Overview

• Author: Ashley S. Lipson
• Pages: 25-44

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 undertakers)

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 another

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

foundations for its presentation. But the questions

do not equate to evidence.2

Testimonial (Oral) Evidence is the most

fundamental and indispensable type. Even when

the other forms of evidence are used, testimony is

needed 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

example—“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 example of a personal observation.

Documentary Evidence involves bills,

notes, records, contracts and virtually every form

of writing or “document.” But business records,

medical reports, letters, and handwritten pages

ripped from diaries are not the only forms of

documentary evidence. Microfilm, photocopies,

and other secondary storage media may also be

considered as “documentary.” Often perplexing is

the fact that electronic and optical impulses that

comprise digitized computer 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 component

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

growing 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 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

demonstrations 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,

Is It Admissible? O-2

not demonstrative 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

standard 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

different, 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 “demonstratives” for enhancement. Since the

lab report is the final embodiment of the evidence

(the demonstratives are optional), it logically suits

our purpose to place scientific evidence into the

DOCUMENTARY pigeonhole.

For new or unestablished science, or “junk

science,” Chapter 11 (dealing with SPECULATIVE

evidence), is the place to go.

Electronically Stored Information

Electronically stored information, commonly

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

software, word processors and other applications.

They comprise today’s public,4 business,5 personal,6

published7 and legal documents8 to be sure, in

addition to our so-called “social media.”9 But ESI

can also produce Demonstrative Evidence in the

shape of maps,10 charts,11 graphs and diagrams,12

photographs,13 videos,14 audio presentations,15 and,

of course, a wide variety of what we still refer to as

“computer generated materials.”16

Where the ESI itself is the subject of the

dispute, it may assume the status of Real Evidence.17

Examples might include defamation actions for

web postings, copyright and intellectual property

disputes, in addition to evidence in the form of

on-site recordings.18

Despite the endless variety, all of the many

shapes and sizes of ESI evidence have a few things

in common. Physically, the evidence is either digital

or analog; today, the vast majority is digital. The

evidence is easy to handle; it can be stored, saved,

and duplicated instantly. And, most significantly,

it can be transmitted anywhere on the globe at the

speed of light. Because of the endless variations

of ESI and the fact that it has become accepted

and ubiquitous, topical divisions of this treatise

will focus primarily on content of the evidence,

secondarily on its physical format.

Proper Evidence

Questions and answers start the show and make

it run. Those two elements fashion “testimony,”

which is required to present facts or to lay

foundations for the other three forms of evidence.

The “best” question will often follow the rule

of the five W’s used by journalists. In particular,

they will start with one of these interrogatories:

Who, What, When, Why or Where. Of course,

other types of questions can also be proper. In any

event, questions should seek information that flows

directly from the witness’ personal observations.

A proper question thus seeks to elicit

information obtained from the witness’ memory, a

memory based on the use of his or her own senses

(seeing, hearing, touching, smelling, tasting) instead

of facts provided by someone else (second-hand).

Fed. R. Evid. 60219 sums it up like this: