Overview

• Author: Ashley S. Lipson
• Pages: 27-46

O-1

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.

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 expres-

sion “dead wrong.” It wasn’t the most accurate

system, but it was very final.

Today, judges and juries (instead of under-

takers) have the job of sifting truth from fic-

tion, 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 pros-

ecute or defend their cases in court.

There are four types of evidence. They are

referred to as: Testimonial Evidence, Documen-

tary Evidence, Real Evidence and Demonstra-

tive 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 foun-

dations 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 person-

ally 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 documen-

tary 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 com-

ponent of the controversy itself, but not pho-

tographs 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 presenta-

tion which appeals directly to the senses by a

means other than testimony or verbal descrip-

tions. Technically speaking, however, it is a

Overview

Is It Admissible? O-2

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.

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.

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 club-

bing Staggerlee would be considered as real, 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 “buzz-

words” may be different, the underlying prin-

ciples 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 enhance-

ment. 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 SPECULA-

TIVE 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 software, 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 pho-