What is evidence?
Evidence is information that tends to prove or disprove a claim. The legal definition of evidence is less expansive. The law of evidence is concerned about the reliability of the information proposed for consideration in court; as well as how the information was obtained.
The word evidence can mean different things to different people depending upon context and usage. To a scientist or philosopher, the word could mean different things. To investigators like police and private investigators, evidence may refer to any thing that could prove or disprove a theory about a potential crime or suspicion. To a lawyer or judge, evidence may primarily refer to things or information legally admissible in court, in a jury trial.
When we speak of evidence in a trial or in a court room, we mean legally admissible evidence — information and sources of information that pass the tests exacted by the law to help increase reliability, fairness, and to remove rewards for illegal government behavior.
Problems of proof – “May I take your order?”
Lawyers, whether defense attorneys or prosecuting attorneys, have many problems — and some of them we call problems of proof. What does that refer to? Imagine you are sure that something is true. Great. But how can you prove it, exactly? What evidence can you bring into a jury trial in a court room, that will be legally admissible?
The restaurant metaphor: Imagine a restaurant, where the trial jurors come to dine. The restaurant staff must obtain the ingredients, then prepare and serve the meal. Is there a meal at all served? Does it meet the required level of excellence required by the diners? (The lawyers are metaphorically the cook and wait staff here.)
Problems of lack of proof, or low quality proofs
If evidence is of low quality, a wrong verdict is likely. If we are honest with ourselves, we’ve all had experiences in our life when we thought something to be true, could cite some evidence for believing it to be true — but it later turned out we were mistaken. Fortunately in our normal lives, no big harm is done. But in a jury trial, in court, mistakes destroy lives, destroy families.
“It often happens, that if a Lie be believ’d only for an Hour, it has done its Work, and there is no farther occasion for it. Falsehood flies, and the Truth comes limping after it; so that when Men come to be undeceiv’d, it is too late; the Jest is over, and the Tale has had its Effect.”
Jonathan Swift, 1710, The Examiner, No. 15
Because the consequences of criminal cases are so severe, the normal laws and rules of evidence for legal cases are made even more strict for criminal prosecutions. For example, the rule against hearsay limits the use of out of court statements offered for the truth of the matter asserted (e.g., anecdotal, rumor, lack of personal knowledge). If a sworn witness testifies in court, “the other witness told me …” that would normally be inadmissible hearsay — in both a civil and a criminal case, both types of cases.
The constitutional right to confront witness against you, under the Confrontation Clause, applies only to criminal cases. Many times a question asked of a witness in a trial that calls for a hearsay response, also would violate the accused person’s right to confrontation — but only in a criminal case. Even if some proposed testimony or offered evidence falls within an exception to the rule against hearsay, it may still be kept out of evidence if it violates the accused person’s right to confront or challenge.
Investigatory evidence which could support an inference of innocence is called exculpatory evidence. Since police, working for the government, do most of the investigation of criminal charges, it’s important to remember that the person accused (the target) has a Constitutional right to all potentially exculpatory evidence found by police. The government should not hide the truth from the accused, no matter how inconvenient for it.
And at trial, the person accused has the Constitutional right to get exculpatory evidence admitted into the record before the jury.
What is exculpatory may be in the eye of the beholder. Yet whether information uncovered should be treated as potentially exculpatory must be viewed from the point of view of the accused.
Direct evidence vs. circumstantial evidence
Evidence can be direct or circumstantial. Direct evidence supports a claim directly. It does not rely upon an inference or additional evidence to relate to the claim asserted. Circumstantial evidence refers to a circumstance that could support one of several inferences, one being the asserted claim. Consider this example of circumstantial evidence. You walk outside your front door early in the morning. You notice the grass is wet. Does this circumstance prove that it had been raining?
Where circumstantial evidence gives rise to more than one inference and supports an inference other than guilt; then in a criminal case the court and the jury must conclude that evidence cannot support a “guilty” verdict.
Some direct evidence is unreliable too
Eyewitness testimony and confessions are two categories of types of evidence that can be characterized as direct, since they generally do not depend upon some intermediary, other evidence or an inference to directly relate to the claim being challenged.
The law has been aware of the problem of unreliable confessions for thousands of years, going back at least as far as Roman law. Confessions under torture and coercion have been ruled inadmissible due to unreliability, historically and are now.
Similarly, eyewitnesses have given false testimony in countless trials and proceedings over the years, and not always intentionally. Often the eyewitness may actually believe their own testimony. That makes it difficult for juries and other fact-finders who may only be looking for signs of deception in the witness. Modern scientific research has also proven and developed the many ways witness can be wrong, from misidentification to perception errors to memory and reporting errors.
Confessions, Witness Statements and Hearsay
Some of the most common evidence presented in a trial is in the form of testimony or other reference to a claimed confession, or statement by someone.
Confessions, and statements by the accused perceived as confessions are powerful because most of us assume that person would never admit something against self-interest unless true. Upon deeper reflection, however, we know that is not true. And in the context of most police investigations, pressure is often exerted upon people to admit what the police suspect or are curious about solving. Another related problem is that some people are particularly vulnerable to making unreliable statements, for example a drunk, a person suffering a psychotic episode, a person with a head injury, a child, and so on.
Over the millennia-long development of the law, this problem of the unreliability of involuntary confessions and statements has been addressed in the law.
In addition, more recent developments in the law have been implemented to further address the problems associated with confessions and police overreaching, including the suppression of statements made in violation of Miranda rights.
Hearsay is offered evidence of an out-of-court statement offered for the truth of the matter asserted. Under court rules of evidence hearsay is generally inadmissible — it can’t come into trial evidence, generally because it’s too unreliable. Some hearsay is multiple hearsay — hearsay within hearsay: “He said that he heard the woman there say ….” The rule of evidence include exceptions to the Rule Against Hearsay, often based upon the assumption of sufficient reliability. But in criminal cases, the accused has the constitutional Right to Confront Witnesses in court, and even if some out-of-court statement is admissible as an exception to the hearsay rule, it can still be inadmissible as a violation of the Confrontation Clause.
Suppression of Illegally Obtained Evidence
It is more important to force the government to obey the laws, than one person, since the government has so much power over all of us. If evidence is gained by illegal government activity, a good defense lawyer will ask a judge to suppress.
Examples include evidence obtained following an illegal traffic stop or Fourth Amendment seizure of a person; a illegally prolonged detention; an illegal search.
Technology and evidence
With the development of technology, new forms of evidence become available. But it’s not all good news. It may be more of a two-steps forward, one-step back situation. For example, consider DNA evidence. Technology developments for forensic use of DNA evidence has made it possible to use smaller and smaller amounts of DNA as samples, even mixed DNA samples. Great right? But touch DNA has increased the risk of sample contamination.
Gallagher Criminal Defense won a client’s case where the prosecutor claim her DNA was on the outside of a kilo ziplock back of cocaine. Then Gallagher uncovered the fact that police had placed the bag on the client’s dirty laundry on a table by the washing machine. Result? All charges dismissed, years in prison avoided, no criminal conviction record, an innocent person exonerated.
Other common types of evidence involving technology include video and audio recordings, computer, hard drive and electronically stored data, data on the web, cell tower, meta tags.
Law of evidence
Where does the law of evidence come from? Like all human laws, people develop the laws overtime. Experience, trial and error inform contemporary efforts to develop the laws to solve its problems.
The law of evidence is mainly found in the Court’s Rules of Evidence and Rules of Criminal Procedure; in state and federal statutes and constitutions; as well as state and federal case-law. For example, the corroboration rule dates back thousands of years, requiring that a claimed witness’s accusation be corroborated before a person can be convicted of a crime.
Standards of Proof
The law has different standards, or levels, of proof required for various legal purposes.
The Scintilla of Evidence standard means that a motion for summary judgment or directed verdict will not be granted if there is even the slightest amount of relevant evidence.
In most civil (non-criminal) cases, the party seeking the court’s remedy has the burden of presenting evidence under the preponderance of evidence standard — making their claim more likely than not true.
In some civil cases, the plaintiff is challenged to present evidence that is “clear and convincing” proof that their claim is true.
Beyond a reasonable doubt: But in a criminal case, the law’s most strict standard of proof requires the prosecuting attorney to present enough evidence to eliminate any and all doubt to overcome the presumed innocence, and prove the accused guilty, though unreasonable doubts may be ignored. Just about every juror Gallagher has met so far has been reasonable, and not prone to unreasonable doubts. If you have a doubt, it’s reasonable.
Defense Attorneys like Gallagher begin with an effort to map the known universe of possibly case-relevant information, including investigation and pretrial discovery. Then we evaluate the problems of proof related to that information.
Are there opportunities to prevent the prosecution from admitting unreliable, misleading and harmful evidence? Often, there are. We can ask the judge to suppress evidence that is too unreliable, was illegally obtained, or both, in a pretrial motion to suppress. Just before the trial we can make motions in limine to seek court rulings excluding certain evidence. And we can object to improper prosecution evidence during the trial.
Just because you can, doesn’t always mean you should: Sometimes the defense may not object to certain prosecution evidence even though we could, for strategic or tactical reasons.