Be yourself; Everyone else is already taken.

— Oscar Wilde.

This is the introductory post about evidence, one of the most important topics in law, even if one of the most boring classes. But if you think of it as a game, it can be fun.

After all, cases are made on evidence. The “smoking gun” may be a rarity outside of tv, but it is true that one piece of evidence can change the entire case.

So, with that said, let’s talk about the rules.

But why do we even have rules for evidence?

The jury is sitting there, probably bored out their minds, but aware they need to make a decision that will affect someone’s (or many someones’) life. Whether its a civil case about a contract breach or a criminal case for case for murder, there are lifetime repercussions at stake, either way.

One of the parties presents a document that seems to settle the entire case—a damning “admission” of fault, of murder, an accusation.

Or, one of the parties brings a witness in, who testifies to having seen the defendant actually stab the victim. Or, they didn’t see anything such thing but testify to seeing someone who looks kind-of like the defendant running away (in the dark) within the approximate time of the stabbing.

Another witness comes in and talk about his experience with the defendant, hey he’s a good guy, he mows my lawns every Friday! Another comes in and says the opposite, that guys a jerk and in high school he was a super bully.

Then the parties start bringing in more and more. In a negligence case, one side shows images of the plaintiff’s kids putting up a Christmas tree five years ago. Another in a wills case asks a witness about the last time she visited a spa.

And on and on. Who and what is the jury supposed to believe? And why on earth are they hearing about spa visits and Christmas trees that have nothing to do with the case?

The Rules allow only relevant evidence—to save us all the time and boredom

Look, trials go on enough. Some last weeks or months, some only days but days too long. We need to keep it tight, only evidence that actually adds to the case is allowed. Relevant evidence.

That’s the first hurdle. Do parties argue about relevance? You bet they do. Ban the evidence altogether for being “irrelevant” and you’re golden.

But it’s a low threshold. If a piece of evidence makes a fact in consequence even a tiny bit more probable: “uuuummmm, ok the fact the D’s hair strand was found in the public bathroom might ever so slightly suggest he had been there in the past few days”… its in.

Rule 401. Relevance. What happens next?

Ok, the judge has decided the piece of evidence is relevant to the case. And by the way, this usually happens before the trial starts.

Each party presents the evidence they wish use to build their case. Then each side tries to get “out” the other sides evidence. This is strategic, they won’t try to block everything. That’s impossible and not necessary anyway (want to really win a case? Let the other side present their best case, then obliterate it).

How to get a piece of evidence out before the trial

A lot of the case battle happens before a trial. So much so that most cases never actually go to trial. They are settled or won on the briefings.

One really important aspect is the evidence battle in anticipation of a trial. The parties file motions in limine, that are motions asking the judge to exclude that particular piece of evidence from the case.

The attorney filing the motion in limine argues that the evidence should not be included. It is the argument that is important. The attorney must state the reason why the evidence should be excluded (not considered). And this reason is one or some of the Rules of Evidence.

That’s right, a side can use more than one of the rules to try get the evidence out. This is a good thing: don’t put all your eggs in once basket. The judge might decide the evidence is in fact allowed according to the rule the attorney is trying to use.

Side: how does the judge decide this? Well, wisdom… but also with the help of the other side. Remember, this is a game. When one side files the motion in limine to exclude the piece of evidence (or objects to it in the courtroom), using the rule(s) to argue why, the opposing side then replies to that motion (or “offers proof”, aka an explanation, in the courtroom) arguing why that rule does not actually apply and the evidence should be allowed.

How does a party argue for admission of evidence?

Important: the basis of the Rules is that all evidence is allowed by default. So they are rules of exclusion.

A party must affirmatively try to exclude any or all pieces of evidence they don’t want presented by the other side.

But does the judge have no say at all?

What if a party doesn’t object to a piece of evidence that is clearly irrelevant or hearsay or prejudicial or… Can the judge “object” on his own?

XXX

Continued… arguing for admission

Ok, so one side has filed a motion in limine to exclude a particular evidence under one or some of the Rules.

The other side thinks, damn it, that is a good piece of evidence, I’m not going to let them win this game.

So that attorney reads the motion or listens to the objection, and rebuts it specifically and/or tries to get the evidence in another way.

1. Rebutting the Rule/argument specifically

The attorney who wants to evidence in can argue why, in fact, that Rule does not apply here at all.

Example: Opposing side says that piece of evidence should be excluded because it is hearsay and hearsay ain’t allowed.

So the attorney will argue as to why, in fact, that piece of evidence is not hearsay. Both sides are using the elements/parts of the Hearsay Rule to argue for and against it.

2. Ok but what if it “obviously” is Hearsay: there is no way the attorney can say it is not with a straight face

The attorney can try to get the evidence in anyway via an exception to the Hearsay rule.

“Ok, sure it is hearsay, but here is why it should be admissible anyway…”

But wait… didn’t we just say there are good reasons to exclude such things? Yes, but those reasons are specific ones that can be overridden by others:

The example of hearsay:

We don’t like hearsay because secondhand knowledge is not as reliable as firsthand knowledge. Well ok, but what does it mean “not as reliable”?

A witness on the stand testifying about a statement someone else said at an earlier out-of-court time can herself be cross-examined etc., but that doesn’t make the third-party’s statement she is repeating any more reliable.

We can’t cross-examine that statement maker (the declarant), because they aren’t in court.

We (the jury or judge) can’t assess that declarant’s sincerity or accuracy or believability or memory.

We also don’t know if the witness is telling the truth, remembers the statement correctly, or actually perceived it right (perhaps her hearing was bad that day, or she thought the declarant said something when he didn’t or it wasn’t actually him). We don’t know!

And that is why we don’t like hearsay.

So any exceptions to the hearsay rule—i.e. arguments that will allow the out-of-court statement in anyway, will make the above reasons less scary, less important, or they will have a larger overriding reason to admitting the evidence.

We’re going to look at hearsay in a separate post, along with its exceptions. But that is an example of how pieces of evidence are argued into or out of court, aka the….

Game of Evidence

The same is true for the other rules, such as character witnesses. There are reasons (policy) why the exclusion rule exists. We don’t like character witnesses because… And any exceptions to that rule lessen or override those reasons to allow such evidence in.

It is a battle. Good lawyers win it. Good also know when it is not worth actually trying to win it. Let that piece of evidence in, it is highly unlikely we can exclude it. Save that energy and argumetn and power for other pieces. After all, you don’t want to be filing motions or objecting to every piece of evidence. The judge will get fed up, the case will go on and on as it all gets argued, and the jury will tire of the constant “objection!” and stop-start result.

Besides, there is no way to keep out all the other side’s evidence. If you could, they wouldn’t have a case. Right? So just file a motion to dismiss or summary judgment instead 🙂

How the Rules are set out

There are 11 articles (sections) in the Federal Rules of Evidence. Each one covers a “topic”. Think of them like chapters in a book, you’ve got the general chapter that introduces the rules and sets up important ground rules, the chapter on witnesses, a chapter on relevance, etc.

The actual rules are number in the hundreds under each article number. Or you can think of the rule numbers as the article number, with an invisible “dot” followed by each rule. E.g. Article 4, Rule number 406, is Article 4.06 (there are 15 rules under Article 4—Relevance).

It isn’t important how you think of the numbering, as long as it helps you to picture the rules and remember how they are set out.

Here are the 11 articles in the Federal Rules of Evidence:

Article 1: General Provisions

Article 2: Judicial Notice

Article 3: Presumption in Civil Cases

Article 4: Relevance and Its Limits

Article 5: Privileges

Article 6: Witnesses

Article 7: Opinions and Expert Testimony

Article 8: Hearsay

Article 9: Authentication and Identification

Article 10: Contents of Writings, Recordings, and Photographs

Article 11: Miscellaneous Rules

As you can see, the rules cover the different “types” of evidence, from what evidence is allowed from expert witnesses, to privileges, to using writings and photos.

Click on each one above for exploration and details. It is time to play the Game of Evidence.