what is the purpose of presentation of evidence

By Prof. Penny White

Federal Rules of Evidence

The Federal Rules of Evidence govern the introduction of evidence at civil and criminal trials in United States federal trial courts. The current rules were initially passed by Congress in 1975 after several years of drafting by the Supreme Court.  The rules are broken down into 11 articles:

• General Provisions
• Judicial Notice
• Presumptions in Civil Actions and Proceedings
• Relevancy and Its Limits
• Opinions and Expert Testimony
• Authentication and Identification
• Contents of Writings, Recordings and Photographs
• Miscellaneous Rules

This article will focus on Rule 901 — Authenticating or Identifying Evidence — and the judge’s role in the Federal Rules of Evidence.

Establish Evidentiary Foundations

Evidentiary foundations must be established before any type of evidence can be admitted. These predicates to admission apply regardless of whether the evidence is verbal or tangible, but for some types of evidence, the foundation is largely subsumed into the presentation of the evidence itself. For example, the foundation for verbal evidence is generally a requirement that the testifying witness have personal knowledge of the matter in question. This foundation is rarely established by asking the witness specifically whether he or she has personal knowledge. Rather, it is included in the witness’ testimony which discloses that the witness experienced the occurrence. But for all types of evidence, the evidentiary foundation requires authentication before other issues of admissibility are considered.

Tangible Items of Evidence

Scholars at common law recognized that authentication and identification of tangible items of evidence represented a “special aspect of relevancy.” McCormick §§179, 185; Morgan, Basic Problems of Evidence 378 (1962). Wigmore describes the need for authentication as “an inherent logical necessity.” 7 Wigmore §2129, p. 564. The authenticity requirement falls into the category of conditional relevancy – before the item of evidence becomes relevant and admissible, it must be established that the item is what the proponent claims.

Authentication of Tangible Items of Evidence

The basic codified standard for the authentication of tangible items of evidence is “evidence sufficient to support a finding that the item is what the proponent claims it is.” Fed. R. Evid. 901. It is not necessary that the court find that the evidence is what the proponent claims, only that there is sufficient evidence from which the jury might ultimately do so. This is a low threshold standard. The laws of evidence set forth the general standard, followed by illustrations and a list of several types of self-authenticated documents. The proponent of any tangible or documentary evidence has an obligation, or burden of proof, to authenticate the evidence before requesting to admit or publish it to the fact- finder; if the opponent objects to its admissibility, based on any of a collection of rules, then the proponent must address that admissibility objection as well. Thus, all evidence must be both authenticated and admissible.

Determine the Presentation of Evidence

If both authentication and admissibility are established, then the court must determine how the evidence will best be presented to the trier of fact, bearing in mind that the court is obligated to exercise control over the presentation of evidence to accomplish an effective, fair, and efficient proceeding. Under Federal Rules 611, the court’s duty is to “exercise reasonable control over the mode and order of examining witnesses and presenting evidence so as to:

• Make those procedures effective for determining the truth
• Avoid wasting time
• Protect witnesses from harassment or undue embarrassment

Sometimes tangible evidence consists of fungible items that are not identifiable by sight. For tangible evidence that is not unique or distinctive, counsel must authenticate the item by establishing a chain of custody.

Establish a Chain of Custody

A chain of custody is, in essence, a consistent trail showing the path of the item from the time it was acquired until the moment it is presented into evidence. In establishing a chain of custody, each link in the chain should be sufficiently established. However, it is not required that the identity of tangible evidence be proven beyond all possibility of doubt. Most courts hold that “when the facts and circumstances that surround tangible evidence reasonably establish the identity and integrity of the evidence, the trial court should admit the item into evidence [but] the evidence should not be admitted, unless both identity and integrity can be demonstrated by other appropriate means.” See generally State v. Cannon, 254 S.W.3d 287, 296-97 (Tenn. 2008).

Additional Rules of Evidence Considerations for Tangible Evidence

For tangible evidence, in addition to authentication, the court must consider the following.

• Relevance rules
• The hearsay rules
• The original writing rules
• When appropriate, must balance the probative value of the tangible evidence against the dangers that its introduction may cause

The court in a jury trial must also consider what method of producing the evidence to a jury is most conducive to a fair and efficient fact-finding process.

Electronic Evidence

In order to admit electronic evidence, the same rules apply, but the content of electronic electronically stored information (ESI evidence) may implicate other rules such as the opinion rules and the personal knowledge rule. Most scholars and courts agree that the issues related to the authentication and admissibility of electronic evidence simply depend on an application of the existing evidence rules. Although technical challenges may arise, the rules are flexible enough in their approach to address this new kind of evidence.

Checklist for Authenticating Evidence in Court

The Federal Rules of Evidence apply regardless of whether the evidence is submitted in a civil case or criminal trial. To ensure that evidence is authentic and admissible, follow this five-point generic checklist for the authentication of tangible, documentary, or electronic evidence:

1. Is the evidence relevant?

Does it make a fact that is of consequence to the action more or less probable than it would be without the evidence?

2. Has the evidence been authenticated?

Has the proponent produce “evidence sufficient to support a finding that the electronic evidence is what the proponent claims?”

3. Is the evidence hearsay?

Is the evidence offered to prove the truth of what it asserts? If so, does it satisfy a hearsay exception? Are confrontation rights implicated?

4. Is the evidence a writing, recording, or photograph?

Is it offered to prove the content? If so, is it either the original or a duplicate (counterpart produced by the same impression as the original, or from the same matrix, etc.) unless genuine questions of authenticity or fairness exist?

5. Is the probative value of the evidence substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence?

Of course, there are many other tools that a judge may use to rule on tangible and electronic evidence, each with its own benefits and limitations.

Penny White is the Director of the Center for Advocacy and Elvin E. Overton Distinguished Professor of Law at the University of Tennessee College of Law. She teaches in several of NJC’s evidence courses including Fundamentals of Evidence, Advanced Evidence, and Criminal Evidence.

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Legal Dictionary

The Law Dictionary for Everyone

In its broadest definition, the term evidence refers to anything that is presented to prove something else is true or exists. In the legal system, evidence is any type of proof presented at trial , for the purpose of convincing the judge and/or jury that alleged facts of the case are true. This may include anything from witness testimony to documents, and objects, to photographs. The law provides specific rules of evidence which govern what may and may not be presented at trial. To explore this concept, consider the following evidence definition.

Definition of Evidence

• Something legally submitted to a court or other tribunal to prove or ascertain the truth of a matter.
• Something that tends to prove or disprove another thing.

1250-1300        Middle English

Gathering and Submitting Evidence

During investigation of a criminal matter, evidence is often gathered for use at trial later. The purpose of gathering various types of evidence is to determine who might be responsible for the crime. This is done by connecting evidence collected with witness statements and other information. There are certain, strict procedures by which evidence must be collected, handled, and transferred, in order for it to be considered valid at trial. The presentation of evidence at trial is governed and regulated by the jurisdiction ’s rules of evidence.

Types of Evidence

Evidence comes in many forms, as by its very definition, evidence is any thing presented to prove that something is true.

Scientific Evidence

Scientific evidence used in legal cases is evidence that is determined by scientific testing and/or observation. Because this type of evidence on its own is often indecipherable by judges and jurors, expert witnesses, experienced in the specific field in which the evidence was examined or tested, introduce and explain scientific evidence. Scientific evidence is generally accepted as a neutral source of information, and quite reliable. Scientific evidence commonly used in the modern legal system includes:

• Fingerprints
• Hair and fiber comparison
• DNA analysis
• Voice identification

Trace Evidence

Trace evidence is a form of forensic or scientific evidence, as it is evidence created when two objects come into contact with one another, or when portions of one object are left behind on another. Very specific methods are used to collect and process trace evidence, in order to maintain its integrity. These methods often involve vacuuming, brushing, taping, swabbing, shaking, and hand picking. Trace evidence may take many forms, including:

• Plant, mineral, or synthetic fibers
• Glove prints
• Paint chips
• Botanical materials
• Gunshot residue
• Explosives residue
• Volatile hydrocarbons

In order for trace evidence to be useful, investigators must have sample items from the suspect by which to compare it. For example, footprints are most useful if the suspect owns a pair of boots with tread to match the prints.

About DNA Evidence

Deoxyribonucleic acid (“DNA”) is the basic building block of life, and exists in every cell of all living organisms. Modern technology has led to the ability to examine an individual’s DNA, which has a very specific and unique pattern. DNA evidence can be used to identify or exclude individuals as suspects in a crime, as forensic investigators can examine DNA left at a crime scene, and compare it to DNA samples collected directly from a suspect to determine whether the crime scene sample belongs to the suspect or not.

DNA evidence is used as a highly accurate method of proving the guilt or innocence of suspects in some cases. In order to challenge or disprove DNA evidence, the opposing party must usually bring into question the procedures used to collect and test the evidence.

Physical Evidence

Physical evidence, sometimes referred to as “material evidence,” or “real evidence,” is any tangible object that is used to prove a fact of the case. Physical evidence includes objects, as well as documentation. Many items of physical evidence serve a joint purpose, as both physical and scientific evidence. For example, examination of a knife used in an assault (physical evidence) may yield scientific DNA evidence as well.

Testimonial Evidence

Testimonial evidence is that given by a witness under oath. Such testimony may be given verbally or in writing, under penalty of perjury . Any witness who is not testifying as an expert witness is generally limited to providing testimony only of those things of which he has personal knowledge, and may not interject opinion . Testimonial evidence is an important part of the legal process, though the opposing party may introduce additional testimony, or other evidence, to disprove or discredit a witness’ testimony.

Circumstantial Evidence

Circumstantial evidence is evidence that does not directly prove a fact, but requires some amount of reasoning, or inference , to make a point. While some people view circumstantial evidence as weak, or ineffective, it is possible to submit one or more circumstances for which the most probable conclusion leaves little doubt as to a fact of the case.

For example:

Roger is accused of breaking into a woman’s home and raping her. Although the woman cannot identify the man, as it was dark, and he wore a mask, the prosecution shows that Roger had previously made threats to the victim, his footprints were found outside the victim’s back door, fibers found caught in the broken window match those of Roger’s jacket, and Roger had been seen by neighbors in the neighborhood earlier that day. While all of these are circumstantial evidence, they add up to a logical conclusion that Roger committed the crime.

Hearsay Evidence

Hearsay evidence is a statement made out of court, whether verbally or in writing, that is introduced to prove the truth of whatever the statement asserts. In most cases, hearsay evidence is testimony by one person of what another person said. Hearsay evidence is not considered reliable, since the person who actually made the statement is not available to be questioned. Because of this, hearsay evidence is not usually accepted at trial. There are exceptions, however. For example, if a robbery victim stumbled up to Allison and said, “Victor robbed me!” before falling down unconscious, Allison’s testimony of what the victim said cannot be used to prove that Victor committed the robbery. Her testimony could, however, be used to prove that the victim was still alive and able to speak at that time.

Exculpatory Evidence

Exculpatory evidence is any evidence that is favorable to, or tends to exonerate, the defendant in a criminal proceeding. In the 1963 landmark U.S. Supreme Court case Brady v. Maryland , the Court determined that the prosecution is required to provide a defendant with any exculpatory evidence it has in its possession , custody, or control, before the defendant enters a plea , or as soon as the evidence comes into its possession, custody, or control. This includes any exculpatory evidence held by the investigatory team, such as police officers, investigators, and crime labs.

Bob is found murdered outside his home, and police find Malcom passed out in his car some miles away, a bloody knife on the ground near the vehicle. While Bob has been arrested and charged with the murder , the investigation turned up testimony of a witness who saw someone who was not Malcom fighting with Bob at the scene of the crime, but was too afraid to come forward.

Although police investigators doubt the validity of the witness’ statement, his testimony is exculpatory evidence that places doubt on Malcom’s guilt. The prosecutor is required to provide Malcom, or his attorney, this witness’ testimony.

Rules of Evidence

Federal and state rules of evidence govern how facts are proven, as well as how inferences may be made from facts and evidence introduced at trial. Laws governing rules of evidence stem from a concern over the validity of certain types of evidence, and whether the presentation of certain evidence might lead a judge or jury to jump to conclusions that are not necessarily valid. Rules of evidence typically revolve around the issues of reliability, relevance, efficiency, unfair surprise, and overall fairness to the proceedings.

To this end, the judge in a criminal proceeding has the power to exclude any evidence that poses a great risk of creating unfair prejudice due to a confusing, repetitive, or inflammatory nature. This is done to help ensure the jury receives a broad range of evidence that is not unnecessarily confusing.

Scott Peterson and the Circumstantial Evidence

On Christmas Eve, 2002, 27-year old Laci Peterson was reported missing by her husband of 5 years. Husband Scott Peterson told police that his wife, who was 8 months pregnant at the time of her disappearance, was nowhere to be found when he returned from a fishing trip 80 miles from home. While no indication of where the young woman might have gone existed, certain facts arose leading investigators to suspect Scott Peterson may have been involved in her disappearance.

Four months after she vanished, the badly decomposed remains of Lacy and her unborn child washed ashore in Richmond, California, near the marina at which Scott Peterson claimed he spent the day fishing the day Laci vanished.

Although prosecutors strongly suspected Scott Peterson was guilty of murdering his wife, there was little direct evidence connecting him to the crime. What the prosecution did have was a whole string of circumstantial evidence, including inconsistencies in Peterson’s story, his admitted affair, and a 6-inch long dark hair found on a pair of pliers in Peterson’s boat. Although the defense attempted to explain away each item of circumstantial evidence, in an effort to create reasonable doubt in the minds of the jury members, Peterson was convicted of first degree murder of his wife and unborn child.

Scott Peterson was sentenced to death, and transferred to death row in California’s San Quentin prison , where inmates spend an average of 25 years before execution.

Related Legal Terms and Issues

• Expert Witness – A witness possessing training, education, skill, or experience in a specific subject, which is beyond that of the average person, who is allowed to give an opinion at trial.
• Perjury – The willful telling of an untruth, or the giving of false testimony, after having taken an oath.
• Death Row – A prison housing unit reserved for inmates sentenced to be put to death.

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6.2: Defining Evidence

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• Page ID 152119

• Jim Marteney
• Los Angeles Valley College via ASCCC Open Educational Resources Initiative (OERI)

What is evidence? According to Reike and Sillars (1993), ”[e]vidence refers to specific instances, statistics, and testimony, when they support a claim in such a way as to cause the decision maker(s) to grant adherence to that claim” (p. 10).

Evidence is information that answers the question “ How do you know ? ” of a contention you have made. Please take that question very literally. It is often hard to tell the difference at first between telling someone what you know and telling them how you know it. To become an effective speaker in almost any context, you need to be able to ask this question repeatedly and test the answers you hear to determine the strength of the evidence.

Only experts can use phrases like "I think" or "I feel" or "I believe" as they have the qualifications needed that allow you to accept their observations. As for everyone else, we need to use evidence to support our arguments. As a critical thinker, you should rely much more on what a person can prove to a reasonable degree instead of what a person feels.

Evidence is a term commonly used to describe the supporting material utilized when informing or persuading others. Evidence gives support to your statements and arguments. It also makes your arguments more than a mere collection of personal opinions or prejudices. No longer are you saying, “ I believe ” or “ I think ” or “ In my opinion .” Now you can support your assertions with evidence. Because you are asking your audience to take a risk when you attempt to inform or persuade them, audiences will demand support for your assertions. Evidence needs to be carefully chosen to serve the needs of the claim and to reach the target audience.

An argument is designed to persuade a resistant audience to accept a claim via the presentation of evidence for the contentions being argued. The evidence establishes the amount of accuracy your arguments have. Evidence is one element of proof (the second is reasoning), that is used as a means of moving your audience toward the threshold necessary for them to grant adherence to your arguments.

The speaker should expect audiences to not be persuaded by limited evidence or by a lack of variety/scope, evidence drawn from only one source as opposed to diverse sources. On the other hand, too much evidence, particularly when not carefully crafted, may leave the audience overwhelmed and without focus. Evidence in support of the different contentions in the argument needs to make the argument reasonable enough to be accepted by the target audience.

Challenge of Too Much Evidence

I attended a lecture years ago where the guest speaker told us that we have access to more information in one edition of the New York Times than a man in the middle ages had in his entire lifetime. The challenge is not finding information, the challenge is sorting through information to find quality evidence to use in our speeches . Shenk (1997) expresses his concern in the first chapter:

Information has also become a lot cheaper--to produce, to manipulate, to disseminate. All of this has made us information-rich, empowering Americans with the blessings of applied knowledge. It has also, though, unleashed the potential of information-gluttony...How much of the information in our midst is useful, and how much of it gets in the way? ... As we have accrued more and more of it, information has emerged not only as a currency, but also as a pollutant (p. 23).

• In 1971 the average American was targeted by at least 560 daily advertising messages. Twenty years later, that number had risen six-fold to 3,000 messages per day.
• In the office, an average of 60 percent of each person's time is now spent processing documents.
• Paper consumption per capita in the United States tripled from 1940 to 1980 (from 200 to 600 pounds) and tripled again from 1980 to 1990 (to 1,800 pounds).
• In the 1980s, third-class mail (used to send publications) grew thirteen times faster than population growth.
• Two-thirds of business managers surveyed report tension with colleagues, loss of job satisfaction, and strained personal relationships as a result of information overload.
• More than 1,000 telemarketing companies employ four million Americans, and generate $650 billion in annual sales.

"Let us call this unexpected, unwelcome part of our atmosphere "data smog," an expression for the noxious muck and druck of the information age. Data smog gets in the way; it crowds out quiet moments and obstructs much-needed contemplation. It spoils conversation, literature, and even entertainment. It thwarts skepticism, rendering us less sophisticated as consumers and citizens. It stresses us out” (Shenk, 1997, p. 24).

We need ways of sorting through this information and the first method is understanding the different types of evidence that we encounter.

Sources of Evidence

The first aspect of evidence we need to explore is the actual source of evidence or where we find evidence. There are two primary sources of evidence; primary sources and secondary sources.

Primary Sources

A primary source provides direct or firsthand evidence about an event, object, person, or work of art. Primary sources include historical and legal documents, eyewitness accounts, results of experiments, statistical data, pieces of creative writing, audio and video recordings, speeches, and art objects. Interviews, surveys, fieldwork, and Internet communications via email, blogs, tweets, and newsgroups are also primary sources. In the natural and social sciences, primary sources are often empirical studies—research where an experiment was performed or a direct observation was made. The results of empirical studies are typically found in scholarly articles that are peer-reviewed (Ithica College, 2019)

Included in primary sources are:

• Original, first-hand accounts of events, activities, or time periods;
• Factual accounts instead of interpretations of accounts or experiments;
• Results of an experiment;
• Reports of scientific discoveries;
• Results of scientifically based polls.

Secondary Sources

Secondary sources describe, discuss, interpret, comment upon, analyze, evaluate, summarize, and process primary sources. Secondary source materials can be articles in newspapers or popular magazines, book, movie reviews, or articles found in scholarly journals that discuss or evaluate someone else's original research (Ithica, 2019).

Included in secondary sources are:

• Analyzation and interpretation of the accounts of primary sources;
• Secondhand account of an activity or historical event;
• Analyzation and interpretation of scientific or social research results.

The key difference between the two sources is how far the author of the evidence is removed from the original event. You want to ask, " Is the author giving you a firsthand account, or a secondhand account? "

Types of Evidence

There are five types of evidence critical thinkers can use to support their arguments: precedent evidence, statistical evidence, testimonial evidence, hearsay evidence, and common knowledge evidence .

Precedent evidence is an act or event which establishes expectations for future conduct. There are two forms of precedent evidence: legal and personal.

Legal precedent is one of the most powerful and most difficult types of evidence to challenge. Courts establish legal precedent. Once a court makes a ruling, that ruling becomes the legal principle upon which other courts base their actions. Legislatures can also establish precedent through the laws they pass and the laws they choose not to pass. Once a principle of law has been established by a legislative body, it is very difficult to reverse.

Personal precedents are the habits and traditions you maintain. They occur as a result of watching the personal actions of others in order to understand the expectations for future behaviors. Younger children in a family watch how the older children are treated in order to see what precedents are being established. Newly employed on a job watch to see what older workers do in terms of breaks and lunchtime in order that their actions may be consistent. The first months of a marriage is essentially a time to establish precedent. Who does the cooking, who takes out the garbage, who cleans, which side of the bed does each person get, are precedents established early in a marriage. Once these precedents are displayed, an expectation of the other’s behavior is established. Such precedent is very difficult to alter.

To use either type of precedent as evidence, the arguer refers to how the past event relates to the current situation. In a legal situation, the argument is that the ruling in the current case should be the same as it was in the past, because they represent similar situations. In a personal situation, if you were allowed to stay out all night by your parents "just once," you can use that "just once" as precedent evidence when asking that your curfew be abolished.

Statistical evidence consists primarily of polls, surveys, and experimental results from the laboratory. This type of evidence is the numerical reporting of specific instances. Statistical evidence provides a means for communicating a large number of specific instances without citing each one. Statistics can be manipulated and misused to make the point of the particular advocate.

Don’t accept statistics just because they are numbers. People often fall into the trap of believing whatever a number says, because numbers seem accurate. Statistics are the product of a process subject to human prejudice, bias, and error. Questions on a survey can be biased, the people surveyed can be selectively chosen, comparisons may be made of non-comparable items, and reports of findings can be slanted. Take a look at all the polls that predict an election outcome. You will find variances and differences in the results.

Statistics have to be interpreted. In a debate over the use of lie detector tests to determine guilt or innocence in court, the pro-side cited a study which found that 98% of lie detector tests were accurate. The pro-side interpreted this to mean that lie detector tests were an effective means for determining guilt or innocence. However, the con-side interpreted the statistic to mean that two out of every 100 defendants in this country would be found guilty and punished for a crime they did not commit.

The great baseball announcer Vin Scully once described the misuse of statistics by a journalist by saying that “ He uses statistics like a drunk uses a lamppost, not for illumination but for support

Statistics are often no more reliable than other forms of evidence, although people often think they are. Advocates need to carefully analyze how they use statistics when attempting to persuade others. Likewise, the audience needs to question statistics that don't make sense to them.

Testimonial evidence is used for the purpose of assigning motives, assessing responsibilities, and verifying actions for past, present and future events. Testimony is an opinion of reality as stated by another person. There are three forms of testimonial evidence: eyewitness, expert-witness, and historiography.

Eyewitness testimony is a personal declaration as to the accuracy of an event. That is, the person actually saw an event take place and is willing to bear witness to that event. Studies have confirmed that eyewitness testimony, even with all of its problems, is a powerful form of evidence. There seems to be almost something "magical" about a person swearing to "tell the whole truth and nothing but the truth."

Expert-witness evidence calls upon someone qualified to make a personal declaration about the nature of the fact in question. Courts of law make use of experts in such fields as forensics, ballistics, and psychology. The critical thinker uses the credibility of another person to support an argument through statements about the facts or opinions of the situation.

What or who qualifies as an expert witness? Does being a former military officer make them an expert in military tactics? Often an advocate will merely pick someone who they know the audience will accept. But as an audience we should demand that advocates justify the expertise of their witness. As we acquire more knowledge, our standards of what constitutes an expert should rise. We need to make a distinction between sources that are simply credible like well-known athletes and entertainers that urge you to buy a particular product, and those who really have the qualities that allow them to make a judgment about a subject in the argumentative environment.

Although expert witness testimony is an important source of evidence, such experts can disagree. In a recent House Energy and Commerce subcommittee, two experts gave opposite testimony, on the same day, on a bill calling for a label on all aspirin containers warning of the drug's often fatal link to Reye's Syndrome. The head of the American Academy of Pediatrics gave testimony supporting the link, but Dr. Joseph White, President of The Aspirin Foundation of America, said there was insufficient evidence linking aspirin to Reye’s syndrome.

Historiography is the third form of testimonial evidence. In their book, ARGUMENTATION AND ADVOCACY, Windes and Hastings write, "Historiographers are concerned in large part with the discovery, use, and verification of evidence. The historian traces influences, assigns motives, evaluates roles, allocates responsibilities, and juxtaposes events in an attempt to reconstruct the past. That reconstruction is no wiser, no more accurate or dependable than the dependability of the evidence the historian uses for his reconstruction." 5

Keep in mind that there are many different ways of determining how history happens. Remember, historians may disagree over why almost any event happened. In the search for how things happen, we get ideas about how to understand our present world's events and what to do about them, if anything.

Primary sources are essential to the study of history. They are the basis for what we know about the distant past and the recent past. Historians must depend on other evidence from the era to determine who said what, who did what, and why.

How successful is the historian in recreating “objective reality?" As noted historian Arthur Schlesinger, Jr. says,

“The sad fact is that, in many cases, the basic evidence for the historian’s reconstruction of the really hard cases does not exist, and the evidence that does exist is often incomplete, misleading, or erroneous. Yet, it is the character of the evidence which establishes the framework within which he writes. He cannot imagine scenes for which he has no citation, invent dialogue for which he has no text, assume relationships for which he has no warrant.”

Historical reconstruction must be done by a qualified individual to be classified as historical evidence. Critical thinkers will find it useful to consider the following three criteria for evaluating historical evidence.

Around 1,000 books are published internationally every day and the total of all printed knowledge doubles every 5 years.

More information is estimated to have been produced in the last 30 years than in the previous 5,000.

----The Reuters Guide to Good Information Strategy 2000

Was the author an eyewitness to what is being described, or is the author considered an authority on the subject? Eyewitness accounts can be the most objective and valuable but they may also be tainted with bias. If the author professes to be an authority, he/she should present his/her qualifications.

Does the author have a hidden agenda? The author may purposely or unwittingly tell only part of the story. The excerpt may seem to be a straight-forward account of the situation, yet the author has selected certain facts, details, and language, which advance professional, personal or political goals or beliefs. They may be factual, but the hidden agenda of these books was to make money for the author, or get even with those in the administration they didn't like.

Does the author have a bias? The author's views may be based on personal prejudice rather than a reasoned conclusion based on facts. Critical thinkers need to notice when the author uses exaggerated language, fails to acknowledge, or dismisses his or her opponents' arguments. Historians may have biases based on their political allegiance. Conservative historians would view events differently than a liberal historian. It is important to know the political persuasion of the historian in order to determine the extent of bias he or she might have on the specific topic they are writing about.

Sometimes we think we might know our history, but Historian Daniel Boorstin puts a perspective on the ultimate validity and accuracy of historical testimony when he writes, "Education is learning what you didn't even know you didn't know." Modern techniques of preserving data should make the task of recreating the past easier and adding to our education.

Hearsay evidence (also called rumor or gossip evidence) can be defined as an assertion or set of assertions widely repeated from person to person, though its accuracy is unconfirmed by firsthand observation. "Rumor is not always wrong , " wrote Tacitus, the Roman historian. A given rumor may be spontaneous or premeditated in origin. It may consist of opinion represented as fact, a nugget of accuracy garbled or misrepresented to the point of falsehood, exaggerations, or outright, intentional lies. Yet, hearsay may well be the "best available evidence" in certain situations where the original source of the information cannot be produced.

Rumor, gossip or hearsay evidence carries proportionately higher risks of distortion and error than other types of evidence. However, outside the courtroom, it can be as effective as any other form of evidence in proving your point. Large companies often rely on this type of evidence, because they lack the capability to deliver other types of evidence.

A recent rumor was started that actor Morgan Freeman had died. A page on “Facebook” was created and soon gained more that 60,000 followers, after it was announced that the actor had passed away. Many left their condolences and messages of tribute. Only one problem, Morgan Freeman was very much alive, actually that is not so much a problem, especially to Morgan Freeman. The Internet is a very effective tool when it comes to spreading rumors.

Common knowledge evidence is also a way to support one’s arguments. This type of evidence is most useful in providing support for arguments which lack any real controversy. Many claims are supported by evidence that comes as no particular surprise to anyone.

Basing an argument on common knowledge is the easiest method of securing belief in an idea, because an audience will accept it without further challenge. Patterson and Zarefsky (1983) explain:

Many argumentative claims we make are based on knowledge generally accepted by most people as true. For example, if you claimed that millions of Americans watch television each day, the claim would probably be accepted without evidence. Nor would you need to cite opinions or survey results to get most people to accept the statement that millions of people smoke cigarettes 6 (Pat.

Credibility of Evidence or How Good Is It?

In order to tell us how you know something, you need to tell us where the information came from. If you personally observed the case you are telling us about, you need to tell us that you observed it, and when and where. If you read about it, you need to tell us where you read about it. If you are accepting the testimony of an expert, you need to tell us who the expert is and why she is an expert in this field. The specific identity, name or position and qualifications of your sources are part of the answer to the question “How do you know?” You need to give your audience that information.

Keep in mind that it is the person, the individual human being, who wrote an article or expressed an idea who brings authority to the claim. Sometimes that authority may be reinforced by the publication in which the claim appeared, sometimes not. But when you quote or paraphrase a source you are quoting or paraphrasing the author, not the magazine or journal. The credibility of the evidence you use can be enhanced by:

Specific Reference to Source : Does the advocate indicate the particular individual or group making the statements used for evidence? Does the advocate tell you enough about the source that you could easily find it yourself?

Qualifications of the Source: Does the advocate give you reason to believe that the source is competent and well-informed in the area in question?

Bias of the Source : Even if an expert, is the source likely to be biased on the topic? Could we easily predict the source’s position merely from knowledge of his job, her political party, or organizations he or she works for?

Factual Support: Does the source offer factual support for the position taken or simply state personal opinions as fact?

Evaluating Internet Sources of Evidence

We currently obtain a significant amount of the evidence we use in an argument from the Internet. Some people are still under the influence that if they read it on the Internet, it must be accurate. But we all know that some Internet sources are better than others. We need to be able to evaluate websites to obtain the best information possible. Here are two approaches to evaluating websites

Who, What, When, Where, and Why

This first test is based on the traditional 5 “W’s.” These questions, like critical thinking, go back to Greek and Roman times. The notable Roman, Cicero, who was in office in 63 BC, is credited with asking these questions

Journalists are taught to answer these five questions when writing an article for publication. To provide an accurate interpretation of events to their viewers or readers, they ask these five questions and we can ask the same questions to begin discovering the level of quality of an online source.

Who wrote the post? What are their qualifications?

What is actually being said in the website. How accurate is the content?

When was the website’s latest post?

Where is the source of the post? Does the URL suggest it is from an academic source or an individual?

Why is the website published? Is the website there to inform or entertain?

There is a second method of evaluating websites that is more popular and includes a more in depth analysis. This method is known as the CRAAP test.

The C.R.A.A.P. Test

C.R.A.A.P. is an acronym standing for Currency, Relevance, Authority, Accuracy, and Purpose. Developed by the Meriam Library at the California State University at Chico, each of these five areas is used to evaluate websites.

Currency How recent is this website. If you are conducting research on some historical subject a web site that has no recent additions could be useful. If, however you are researching some current news story, or technology, or scientific topic, you will want a site that has been recently updated.

Questions to Ask:

• When was the content of the website published or posted?
• Has the information been revised or updated recently?
• Have more recent articles on your subject been published?
• Does your topic require the most current information possible, or will older posts and sources be acceptable?
• Are the web links included in the website functional?
• Relevance This test of a website asks you how important is the information to the specific topic you are researching. You will want to determine if you are the intended audience and if the information provided fits your research needs.
• Does the content relate to your research topic or the question you are answering?
• Who is the intended audience?
• Is the information at an appropriate level for the purpose of your work? In other words, is it college level or targeted to a younger or less educated audience?
• Have you compared this site to a variety of other resources?
• Would you be comfortable citing this source in your research project?

Authority Here we determine if the source of the website has the credentials to write on the subject which makes you feel comfortable in using the content. If you are looking for an accurate interpretation of news events, you will want to know if the author of the website is a qualified journalist or a random individual reposting content.

• Who is the author/ publisher/ source/ sponsor of the website?
• What are the author’s credentials or organizational affiliations?
• Does the author have the qualifications to write on this particular topic?
• Can you find information about the author from reference sources or the Internet?
• Is the author quoted or referred to on other respected sources or websites?
• Is there contact information, such as a publisher or email address?
• Does the URL reveal anything about the author or source?

Accuracy In this test we attempt to determine the reliability and accuracy of the content of the website. You need to determine if you can trust the information presented in the website or is it just slanted, personal beliefs.

• Where does the information in the website come from?
• Is the information supported by Evidence, or is it just opinion?
• Has the information presented been reviewed by qualified sources?
• Can you verify any of the content in another source or personal knowledge?
• Are there statements in the website you know to be false?
• Does the language or tone used in the website appear unbiased or free of emotion or loaded language?
• Are there spelling, grammar or typographical errors in the content of the website?

Purpose Finally we examine the purpose of the website. We need to determine if the website was created to inform, entertain or even sell a product or service. If we want accurate, high quality evidence, we would want to avoid a site that is trying to sell us something. Although a company selling solar power may have some factual information about solar energy on their site, the site is geared to sell you their product. The information they provide is not there to educate you with all aspects of solar power.

• What is the purpose of the content of this website? Is the purpose to inform, teach, sell, entertain or persuade?
• Do the authors/sponsors of the website make their intentions or purpose clear?
• Is the content in the website considered facts, opinion, or even propaganda?
• Does the point of view appear objective and impartial?
• Does the author omit important facts or data that might disprove the claim being made in the post?
• Are alternative points of view presented?
• Does the content of the website contain political, ideological, cultural, religious, institutional or personal biases?

Questions used here are inspired from questions from the Meriam Library at California State University Chico, the University of Maryland University College Library and Creighton University Library

• Rieke, Richard D. and Malcolm Sillars. Argumentation and Critical Decision Making. (New York: HaperCollins Rhetoric and Society Series, 1993)
• Shenk, David. Data Smog, Surviving the Information Glut. 1. San Fransisco: HarperEdge, 1997
• Ithica College, "Primary and Secondary Sources," libguides.ithaca.edu/research101/primary (accessed October 31, 2019)
• ARGUMENTATION AND ADVOCACY. By Russel R. Windes and Arthur Hastings. New York: Random House, 1965
• Patterson, J. W. and David Zarefsky. Contemporary Debate. Boston: Houghton Mifflin, 1983

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RULE 132 Rules of Court - PRESENTATION OF EVIDENCE

Presentation of evidence.

I. INTRODUCTION.

      1. Rule 132 governs the manner by which Testimonial and Documentary evidences are to be presented in Court.

      2. Principles  in the presentation of evidence by the parties:

a). A case is won or lost depending upon how effective was the presentation of evidence, particularly as to what evidence were presented and how they were presented

b). Parties should be allowed a certain latitude in the presentation of their evidence otherwise they might be so hampered that the ends of justice may eventually be defeated or appear to be defeated. The court should not limit the evidence to be presented.

c). The parties should be allowed to maintain their own way or style of presenting evidence when these can be done without injury to the speedy disposition of the case and to the best interest  of the administration of justice

d) The court should liberally receive all evidence offered in the trial to be able to render its decision with all the possibly relevant proof in the record and to assure the appellate court to have a good judgment and to obviate remanding the case for re-trial or reception of evidence

Section 1. Provides the manner of presenting testimonial evidence to be as follows:

By presenting the witness personally in open court

a). The witness must appear in person so that the court and the opponent may observe him and hear his testimony

b). His personal presence cannot be substituted by the submission of written statements or audio testimony

c) There is also no secret testimony and it must always be in the presence of the adverse party, except when the presentation is allowed to be ex parte, or testimony through interrogatories or depositions in advance of trial before a hearing officer but upon prior approval of the court and with proper notice to the adverse party

d). CHILD WITNESSES: the witness may testify inside a room but the child must be visible and can be heard through the medium of  facilities appropriate for the purpose such as a mirror 

QUESTION:  May the witness testify wearing masks to preserve his identity? 

To be examined under oath or affirmation

a). To answer questions as may be asked by the proponent, the opponent and by the court

(i). Oath: an outward pledge by the witness that his testimony is made under an immediate sense of responsibility to a Supreme Being. An appeal is made to the almighty that he will tell the truth.

(ii.) Affirmation: a solemn and formal declaration that the witness will be truthful

iii). The purpose of an oath or affirmation are : (i) to affect the conscience of the witness and compel him to speak the truth and (ii) to lay him open to punishment for perjury. But it is not essential that he knows what or how he will punished. 

iv). If the opponent believes the witness is not aware of his obligation and responsibility to tell the truth and consequences of telling a lie, the party may ask for  leave to conduct a VOIRE DIRE examination ( PP. vs. Alma Bisda, July 17, 2003)

v). Effect of lack of oath: If the opponent fails to object then the testimony may be given weight as the party would be estopped or, the party may move to disallow the witness from testifying, or move to strike the testimony after he found the lack of oath. The proponent however may ask that the witness be placed under oath. . .  

The form of testimony must be :

a). Oral answers to questions unless (i) the question calls for a different form of answer such as by bodily movements or demonstrable actions, (ii) or the witness is a deaf mute (iii) in case of a child witness

b) Not in a narrative (i) in order to prevent the witness from testifying and narrating facts which are irrelevant and thus he will testify straight to the point in issue, as well as (ii) to give the opponent an opportunity to raise an objection. 

Sec. 2.  The Proceedings must be recorded.

Courts of the Philippines are courts of record. Anything not recorded is deemed not to have transpired or taken-up and will not be considered in the resolution of the case. The matter to be recorded include:

a). Questions by the proponent, opponent and the court, which are propounded to the witness

b). The answers of the witness to the questions

c). Manifestations, arguments, and statements of counsel

d). Statements of the court to the counsel

e). Instructions or statements of the court to the court personnel

f). Demonstrable actions, movements, gestures or observations asked to be described and recorded

g). Observations during the conduct of ocular inspections 

Matters not recorded:

Off-the-records statements

Statements which were ordered or requested to be stricken from the record such as those which are improper, irrelevant or objectionable. Example: hearsay direct testimony 

Sec. 3.  Rights and Obligations of Witnesses

The obligation of a witness is to answers all questions which are asked of him. He cannot choose which questions to answer and to answering others.

The witness however has the right to be protected against tactics from the opponent which are intended to “brow beat, badger, insult, intimidate, or harass him”.

He has the right not to be detained longer that is necessary.

He may refuse to answer the following questions:

a). Those which are not pertinent to the issue

b). Those which are self-incriminatory except in the following cases:

(i) where the accused is testifying as a witness in his own behalf, as to questions  relating only to the offense upon which  he is testifying

(ii) where the witness was granted immunity  from prosecution  as when he is under the Witness Protection Program or was discharged to be used a s a state witness, or he is a government witness in Anti-Graft Cases.

c). Those which are self-degrading, unless it is to discredit the witness by impeaching his moral character

EXAMINATION OF A WITNESS

A. INTRODUCTION: Meaning of terms:

1. “Examination” – to find out facts from the witness or to test his memory, truthfulness or credibility by directing him to answer appropriate questions.  

2. Proponent - the party who owns or who called the witness to testify in his favor.     Opponent- the party against whom the witness was called.

3. Friendly Witness- one who is expected to give testimony favorable to the party who called for him. Hostile Witness, one whose testimony is not favorable to the cause of the party who called him as a witness. Party witness and accused-witness refer to the plaintiff, defendant or the accused, testifying as witness for themselves, as opposed to ordinary witnesses

B. ORDER OF EXAMINATION

Direct examination by the proponent

Cross-examination by the opponent

Re-direct examination by the proponent

Re-cross examination by the opponent

C. ORDER OF PRESENTATION OF EVIDENCE

Presentation of Evidence in Chief by the Plaintiff

Presentation of Evidence in Chief by the Defendant

Presentation of Rebuttal Evidence by the Plaintiff

Presentation of Sur rebuttal Evidence by the Defendant

Section 5. Direct Examination. Direct examination is the examination-in-chief of a witness by the party presenting him on the facts relevant to the issue.

A. Procedural Requirement

Offer of Testimony- the proponent shall state the substance of the intended testimony of the witness (  an outline of the major points)  and the purpose of said testimony ( what the proponent intends to prove by said testimony)

a). Importance of the Offer- (i) The direct examination may be objected to by the opponent (ii) Matters not included in the offer may not be allowed to be testified on upon proper objection and (iii) to shorten the proceedings as the opponent may admit or stipulate on the matters to be testified on.

In cases under the Rules on Summary Procedure, the sworn statement of the witness must have been submitted to the court before hand

B. Importance of the Direct Examination

This is the only opportunity for the proponent to elicit from the witness all the facts which are important and favorable to him. The witness should be considered as a sponge heavy with facts. By the time the direct examination is over, all favorable facts should have been squeezed from the witness. The examination must be clear, forceful, comprehensive, and must efficiently present the facts of the case.

Effective Direct Examination

a). KEEP IT SIMPLE. Avoid these two pitfalls (i) too little time on critical points and (ii) too much time on unimportant points

 b). ORGANIZE LOGICALLY. Determine the key points and organize them in a logical order. If possible resort to a chronological presentation of testimony.

c). INTRODUCE THE WITNESS AND DEVELOP HIS BACKGROUND

d). USE PRELIMINARY QUESTIONS WHICH ARE INTRODUCTORY, TRANSITION OR ORIENTING QUESTIONS

e). ELICIT SCENE DESCRIPTION

f). ELICIT GENERAL FLOWING DESCRIPTION. Let the witness paint a picture. Avoid excessive detail.

g). USE PACE IN DESCRIBING ACTION. Control the speed of the examination by eliciting testimony in small segments at the most advantageous rate. SLOW DOWN THE ACTION.

h). USE SIMPLE LANGUAGE. Choose simple words and phrases. Word choice affects answers. Avoid jargons, idioms and technical words. WHAT MATTERS AND WHAT WILL BE REMEMBERED IS NOT HOW BEAUTIFUL AND IMPRESSIVE THE LAWYER PHRASED HIS QUESTIONS BUT WHAT THE WITNESS NARRATED.

i). HAVE THE WITNESS EXPLAIN.

j). USE NONLEADING OPEN-ENDED QUESTIONS

k). USE EXHIBITS TO HIGHLIGH AND SUMMARIZE

l). PRACTICE WITH THE WITNESS.

Sec. 6. Cross Examination.

A. Concept: The examination of the witness by the opponent after the direct examination.

1.  An essential part of the right to procedural due process i.e. the right of a party to confront witnesses against him face-to-face. The essence however is not actual cross examination but that a party be given the opportunity to cross examine. Hence the consequences are as follows:

a). If the opponent was never given the opportunity to cross examine a witness, the direct testimony may, on motion of the opponent,  be stricken off as hearsay.

b). All assertions of facts not based on the personal knowledge of the witness may also be stricken off as hearsay since the source cannot be subjected to the opportunity of cross-examination

2. :Limitations:

a). The right may however be waived expressly

b). It may be lost through the fault or negligence of the opponent.

c). After a witness has been cross-examined and discharged, further cross-examination is no longer a right but must  be addressed to the sound discretion of the court

d). The Court may limit the cross-examination if its needlessly protracted, or is being conducted in a manner which is unfair to the witness or is inconsistent with the decorum of the court,  as when it degenerates into a shouting match with  the witness

3. Effect of the Loss or non-completion of the cross examination

a). If the loss, in whole or in part, was due to the fault of the adverse party, the testimony of the witness is to be taken into consideration

b). If the cross-examination cannot be done or completed due to causes attributable to the party offering the witness, the testimony is rendered incompetent

c). If the loss or –non-completion was due to the death or unavailability of the witness then that part of the testimony which was subjected to cross-examination remains admissible.

4. Character of Cross Examination: It is both an Art and a Science

a). It is an Art because it requires consummate skill which is acquired and developed. There is no standard method as it is highly personalized, subjective and be adaptive to who the witness is and to the subject of the cross examination. The length, style of questioning or approach to a witness requires intuition and understanding of human nature; of the habits, weaknesses, bias and prejudices of people; their reactions to situations, their perception of matters, and such other factors that vary  according to circumstances of time, place, people and occasions.

It requires the ability to think quickly, read quickly and to know when to quit. The lawyer’s antennae must ever be tuned in to the witness: his character, personality; mannerism, and all traits which will give a favorable clue; to the adverse counsel and to the Court.     

b). Should a party cross examine or not depends on a full understanding of what to expect. The following must be considered before a party attempts to cross-examine:

i). Whether the witness has hurt the case or the impact of his testimony on the case

ii). Whether the witness is important, as for example an eye witness, or a party witness

iii). Whether the testimony is credible

iv). The risks that the party undertakes

2. It is a science. It requires a thorough preparation and mastery of certain rules/jurisprudence on procedure in the presentation of evidence.

C. Importance and Purpose of Cross Examination

Cross examination is both a weapon to destroy or weaken the testimony of the opponent’s witness and a tool to build up or strengthen a party’s case. The conduct of cross-examination must always be directed towards achieving a specific purpose or purposes.

Constructive Cross-Examination, where the purposes are: (a) to amplify or expand the story of the witness so as to place the facts in a different light which is favorable to the party. Note that the witness of the opponent seldom  volunteer facts favorable to the cross-examiner, hence the manner of questioning should be “insinuating”, and (b) To obtain favorable or establish additional facts favorable to the cross-examining party.

Destructive Cross-Examination The purposes are: (a) to discredit the testimony of the witness by showing its absurdity, or that it is unbelievable or contrary to the evidence (b) To discredit the witness by showing his bias, interest, lapse of or selective memory, incorrect or incomplete observation of event, and similar situations.

D. Scope of Cross Examination

1. Under section 6 the witness may be examined: (a) As to any matter stated in the direct examination (b) or any matter connected therewith (c) as to the accuracy and truthfulness and freedom of the witness from interest or bias, or the reverse and (d) upon all important facts bearing upon the issue.

2. The English Rule is followed in the Philippines: the cross examination is not confined to matters subject of the direct examination but extends to other maters, even if not inquired in the direct examination but are material to the issues. This is distinguished from the American Rule which holds that the scope of the cross-examination is confined to the facts and circumstances brought out, or connected with, matters stated in the direct examination

D.  Questioning by the Court:

1. The Court may ask questions : 1.  To clarify itself on certain points 2. To call the attention of counsel to points at issue that are overlooked and 3.To direct counsel to questions on matters to elicit facts and clarify ambiguous answers

2. However, the questioning by the court should not be confrontational, probing and insinuating. It should not be partisan and not over extensive. The court is not to assume the role of an advocate or prosecutor.

BASIC RULES ON CROSS EXAMINATION

1. PREPARE. Know what the witness has testified on and its relation to the case and how it affects your own evidence

2. KNOW YOUR OBJECTIVE. What are the points in the testimony of the witness which are critical and are these points to be brought out and emphasized

3. OBSERVE PACING AND PATIENCE . Do not rush the witness and avoid being  over eager in bringing out an important point.

4. LEAD THE WITNESS. State the facts and let the witness ratify. Know how to lead. Use variation in the phraseology of the questions.

5. HAVE A STYLE AND ADAPT IT TO THE OCCASION. Be true to yourself and develop an approach or style suited to your personality and character. Be able to vary your style and know when is it effective to use either a booming or soft voice; to move around or to stay put; to be conversational or confrontational or tough and confident..

6. KNOW WHEN TO QUIT. Stop when (1) the witness has been discredited or made a monumental concession. There is no need for an over kill. or when the witness is killing the case or the counsel.

7. KNOW WHAT MATERIALS TO TAKE TO CONFRONT THE WITNESS. Have them be ready and easily accessible.

8. KNOW THE JUDGE. Are you making an impact or are you boring, antagonizing or confusing the Judge?  

9. KNOW THE RULES OF EVIDENCE

ADDITIONAL PRACTICAL TIPS

1. BE BRIEF. Confine to the strongest points.

2. SHORT QUESTIONS. Use plain words and avoid fancy words or elaborate syntax.

3. NEVER ASK A QUESTION to which you do not already  know the answer.

4. LISTEN TO THE WITNESS. Tune in if he was contradicted by another witness or prior testimony; is the testimony contrary to human experience or completely inconsistent with nature.  

5. DO NOT QUARREL WITH THE WITNESS.

6. DO NOT PERMIT THE WITNESS TO EXPLAIN

7. DO NOT REPEAT HIS TESTIMONY ON DIRECT.

8. AVOID QUESTIONS TOO MANY

9. SAVE THE EXPLANATION FOR THE MEMORANDUM. Questions should not be explanations of your position.

Sec. 7. Redirect Examination by the proponent

A. Purpose and Scope:

To afford the party calling the witness to explain or amplify the testimony given on cross-examination; to explain apparent contradictions, or inconsistencies, and to rehabilitate the testimony.

The scope is confined to matters taken up in the cross-examination, not those outside, which may be objected to on the ground that it is improper for redirect.

But, new matter may be inquired into provide the prior approval of the court was obtained and the testimony on the new matter must be subject to cross-examination by the opponent.   

Sec. 8. Re-cross examination by the opponent.

  A  This is confined to matters subject of the re-direct examination.

Sec. 9. Recalling Witnesses.

A. On Motion By a party: This is not a right but the recall must be addressed to the discretion of the court and  the recall must be on justifiable grounds. 

B.  By the Court: If there be matter it wishes to clarify

Sec. 10. Leading and Misleading Questions.

A. Introduction. The examination of a witness is by asking questions the answers to which will bring out facts from the witnesses. However a lawyer is subject to certain rules such as to what questions he is allowed to ask, how they are to be phrased or worded so that facts known only to the witness through his own perception are revealed, or so that facts which are suppressed or forgotten may be forced out from the witness.

       Some of these limitations consist of the prohibition on leading and misleading  questions.   

B. Leading Questions. Section 10 defines it as a “A question which suggest to the witness the answer which the examining party desires”. It is also known as “Suggestive Question”.

1. Witnesses are to give data spontaneously from there own memory, according to their own perception and interpretation. The role of the lawyer is simply to ask questions which will help the witness recall events. The question should be framed in such a manner that the lawyer does not in any way suggest or influence the answer to be given, otherwise the fact or answer becomes merely the product of the suggestion, and not what the witness personally knows.

2. If the witness is asked simply to confirm or deny, then in effect it is the lawyer who is supplying the facts through the mouth of the witness who is reduced to being merely the echo and mouthpiece of the lawyer.

3. Test : The form or phraseology and the contents of the question in that whether it contains a statement of a fact which the witness is asked to affirm or agree to. In such case the witness contributes no substantial data. The lawyer is coaxing. 

          The tone, inflection, mannerism or body language of counsel, may also indicate if the counsel is leading his witness.  

C. General Rule On Direct:  The witness being a friendly witness and having been called by the proponent, he is naturally expected to be sympathetic to the cause of the proponent. Thus there is great danger that he would just confirm any and all facts suggested to him by the proponent. Hence leading questions are not allowed. 

    The following instances are the exceptions when leading questions are allowed to be asked during direct:

On preliminary matters

a. those pertaining to the personal circumstances of the witness and which are asked at the start of the cross-examination

b. those which are intended to bring the witness directly to the point in issue; they are referred to as “orienting, introductory or transitory questions”

When there is difficulty in getting direct and intelligible answers from the  witness who by reason of the any of the following:” is immature; aged and infirm; in bad physical condition; ignorant of, or unaccustomed to, court proceedings; inexperienced; unsophisticated; feebleminded; confused and agitated; terrified; timid  or embarrassed while on the  stand; lacking in comprehension of questions or slow to understand; deaf and dumb; or unable to speak or understand the English language or only imperfectly familiar therewith” ( PP. vs. Dela Cruz, July 11, 2002)

is suffering from some mental deficiency, or where  the intelligence of the witnesses is impaired, thereby making necessary the making of  suggestions:

For example: witnesses who are ignorant, feeble minded deaf-mutes, minors or uneducated

In case of unwilling or hostile witnesses: they are uncooperative and will not readily supply the facts desired by the examiner. The approach to these witnesses is to conduct a direct examination as if it were a cross-examination

a. unwilling witnesses include (i) those who have to be compelled to testify by the coercive processes of the court (ii) or those who, at the time of their presentation at the witness stand, become evasive, reluctant or unfriendly

b. hostile-may refer to (i) a witness who manifest so much hostility and prejudice during the direct examination that the party who called him is allowed to cross-examine, i.e to treat him as if he had been called by the opposite party or (ii) one who surprises the party and unexpectedly turns against him

    In either case, the party calling the witness must present proof of either adverse interest on the part of the witness, his unjustified reluctance, or of his misleading the party into calling him a witness, and on the basis of which the court shall declare the witness to be a hostile witness. Thereafter leading questions are asked.

In case the witness is the adverse party, or representative or officer of a juridical entity which is the adverse party. Said witnesses is expected to resist any attempt to obtain favorable data, hence the direct examination is in the nature of a cross-examination and the most effective manner of forcing favorable data, or of destroying his credibility, would be through leading questions

When the witness is not voluntarily offered but is required by law to be presented by the proponent, as in the case of subscribing witnesses to a will.

When the witness lacks the power of recollection a leading question is allowed in order to refresh the memory. 

To identify persons or things.

In case of an expert witness as to his opinion.

D. Leading and Misleading Misleading Questions on Cross.

A. Rule on Leading Questions:  During cross-examinations leading questions are allowed for the reason that the witness is not expected to be sympathetic to the cause of the opponent and would not volunteer important facts favorable  to the opponent, or that he would resists to testify on facts adverse to the party who called him. Thus it becomes necessary that the opposing counsel has to force the facts from the witness thru leading questions.

          The opponent states a fact favorable to him and forces the witness to confirm it.

       B. Misleading Questions are not allowed. They are of two kinds:

1. A question which assumes a fact not yet testified to by a witness or still unproven or by putting words into the mouth of the witness

2. A question premised on a fact which is contrary to that testified to or proven or those which distort or do not accurately state the true facts. This is akin to twisting the words of the witness

IMPEACHMENT

A. Concept: The process of showing that a witness is not credible or that his testimony is not worthy of belief, i.e. casting doubt as to the credibility of the witness or credibility of his testimony. Note that credibility of the witness is different from credibility of testimony

B. Impeachment of the witness of the adverse party

Generally the witness may be impeached during his cross-examination or during the presentation of evidence by the party. Thus the witness of the plaintiff may be impeached at the time he is cross-examined by the defendant and/or during the presentation of evidence in chief by the defendant. On the other hand, the witness of the defendant may be impeached by the plaintiff during the cross examination of said witness and/or during the presentation of evidence during the rebuttal stage.

C. Specific Modes pursuant to section 11 and jurisprudence

1. By presenting evidence or facts which contradict the version of the witness

2. By proving the bad general reputation of the witness for truth or honesty or integrity.

a).  He cannot be impeached by the direct testimony of witnesses of the adverse party as to particular instances of immoral acts, improper conduct, or other evidence of misconduct.

b). The person who is called by the adverse party to testify to the bad general reputation of the witness of the opponent is called the “Impeaching witness” who himself may also be impeached.    

3. By proof of prior inconsistent statements in that a truthful person will be consistent with his statement even on different occasions and to different persons

4. By introducing evidence of his bias or interest, such as his relationship to a party, or financial gain as well as of his motive or intent.

5. By showing his social connections, occupations and manner of living in that he voluntarily associates with those who are engaged in disreputable activities, or if he is addicted to disgraceful or vicious practices, or follows an occupation which is loathsome and vile, even if not criminal, as all these affects his credibility. 

6.  By proof of prior conviction: the moral integrity of a person is placed in doubt by reason of a conviction for violation of the law, but not by the fact that  there are pending cases against  him 

7. By showing the improbability of his testimony or that it is not in accordance with ordinary human experience. Example: (i) the claim of an accidental firing of a caliber gun is not believable because the mechanism of the gun which requires that pressure be applied on the trigger for the gun to fire (ii) the claim of four big able men having been attacked and mauled by one person who is who is much smaller in height and heft     

8. By showing defects in his observation, or that he has a faulty or selective memory

9. By  showing that this actions or conduct  is inconsistent with his testimony.

Example: A rape victim was shown to have been partying with the alleged rapist after the rape  

10. By engaging the witness in contradictions and discrepancies as to the material facts testified by him.

D. Impeachment of one’s own witness.

1. General Rule: It is not allowed pursuant to section 12. The reason is that a party calling a witness is supposed to vouch for the truthfulness of the witness and of his testimony, which he is assumed to know before hand, and is therefore bound by whatever the witness testifies to in court. A party is not permitted to let the witness be believed as to facts favorable to him, but to impeach him as to facts not favorable.

2. Exceptions: If the witness presented is any of the following:

a). An unwilling witness

b). He turns out to be a hostile witness or a treacherous witness and the party was mislead into calling him as a witness

c). An adverse party witness

E. Impeachment by Prior Inconsistent Statement.

1. The procedure or Laying the Foundations is outlined by section 13. To be effective the steps should follow the following sequence:

a). Recommit: Confront the witness with his prior statements narrating the circumstances of time, place, persons or occasion, or by showing him the prior written statement. Get the witness to affirm he made the statements   

b). Build-Up. Let the witness affirm he made the prior statements freely, knowingly and that he stood by the accuracy and truthfulness of said statements

c). Contrast: Confront the witness by the fact that his prior statement contradicts or deviates or is materially different from his present statement

d). Demand an explanation why he made a different statement from his previous statements 

2. Reason for the Procedure:

a). Fairness to the witness and avoid surprising him, so that he may recollect the facts, and to give him the opportunity to explain the reason, nature, circumstances, or meaning, of his statements. Example: He might have been too emotional then, or was improperly influenced, or wanted to avoid embarrassment, and similar reasons.

b).   To save time if he admits his prior statements

3. Exceptions when there is no need to lay the foundation:

a). In case of statements made by a deceased which contradicts his dying declarations         

b). If the contradictory statements are testified to by another person as an admission

Section 14. Exclusion and separation of witness.

A. Concept: The act of excluding a future witness from the court room at the time another witness is testifying or, of ordering that witnesses be kept separate from one another to prevent them from conversing with one another. 

1. This is upon the court’s own motion or on motion of the adverse party.

2. A disobedient witness may be testify but his (a) testimony may be excluded or (b). his disobedience may be considered to affect his credibility and (c) he maybe punished for contempt of court   

B. Purpose: To ensure the witnesses testify to the truth by preventing them from being influenced by the testimony of others; to prevent connivance or collusion among witnesses 

(Note: the practical purpose of this rule is defeated by the reservations for cross examination or resetting to present another witness, such that the counsel and other witness have the opportunity to go over the testimony of the witnesses).

C. Who may not be excluded.

1. Parties to an action even if they are numerous.

a) In criminal cases, the presence of the accused is indispensable and he may not be excluded.

b). The private offended party should not also be excluded even if he will be a witness. As such he has a right to be present because it is his interest which is involved and also to assure that the proceedings are conducted properly. Besides he is party to the civil aspect of the case.  

2. Expert witnesses as they testify to their opinions based on facts of their own knowledge, or on hypothetical facts

3. Witnesses on rebuttal

4. Character witnesses

5. Spectators unless they behave in a manner which is against the proper decorum of the court or when the evidence to be presented are sensitive

REVIVING THE MEMORY OF WITNESSES

 A. Introduction: A witness may suffer from lapses of memory or loss of recollection as to material facts so that there is a need for him to recollect the facts. The remedy of reviving applies more appropriately to the adverse party conducting a cross-examination rather than to the proponent. The reasons are: (i) because a party presenting a witness is presumed to know what the witness is to testify on and is expected to have prepared him for the direct examination and (ii). matters favorable to the cross-examiner may have been forgotten by the witness.

B. Modes of reviving

1. By asking leading questions

2. By the Process of Association i.e. calling the attention of a person to a material connected with a certain event so it would trigger the brain to associate the material with the event and thereby enable the person to remember the event.

       Examples:

a). Presenting a pictorial representation of  a person, thing, place, object or person

b). Playing the record of a conversation

c). Presenting physical objects such as trinkets, or other “memorabilia”

d). By allowing the witness to refer to a memorandum under section 16     

Section 16. When witness may refer to a memorandum.

A. Two Methods of Revival under Section 16. (These are useful methods to the opposing counsel when conducting his cross examination. The proponent is supposed to have already gone over the testimony of his witness and briefed him hence, resorting to these methods reflect badly on the proponent).

1. Present Recollection Revived: the witness is presented the memorandum or record with the expectation that it will pull a switch in the brain and enable the witness to put aside the memorandum and testify on what he now recalls.

Thus the evidence is not the memorandum or writing but what the testify remembers as now testified  

a). The written record/memorandum was written by him or by someone under his direction ( who wrote it?)

b). It was written at the time the fact/event occurred or immediately thereafter or at any time when the facts was still fresh in his mind ( when was it written?)

c). The record/memorandum is presented to the adverse party who may cross-examine on it, and it may be read into the evidence. 

2. Past Recollection Recorded. The same procedure is followed but the witness is still unable to recollect the event but he can assert that the facts therein narrated are true. The evidence therefore is the writing itself.

3. Examples: (a). Filing clerks who record conversations then forget all about it (b) Diaries (c) Letters

Section 17.  The Rule of Completeness.

A. Concept: When a part of an act, declaration or conversation, writing or record, is given in evidence by one party, the adverse party may : (i) ask or inquire into the whole  or (b) introduce evidence on the remainder, and in case of writing he may have the other portion or even the entire writing be read in evidence.

As a matter of procedure, in case of documents already in court, a party merely underscores only those portions which are material to his case. It is for the opposing party to inquire as to the rest.

The other portions is limited to those which tend to qualify or explain the part first given and which were given at the same time.

B. Examples:

1.  As the issue is the nature of the transaction between the parties, where plaintiff presented his letter, it was proper for defendant to introduce all the other letters which passed between them

2. Where a letter is presented on direct examination, it is proper on cross to ask if there be any reply to  it

3. Where a witness testified to the occurrence of a fight, it is proper to inquire on the antecedents and details thereof, past altercations between those involved or any bad blood between them

4. Where the Prosecution presented only a part of the records of the Preliminary Investigation, the defense may introduce the whole record

C. Need for Precision of Statements:

1. The general rule is that verbal accuracy is not required but the substance or effect of the actual words spoken will be sufficient so that the witness may testify to the substance as best as he can from his recollection

2.  However, in case of oral defamation, there is a need for verbal accuracy

RULE ON EXAMINATION OF CHILD WITNESS

I. INTRODUCTION: The Supreme Court, in an en banc Resolution adopted the so called-Rule on Examination of a Child Witness which became effective on December 15, 2000. The rule applies to child witnesses who are victims of crimes, accused of a crime, and witnesses to a crime.  It shall apply to criminal proceedings and non-criminal proceedings involving child witnesses.

   A. Child Witness- any person who, at the time of giving testimony, is below the age of 18 years. In child abuse cases, a child includes one over 18 years but is found by the court as unable to fully take car of himself or protect himself from abuse, neglect, cruelty, exploitation, or discrimination because of a physical or mental disability or condition.  

SALIENT FEATURES

I. Creates a Presumption of Competency in favor of a child-witness subject to a Competency Test.

A. “Every child is presumed qualified to be a witness. However the court shall conduct  a competency examination o a child moto proprio or on motion of a party, when it finds that substantial doubt exist regarding the ability of the child to perceive, remember, communicate, distinguish truth from falsehood, or appreciate the duty to tell the truth in court”. ( Sec. 6).

B.  A party seeking a competency examination must present proof of necessity of competency examination. The age of a child shall not by itself is not a sufficient basis for a competency examination. 

II. Allows the Court to, motu proprio or on motion, appoint certain persons to help in the testimony of the child-witness:

A. Guardian Ad Litem- a person to protect the best interest of the child whose appointment took into consideration his familiarity with the judicial process, social service programs, and child development. The parent if preferred, if qualified. Has the right to be present in all proceedings, to obtain copies of documents, interview witnesses, make recommendations to the court, and to do all to protect the child.  

B. Interpreter- one, other than the regular court interpreter, whom the child can understands and who understands the child. 

C. Facilitator- one who poses the questions to the child who may be a child psychologist, psychiatrist, social worker, guidance counselor, teacher, religious leader, parent or relative. Counsels shall pose questions only through the facilitator.

D. Support Person- person chosen by the child to accompany him to testify at or attend a judicial proceeding or deposition to provide emotional support to the child     

III. Contains Child Centered Provisions during the actual testimony such as :

A. A separate waiting area furnished to make the child comfortable

B. To create a more comfortable courtroom environment, the court may direct and supervise the location, movement, deportment of all person in the court room;

C. The child may testify from a place other than the witness chair; child is not required  to look at the accused

D. To testify during the time of day that the child is well rested

E. Reasonable periods of relief is allowed as often as is necessary

F. The child is allowed to use testimonial aids, such as dolls, puppets, drawings, mannequins or any other appropriate devise  to assist in the testimony of the child.

G. Child is allowed to have an Emotional Security Item of his own choosing as a blanket, toy, doll.

IV. Manner of Questioning and Objections

     1. Leading Questions are allowed

specially des for Child-Directs

AUTHENTICATIONS AND PROOF OF DOCUMENTS

I. INTRODUCTION. Per section 2 of Rule 130, documents are writings or any material containing letters, words, symbols, numbers, figures, or other modes of written expressions offered as proof of their contents. They are either paper based or other solid surfaced based documents. These are what are referred to by Rule 132.

As to Electronic documents, the manner of their authentication is as provided for by the Electronics Evidence Law.

II. CLASSIFICATION OF DOCUMENTS.

A.. Section 19 provides that for purposes of their presentation in court they are either (i) public or (ii) private

Importance of the classification:

     a) As to the need for authentication: public documents are admissible without further proof of their due execution whereas private documents must be authenticated

     b). As to the persons bound: public documents are evidence even as against third persons as to the fact which gave rise to their execution whereas private documents bind only the parties thereto and their privies

     c) As to the validity of certain transactions: certain transactions are required by law to be public documents in order to be valid and/or enforceable. E.g.: the law on donations of real properties, Statute of Frauds

     B. Classification into Domestic and Foreign Public Documents

      The following are public domestic documents:

a). Written Official acts of sovereign authority, official bodies, tribunals and public officers: such as decisions or courts or quasi-judicial bodies, legislative enactments, executive orders, directive from superior officers or memoranda, written appointments, warrants issued by court, subpoenae, ship’s log book

b). Record of the official acts of said bodies or officers: e.g: the marriage contract embodies the act of solemnizing a marriage; records of birth and death; written oaths; returns and reports, congressional records of the deliberations in congress

c). Acknowledged documents such as contracts and conveyances

d). Public record (i) kept in the Philippines of private writings (ii) or required by law to be kept therein. Example of the first would be documents affecting registered lands which are submitted to the Register of Deeds, Assessors Office, Letters of  acknowledgement submitted to the Local Civil Registrar. Example of the second: Personal Bio Data or Information Sheets submitted to form part of the 201 File of government officials   

III. AUTHENTICATION.

A. Concept: As to documents, it is the process of proving that the document presented in court is not spurious, falsified, or questionable, or that it is not a different document. As to objects, it is the process of proving that the object presented in court is the very object involved in the case without any alteration or substitution.

B. Rule as to private documents: Section 20 provides that in order for a private document to be admissible, it is necessary to prove the “ due execution and authenticity of the document” in that it  is not spurious, counterfeit or a different document. This is because private documents are not self-authenticating.

IV. How to prove a private document is authentic or genuine

A.. By direct evidence consisting of the testimony of witness such as (i) the parties to the document (ii) by an attesting /subscribing witness (iii) by a person who was present and saw its execution and (iv) by the person before whom it was executed and acknowledged

B. By proof or evidence of the genuiness  of the handwriting or signature of the maker or of the parties thereto. It may be by any of the following:

1. Direct evidence consisting of the testimony of the maker or party affirming his own handwriting or signature

2. By the testimony of the attesting/subscribing witnesses or of witnesses to the execution thereof

3. By the use of “Opinion Evidence” pursuant to the Section 22 of Rule 131 such as (a) by one who has obtained sufficient familiarity (b) by an expert (c) based on a comparison with a genuine handwriting

4. By the contents of the document

5. By the style of writing

V. When Authentication Not Necessary

A. In case of ancient documents: referring to private document which are more than 30 years old, produced from a custody in which it would naturally be found in genuine and unblemished by nay alteration or circumstance of suspicion

 1. The reason is the possible unavailability of witness due to the passage of time. Age is to be reckoned from the execution to the date it is offered

2. Requirements for “Ancient Documents”

(a) Proof of age: to be counted backwards from the time of offer to its date of execution

(b) Proof that  on its face it is free from any circumstance of suspicion, as when it bears signatures which are not counter-signed, deletions, insertions, a missing page, a page which is new or recent, use of different inks, or it bears different handwritings, or suspicious tears

© Proof of proper custody: this removes the suspicion of fraud and suggest the document is genuine. Proper custodian/depository includes one who is entitled to the possession such as a party and his successors in interest, privies or agents; as well as one who is connected to the document that he may reasonably be inferred to be in [possession thereof, such as a common witness.

B. When the due execution and genuiness has been admitted either expressly or by provision of law, as in failure to deny under oath

C. When the due execution and authentication is immaterial , as in documents which arte used as annexes or attachments

D. When the document need only to be identified

E. In case of public documents

V. PROBATIVE VALUE AND PRESENTATION OF PUBLIC DOCUMENTS

A. Requirement of authentication does not apply because of (a) necessity in that it is difficult and inconvenient to require the attendance of the public officer to appear in court  (b) trustworthiness of the documents

B. Probative Value Under Section 23.

1.  Written Official Acts are conclusive because it is the act which is recorded

2. Documents consisting of entries in public records made in the performance of a duty by a public officer are prima facie evidence of the facts stated therein

        This does not include those made in excess of official duty and they are limited to those facts which the public.     

(i) Entries in the Records of Birth, Marriage, or Death of a person, as entered by the Local Civil Registrar

(ii) Data in the Police Blotter

(iii) Return of Search Warrants

(iv). Entries in the time record 

(v) Entries in the Community Tax Certificate or Tax Declaration of Property   

(vi) The terms, conditions or consideration in a contract  

3. The recitals in a public instrument, executed with all the legal formalities are evidence against the parties thereto and their successors in interest, and a high degree of proof is necessary to overcome the presumption that such recitals are true. 

4. In order to overcome the documentary evidence, the oral testimony must be “clear, strong and convincing”     

c)  All other public documents are evidence of the act which gave rise to their execution and date of execution. They are proof why they were executed and the date thereof.

5. Examples: Certifications issued by a public officer. Recommendations and endorsements by a public official.

C. How to Prove a Public Document (Section 24)

1. In case of written official acts or records of official act  of public or sovereign bodies 

(i). By presenting the Official Publication thereof

(ii) By presenting a certified true copy i.e. attested by the proper custodian and bearing the certification by him, his signature, and the seal of his office.  A certified copy is allowed by reason of the principle of Irremovability of Public records under Section 26.

Example: Laws of national application are proved by a certified copy thereof or a copy appearing in the official publication. In case of publication other than the Official Gazette, the copy must be accompanied by the Certificate of the Publication by the publisher 

2.  As to written foreign public documents

(i) By  an Official Publication thereof

(ii) By a Copy  attested by the official custodian and accompanied by a certificate by the proper officer of the Philippine foreign service stationed in the country where such foreign document is kept

Thus a Special Power of Attorney executed abroad, must be bear the “Red Ribbon” coming from the Phil. Embassy or Consul 

QUESTION: How is a foreign law proven in the Philippines?

Ans. If it is written it is proved by: (i) the Official Publication thereof (ii) An official copy issued by the custodian (iii) certified true copy accompanied by the certification of the Phil. Foreign official and (iii) By the testimony of an expert   .

D). In case of the public record of a private writing

(i) By the original record i.e. the very private document kept in official custody

(ii) By a copy duly certified by the custodian

d). Summary of Rules in presenting proof of the existence and contents of documentary evidence

(i) The Original of public record can not be presented by reason of the Rule on the Irremovability of  Public Records under section 26. Hence secondary evidence is allowed which consist either of the Official Publication, if so published, or a certified true copy thereof, unless if is extremely necessary that the original of the public record be produced in court,  but only upon lawful order of the court.

(ii).If the documents be in a non-official language, i.e not in English or Pilipino, it must be accompanied by a translation in either r said language

(iii). In case of notarized documents . the acknowledgment suffices to authenticate the document and there is no need to present the notary public 

(iv). Private documents need not be sealed

(v). If the documents contain alterations, the party offering the document must explain the alteration was: made by another without his concurrence; as consented by all the parties, was innocently made, or that it does not change the meaning, or any other valid reason. Said explanation must be made a the time of the presentation of the document.

(vi) If the document presented consist of judicial record, such as decisions or orders, they are conclusive and the only grounds to impeach said records are (a) want of jurisdiction of the court which issue them (b) there was collusion between the court and the prevailing party and (c) extrinsic fraud was practiced by the winning party

e). If what is sought to be proven is the lack of records in a certain public office, there must be a certificate to that effect   

Examples: 1. Certifications from the National Statistics Office that no marriage ever took place between two people; or (2) from the POEA in illegal recruitment cases and the (3) FEU in prosecutions for illegal possession of firearms.

NEED FOR FORMAL OFFER:

The purpose for which evidence is offered must be specified because such evidence maybe admissible for several purposes under the doctrine of multiple admissibility, or may be admissible for one purpose and not for another, otherwise the adverse party cannot interpose the proper objection ( Uniwide  vs. Titan-Ikeda 511 SCA 335)

• Malicious Prosecution and Damages
• Yao Kee vs. Sy Gonzales 167 scra 736
• IS DNA TESTING COVERED BY THE RIGHT AGAINST SELF- INCRIMINATION?
• RIGHTS OF THE ACCUSED IN THE MATTER OF TESTIFYING OR PRODUCING EVIDENCE?
• WHAT IS EVIDENT PROOF AND PRESUMPTION GREAT?
• Burden Of Proof In Bail Application
• Offenses Not Bailable
• Bail As A Matter Of Discretion
• FILE A MOTION TO QUASH BASED ON INSUFFICIENCY OF EVIDENCE?
• RIGHT TO CONFRONT AND CROSS- EXAMINE HIS WITNESSES DURING PRELIMINARY INVESTIGATION?

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What Are the Rules of Evidence?

In the complex world of legal proceedings, the rules of evidence play a crucial role in determining the outcome of a case. The federal rules of evidence can be challenging to wrap your mind around, but understanding these rules is fundamental for anyone involved in the legal process. The following article explores the intricacies of evidence rules, their limitations, and how they have evolved over time.  By simply understanding several select rules, you can gain deeper insight into the strength of your case.

Introduction Of Evidence: Why Evidence Rules Are Important To Understand

The rules of evidence are an essential part of any legal claim whether it involves a claim of breach of contract or  legal malpractice . Understanding how evidence works can help you understand the strength of your legal claim and what could bolster its chance of success.

For example: 

• Some evidence is considered admissible, while other evidence is inadmissible in a court of law.
• Some inadmissible evidence may be admissible in the case of specific exceptions.
• Some evidence carries greater weight in a lawsuit.

Understanding the federal rules of evidence can help you focus on the critical aspects of your legal case.

The Federal Rules of Evidence, which took effect on July 1, 1973, are a set of guidelines designed to regulate the admissibility of evidence in court proceedings, both civil and criminal. These rules aim to make the interrogation and presentation of evidence effective for determining the truth, prevent unnecessary expenditure of time, and protect witnesses from harassment or undue embarrassment.

The Federal Rules of Evidence apply to actions, cases, and proceedings brought after their enactment, and can also be applied to pending cases where it would not cause injustice.

Personal or Family History

Personal or family history can play a crucial role in establishing matters of personal or family history, such as birth, marriage, divorce, and death. It can also be utilized to verify identity or ownership of property.

To testify about personal or family history, a witness must possess personal knowledge of the matter. This rule is subject to  18.703 . This provision covers opinion testimony by expert witnesses.

Present Sense Impression

Present sense impression is an exception to the hearsay rule, allowing the admission of a statement that describes or explains an event or condition made while or shortly after the declarant witnessed it. This exception is significant in court cases as it provides reliable evidence of an event as it was experienced at the time it occurred.

It is a valuable tool for lawyers and judges to use in order to determine the truth of the case. 

Witness Testimony and Prior Statements

Witness testimony and prior statements are of paramount importance in legal cases, as they can provide evidence that can corroborate or contradict other evidence, establish facts, and aid in assessing the credibility of witnesses.

Extrinsic evidence of a prior inconsistent statement by a witness cannot be taken into consideration unless the witness is given the chance to explain or deny it. The opposing party should also be allowed to ask questions on the matter. However, in certain circumstances, justice may require otherwise.

Prior Inconsistent Statement

A prior inconsistent statement is a statement made by a witness that is not in agreement with a witness’s prior statement made by the same witness at a different time or in a different location. Such statements may be employed to cast doubt on the reliability of a witness and may be accepted as substantive evidence provided that certain criteria are fulfilled.

These criteria encompass that the statement must be pertinent, material, and reliable.

Diligent Search Failed

A “diligent search failed” is a certification or testimony attesting to the fact that a thorough search was conducted and the record or entry was not located. This can be utilized as evidence in the form of a certification or testimony that a comprehensive search was conducted and the record or entry was not located.

It is important to note that a “diligent search failed” is not a “diligent search failed”.

What Are The Rules Of Evidence? 

There are  68 federal rules of evidence  structured under 11 articles. It would take numerous posts to sufficiently cover all the laws of evidence in detail, but not every evidentiary rule is as crucial for you to understand initially. 

Some of the more critical rules of evidence can be broken down into the following categories:

• Real evidence
• Demonstrative evidence
• Documentary evidence
• Testimonial evidence
• The hearsay statement exception for admissibility

Understanding these three categories of evidence can help you gauge the strength of your case.

Evidence With Substantive Admissibility

In trials, there are two main types of evidence: substantive and demonstrative. Demonstrative evidence is not directly relevant, while substantive evidence is. Substantive evidence supports an issue of fact rather than procedural or collateral issues. Substantive evidence helps to prove the necessary elements of a case directly. 

Some examples of substantive evidence could include:

• Corporate reports 
• Accounting records
• Security footage
• Bank statements

While substantive evidence is generally more valuable, sometimes, demonstrative evidence is just as necessary in a case. Not all evidence is weighted equally. 

Four types of evidence to understand are:

• Real evidence: tangible items
• Demonstrative evidence: models
• Documentary evidence: written models
• Testimonial evidence: verbal statements

The evidence your side puts forward in court should support your most powerful arguments. A focused approach that centers on your main assertions is more effective than slinging various sweeping allegations. If your evidence is sufficiently strong, your case may be settled before entering a courtroom — particularly if you have what amounts to prima facie evidence.

Real Evidence: Tangible Items

Real evidence is another term for substantive evidence. It consists of real, tangible, physical items that may be used to prove or disprove a case. Real, tangible evidence is directly relevant to your case. The court can examine this evidence and come to a conclusion about a fact under consideration.

To be admissible at trial, real evidence must be:

• Material, meaning it tangibly proves a disputed fact
• Relevant, meaning it has a reasonable likelihood of helping to prove or disprove an issue of fact
• Competent, meaning it is traditionally accepted as reliable evidence

Real evidence is generally given more weight than other evidence.

Demonstrative: Models

As the name implies, demonstrative models offer a demonstration of the evidence. It is used to explain, clarify, and offer a visual representation. Demonstrative evidence is often used to illustrate a witness's testimony. Demonstrative models may include:

• Charts that depict financial injury
• Handwriting samples
• Maps and diagrams of a crime scene
• Forensic animations

Demonstrative evidence should fairly and accurately reflect the witness's testimony and support the facts the party is trying to prove. Demonstrative evidence can help enhance witness testimony. Jurors may better understand the witness's statement when they encounter a corresponding demonstrative model.

Documentary: Written Models

Documentary evidence takes the form of a recorded document. This written evidence is used to prove or disprove an allegation. Documentary evidence must typically be genuine, relevant, and original to be admissible — counsel often agree to use copies of relevant documents. 

Documentary evidence may include witnessed and written agreements, recorded events, and communications. Examples of documentary evidence may include:

• Shareholder agreements
• Employment contracts
• Memoranda reports
• Communications, like emails and letters
• Resumes 
• Records, including public records, medical records, judicial records, and other official records

Courts and juries may weigh documentary evidence more heavily than testimonial evidence offered by witnesses.

Testimonial: Verbal Statements

Testimonial evidence takes the form of verbal statements. These are most often seen as sworn witness testimonies. These testimonies may come from expert witnesses or eyewitnesses to a fact in question. The witness swears under oath and delivers their testimony to the court.

Testimony may involve the witness's opinion on a matter at issue. However, their opinion is only admissible if it has a proper foundation:

• The witness's opinion is reasonably based on their perception, and 
• The witness's opinion is helpful in understanding the facts of the case or the witness's testimony

Additionally, a witness's opinion may be admissible if:

• The witness is classified as an expert witness who has specialized knowledge of the evidence presented at the trial

Examples of testimonial evidence include:

• Statement of identification
• Expert opinion evidence
• Statement of declarant

The Hearsay Statement Exception For Admissibility

One law of evidence,  Rule 803 , is titled Exceptions to the Rule Against Hearsay, and it governs the admissibility of declarations. Hearsay evidence is a statement made out of court that is admitted to prove the truth of the matter asserted.

This means that hearsay is:

• A  statement  that was spoken or written, like an email, and 
• Spoken or created  out of court , "in the real world," and
• Admitted  or presented to the court, and which
• Proves the truth of the matter asserted , meaning it is presented to prove a fact contained within the statement

An example of when a statement is admissible or inadmissible hearsay follows:

Alan saw someone commit bank fraud. Later, Alan tells Bob that the person he saw was Cheryl. 

• Bob offers Alan's statement up in court ⇢  Inadmissible hearsay.  
• Alan gives the same statement to police in a witness statement that is offered as evidence in court by the prosecution ⇢  The witness statement is inadmissible hearsay.
• Alan swears an oath in court and gives oral testimony that he saw Cheryl commit bank fraud ⇢  Admissable, not hearsay.

The general rule is that hearsay is not admissible. However, there are more than 20 exceptions to the Hearsay Rule, including:

• Present sense impression
• Excited utterance
• Existing mental, emotional, or physical conditions, which excludes a statement of memory and a statement of intent
• Statements for purposes of medical diagnosis or treatment
• An admission against interest

Further there are other situations where  a statement may appear to be hearsay, but is not, for example, if it is not offered for its truth. As you can see the rules of evidence can be confusing to a non-lawyer.  Speaking with an attorney who specializes in evidentiary rules may be advisable. It is important to understand if the evidence you believe is important to your case is admissible. 

Hearsay Exceptions and Other Law Enforcement Personnel

Hearsay exceptions are of great importance as they enable certain out-of-court statements to be accepted as evidence in court, which can be beneficial in cases where the original speaker is not present or cannot be located. Various hearsay exceptions applicable to law enforcement personnel include the public records exception, the business records exception, the present sense impression exception, the excited utterance exception, and the dying declaration exception.

Hearsay exceptions can have a considerable influence on court cases, as they enable certain out-of-court declarations to be accepted as proof, which can be advantageous in cases where the initial speaker is inaccessible or cannot be found.

Supreme Court Rulings

The Supreme Court rulings are of great importance as they are able to set precedents and establish guidelines for the utilization of evidence in legal proceedings, and their decisions can modify the interpretation of laws or declare them unconstitutional.

Qualified Witness

A qualified witness is one who possesses the requisite mental acuity to perceive, remember, and relate the incident they have witnessed. A qualified witness is of great importance in providing reliable and trustworthy testimony in court, and they may possess specialized knowledge or expertise that is pertinent to the case.

The criteria for a competent witness include possessing the requisite mental capacity to perceive, remember, and narrate the incident they have observed.

Navigating the Evidence Process: Tips and Strategies

Navigating the evidence process can be a complex and daunting task, but with the right approach and understanding of the rules, it can be made more manageable. First, it is crucial to ensure that all evidence is accurately documented and photographed, as this will guarantee its acceptability in court.

Second, guaranteeing the secure handling of the evidence is essential to prevent tampering or destruction. This necessitates that the evidence is stored in a secure location, correctly labeled and tracked, and not accessible to unauthorized persons.

When assessing the eligibility of electronic evidence, it is imperative to evaluate the veracity of the evidence, the dependability of the source, and the pertinence of the evidence to the case.

Speak With A Professional In Evidence Law

If you are gathering evidence for use in an upcoming legal claim, speaking with a highly knowledgeable evidence attorney may help improve the outcome of your case.  Contact King & Jones's  evidence legal team to arrange your consultation and get your questions answered.

judicial notice

Primary tabs.

Judicial notice is a method used by a court when it declares a fact presented as evidence as true without a formal presentation of evidence. A court can take judicial notice of indisputable facts, usually for purposes of convenience. If a court takes judicial notice of an indisputable fact in a civil case , the fact is considered conclusive. Judicial notice can be granted upon request by a party to the case or may be sua sponte , where the court takes notice of the fact on its own volition. Judicial notice is also known as judicial cognizance or judicial knowledge.

In federal courts , the application of judicial notice is governed by the Federal Rule of Evidence 201 , which reads:

Rule 201. Judicial Notice of Adjudicative Facts 

• This rule governs judicial notice of an adjudicative fact only, not a legislative fact.

Kinds of Facts That May Be Judicially Noticed.  

• is generally known within the trial court’s territorial jurisdiction ; or
• can be accurately and readily determined from sources whose accuracy cannot reasonably be questioned.

Taking Notice.  

• may take judicial notice on its own; or
• must take judicial notice if a party requests it and the court is supplied with the necessary information.
• The court may take judicial notice at any stage of the proceeding .

Opportunity to Be Heard.  

• On timely request, a party is entitled to be heard on the propriety of taking judicial notice and the nature of the fact to be noticed.
• If the court takes judicial notice before notifying a party, the party, on request, is still entitled to be heard.

Instructing the Jury.  

• In a civil case, the court must instruct the jury to accept the noticed fact as conclusive.
• In a criminal case , the court must instruct the jury that it may or may not accept the noticed fact as conclusive.

[Last updated in June of 2023 by the Wex Definitions Team ]

• THE LEGAL PROCESS
• legal practice/ethics
• courts and procedure
• legal education and practice
• wex definitions

Preservation of Evidence: Methods and Best Practices You Should Adopt in 2023

In our adversarial justice system, litigants rely on evidence to explain their side of a dispute. Today, much of that evidence is digital. If an organization allows digital evidence to be compromised, lost, or destroyed, it may not be able to prove its case—and may even face sanctions or prosecution for spoliation of evidence.

According to the American Bar Association ’s 2022 Legal Technology Survey Report, litigation teams cite full-text search, document review, and redaction as some of the most useful features of eDiscovery technology. But none of those tasks are possible if evidence hasn’t been preserved in the first place. Fortunately, legal technology can also assist with the preservation of evidence.

In this post, we’ll define preservation of evidence and explain the basics of who is responsible for preserving evidence and how the process works. We’ll also outline the most common challenges of preservation and set out a few best practices for preserving digital evidence. Finally, we’ll look at in-place data preservation, explain how it differs from traditional preservation, and introduce technology that makes it possible.

What is preservation of evidence?

What is a preservation of evidence letter?

Who is responsible for preservation of evidence?

The process of evidence preservation for use in discovery.

The most common challenges of preservation

3 best practices to efficiently preserve digital evidence 

What is in-place preservation (IPP)?          

Efficiently preserve data in place by leveraging Live EDA         

What is preservation of evidence        .

Preservation of evidence is the process of saving information that may be relevant to a potential or ongoing lawsuit so that it cannot be altered, lost, or destroyed. In other words, evidence preservation is the active avoidance of spoliation .   

Federal Rule of Civil Procedure (FRCP) 37(e) memorializes the common law rule that a party must take reasonable steps to preserve electronically stored information (ESI) for use in litigation. If a party fails to preserve evidence, the court can take measures to cure any prejudice to the opposing party. If the court finds that the offending party acted deliberately, it can impose spoliation sanctions by:

·       presuming or instructing the jury to presume that the missing information would have been unfavorable to the party that lost possession of it,

·       dismissing the action, or

·       entering a default judgment against the party that caused the spoliation.

A request to preserve all evidence relevant to an anticipated or ongoing legal matter is known as a legal hold or litigation hold. A legal hold supersedes and temporarily suspends an organization’s typical retention policies.

So, how does a corporate legal team communicate the existence of a legal hold to others within its organization? That’s where preservation of evidence letters come in.

What is a preservation of evidence letter?             

A preservation of evidence letter, also known as a legal hold notice or preservation notice, is a written communication that asks recipients to preserve information that may be relevant to an anticipated or pending legal matter. It may be circulated internally within an organization to ensure that it properly preserves its own evidence or sent by a party to its opponent to ensure that the opponent knows what information must be preserved.

Parties, any government agencies or organizations typically issue a preservation of evidence letter at the outset of litigation, though it may send a letter earlier if it learns of an event that may later lead to litigation. A preservation of evidence letter usually contains:

·       a formal demand to preserve evidence;

·       the date, time, location, and description of the underlying incident;

·       a warning that failure to take other tangible evidence preservation steps may result in court sanctions;

·       a request for the recipient to confirm receipt of the letter; and

·       information about who to contact with questions.

The purpose of a preservation of evidence letter is to notify the recipients of a legal hold and prevent the spoliation or destruction of evidence. And spoliation can occur at all levels of an organization, so the duty to preserve evidence may be further-reaching than you would think.

Broadly speaking, a plaintiff or defendant in a lawsuit or an organization that can reasonably foresee its involvement in future litigation is responsible for preserving evidence. This duty extends to employees throughout the organization.

However, the responsibility to take affirmative steps to preserve evidence generally falls to those custodians of record and data stewards that organizations appoint to safeguard and manage data. IT departments may also be responsible for assisting with preservation efforts.

For example, if a company learns that a defect in one of its products has caused a consumer to be seriously injured, the company might reasonably anticipate that litigation will ensue. Therefore, the company must place a legal hold on all business records related to the design, manufacturing, testing, marketing, and sale of the product. The custodians, stewards, and employees who work in each of the departments that perform those activities—such as finance, marketing, and sales—are then responsible for preserving the information that they have that is relevant to the incident until the hold is lifted.

Let’s take a closer look at how the preservation of evidence process unfolds.

Preserving evidence can quickly become a monumental task, especially when an organization stores large volumes of data that numerous people regularly access and manage. A corporate legal team must follow a specific protocol to sufficiently protect data from spoliation and avoid the loss of data that may hurt the organization’s case at trial or incur court sanctions.

The process of preserving evidence includes the following steps:

1.     Triggering event: An organization’s legal team learns of an event that could lead to litigation, receives a preservation letter, prepares to file a complaint, or discovers that the organization has been named in a lawsuit.

2.     Analysis: The legal team works with data custodians, data stewards, and IT staff to determine what information is important to the investigation or litigation and who is responsible for handling the data that contains that information.

3.     Legal hold notice: The legal team drafts a preservation of evidence letter and sends it to each responsible party.

4.     Acknowledgment: The responsible parties acknowledge that they have received the preservation of evidence letter and the legal team reaches out to any responsible parties who have not confirmed their receipt of the letter.

5.     Preservation: The recipients take reasonable steps to preserve the data.

6.     Reminders: The legal team periodically reminds responsible parties that the legal hold is still in effect until the matter is resolved or the statute of limitations to file a complaint has passed.

7.     Release of legal hold: The legal team notifies the responsible parties once the legal matter is resolved, releasing the legal hold and allowing the organization’s regular retention policies to resume.

While the process is easy to understand in the abstract, it can present numerous difficulties in practice.

The most common challenges of preservation                 

Legal teams have their work cut out for them when it comes to preserving digital evidence in today’s corporate environment.

Organizations are storing increasingly large volumes of data, and legal teams can no longer identify all relevant information by simply searching file folders or physical hard drives. As of 2022, over 60% of corporate data was stored in the cloud —but that data isn’t all in one place. Instead, most organizations now store data across multiple cloud-based as well as onsite repositories, which makes it hard to identify relevant information using traditional means.

With data dispersed across so many locations, it can be difficult to identify the right custodians and hold them accountable. Issuing preservation of evidence letters, tracking who has responded to such letters, and providing reminders and updates can be tedious, especially for legal teams who still manage that process manually.

As if the volume and dispersion nature of data weren’t enough to contend with, much of that data is of different types and formats—including email threads, Slack channels, online project notes, photos, and videos. These types of data sets can be harder to search than basic documents and often must be preserved in their native formats to satisfy eDiscovery requirements.

How can corporate legal teams streamline the preservation process in the face of these challenges?

3 best practices to efficiently preserve digital evidence

The best way to preserve digital evidence depends on the organization and situation. But generally speaking, the following best practices can help corporate legal teams improve their preservation workflows.

1.     Automate as many steps as possible.

It’s no longer necessary to manually execute each step of the legal hold process to ensure accuracy. Modern technology can help legal teams locate relevant information, identify custodians, and instantly issue and monitor legal holds. By automating each of these steps, legal teams can save time on preservation and focus their efforts on other important tasks, reducing their organizations’ overall reliance on outside counsel.

2.     Don’t go overboard.

FRCP 37(e) requires only that parties take reasonable steps to preserve ESI, not that they take every step imaginable. Legal teams must resist the temptation to go above and beyond and control the scope of each discovery matter. If they keep track of each step they take and their justification for it, they can confidently defend their choices if necessary.

3.     Try a new approach

New developments happen in law and the eDiscovery world all the time. Stay current on what’s happening in legal technology and don’t be afraid to try something different. For example, in-place data preservation or in-place preservation (IPP) is a novel approach that helps prevent spoliation while keeping organizations’ business interests in mind.

What is in-place preservation (IPP)?               

Generally speaking, IPP is the process of preserving data in the location where it originated or where the organization uses it, as opposed to collecting it in an archive or other location. In the legal hold context, the goal of IPP is to automatically secure data to prevent its alteration or deletion without disrupting business, relying on employees to follow legal hold instructions, or incurring the expenses of collection and separate data storage.

Whereas traditional preservation often bleeds into collection, requiring the physical or digital relocation of applicable evidence to a new location for its protection, IPP focuses on locking down data across multiple data sources at once without collecting it. For example, preserving email and messaging data within apps such as Microsoft Outlook and Teams allows organizations to rapidly safeguard potentially discoverable data.

How IPP improves eDiscovery workflows

IPP optimizes corporate legal teams’ eDiscovery workflows by streamlining the way organizations preserve data. IPP is beneficial because it:

·       prevents inadvertent and intentional spoliation by swiftly securing data from a remote source, making it particularly advantageous where a litigation matter may tempt an employee to tamper with evidence;

·       sidesteps storage costs by protecting data where it lives instead of housing it separately; and

·       allows organizations to continue with their daily operations uninterrupted, which is especially helpful where employees need daily access to platforms in which relevant information is stored.

Legal teams can realize all of these benefits and more by investing in technology that enables IPP.

With the recent explosion of digital evidence, technology is essential to improving eDiscovery workflows and effectively preserving evidence. By investing in the right tools, organizations can save time and money and avoid the headaches associated with spoliation of evidence.

[ View source .]

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• The Importance of Digital Evidence Presentation Systems

by ron | Nov 2, 2021 | Blog

The Scales of Justice have been used to symbolize truth and fairness in the justice system for centuries. This dates back all the way to Rome when they first began, with a reminder that everyone deserves their day in court – and that truth, fairness, equality should be given to all peoples, even if you are an accused criminal or someone being persecuted for their beliefs. Over the years in courtrooms, evidence has always been given. But year after year there is more to presenting that information than just giving it – today’s lawyers need tools for creating impact on jurors with their presentations whether they are sitting right next door or across state lines!

Digital presentation systems can help make sure all parties receive what needs seeing without missing anything important through remote access at any point during your case proceedings (even while you’re still deciding how best to approach things). You’ll never again have trouble looking over someone else’s shoulder when showing them something; now everything will stay focused solely where it should be: On Your Defense!

“93% of all information never leaves the digital domain. This means that the majority of information is being created, modified and consumed entirely in digital form.”

Forensic Focus

1. What is a Digital Evidence Presentation System (DEPS)?

Generally, a DEPS is made up of an evidence table, an overhead camera, lighting, a touch screen display, built-in speakers and multiple audio/video outputs and maybe connected to a DVD/CD Player, Computer, and LCD Screen.

2. How does it work and what are its features?

DEPS is comprised of an evidence table; overhead camera with lighting for low light situations; touch screen display which connects with multiple outputs including built in speakers or connection directly into other systems like the Judges screen for previewing, etc .

Attorneys can present evidence either by inserting the item and/or image under the document camera or by sending the electronic data points to the Judge for review before distribution. Data is collected from a variety of sources, such as cell phones, paper documents, physical items used at the scene of the incident/crime, etc…. No matter what the type of evidence it can be incorporated into the DEPS process so that all parties whether in person or remote can have access to view it.

3. What are some of the most common types of digital evidence used in courtrooms today?

According to Yuri Gubanov, with Forensic Focus, “A recent  research conducted by Berkeley scientists  concluded that up to 93% of all information never leaves the digital domain. This means that the majority of information is being created, modified and consumed entirely in digital form. Most spreadsheets and databases never make it on paper, and most digital snapshots never get printed. There are many activities such as chats and social networking that are specific to digital and are even unimaginable outside of the virtual realm.”

If this is true, and a large majority, if not all evidence is digital, how do we consume this properly? What are the most common types of digital evidence out there for review? Here is a starting list:

• Address books and contact lists
• Audio files and voice recordings
• Backups to various programs, including backups to mobile devices
• Bookmarks and favorites
• Browser history
• Compressed archives (ZIP, RAR, etc.) including encrypted archives
• Configuration and .ini files (may contain account information, last access dates etc.)
• Email messages, attachments and email databases
• Hidden and system files
• Organizer items
• Page files, hibernation files and printer spooler files
• Pictures, images, digital photos
• Virtual machines
• System files
• Temporary files

4. What are the costs associated with using DEPS?

The costs vary depending on the amount of courtrooms you need to deploy these in, complexity of wiring and install in each room as well as age. While there’s many similarities across all manufacturers’ devices they all do have their own spin so it’s important for trial attorneys or judges who want high performing equipment without paying too much money upfront do detailed research prior to purchase. DEPS is crucial to your courtroom environment and to allow all parties a chance at justice.

Training & Support

As any new technology deployment goes ongoing support for the judicial staff is crucial in ensuring that they know how to use the system properly. The goal of updated technology is to streamline the court proceeding and to ensure justice for all. Training should be provided, by the DEPS vendor, for the regular courtroom users, district attorney, public defenders, and even the local bar. For those that are not attorneys training can be provided by simply having a laminated cheat sheet next to the document camera on how to use the system.

In Conclusion

As the justice system becomes more digitized, so too does the evidence. Digital Evidence Presentation (DEPS) is a crucial part of any legal case involving digital content. We would love to hear your thoughts on DEPS and how it has impacted you or someone close to you in court! Comment below with your experience with this new technology that’s changing our world for better or worse. What are YOUR thoughts on DEPS?

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What this handout is about

This handout will provide a broad overview of gathering and using evidence. It will help you decide what counts as evidence, put evidence to work in your writing, and determine whether you have enough evidence. It will also offer links to additional resources.

Introduction

Many papers that you write in college will require you to make an argument ; this means that you must take a position on the subject you are discussing and support that position with evidence. It’s important that you use the right kind of evidence, that you use it effectively, and that you have an appropriate amount of it. If, for example, your philosophy professor didn’t like it that you used a survey of public opinion as your primary evidence in your ethics paper, you need to find out more about what philosophers count as good evidence. If your instructor has told you that you need more analysis, suggested that you’re “just listing” points or giving a “laundry list,” or asked you how certain points are related to your argument, it may mean that you can do more to fully incorporate your evidence into your argument. Comments like “for example?,” “proof?,” “go deeper,” or “expand” in the margins of your graded paper suggest that you may need more evidence. Let’s take a look at each of these issues—understanding what counts as evidence, using evidence in your argument, and deciding whether you need more evidence.

What counts as evidence?

Before you begin gathering information for possible use as evidence in your argument, you need to be sure that you understand the purpose of your assignment. If you are working on a project for a class, look carefully at the assignment prompt. It may give you clues about what sorts of evidence you will need. Does the instructor mention any particular books you should use in writing your paper or the names of any authors who have written about your topic? How long should your paper be (longer works may require more, or more varied, evidence)? What themes or topics come up in the text of the prompt? Our handout on understanding writing assignments can help you interpret your assignment. It’s also a good idea to think over what has been said about the assignment in class and to talk with your instructor if you need clarification or guidance.

What matters to instructors?

Instructors in different academic fields expect different kinds of arguments and evidence—your chemistry paper might include graphs, charts, statistics, and other quantitative data as evidence, whereas your English paper might include passages from a novel, examples of recurring symbols, or discussions of characterization in the novel. Consider what kinds of sources and evidence you have seen in course readings and lectures. You may wish to see whether the Writing Center has a handout regarding the specific academic field you’re working in—for example, literature , sociology , or history .

What are primary and secondary sources?

A note on terminology: many researchers distinguish between primary and secondary sources of evidence (in this case, “primary” means “first” or “original,” not “most important”). Primary sources include original documents, photographs, interviews, and so forth. Secondary sources present information that has already been processed or interpreted by someone else. For example, if you are writing a paper about the movie “The Matrix,” the movie itself, an interview with the director, and production photos could serve as primary sources of evidence. A movie review from a magazine or a collection of essays about the film would be secondary sources. Depending on the context, the same item could be either a primary or a secondary source: if I am writing about people’s relationships with animals, a collection of stories about animals might be a secondary source; if I am writing about how editors gather diverse stories into collections, the same book might now function as a primary source.

Where can I find evidence?

Here are some examples of sources of information and tips about how to use them in gathering evidence. Ask your instructor if you aren’t sure whether a certain source would be appropriate for your paper.

Print and electronic sources

Books, journals, websites, newspapers, magazines, and documentary films are some of the most common sources of evidence for academic writing. Our handout on evaluating print sources will help you choose your print sources wisely, and the library has a tutorial on evaluating both print sources and websites. A librarian can help you find sources that are appropriate for the type of assignment you are completing. Just visit the reference desk at Davis or the Undergraduate Library or chat with a librarian online (the library’s IM screen name is undergradref).

Observation

Sometimes you can directly observe the thing you are interested in, by watching, listening to, touching, tasting, or smelling it. For example, if you were asked to write about Mozart’s music, you could listen to it; if your topic was how businesses attract traffic, you might go and look at window displays at the mall.

An interview is a good way to collect information that you can’t find through any other type of research. An interview can provide an expert’s opinion, biographical or first-hand experiences, and suggestions for further research.

Surveys allow you to find out some of what a group of people thinks about a topic. Designing an effective survey and interpreting the data you get can be challenging, so it’s a good idea to check with your instructor before creating or administering a survey.

Experiments

Experimental data serve as the primary form of scientific evidence. For scientific experiments, you should follow the specific guidelines of the discipline you are studying. For writing in other fields, more informal experiments might be acceptable as evidence. For example, if you want to prove that food choices in a cafeteria are affected by gender norms, you might ask classmates to undermine those norms on purpose and observe how others react. What would happen if a football player were eating dinner with his teammates and he brought a small salad and diet drink to the table, all the while murmuring about his waistline and wondering how many fat grams the salad dressing contained?

Personal experience

Using your own experiences can be a powerful way to appeal to your readers. You should, however, use personal experience only when it is appropriate to your topic, your writing goals, and your audience. Personal experience should not be your only form of evidence in most papers, and some disciplines frown on using personal experience at all. For example, a story about the microscope you received as a Christmas gift when you were nine years old is probably not applicable to your biology lab report.

Using evidence in an argument

Does evidence speak for itself.

Absolutely not. After you introduce evidence into your writing, you must say why and how this evidence supports your argument. In other words, you have to explain the significance of the evidence and its function in your paper. What turns a fact or piece of information into evidence is the connection it has with a larger claim or argument: evidence is always evidence for or against something, and you have to make that link clear.

As writers, we sometimes assume that our readers already know what we are talking about; we may be wary of elaborating too much because we think the point is obvious. But readers can’t read our minds: although they may be familiar with many of the ideas we are discussing, they don’t know what we are trying to do with those ideas unless we indicate it through explanations, organization, transitions, and so forth. Try to spell out the connections that you were making in your mind when you chose your evidence, decided where to place it in your paper, and drew conclusions based on it. Remember, you can always cut prose from your paper later if you decide that you are stating the obvious.

Here are some questions you can ask yourself about a particular bit of evidence:

• OK, I’ve just stated this point, but so what? Why is it interesting? Why should anyone care?
• What does this information imply?
• What are the consequences of thinking this way or looking at a problem this way?
• I’ve just described what something is like or how I see it, but why is it like that?
• I’ve just said that something happens—so how does it happen? How does it come to be the way it is?
• Why is this information important? Why does it matter?
• How is this idea related to my thesis? What connections exist between them? Does it support my thesis? If so, how does it do that?
• Can I give an example to illustrate this point?

Answering these questions may help you explain how your evidence is related to your overall argument.

How can I incorporate evidence into my paper?

There are many ways to present your evidence. Often, your evidence will be included as text in the body of your paper, as a quotation, paraphrase, or summary. Sometimes you might include graphs, charts, or tables; excerpts from an interview; or photographs or illustrations with accompanying captions.

When you quote, you are reproducing another writer’s words exactly as they appear on the page. Here are some tips to help you decide when to use quotations:

• Quote if you can’t say it any better and the author’s words are particularly brilliant, witty, edgy, distinctive, a good illustration of a point you’re making, or otherwise interesting.
• Quote if you are using a particularly authoritative source and you need the author’s expertise to back up your point.
• Quote if you are analyzing diction, tone, or a writer’s use of a specific word or phrase.
• Quote if you are taking a position that relies on the reader’s understanding exactly what another writer says about the topic.

Be sure to introduce each quotation you use, and always cite your sources. See our handout on quotations for more details on when to quote and how to format quotations.

Like all pieces of evidence, a quotation can’t speak for itself. If you end a paragraph with a quotation, that may be a sign that you have neglected to discuss the importance of the quotation in terms of your argument. It’s important to avoid “plop quotations,” that is, quotations that are just dropped into your paper without any introduction, discussion, or follow-up.

Paraphrasing

When you paraphrase, you take a specific section of a text and put it into your own words. Putting it into your own words doesn’t mean just changing or rearranging a few of the author’s words: to paraphrase well and avoid plagiarism, try setting your source aside and restating the sentence or paragraph you have just read, as though you were describing it to another person. Paraphrasing is different than summary because a paraphrase focuses on a particular, fairly short bit of text (like a phrase, sentence, or paragraph). You’ll need to indicate when you are paraphrasing someone else’s text by citing your source correctly, just as you would with a quotation.

When might you want to paraphrase?

• Paraphrase when you want to introduce a writer’s position, but their original words aren’t special enough to quote.
• Paraphrase when you are supporting a particular point and need to draw on a certain place in a text that supports your point—for example, when one paragraph in a source is especially relevant.
• Paraphrase when you want to present a writer’s view on a topic that differs from your position or that of another writer; you can then refute writer’s specific points in your own words after you paraphrase.
• Paraphrase when you want to comment on a particular example that another writer uses.
• Paraphrase when you need to present information that’s unlikely to be questioned.

When you summarize, you are offering an overview of an entire text, or at least a lengthy section of a text. Summary is useful when you are providing background information, grounding your own argument, or mentioning a source as a counter-argument. A summary is less nuanced than paraphrased material. It can be the most effective way to incorporate a large number of sources when you don’t have a lot of space. When you are summarizing someone else’s argument or ideas, be sure this is clear to the reader and cite your source appropriately.

Statistics, data, charts, graphs, photographs, illustrations

Sometimes the best evidence for your argument is a hard fact or visual representation of a fact. This type of evidence can be a solid backbone for your argument, but you still need to create context for your reader and draw the connections you want them to make. Remember that statistics, data, charts, graph, photographs, and illustrations are all open to interpretation. Guide the reader through the interpretation process. Again, always, cite the origin of your evidence if you didn’t produce the material you are using yourself.

Do I need more evidence?

Let’s say that you’ve identified some appropriate sources, found some evidence, explained to the reader how it fits into your overall argument, incorporated it into your draft effectively, and cited your sources. How do you tell whether you’ve got enough evidence and whether it’s working well in the service of a strong argument or analysis? Here are some techniques you can use to review your draft and assess your use of evidence.

Make a reverse outline

A reverse outline is a great technique for helping you see how each paragraph contributes to proving your thesis. When you make a reverse outline, you record the main ideas in each paragraph in a shorter (outline-like) form so that you can see at a glance what is in your paper. The reverse outline is helpful in at least three ways. First, it lets you see where you have dealt with too many topics in one paragraph (in general, you should have one main idea per paragraph). Second, the reverse outline can help you see where you need more evidence to prove your point or more analysis of that evidence. Third, the reverse outline can help you write your topic sentences: once you have decided what you want each paragraph to be about, you can write topic sentences that explain the topics of the paragraphs and state the relationship of each topic to the overall thesis of the paper.

For tips on making a reverse outline, see our handout on organization .

Color code your paper

You will need three highlighters or colored pencils for this exercise. Use one color to highlight general assertions. These will typically be the topic sentences in your paper. Next, use another color to highlight the specific evidence you provide for each assertion (including quotations, paraphrased or summarized material, statistics, examples, and your own ideas). Lastly, use another color to highlight analysis of your evidence. Which assertions are key to your overall argument? Which ones are especially contestable? How much evidence do you have for each assertion? How much analysis? In general, you should have at least as much analysis as you do evidence, or your paper runs the risk of being more summary than argument. The more controversial an assertion is, the more evidence you may need to provide in order to persuade your reader.

Play devil’s advocate, act like a child, or doubt everything

This technique may be easiest to use with a partner. Ask your friend to take on one of the roles above, then read your paper aloud to them. After each section, pause and let your friend interrogate you. If your friend is playing devil’s advocate, they will always take the opposing viewpoint and force you to keep defending yourself. If your friend is acting like a child, they will question every sentence, even seemingly self-explanatory ones. If your friend is a doubter, they won’t believe anything you say. Justifying your position verbally or explaining yourself will force you to strengthen the evidence in your paper. If you already have enough evidence but haven’t connected it clearly enough to your main argument, explaining to your friend how the evidence is relevant or what it proves may help you to do so.

Common questions and additional resources

• I have a general topic in mind; how can I develop it so I’ll know what evidence I need? And how can I get ideas for more evidence? See our handout on brainstorming .
• Who can help me find evidence on my topic? Check out UNC Libraries .
• I’m writing for a specific purpose; how can I tell what kind of evidence my audience wants? See our handouts on audience , writing for specific disciplines , and particular writing assignments .
• How should I read materials to gather evidence? See our handout on reading to write .
• How can I make a good argument? Check out our handouts on argument and thesis statements .
• How do I tell if my paragraphs and my paper are well-organized? Review our handouts on paragraph development , transitions , and reorganizing drafts .
• How do I quote my sources and incorporate those quotes into my text? Our handouts on quotations and avoiding plagiarism offer useful tips.
• How do I cite my evidence? See the UNC Libraries citation tutorial .
• I think that I’m giving evidence, but my instructor says I’m using too much summary. How can I tell? Check out our handout on using summary wisely.
• I want to use personal experience as evidence, but can I say “I”? We have a handout on when to use “I.”

Works consulted

We consulted these works while writing this handout. This is not a comprehensive list of resources on the handout’s topic, and we encourage you to do your own research to find additional publications. Please do not use this list as a model for the format of your own reference list, as it may not match the citation style you are using. For guidance on formatting citations, please see the UNC Libraries citation tutorial . We revise these tips periodically and welcome feedback.

Lunsford, Andrea A., and John J. Ruszkiewicz. 2016. Everything’s an Argument , 7th ed. Boston: Bedford/St Martin’s.

Miller, Richard E., and Kurt Spellmeyer. 2016. The New Humanities Reader , 5th ed. Boston: Cengage.

University of Maryland. 2019. “Research Using Primary Sources.” Research Guides. Last updated October 28, 2019. https://lib.guides.umd.edu/researchusingprimarysources .

You may reproduce it for non-commercial use if you use the entire handout and attribute the source: The Writing Center, University of North Carolina at Chapel Hill

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Meaning, Nature and Purpose of Evidence law

1.  Evidence Law defined

What is evidence law?

Before dealing with “evidence law”, it is important to discuss about the concept of “evidence” in general since evidence and law of evidence are two different things. The word “ evidence” is originated from a Latin term “ evidentia ” which means to show clearly, to make clear to the sight to discover clearly certain, to ascertain or to prove. Thus, evidence is something, which serves to prove or disprove the existence or non-existence of an alleged fact. The party who alleges the existence of a certain fact has to prove its existence and the party, who denies it, has to disprove its existence or prove its non-existence.  

However, all facts traditionally considered, as evidence may not be evidence in the eyes of evidence law. Rather, evidence is something presented before the court for the purpose of proving or disproving an issue under question. In other words, evidence is the means of satisfying the court of the truth or untruth of disputed fact between the parties in their pleadings.  

Draft Evidence Rules (DER) defines evidence, as “ a means whereby any alleged matter of fact, the truth of which is submitted to investigation, is proved and includes statements by accused persons, admission, Judicial notice, presumptions of law, and observation by the court in its Judicial capacity”. This definition may be more than what you think to be evidence. However, even though the kinds of evidences enumerated under Rule 3 of DER are not exhaustive, it failed to cite “documentary evidence” which is considered as one of reliable evidences, especially in civil cases, as one types of evidence. This seems the result of poor drafts' man ship.  

When we come to the meaning of evidence law, different writers defines it according to their own perceptions but with similar messages. The difference is one defines in amore elaborated way while others do not. For instance, Mc. Cormick defines evidence law as “… the system of rules and standards by which the admission of proof at the trial of a lawsuit is regulated” But this definition is not as such very helpful especially to a beginner, because, it fails to incorporate what things are going to be dealt with by the course.  

The title of the course, is the law of evidence. That does not mean only the rules concerning whether a given piece of information is admissible or not, but also such questions as what happens if there is no evidence on a given point? How much evidence, if any must a party introduces to prevent a court from ruling against him on factual proposition? What are the roles of the judge in evaluating the evidence and the like. To this effect, Robert Arthur Melin [here after referred as Melin], have made an attempt to define evidence law in a more comprehensive way. He defined it as follows.

The law of evidence is the body of legal rules developed and enacted to govern:

• B. facts that may be considered in court? This is the issue of relevant evidence that one should adduce before the court to support his allegation.  
• 1. Facts in issue
• 2. Facts relevant to facts in issue
• C. The methods of securing consideration of these facts
• 1. By proof
• i. Real (e.g. documentary, exhibits) evidence
• ii. Oral evidence

2. Certain facts, which need not be proved

• i. Judicial notice- Facts so notorious as tofacts in public knowledge ,capable of being verified by authoritative texts
• ii. Judicial admission (facts admitted in pleadings, at open court, in examination of parties, in testimony etc.)

C. The party that must secure consideration of what facts: This is about burden of proof and degree of proof required to win the case.                     

D. At the Appeal level evidence law can be said deal with the effect of failure to comply with rules in any of the above categories of evidence law (e.g. improper admission or rejection of evidence) Because the decision of the curt regarding the admissibility or non admissibility of evidence may form the subject of aground of appeal where an appeal is logged against conviction, discharge or acquittal [see Art 184(c of cr.p.c]. These errors on the admissibility or inadmissibility of evidence may be reversible or harmless error.

Here that one should ask is that “Does evidentiary errors constitute Reversible error? Most of the time, an evidentiary error alone is not very likely to induce an appellate court to term the error “ reversible” on the ground that the error affected a substantial right of a party. As a general matter, evidentiary reversal is perhaps most plausible, and most Justifiable, when the constitutional rights of a criminal defendant may be at stake or when it appeared to be out come determinative. Otherwise they are considered as harmless error, which was not prejudicial to the rights of the party, and for which; therefore, the court will not reverse the judgment.

When we come to our case, a decision of any court in Ethiopia will not be ripe for cassation unless it shows prima-facie case for the existence of a basic error of law.

And even though there is no illustration of the implications “basic error of law” in general and on evidentiary errors in particular, the experience of the cassation division shows, among others, the cases depict that there is a basic error of law when any court renders a decision or makes ruling. (1) When false evidence is produced against the party (b) by framing an issue which the pleadings or oral arguments of the parties have not raised or (c) by failing to consider an issue the pleadings are oral arguments of the parties have raised and the like (“The cassation Division and the Requirements for Basic Error of law” Muradu Abdo WONBER” law Jour 2 nd half-year, January 2008 at P 52-53

To finalize it, the law of evidence in the major legal systems/ i.e., in the common law, civil law or in countries that have a mixed legal system) is the body of legal rules developed or enacted to govern.

Ø  What facts need to be proved and produced to the court

Ø  Which of the parties have the burden of proof

Ø  The required standards of proof to win the case

  The admissibility, creditability, and weight of evidence and other procedural matters as to how the evidence shall be produced before the court of law.

2.  Nature of Evidence law

Where is the place of evidence law in relation to other laws?  

It is important to know the place of evidence law in relation to other laws. Laws may broadly be classified in to substantive and adjective. Adjective laws are concerned with the method of presenting cases to court proving them or generally enforcing the rights and duties provided under the substantive laws. While substantive laws, are those that defines rights and duties. This forms the greater part of the law, it would seem that it is more important part, since it defines what rights, privileges and duties one person may have against or owe another. However the rights, privileges and duties that exist under such law will mean nothing unless they can be enforced. This is why adjective law is just as important as the substantive law.  

Law of evidence is categorized under adjective law together with procedural laws, both criminal and civil procedure. Of course some scholars suggested that there will not be any problem if we incorporate rules of evidence as one part of procedural law since they have similar purpose. However, the consensus has been reached in categorizing law of evidence as one part of adjective law for the sake of establishing more effective system of adjudication of cases before the court of law. Although one can see grains of evidence law in procedural laws, their main dealing is with how pleadings can be framed, investigation conducted, evidence collected etc… This does not necessarily make the law of evidence to be part of procedural law.  

There are certain issues procedural laws never address and are left to evidence law. For instance, in the procedural law you did not study about the standard of proof, facts to be proved or need not be proved and the valve to be given to each term of evidence etc. These are left to evidence law therefore evidence law is not strictly speaking procedural law, but shares the commonality with procedural laws in the sense that both are means to the enforcement of the substantive law. Thus, evidence law suitably falls with in the general category of Adjective laws, which deal with the enforcement of the substantive law.  

However, this does not mean that all nations have their own code of evidence, which can be considered as one sect of Adjective law. For instance, as you see later our country Ethiopia does not have evidence code that when you are asked to show. The truth is that our rules of evidence are not put together in a code or proclamation, but are found widely scattered in both substantive and procedural law. You may remember articles on proof of marriage, proof of will, proof of contract, proof of ownership and a lot of legal presumptions that relate to evidence. In this case, the problem that you would face is whether law of evidence is part of procedural or substantive law?

Is law of evidence more of practical course?  

Law of evidence has more of the smell of the courtroom than most law school classes and it offers the opportunity for some court- room type exercises. But it cannot hope to duplicate the reality of the court room. Because the process of proof involves many participants, and it is impossible to regulate each and every action of those participants by the law of evidence unless we interpret the rules in line with purpose of the law of evidence in general and the rational behind of the specific rule in particular.  

One can understand more about the rules of evidence that he knows theoretically when he becomes a practitioner. For instance, it is the duty of the trial judge to ensure the defendant receives a fair trial. He can for example, limit the nature of questioning in cross-examination. And also he may exercise his discretion to exclude evidence if the prejudicial effect of which exceeds its probative value. Thus, the application of judge's discretion to secure the right to a fair trial may differ case to case bases.  

Moreover, the rule of evidence are not applied independently from other factors and do not exist solely as a matter of academic interest and debate. They are a dynamic set of principles which interact with other essential factors in a case including the rule of substantive law, the rule of procedure and the substantive characteristics of many of the participants in the trial. The latter includes the judge's opinions and perception, the skill of the advocates, a party's or witness's demeanor in court, his credibility, criminal convictions and personality traits. All of these factors ultimately come together to provide the bases for the court's decision in the case.  

Therefore, that is why we have said that the course will not try to teach you what you can better learn in practice or in clinical program. Rather, if you participate in a clinical program after your completion of this course you will probably report to your friends that you “learned more about evidence in two weeks in the clinic than in a whole semester in class”

3.  Purpose or significance of Evidence law

Evidence is the “Key” which a court needs to render a decision. Without evidence there can be no proof. Evidence provides the court with information. Proving facts through the presentation of evidence means convincing court to accept a particular version of events. Of course, one can search truth even trough violating the constitutional rights of the parties. However, evidences obtained through unlawful means could not contribute for the maintenance of justice in the future. So the process of proof should be regulated by evidentiary rules and principles in order to achieve accelerated, fair and economic Justice.

In both criminal and civil proceedings, the law of evidence has a number of purposes. In short, the law of evidence regulates the process of proof. The rule of civil and criminal evidence, in conjunction with the rules of procedure, establish the frame work for the process of proof and the conduct of litigation, so that a lawyer advising his client or preparing his case for trial or presenting it to the court or tribunal will know what issues his client must prove in order to succeed.  

The law of evidence also has amoral purpose by establishing and regulating the rules relating to the process of proof in proceedings in courts and tribunals. Whilst this moral dimension is important in civil proceedings, it has special currency in criminal cases as it reflects the powerful public interest in bringing the guilty to justice, whilst allowing the innocent to go free. In some cases the rules of evidence may actually prevent the truth from being discovered in the wider public interest.  

Moreover, especially in criminal cases, law of evidence stands to protect the accussed's right to affair trial for instance, by containing many rules which excludes potentially relevant evidences like the general rule that evidence of the defendant's character and previous convictions will not be admitted at trial (see Art 138 of cr.p.c and Rule-145 of DER)  

Is there a consensus on the importance of evidence law in regulating the questions of relevancy?

Even though there is a consensus on the significance of evidence law in shaping the process of proof, there is a dispute on the question whether the law of evidence shall determine which evidence should be produced and which are not i.e. on question of relevancy. Regarding this issue there are two approaches.

According to eminent legal thinkers like Jermy Bentham and William Twining the over all aim if the process of adjudication is the ' 'rectitude of decision making'' . This is achieved by the correct application of substantive law to the true facts in the particular case .In this way; the aims of justice are served.  

Bentham long espoused a utilitarian theory that the best way to arrive at the truth was through an application of “ free proof ”. It was his considered opinion that a judge could be trusted to reach a factually correct verdict provided all relevant evidence was adduced. In his view, too many rules of evidence and procedure lead to the exclusion of too much relevant evidence, there by diminishing the search for a factually correct truth. Thus he advocated abolition of all laws operating to exclude evidence. Recognizing the need for some restrictions, Bentham felt laws of evidence were needed only to the extent of preventing ' vexation, expense or delay' and not to hamper the judge from finding out the truth of matters by using different tactics and approaches.  

However, the supporters of the second approach argued that it would obviously be undesirable and chaotic if a judge had unlimited discretion as to which evidence should be admitted in a case, and as such, there is clearly a need for there to be ground rules for the admission of evidence so that common standards are applied between all courts and tribunals dealing with the same type of case. Otherwise, the judges may loss their golden time which in return contributes for delay of justice. Therefore, they argued that, in order to give timely and effective justice the role of evidence rules which regulates the question of relevancy is unquestionable. However this does not mean that the judges have no any discretion. In some instances the rule provides for the mandatory exclusion of evidence. In other instances discretion is given to the judge to exclude relevant evidence in circumstances were fairness demands it. But there is no judicial discretion to include relevant evidence, which might nonetheless have a bearing on the search for the truth, but which has to be deemed inadmissible by applying a rule of evidence.  

As we shall see a number of rules relating to admissibility and use of evidence are directed towards minimizing the risk of wrongful convictions. And the main risks of error stem largely from the admission of unreliable or prejudicial evidence. Thus this concept of free proof may allow the court to admit unreliable or prejudicial evidence, which lead it to a hasty conclusion.

The concept of free-proof also ignores the fundamental importance of procedural rights and the symbolic importance of trials. Verdicts of the court to have amoral legitimacy, trials must uphold basic human and constitutional rights. And Justice must not only be done but be seen to be done. That is why most trials are held in public. That means the public must have a faith in its criminal Justice system and the verdicts that are delivered by it and this can only be the case if the trial is perceived to be a fair one. And respect for procedural rights through evidence law is a key component of the right to a fair trial. 

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How to use evidence effectively in your next presentation

Logic and emotion are a winning combination in a presentation..

Emotion is of course crucial in a presentation.

If your presentation is pure logic, stuffed with fact after fact, evidence, and statistics, it will be difficult for your audience to relate to it.

They will be informed but disconnected. This is not a presentation they will rush to share with their colleagues or bring up in key discussions. And nor will it necessarily be particularly memorable.

A presentation hits home when an audience can relate to it, through storytelling and the personality of the presenter.

However, a presentation without evidence and logic also has its flaws. Your audience might feel warmly about your presentation but without memorable evidence to back it up they are left with nothing to hold on to afterwards.

It’s all show with no substance.

Evidence in a presentation is used to prove an argument being made by an individual or group. Alternatively, evidence can be used to disprove or refute a fact or argument people disagree with or hold to be false.

In order to persuade any internal or external audience, you need a combination of compelling evidence and effective storytelling, topped off with exceptional delivery.

So how do you bring evidence to the table?

The best way to incorporate evidence is to be selective. Quality rather than quantity. Less is more.

Instead of amassing as many facts as possible to prove your credentials, and bolster your argument, focus on a few strong ones that support your claim.

The power of 3 is a useful technique for this.

Your audience will retain three key points rather than many. Which are your three key points?

If you need ideas, we are surrounded by 3s in branding, messaging in our everyday lives. ⠀

Quick examples: ⠀⠀

Nike: ‘Just do it’⠀

McDonalds: ‘I’m loving it’⠀

Three blind mice⠀

The Holy Trinity⠀

Location location location⠀

‘See it, Say it, sorted’⠀

‘Stay home, Protect the NHS, Save lives’.

What kind of evidence is compelling and credible?

Naturally, not all evidence is equal – and what makes evidence compelling and credible will vary vastly depending on the point you are trying to make, and on your audience.

For example, if you want to demonstrate that your brand of sponge is popular to an audience of fathers, then survey results of 300 men, or the testimonial of a dad could count as great evidence.

If you are trying to persuade your audience about the dangers of a brand of sponge, that same evidence won’t cut muster. You’d need more scientifically rigorous data. A peer reviewed paper perhaps, or a quote from a leading scientist.

A few more good practices to check your evidence is reliable:

• If you’ve obtained the quote or statistic from an online list, find out where it originally came from and check if it is accurately represented. It’s easy for messages to get distorted that way, and you don’t want to be at the end of a long Telephone Game.
• In an era of fake news, double check that your source is credible. There are a few online guides to help you to detect whether you are dealing with a real or fake news story.
• Check the date. This might seem obvious, but it’s worth doing! If your topic is topical, it’s not a good look to use supporting evidence from 2004 unknowingly.

Following the above steps will support your credibility.

Make it visual

Whilst testimonials can be convincing evidence, visuals are everything in a presentation, whether offline or online.

Making your evidence come to life visually will help your audience take in your message easily and effortlessly, especially if it is supported by exceptional delivery.

Ask yourself:

• Can these statistics be turned into a chart?
• Can these survey results be represented by an image?
• What is the core message from a set of stats?

If you are sharing facts that have percentages in them, give each one its space in a slide, as with the example below.

An example of making statistics pop visually

So, there you have it – Habit 9 of The 12 Habits of Exceptional Presenters – Provide compelling and credible evidence. Evidence is used to back up or refute arguments, and it helps our audiences to make decisions at work. Using evidence allows us to work out what is effective and what is not and is critical to providing a persuasive presentation.

Want to find out more about the other 11 Habits of Exceptional Presenters?

You can download my guide to the 12 Habits of Exceptional Presenters right here.

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