Digests- Session 1- Evidence Digest Flashcards
What is evidence?
Evidence is a system of rules and standards by which the admission of proof at a trial or hearing is regulated. In its broad sense, it is the means or method by which any disputed or necessary fact is proved or disproved.
What is proof in relation to evidence?
Proof is the result of evidence.
What is prima facie evidence?
Prima facie evidence is evidence that – unless rebutted – would be sufficient to prove a particular proposition or fact.
What are the three types of evidence?
The three types of evidence are: DIRECT, CIRCUMSTANTIAL, and REAL.
What is direct evidence?
Direct evidence is actual knowledge of the facts through the use of the senses and tends to prove the fact in issue without the intervention of other facts.
Example:
Scott sees George shoot and kill Tondelayo. George is arrested and tried for murder. At the trial Scott says under oath, “I saw George shoot and kill Tondelayo.” This is testimonial direct evidence. The fact in issue is: “Did George kill Tondelayo?” Scott’s testimony tends to prove the fact in issue without the intervention of other facts.
What is circumstantial evidence?
Circumstantial evidence is testimony concerning a fact not in issue by which the fact in issue may be inferred.
Example:
A ballistics expert testifies that the gun found at the scene is registered
to George and that the bullet which killed Tondelayo came from this gun. The fact in issue is: “Did George kill Tondelayo?” The expert’s testimony has established a fact not in issue by which the fact in issue may be inferred. this is testimonial circumstantial evidence. In this case, it is probably not sufficient, by itself, to prove George guilty beyond a reasonable doubt.
What is real evidence?
Real evidence is evidence furnished by objects, things, or persons themselves, which can be seen, heard, or otherwise observed by the court and the jury.
It is frequently referred to as “demonstrative evidence” and
sometimes (though rarely) referred to as “autoptic proference.”
Example:
At George’s trial for murder, the gun that fired the fatal bullet is
presented for inspection by the jury. This is real evidence. By the same
token, if an assault victim shows his wounds to the jury, this too is real
evidence.
What is documentary evidence?
Documentary evidence is real evidence in the form of writing, typing, or printing, and is the basis for the best evidence rule.
When the contents of a written document are in issue, the best evidence of what the document contains is the original document.
What are the “cardinal rules” of evidence ?
The cardinal rules of evidence are:
1. All relevant, material, and competent proof of all facts is admissible unless excluded by a specific rule of law.
• Evidence is RELEVANT when it has a direct bearing on a fact worth
consideration by the jury.
• Evidence is MATERIAL when it is of sufficient importance or
influence, when it is not trivial or unimportant. All material
evidence is at least relevant.
• Evidence is COMPETENT when it is not subject to exclusion by any of
the ordinary rules of evidence and when it is legally adequate and
sufficient.
- Specific rules of law may exclude evidence.
- The evidence itself may be inadmissible, for example, hearsay.
- The witness seeking to give the evidence may not be a competent
witness. For example, there may be a confidential relationship
(husband/wife, doctor/patient, etc.).
- The specific rules of law which exclude evidence may apply automatically or only when an objection is made.
Whenever you are faced with a problem concerning the admissibility of evidence, consider all three cardinal rules as they apply to that piece of evidence or testimony.
What is the hearsay evidence rule?
The hearsay evidence rule states that hearsay is evidence not from personal knowledge of the witness but a mere repetition of what the witness heard others say. It is testimony regarding
something said outside the court and offered as true by someone other than the actual witness.
E.g.: In our earlier scenario where Scott told Roger that George shot Tondelayo, Roger’s testimony that George shot Tondelayo would be HEARSAY. But suppose the fact in issue was not “Did George shoot Tondelayo?” but instead was, “Did Scott tell Roger that George shot Tondelayo?” In this case Roger’s testimony would be direct evidence.
What are some exceptions to the hearsay rule?
Exceptions to the hearsay rule include:
1. Confessions
2. Admissions
3. Dying declarations
4. Res gestae
5. Business entries
6. Prior testimony
7. Reputation
8. Pedigree
9. Certificate or Affidavit of a public officer.
What is a confession?
A confession is a statement which directly and expressly acknowledges guilt of a crime charged against the defendant.
What is an admission?
An admission is any act or declaration of the accused inconsistent with his innocence and is admissible against him.
NOTE: Remember admissions and confessions are not the same. Admissions are statements inconsistent with a persons innocence. Confessions are actually admitting guilt for the crime at hand.
What is an “Adoptive Admission” sometimes referred to as a “Failure to Deny”
Adoptive admission or failure to deny occurs when someone is accused by any person of an offense, in the accused’s presence and hearing, and the accused remains silent when it would be proper for him to speak.
Testimony as to the accusation and as to the accused’s silence is
admissible.
Important note: This rule (adoptive admission - failure to deny) does not apply to persons under arrest on a criminal charge.
What are dying declarations?
Dying declarations are statements made by a declarant who believes they are about to die, and are admissible as evidence.
NOTE: A dying declaration need not be in writing. The dying declaration may be oral, written, or even indicated by signs. There are no formalities required. However, the dying declaration can only be used re: a homicide and must deal only with who did it. The dying person can’t “confess” to a crime and have that treated as a dying declaration.
What essentials must be present for a dying declaration to be admissible?
1) The declarant was “in extremis.” That is, that death was certain.
It is not necessary that the declarant die immediately. What is
necessary is the impression of almost immediate death, not the
actual rapid succession of death.
Note: the declarant must actually die before the statement
can be used in court.
2) The declarant sensed impending death and had no hope of recovery.
Note: If it could be shown that the declarant said to a doctor who responded to the scene, “Pull me through, Doc!” this would effectively defeat this element, and the declaration would be inadmissible. Conversely, if the declarant said to the doctor, “It’s no use, Doc, I’m through,” this would buttress the validity of the dying declaration.
3) The declarant, if living, would be competent as a witness. If the
defense could show at the trial that at the time of the incident
the declarant was a mental defective, the declaration would be
inadmissible.
Remember - all three of the foregoing elements must be established. The dying declaration is not given the same value
and weight as the sworn testimony of a witness in open court. The court, upon request, must so instruct the jury.
What is res gestae?
Res gestae refers to spontaneous statements made during or immediately after an incident, which are admissible as evidence.
An example: Anne, a pedestrian, saw a truck careening down a
narrow, crowded street and heard the driver exclaim as the truck passed by, “My God, the brakes failed.” If the incident led to a trial for Criminally Negligent Homicide, Anne (the pedestrian) could be called to testify as to what the driver said, and an objection to hearsay would be overruled. Reason for the exception: since the statement was made spontaneously, during or immediately after the incident, it’s probably true.
What are business records?
Business records are writings or records made in the regular course of business at the time of the transaction or within a reasonable time thereafter, and are admissible as an exception to the hearsay rule.
When can prior testimony be admitted as hearsay?
When, because of death, sickness, or insanity, a witness cannot be
produced, or when, after a diligent search, the witness cannot be found in the state, his testimony at a prior trial may be read into evidence by either the prosecution or the defense.
What conditions must be met for prior testimony to be admissible?
The witness must have been examined before a judge
&
Their testimony must be reduced to a deposition in the defendant’s presence
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The defendant either in person or through counsel must have had an opportunity to cross-examine the witness.
If these conditions are met the deposition may be read into evidence by either side. Prior testimony may also be admitted if the defendant had previously been tried on the same charge (and the trial resulted in a mistrial or the verdict is under appeal, for instance). Specifically, if the defendant, on an indictment or an information, was previously tried on the same charge, then the testimony of any witness who testified at such prior trial may be read into evidence by either the prosecution or the defense.
What is the rule regarding character witnesses?
If the defendant calls a character witness, they may testify to the defendant’s good character, which is based on hearsay. Admissible as an exception to hearsay rule.
What happens if the defendant presents evidence of good character in a criminal trial?
The prosecution can only introduce evidence of the defendant’s bad character if the defendant presents evidence of good character.
If the defendant takes the stand as a witness he may be questioned re: criminal convictions and his reputation for veracity.
What does pedigree refer to in legal terms?
Pedigree refers to ancestors or line of succession.
For example, to establish pedigree, Kevin may call Chris to testify that Eleanor, now deceased, told him that Kevin was her son.
What is the significance of a certificate or affidavit from a public official?
A certificate or affidavit made by a public officer is prima facie evidence of the facts stated, even though it is hearsay.
Prima facie evidence is evidence that – unless rebutted – would be sufficient to prove a particular proposition or fact.
