizes a
number of situations in which evidence may be considered sufficiently trustworthy even though it is plainly hearsay. For example, it is assumed that a person does not make declarations that are against his financial
interest unless they have a likely basis in fact. Therefore, such declarations, although made out of court and undoubtedly hearsay, are admissible. Similarly, business records are likely to be maintained with care, since there is no point in keeping them unless they are reasonably accurate. Accordingly, they are admissible to show, for example, that a purchase was made, or that a certain treatment was given in a
hospital. Spontaneous exclamations are thought to have the ring of truth, and a report of them is allowed. Indeed, whenever there is a special reason for considering hearsay trustworthy, it will be admitted, especially if the declarant himself is not available to testify.PrivilegeMuch relevant evidence is not allowed because it would violate the various rules involving privilege. Privilege may arise from a particular relationship, such as that between husband and wife or attorney and client, or it may relate to a particular fact, such as how one voted at the last election. Privileged testimony is excluded because the law believes that its disclosure is likely to do more harm than good: the
marriage relationship will be impaired if marital confidences are open to public examination; the free choice of the electorate will be impaired if one later has to reveal how he voted.Of the various relationship privileges, the most widely recognized is that between husband and wife. Other privileges frequently met with involve attorney and client,
priest and penitent, and doctor and patient. Despite the efforts of the press, the c?urts have not yet generally recognized the relationship between a journalist and his sources as privileged.Even when a privilege is recognized, it is not absolute; it may always be waived by the party entitled to claim it. Moreover, the privilege will often be in some degree inapplicable. For example, if a husband is prosecuted for assaulting his wife, the husband has no privilege to request that his wife not testify to the assault. The wife has a privilege in the sense that she may refuse to testify against her husband if she wishes, but she may be compelled to be a
witness for him.Privilege is increasingly coming to be looked on with disfavor. An exception is the very important privilege against SELF-INCRIMINATION that is constitutionally guaranteed by the 5TH AMENDMENT. This privilege, which extends to nonjudicial proceedings such as legislative investigations, is most often invoked in court by a criminal defendant who chooses not to testify. This is his privilege, and a jury is not allowed to draw adverse inferences from the defendant's mere failure to testify. But the privilege has its limits. The Supreme Court has ruled that the privilege protects against compelled "
communication," but that it "offers no protection against compulsion to submit for identification, to appear in court, to stand, to assume a stance, to walk, or to make a particular gesture."Evidence Obtained IllegallyThe third especially important group of rules excluding clearly relevant evidence of obvious probative value has to do with evidence obtained illegally. Since the 1960s the overall
prohibition against illegally obtained evidence has commonly been called the EXCLUSIONARY RULE. For the most part, this group of rules is thought to be required by the 4th and 5th Amendments to the Constitution or, if not actually required, highly desirable to enforce the guarantees of those amendments. The 4TH AMENDMENT requires "probable cause" for search
warrants and prohibits "unreasonable searches." To enforce these provisions, the Supreme Court has ruled that evidence obtained by their violation is inadmissible. Similarly, the due process and self-incrimination clauses of the 5th Amendment prohibit the use of illegally obtained confessions.
