Basics of Real Evidence

• Author: Ashley S. Lipson
• Pages: 387-402

30-1

C 30

Basics of Real Evidence

§30.100 Introduction

§30.200 Admissibility in General

§30.300 Care and Handling

§30.100 Is It Admissible? 30-2

§30.100 Introduction

Real evidence consists of some physical object

or substance that was once a part or component

of the controversy itself; it can also encompass

geographical locations (most commonly referred

to as “views”). The gun that actually shot John F.

Kennedy (or Louie the local bank teller, for that

matter), would be real evidence. But a replica,

photograph, or diagram of a weapon would be

demonstrative, not real. A blood-stained “piece”

of Billy The Kid’s shirt, Swiss-cheesed by Pat

Garrett’s bullets, would also be real.

The actual intersection where two motorists

collided would constitute real evidence. A map or

photo would not.

The key distinguishing features of real evidence

are: (1) its existence at the time of the event which

gave rise to the litigation, and (2) its stature as a

physical component or “piece” of the controversy

itself.1 As suggested by these features, real evidence

is unique and irreplaceable. Therefore, foundation

elements relating to “verification,” or “chain of

possession,” are necessary to establish identity.2

Another component to consider while building

a foundation for real evidence is “freedom from

material alteration,” in order to establish that the

one-of-a-kind item has not been tampered with.

Absent a showing of intentional manipulation or

tampering, any defects in the chain of possession

or custody should go to the weight, not the

admissibility, of the evidence.3

It is quite common to confuse real evidence

with demonstrative evidence. Generic terms such

as “tangible” and “objective” contribute to the

confusion. Those terms would best be deleted

from our vocabulary. Real and demonstrative

evidence should be distinguished; the foundation

requirements are different, as are the purposes for

admitting them.

Real evidence, as previously indicated,

comprises a part or component of the subject

controversy. Thus, its physical characteristics may

be very telling. A defective altimeter or brake rod

may constitute crucial one-of-a-kind evidence used

to determine the outcome of a trial.

Demonstrative evidence, on the other hand, is

normally prepared after the fact, solely to illustrate or

clarify some point. If that evidence is lost, destroyed,

or tampered with, it can generally be reconstructed.

§30.200 Admissibility in General

Real evidence will, by its very nature, always be

relevant. Since it forms a component of the subject

event itself, the offering will, if nothing else, always

tend to make it appear more likely that the subject

event occurred.

Excepting “views,” which are conducted outside

of the courtroom, presenting real evidence is akin to

bringing a piece of that event right into the courtroom.

For this reason, it is most likely that such evidence

will either be formally admitted or totally excludable

as being cumulative or unduly prejudicial.4

Real evidence should be divided into six distinct

forms:

(1) physical objects

(2) samples

(3) people

(4) animals

(5) views

(6) on-site recordings

If nothing else, this division helps one examine

admissibility requirements in greater depth. The

chapters that follow will provide some detail for

each form of real evidence.

§30.300 Care and Handling

Real evidence is unique and therefore

irreplaceable. If a material piece of such evidence

is lost, destroyed, or stolen, a valuable case may go

up in smoke. The solution? Sue, what else? That’s

right—a cause of action separate and apart from

the involuntarily abandoned underlying claim. It’s

called “spoliation” and it started in California.

The new tort began to develop as a plaintiff

named Smith was injured when her automobile

collided with a van. The dealer who repaired the

van agreed to retain the squashed parts until an

investigation could determine the reason for the

mechanical failure that led to the collision. But

the dealer lost the parts, so there could be no

investigation and, therefore, no cause of action

against the van’s maker. So Smith sued the dealer.

The trial court dismissed the action as being a

bit too strange, even by California standards; the

appellate court, however, reversed,5 recognizing

the possibility that the defendant interfered with a