Evidence
Overall, evidence was one of my favorite classes this semester.
It was interesting, complex, and a nice little 8am brainteaser. We learned the basic rules and principles of American evidence law, and focused largely on the Federal Rules of Evidence (which apply in federal courts - each state has their own version). We read a bunch of cases, did lots of practice problems (this was my first law textbook with actual problems - SO helpful) and asked about a million questions.
My professor was also great, despite this being his first time teaching the course. He’s a practicing attorney with a big firm and has been in his fair share of courtrooms! As we discussed each new rule, he explained how the rule is supposed to function and then how it actually works in real life. That’s really helpful for us newbies. He also explained obscure legal terms when they arose (many professors just assume we know them - WE DON’T) and told us fun war stories from court. Bottom line: this was one of my most practical courses to date and I look forward to pulling a Reese Witherspoon in court!
THE RULES OF EVIDENCE
Before allowing evidence into a trial, attorneys and judges have to ask three questions. First, is the evidence relevant? Second, is it reliable? Finally, is it right?
Is it relevant?
Relevance comes first because if certain evidence isn’t relevant to proving a case, it doesn’t get in - period. The test for relevance is pretty simple: does the piece of evidence have any tendency to make a fact more or less probable than without it? For example, we read a Montana case about a man riding a horse with a child behind him; he had been drinking and the horse reared, knocking the child off and killing her. The man’s B.A.C. was well over the legal limit, and the prosecution wanted to introduce that fact at trial. The defense protested, saying the B.A.C. was irrelevant to proving that the man negligently endangered the child. Ultimately, the court allowed it based on the following logic - if a man rode a horse with a B.A.C. above the legal limit, indicated he was legally too inebriated to drive a car, then it makes it MORE LIKELY that he was also too inebriated to execute the standard of care required of a reasonable person.
Is it reliable?
This is another primary concern because, much like relevance, we don’t want needlessly unreliable facts in a courtroom. Here’s (an extreme example of) why - we read a FASCINATING case about a guy who died of arsenic poisoning. When his diary was discovered, it contained three different entries about meeting with a young lady and feeling sick after each encounter. Sounds like a good ole smoking gun, right? But the court didn’t allow the diary at trial because it was hearsay - there was no way to (a) verify the dead man actually wrote those entries, or (b) cross-examine him for the diary’s truth.
Turns out, it was a good decision. Evidence later surfaced that the man only kept the diary for three months before his death, and committed suicide by arson while attempting to get revenge on his former lover, the young lady. And that, in a nutshell, is why we try not to admit unreliable evidence!
Is it right?
Apart from relevance and reliability, courts want to ensure the evidence is also accurate and efficient. One of the most fundamental cases here comes from England, and involves well-known lord (at the time, obviously) Sir Walter Raleigh. Raleigh was accused of treason based on an affidavit from one man and the testimony of another, who said someone else told him Raleigh planned to kill the King. The first man recanted his statement but couldn’t testify at trial, because the Crown had him in the tower of London - the second man did testify, but the man who supposedly told him about Raleigh’s plan couldn’t be located. Sketchy af.
Basically, Raleigh was like “you can’t convict me based on that! First of all, it’s nonsense - second, bring those guys to court and see if they’ll still accuse me.” But the judges were like, meh, seems okay to us - and they convicted and executed him. Big yikes energy all around.
Now, Raleigh’s case is foundational to the American conception of confrontation. The Sixth Amendment says a criminal defendant has the right to “be confronted with the witnesses against him,” meaning witnesses HAVE to testify and be open to cross-examination from the accused, because of ole Raleigh. Super interesting stuff!
The Gloves - maybe the most famous evidence to date.
EVIDENCE TOPICS
The Federal Rules are split into different articles, which relate to various areas of evidence law. Below are just a few that we discussed:
Privileges (Article V)
Privileges are various protections, afforded to specific people, who participate in relationships that the law wants to protect. The most common one is the attorney-client privilege, where anything said in confidence between a lawyer and their client is protected from the other side. There is a crime-fraud exception though; these communications aren’t protected if the attorney (knowingly or unwittingly) offers their services in the commission of a crime.
Another strong privilege exists between spouses - you don’t have to reveal confidential communications made during the marriage, and can never be forced to testify against your spouse in court. Finally, there’s a work-product privilege designed to protect materials made in anticipation of trial. Don’t want to give away all your secrets to the other side!
There are a few others as well; physician-patient, psychiatrist-patient, reporter-source, and informer’s privilege. But they’re not recognized in all jurisdictions and aren’t as strong as the three listed above!
Character Evidence (Article IV)
Basically, courts want to encourage testimony about the personal character of the accused and/or other witnesses, but don’t want to waste trial time or throw shade when shade is unnecessary (my mission in life - codify “shade”). As a result, there are many rules governing how and when you can bring character evidence to support your witness or discredit the opposition. The rules also carefully protect against character attacks on victims, particularly in sexual assault cases.
Expert Witnesses (Article VII)
Courts are really careful with expert witnesses because of their immense impact on a jury - both sides will often employ experts to present their theory of the case. Under a case called Daubert v. Merrell Dow Pharmaceuticals, the trial court makes a preliminary decision about an expert’s “expertise” based on the following considerations:
the testability of the theory or methodology
whether the theory is subject to peer review
the potential rate of error
if the knowledge has reached general acceptance in the expert community
Experts cost a LOT of money, so these are pretty important standards. My professor told us a story one time about an opposing expert hired for seven figures - and my prof got his testimony thrown out!
Hearsay (Article VIII)
Finally, the good ole hearsay rules. Hearsay is defined as “a statement which the declarant does not make while testifying at the current trial or hearing,” and that is “offered for the truth of the matter asserted in the statement.” To break that down…
A statement is any kind of oral, written, or non-verbal conduct IF meant as an assertion
The declarant is the person making the statement (and yes, it has to be a person! No parrots!!)
It must have been said outside of court
AND is being used to prove that whatever is in the statement is true.
For example, if A gets on the stand and says “B told me that she was going to kill her husband,” that’s hearsay. B is the declarant and made that statement outside of the courtroom, so trying to prove that B planned to kill her husband based on B’s statement - when she’s not even there - is very unreliable.
The CRAZIEST hypo we read (which I think is based on a real case) involved a murder and a parrot…basically, the police roll into the dead woman’s home, which she shared with her husband Harry, and hear a parrot saying “…hello?…hello?…HARRY DON’T SHOOT!…hello?”
The hypo then asked, is the parrot’s statement admissible? The answer - YES! The parrot is an animal, not a person, so its words can’t be considered hearsay; furthermore, the murdered woman’s plea of “Harry don’t shoot!” is a plea, not a statement. So (assuming relevance) it comes in, no problem.
(Then, as defense counsel, you’d want to get up and point out (a) how there’s no way to verify the bird actually overheard those words, or (b) that they came from the woman, or (c) they referenced the murder at all)
After just typing that out, I really should go back to studying. Hearsay is WILD.
IN CONCLUSION
Because evidence is literally based on written rules, my final is extremely scenario-heavy. Luckily, our textbook includes a bunch of review problems at the end of each section (even if there aren’t answers - boo) so I’ve been reviewing each rule and how to properly apply it over the past few days. It’s kind of a weird exercise because I actually need to know these rules cold for the courtroom, so I’m not really studying for the final…more like studying for real life. Hopefully the material sticks around in my head!
