Chapter 1: Introduction
Chapter 4: Burden of proof and presumptions
Chapter 5: Witnesses (Competence and compellability)
Chapter 6: Examination-in-Chief
Chapter 7: Cross-examination and re-examination
Chapter 3: Improperly obtained evidence, other than confessions (principles for
exclusion; of impermissibility of evidence through case law)
Chapter 11: Hearsay Admissible by Statute in Civil Proceedings
Chapter 13: Confessions
Chapter 15: Statutory Inferences from an accused’s silence or conduct
Chapter 16: Evidence of Character – Evidence of the good character of the accused.
Chapter 17: Evidence of Character – Evidence of bad character in criminal cases
Chapter 18: Opinion Evidence
Chapter 22: Proof of Facts Without Evidence
Types or categories of evidence
This part is from the USA and please note that the UK (see our textbook) has similar concepts but
sometimes uses different terminology but also has different rules
The law of evidence governs what can be presented in court. This
understanding can be more properly defined and expanded upon as follows:
"[t]he law of evidence governs the use of testimony (e.g. oral or written
statements, such as an affidavit) and exhibits (e.g. physical objects) or other
documentary material which is admissible (i.e. allowed to be considered by
the trier of fact, such as jury) in a judicial or administrative proceeding (e.g.,
a court of law)". Other terms used to refer to the law of evidence
are evidence law (synonym) or Federal Rules of Evidence, defined as
"rules governing admission of evidence before U. S. magistrates, and
bankruptcy court, and that have been used as a model for rules of evidence
by many states" (Blackwell, 2004).
"The United States of America has the most complicated system of
evidentiary rules" in the world. The reasons for this complexity are twofold.
First, American defendants have the right to a jury trial in the vast majority
of criminal cases and in many civil cases. Second, strict guidelines regarding
what evidence can be admitted into a trial keeps the incidents of irrelevant
and potentially distracting facts from being introduced, which may confuse a
jury and adversely affect the outcome of a trial.
Of the many criteria and rules that govern the admission and use of
evidence in a trial, one of the most important is that of relevance. If the
evidence does not relate directly or indirectly to the issue at hand, it should
not be admitted as proof for either the prosecution or the defense in the
case. The adjective relevant in this context simply means that the evidence
in question is "closely connected or logically related to the matter at hand"
(Blackwell, 2004). Relevant evidence, therefore, is "evidence that is
logically connected to the fact it is intended to establish" (Blackwell, 2004).
Other forms of the word, such as "relevance" and "relevancy", are often
used interchangeably to refer to evidence that is to be considered for
admission in a case.
Relevancy of evidence, however important, is not enough, though. It is
necessary, but it is not the only criteria for the admission of evidence.
"Relevant evidence may be excluded if it is unfairly prejudicial, confusing, or
cumulative". For example, relevant evidence may be excluded if it is
inflammatory or based on hearsay.
Numerous limiting social policies can also come into play. There are
constraints on the "use of evidence of liability insurance, subsequent
remedial measures, settlement offers, and plea negotiations" due to the
belief that use of such evidence "discourages parties from carrying
insurance, fixing hazardous conditions, offering to settle, and pleading guilty
to crimes, respectively".
In addition to these guidelines, there are some others. The first is the rule
against opinions. Opinions are just that--someone's personal thought
regarding a person, thing, or event. As such, they cannot be relied upon as
solid evidence. "Parties and witnesses are supposed to testify to specific
factual observations, not to opinions" (Bergman and Berman-Barrett,
2005). Judges have the ability to disallow any observations that seem to be
opinion-, rather than fact-based.
Next, evidence rules contain a strong policy against allowing character
evidence to be admitted, especially in civil proceedings. There are some
very good reasons for this. First, allowing parties to discuss each other's
character traits would get the trial off-task and potentially lead to many ad-
hominem arguments, drawing out the process to interminable lengths.
Second, people do not always act in accordance with their perceived
character traits (Bergman and Berman-Barrett, 2005). Finally, witnesses
can greatly misjudge someone's character, calling into question the
usefulness and validity of character evidence.
Finally, there are strict rules governing the admission of statements from
witnesses not present at the trial. This is called hearsay.
Other key concepts see p 3 – 4 of the English textbook
Concepts in Evidence
It can perhaps be deduced that there is more than just one type of evidence,
each with their own unique characteristics. Indeed, there are several major
types, including: documentary evidence, digital evidence, demonstrative
evidence, exculpatory evidence, physical evidence, prima facie evidence,
scientific evidence, and testimony. Each of these is summarized below.
Demonstrative Evidence: This is a common form of proof, generally
having the form of the representation of an object. Examples include:
photographs, videos, sound recordings, x-rays, maps, drawings, graphs,
charts, simulations, sculptures, and models, among others.
Digital Evidence: In recent years, the use of digital evidence in trials has
greatly increased. Simply put, it is any type of proof that can be obtained
from an electronic source, such as emails, hard drives, word processing
documents, instant message logs, ATM transactions, cell phone logs, and so
forth.
Documentary Evidence: Similar to demonstrative evidence, above,
documentary evidence consists of any proof that can be presented in writing
(contracts, wills, invoices, etc.). However, term can technically include any
number of media upon which such documentation can be recorded and
stored (photographs, recordings, films, printed emails, etc.).
Exculpatory Evidence: Typically used in criminal cases, this type of
evidence is that which favors the defendant, either partially or totally
removing their guilt in the case. In the United States, if the prosecutor or
police have found evidence, it is their duty to disclose it to the defendant.
Failure to do so can result in the case being dismissed.
Physical Evidence: Quite simply, this type of evidence is any proof
introduced in the form of a physical object, whether whole or in part. In
criminal proceedings, such evidence might consist of dried blood,
fingerprints, a murder weapon, DNA samples, casts of footprints or tires at
the scene of the crime, and so forth.
Prima Facie Evidence: This is "evidence sufficient to establish a claim or
defense until rebutted by contrary evidence" (Blackwell, 2004). In Latin, it
literally means "on its first appearance", and such evidence is generally
deemed sufficient to prove a particular proposition or fact if it is not refuted
by later evidence or argumentation.
Scientific Evidence: Evidence submitted to the court claiming to be
scientific in nature must first conform to generally-accepted principles of the
scientific community. In addition, judges must now insure that such
evidence is also reliable (Bergman and Berman-Barrett, 2005).
Testimony: This is the "spoken evidence given by a witness under oath in
court or at a deposition, or written evidence given under oath through an
affidavit" (Blackwell, 2004). Generally, a witness is called forth, solemnly
swears to tell the truth under the penalty of perjury. This is one of the most
common forms of evidence in the legal system.
Hearsay is a statement or collection of statements made by witnesses who
are not in court and cannot be questioned or cross-examined (Bergman and
Berman-Barrett, 2005). Reports of nonverbal communication from those not
present are also considered hearsay. As such, hearsay is generally not
considered reliable evidence during a trial. This position is based on the
assumption in United States law that "assertions made by human beings,
imperfect as we are, are naturally unreliable". However, this rule of
evidence has numerous exceptions which allow certain types of out-of-court
statements to be allowed into the case. We will examine the various aspects
of hearsay and how it can and cannot be used in legal matters.
Introduction
The issue of whether a witness's opinion can be admitted as evidence in a
legal proceeding is challenging one. Not all opinion is, nor should it be
considered, the same in value or relevance. We will discuss the nature of
opinion, the rule against opinions in evidence law, and the inevitable
exceptions to the rule in the sections that follow.
Opinion: What is It and Does It Count?
"Opinion" is a word that has more than one meaning, even in a legal
context. For example, it could mean "a statement written by a judge
explaining his or her decision in a case" (Blackwell, 2004) or "a statement
written by an attorney for a client explaining his or her evaluation of the
facts and law in a case" (Blackwell, 2004). However, in reference to the law
of evidence, opinion more accurately refers to someone's "personal beliefs,
views, or judgments on a matter" (Blackwell, 2004).
This special class of witnesses is able to provide what is known as expert
testimony, which is defined as "opinions about a subject offered by an expert
in the field in order to help the jury understand specialized evidence in a
case" (Blackwell, 2004). Such testimony is often needed in legal matters,
not only for the illumination of the jury's knowledge on a particular subject,
but to bolster (or harm) one side or the other in the case. Such specialized
witnesses can be called on whenever the comprehension level needed to
understand a claim is "beyond the everyday experience of the average judge
or juror" (Bergman and Berman-Barrett, 2005).
Other Types of Evidence
The following section includes a number of types of evidence and
terminology related to evidence that one should know in order to have a
more complete understanding of the subject of evidence law. They are
listed, defined, and explained (where necessary) in alphabetical order in the
paragraphs below.
Best evidence -- Also known as the best evidence rule, is a way to require
the "best and most reliable evidence be presented at trial instead of less
reliable evidence; thus, if the original version of a document or photograph
is available, it should be presented instead of a copy" (Blackwell, 2004).
Circumstantial evidence -- "Evidence drawn from inference or deduction;
secondary evidence" (Blackwell, 2004). Essentially, this type of evidence is
not tangible in any way, but relies on reason, logic, and presumption, to
create plausible motivations, actions, and so forth. It is similar in meaning
to indirect evidence; the opposite of direct evidence, below. This type of
proof is usually employed when there are few, unreliable, or no witnesses to
what happened.
Direct evidence -- Simply put, this is evidence that proves something
directly without inference, deduction, or presumption. It is "evidence
provided by a witness who saw or experience what happened" (Blackwell,
2004).
Indirect evidence -- This is "evidence that makes a hypothesis appear
plausible but does not actually prove it" (Blackwell, 2004). In other words,
indirect evidence is a semantic or logical tactic used to try to prove a
position when very little or no primary or direct evidence exists.
Indispensable evidence -- Just as the name implies, this refers to
evidence that is crucial to proving a particular fact. Without it, the case,
whether for the plaintiff or defendant, will not stand.
Newly-Discovered Evidence -- Facts discovered after the final judgment
of a legal proceeding. To be newly-considered evidence, the facts must
meet two criteria: (1) the facts were not discoverable before the trial and (2)
the facts could potentially alter the outcome of the trial. The discovery of
such evidence can be grounds for a new trial should a different result seem
probable (Blackwell, 2004).
Parol Evidence -- This term refers to any verbal or spoken evidence which
is given by a witness (Blackwell, 2004). A special rule applies to this type of
evidence (called the parol evidence rule) which prohibits parties in a written
contract from altering the contract verbally (i.e., without written notice of
the and agreement to the changes).
Preponderance of Evidence (Balance of Probabilities) -- In civil cases,
this amounts to a weighing the truth and validity of one side's evidence
against the other's. This is a typical standard of proof that assesses which
party's evidence is more likely than not.
Presumptive evidence -- This is similar to prima facie evidence.
Essentially, this is evidence that is assumed to be true unless proven
otherwise. To be disproved, contradictory evidence must be admitted to the
trial later in the proceedings (Blackwell, 2004).
Real evidence -- A nearly synonymous word for demonstrative evidence,
real evidence refers to tangible evidence that can be viewed and examined
by a jury at a trial.
Rebuttal evidence -- This is defined as evidence that is offered as a
counter to previously-admitted evidence in a trial. It can also be brought
forth to rebut claims made previously during a legal proceeding (i.e.,
rebuttal evidence does not need to merely contradict other evidence, but can
be used to respond to argumentation and claims, as well).
Weight of evidence -- Simply put, this term indicates which side of a case
has the most evidence to support it. It is similar in nature and usage to
preponderance of evidence, above.
Evidence that has been collected unlawfully
Evidence that has been collected in in breach of important rights.
Privileged evidence
There are certain circumstances under which a person may refuse to disclose
evidence to the machinery of the state, whether the courts or police.
Crime scenes
There are rules about how the scene of a serious crime is preserved and
investigated.
Identification evidence
Identification evidence includes evidence given by a victim or a witness that
identifies the accused as the person who committed the crime. It also covers
other ways of identifying suspects such as a line up, fingerprint evidence and
DNA evidence.
DNA evidence
DNA evidence is often used in trials to establish identity.
Suspect evidence
Suspect evidence is evidence that is admissible in court but often turns out
to be untrue or incorrect.
Privileged evidence
There are certain circumstances under which a person can refuse to disclose
evidence to a court or refuse to answer certain questions because this
evidence is protected by law.
Confession – Confession in criminal law is an admission of guilt by the
accused party. It must be freely and voluntarily made after the accused is
made aware of his/her rights.
Presumption - In the law of evidence, a presumption of a particular fact
can be made without the aid of proof in some situations. The invocation of a
presumption shifts the burden of proof from one party to the opposing party
in a court trial. There are two types of presumption: rebuttable presumption
and conclusive presumption.
Criminal Cases – Prosecution and Defence – General Rule – Guilt to be
proved beyond reasonable doubt
Civil Cases – Plaintiff and Defendant – Plaintiff to prove on balance of
probabilities
https://www.universalclass.com/articles/law/other-types-of-evidence.htm
