Overview

• Author: Ashley S. Lipson
• Pages: 27-44

1 The term “tangible” has been used to describe the last two types. But, not all forms of demonstrative evidence can be

touched. So the term “tangible” has served to confuse the subject matter, and would, therefore, best be forgotten.

2 People v. Margarejo, 75 Cal.Rptr.3d 465, 162 Cal.App.4th 102 (2008). An attorney’s questions are not evidence. The

wording of the question, however, is certainly relevant to the reasonable interpretation of the answer provided by the

witness in response to the question.

Overview

What Is Evidence?

Factual disagreements and claims can be

resolved in a number of ways. In the streets of the

Old West, when someone said “prove it,” gun play

would decide who was right. And for the loser,

perhaps, that’s where we got the expression “dead

wrong.” It wasn’t the most accurate system, but it

was very final.

Today, judges and juries (instead of undertak-

ers) have the job of sifting truth from fiction, and the

“prove it” is now left to lawyers. The courts base their

verdicts upon the words, documents, demonstrations,

and objects that are presented by living witnesses. We

call these presentations “evidence.” To put it anoth-

er way, “evidence” is the method by which litigants

prosecute or defend their cases in court.

There are four types of evidence. They are referred

to as: Testimonial Evidence, Documentary Evidence,

Real Evidence and Demonstrative Evidence.1

An attorney’s questions accompanied by the

answers of the witness will normally be used to

either solicit evidence or lay the required founda-

tions for its presentation. But the questions do not

equate to evidence.2

Testimonial (Oral) Evidence is the most fun-

damental and indispensable type. Even when the

other forms of evidence are used, testimony is need-

ed to establish required foundations for them. To

properly give testimony, liars and truth-sayers (both

called “witnesses”) take the stand and testify as to

matters that they personally observed. For exam-

ple—“I saw Staggerlee pick up the gun and point

it at Billy; I heard the shot; I smel’t the smoke; I

saw Billy drop; and then I felt the warm, wet blood

oozing from his chest.” Each of the senses (seeing,

hearing, smelling and touching) provides an exam-

ple of a personal observation.

Documentary Evidence involves bills, notes,

records, contracts and virtually every form of writ-

ing or “document.” But business records, medical

reports, letters, and handwritten pages ripped from

diaries are not the only forms of documentary evi-

dence. Microfilm, photocopies, and other secondary

storage media may also be considered as “documen-

tary.” Often perplexing is the fact that electronic

and optical impulses that comprise digitized com-

puter data (fancy talk for “computer files”) may

constitute documentary evidence even though an

actual printout or “hard copy” has yet to be created.

In other words, the electronic and optical impulses

themselves may constitute a “document.”

Real Evidence is a physical part or compo-

nent of the controversy itself, but not photographs

or other demonstrative images of that component.

Consider, for example, the actual gun that shot Billy,

not a photo or replica. A photo or replica would be

demonstrative. But the gun itself would be “real.”

Samples or portions are also considered as “real,”

such as a small drop or two of the same corn liquor

that was used to poison Uncle Jake.

Demonstrative Evidence is the fastest grow-

ing type of evidence, and the most chic. It is often

described as a self-serving presentation which

appeals directly to the senses by a means other

than testimony or verbal descriptions. Technically

Is It Admissible? O-26

3 There is no formal rule of evidence requiring a foundation. According to A.I. Credit Corp., v. Legion Insurance Corp.,

265 F.3d 630 (7th Cir., Ind., 2001), “foundation” is a loose term attached to preliminary questions designed to establish

that evidence is admissible.

See, for example, Weltmer v. Signature Health Services Inc., 417 S.W.3d 856 (Missouri Court of Appeals, 2014). To

be admissible as evidence, a document must meet a number of foundational requirements, including relevancy, authen-

tication, the best evidence rule, and hearsay.

3.1 See Chapter 21.

3.2 See Chapter 22.

3.3 See Chapter 23.

3.4 See Chapter 24.

3.5 See Chapter 25.

3.6 See infra, §47.700.

3.7 See infra, §42.200.

3.8 See infra, §42.300.

3.9 See infra, §42.300.

speaking, however, it is a derivative presentation

designed to clarify one or more of the preceding

three types of evidence. Photos, videos, maps,

charts, models, films, tape recordings, and demon-

strations are commonly thought of as forms of

Demonstrative Evidence. For example, consider a

chart showing the path of Staggerlee’s bullet, or a

tape recording that simulates the sounds of Billy

gurgling out one last verse of Don’t Take Your Guns

to Town as his face hits the floor. Both items would

be demonstrative. However, even though it may be

“visual,” a videotape showing L.A. police clubbing

Staggerlee would be considered as real, not demon-

strative evidence (assuming that it had been taken

by a disinterested onlooker).

Foundations - A Single Word to the Wise

There does not seem to be a set of rules or stan-

dard terms concerning foundations followed by

every jurisdiction; even judges and courts within a

given state announce standards that vary from case

to case.3 But there are some common threads. And

although the foundation “buzzwords” may be dif-

ferent, the underlying principles seem consistent,

and will be considered later in more detail. For now,

at the risk of gross oversimplification, here is a set

of one-word foundation elements for each of the

four major types of evidence:

• Testimonial - Knowledge

• Documentary - Authenticity

• Real - Identity

• Demonstrative - Clarification

Scientific Evidence

Where does so-called scientific evidence fit into

the scheme? Everywhere! Consider a fiber, hair,

blood stain, or spent bullet; all are real. The tests

performed on them result in a written lab report (i.e.,

documents). The experts who must lay foundations

for their admissibility use testimonial evidence, and

often employ graphs, charts, and other “demonstra-

tives” for enhancement. Since the lab report is the

final embodiment of the evidence (the demonstra-

tives are optional), it logically suits our purpose to

place scientific evidence into the DOCUMENTARY

pigeonhole.

For new or unestablished science, or “junk sci-

ence,” Chapter 11 (dealing with SPECULATIVE

evidence), is the place to go.

Electronically Stored Information

Electronically stored information, common-

ly referred to as ESI, can assume three of the four

major types of evidence and consist of an endless

variety of formats. We most commonly think of

ESI as encompassing Documentary Evidence in the

form of emails and data files, created from a wide

variety of spreadsheet programs, database soft-

ware, word processors and other applications. They

comprise today’s public,3.1 business,3.2 personal,3.3

published3.4 and legal documents3.5 to be sure, in

addition to our so-called “social media.”3.6 But ESI

can also produce Demonstrative Evidence in the

shape of maps,3.7 charts,3.8 graphs and diagrams,3.9