Section 1.5 Evidence, Proof, Burden of Proof, Belief, Persuasion

• Library: Sources of Proof (2014 Ed.)

A. (§1.5) Evidence, Proof, Burden of Proof, Belief, Persuasion

Evidence. Evidence consists of the following:

• Demonstrative evidence—exhibits presented to the jury

• Testimonial evidence—the testimony of witnesses

• Circumstantial evidence—facts arrived at by inference from other testimony, facts, or common sense

Proof. Proof is evidence plus those things that the jury is properly allowed to consider in its deliberation of the facts. These consist of facts admitted through judicial notice, presumptions, stipulations, common and special knowledge of triers of fact, the demeanor and conduct of witnesses, and any other matter admissible for consideration by the trier of fact.

Persuasion. Persuasion is the process of creating in the trier of fact a “belief” of all needed factual propositions to support a verdict. It also encompasses the presentation of legal theory through cases, statutes, ordinances, etc., and by analogy from them, to assist the court in deciding whether one has a legally submissible case. In a trial it means:

• legal and factual preparation;

• the wise ordering of proof;

• getting and holding attention;

• ensuring accurate perception and understanding;

• winning belief;

• relating belief to the needs and values of the trier of fact; and

• avoiding or overcoming obstacles to a favorable decision.

It is both an art and a science.

Many social scientists are now involved in the trial area of “persuasion.” They conduct pretrial jury surveys, test themes and key words, suggest the “persuasive ordering of events,” and participate in pretrial jury questionnaires and jury selection. Under the right circumstances in the right case, each can be of assistance. All trial counsel should be aware that these sources are available to assist in decisions of tactics and proof. All should also be aware that none are guaranteed.

Perhaps the most significant of the persuasion sources is the “mock trial.” These run the gamut from the very expensive pre-researched, videotaped, analyzed professional production to online focus groups to gathering a few friends and presenting the case and its themes. This is an option that not only allows for the presentation of alternative approaches to a trial but also, under some circumstances, gives insight into what lay jurors consider important and unimportant by allowing counsel to watch videotapes of the jury deliberation process itself. This information allows counsel to refine or even retool...