LESSON 10 

Law of Evidence

 

Section 1.  The Law of Evidence - Either a Small or a Big Topic

 

For a lawyer, the law of evidence is a subject that can be either big or small. What does that mean?

 

    The law of evidence is a big subject because many concepts in the law of evidence such as presumption, privilege and others contain profound principles and involve public policy. Further, the rapidly changing science and technologies produce DNA, email and other materials that need to be managed as evidence and they are subject that scholars can study.

 

The law of evidence is also a small subject because, excepting the lawyers specializing in criminal and civil litigations, a lawyer generally can practice many years without taking a peek at the law of evidence unless he is suddenly confronted with a jury trial.  By then his desperate attempt to pick up puts him in a dangerous strait.

 

Being put in a dangerous strait also needs a little explanation. The common saying is that familiarity creates skills. The corollary is that without practice the skill becomes rusty. In the middle of a trial, the lawyer skillful in law of evidence can challenge the testimony of your side, but you cannot respond in kind.  Is the situation not a dangerous strait?

 

Therefore, the law of evidence sounds so dry and uninspiring, but when one is really in trial, the application of the law of evidence becomes suddenly alive.

 

Section 2.  Introducing Several Kinds of Evidence

 

During a litigation, we often hear an excited client screaming at the opponent, "He is a bad man.  He is a fraud!".  His lawyer will need to think of a way to calm down his client, and then explain to him:  Condemning him as a bad man and a fraud accomplish nothing. You need the evidence to prove that he has done things a bad man and a fraud does, then it becomes legally useful". The following introduces several common kinds of evidence.

 

Subsection 2.1.   Circumstantial Evidence, Direct Testimony

 

In daily life, when we do not believe what someone says, we often say, "Show us the evidence!"  One can imagine that, in law, evidence is not something we casually mention.

 

As example, a case involving the collision of two cars is in trial in court. Mr. A is one of the drivers in the case. A witness who saw Mr. A driving testifies in court that he saw Mr. A driving at excessive speed. At the time he was driving in a thirty mile per hour speed zone. He estimated that the speed of Mr. A was about 50 miles per hour. The testimony of the  witness who saw the accident is "direct testimony".

 

The attorney for Mr. A presented a rebuttal evidence.  He pointed out that after the accident the police had measured the tread mark left on the ground, and decided that the car was only going at 35 miles per hour at the time of the accident. This kind of tread mark evidence belonged to the "circumstantial evidence". Under many circumstances, the circumstantial evidence is more reliable than the testimony of an eye witness.  In the above example, the tread mark evidence is probably more accurate than the testimony of an eye witness and not subject easily to the attack and challenge by the adversary.

 

Another example:  Assume that before I go to sleep before midnight, I saw that the ground outside the window was dry. The next morning I got out of bed at 8 a.m. And saw that the backyard was covered with snow. Although I did not see personally snowing, the snow on the ground was adequate proof that between midnight and 8 a.m. it snowed. This belongs also the "circumstantial evidence".

 

In the Simpson case, there was no eye witness to what happened, so the chief prosecutor had to concentrate on collecting the blood on the ground, the glove, footprints and other circumstantial evidence. This shows also that cumulative circumstantial evidence can form a very powerful set of evidence.

Subsection 2.2.  Expert Evidence

 

In the Simpson case, there were questions about the autopsy and blood, involving another kind of testimony or evidence, and that is "expert evidence".  A critical issue in the case was to prove that the blood discovered at the site of the murder was not only the same type as that found in the Simpson home, it was absolutely the same and came out of the body of the same individual.  Therefore, both sides called on expert witnesses to testify.

 

However, the reader should not believe that the expert evidence is necessarily scientific and correct without mistake. That is only an illusion created by Hollywood movies and television. In reality there are too many unknown factors in the world. Even the authoritative experts do not have unanimity. As a actual example, I once handle a case involving a real property dispute. For verify if the signature on a document was that of the defendant, I hired a handwriting expert to testify in court. But the opponent also hired an handwriting expert who held a contrary opinion. The consequence is that after both sides spent a large sum of money for an expert opinion and still did not obtain a firm conclusion.

 

Subsection 2.3. Corroborative Evidence 

 

"Corroborative evidence" is also called confirming evidence. For example, a woman has been raped. Besides her own testimony, the bruises and scars and so on are all "corroborative evidence" proving that she has been attacked violently.  

 

That reminds me of a funny story. A woman called the police to report a crime.  The police arrive at her house to investigate. The woman says to the police, "A moment ago the famous actor Paul Newman tied me up and tied to to the big tree in the backyard". The police does not quite believe her story and say to her, "How can Paul Newman tie you up? Talking is not evidence. Besides your oral testimony, is there any corroborative evidence". Pointing to the big tree in the backyard the woman says, "Is that not the corroborative evidence?"

 

Subsection 2. 4.  Suppressed Evidence

 

In our discussion of the Fourth Amendment of the Constitution, it is clear that the prosecution's evidence must have been obtained lawfully and under legal procedure circumstance before it is admissible in court. If the court finds that the evidence has been obtained under unlawful circumstances, not only is it not admissible, it cannot be mentioned by the prosecution in the course of trial.

 

This situation is called "suppressed evidence". For example, in the preliminary hearing of the Simpson case, the most important argument focused on the defense who argued that the police had entered the Simpson house without search warrant and the blood stained glove and blood stain sample obtained were unlawful. The defense demanded that the court rule them as "suppressed evidence" and to reject prosecution's offer of this evidence and cannot ue it later in trial and cannot mention it.

 

We shall cite as another example the police tapping the telephone in narcotics interdiction or breaking up crime syndicate matters. The police need "probable cause" to apply to the court in advance for a warrant before it can proceed. This kind of warrant is not issued lightly and it also severely limit its scope to specific suspects and specific telephone lines, and can only be conducted in a designated short period of time.

 

In other countries, the tapping of telephone is often done by installing listening devices in the switch board, so the person eavesdropping can hear the conversations on other lines, leading often to "unexpected windfall". But such situation cannot exist in the United States, because excepting the line designated in the warrant, the police do not have the right to eavesdrop on other lines. The issue whether evidence obtained in the unexpected windfall is admissible in court has to be decided by the court, but definitely the defense will challenge the evidence strenuously and it can easily become suppressed evidence. 

 

Section 3.  Some Important Points in the Use of Evidence

 

Having introduced several kinds of evidence, we can discuss specifically the application of evidentially rules in a trial. It is stressed that the case we use as example is a California case and the law is California law of evidence (very similar to Federal law) and does not represent the law in all the states in the United States.

 

Before looking at an example, attention should be paid to several points:

 

Subsection 3.1.  The Motion to Suppress Before Trial

 

Particularly in bigger cases, many evidentiary or legal issues are resolved in advance of trial by motions presented to the court for decisions, so that they do not consume time in the midst of trial. For example, in a murder case, the first thing the criminal defense lawyer would consider is whether to make a motion to suppress prosecution evidence based on constitutional law.

 

Whether before or after trial, the presiding judge has a important responsibility to decide the admission of evidence. If there is no specific statute or case law as guide, the judge has the right to use discretion and decide based on the circumstances.

 

In California, this discretionary power is codified in Evidence Code Section 352, which is also the most basic principle in the law of evidence.

 

The court in its discretion may exclude evidence if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury. 

 

The following is a typical example of invoking Section 352:

 

A criminal defense lawyer knows that the prosecution will produce ten photographs of the victim's body corpse taken from different angles and distances, so before trial he makes a motion to exclude all or most of the photographs. The reason is that there are too many photographs and they are too sensational and will mislead the jury. They are also cumulative and consume too much time, creating excessive negative influences leading to an unfair trial. The judge in making a discretionary ruling will have to consider the probative value of the ten photographs to see it it is outweighed by other considerations.

 

From the above example once can see that the law of evidence is particularly important in a criminal trial. If the trial judge makes an incorrect ruling on evidence, the error is the most frequently cited reason for criminal appeal. However, in a civil litigation, the judge has wide discretion in evidentiary decisions. Generally the decisions will not be reasons for appeal or get overturned by the court of appeal. 

 

Subsection 3.2. Waiver: During a trial, one side may produce evidence or testimony; if the opposite side does not object immediately, he is deemed to have waived the objection. If the lawyer is not alert and responds to each situation promptly, the opportunity to object will disappear in a flash. On the other hand, if the lawyer objects excessively and for no valid reason, and the objections are overruled by the judge each time, he is creating a very negative impression on the judge and the jury.  The consequence of over kill is backfire.

 

Subsection 3.3.  Making a clear record:  If there is a clear and complete record,  a lot of paper work and later dispute can be reduced. In hearings in the courts or Congress, there are two phrases that are uttered often: "make the record" and "for the record". The reason is that without a clear record, there is no way of reconstructing what happened.

 

Subsection 3.4. Direct testimony and cross examination: The evidence given during a direct testimony has to go through a rigorous examination before it is admissible and put to use. The same evidence given during impeachment or cross examination are easily accepted. This is one of the most difficult to understand part of evidence law. There will be a detailed explanation later.

 

Subsection 3.5. Objection as to form and substantive objective: The objection as to form means the the question asked is not proper as a matter of the form being used. If the form is corrected, the question becomes acceptable. The substantive objection means that the question is not acceptable not matter whether the form is changed or not; the question is still not acceptable under the law of evidence and not acceptable.

 

Subsection 3.6. Irrelevant: The two most often used reasons for objection are "irrelevant" and "hearsay". If the objection is sustained, the evidence presented is excluded. The "irrelevant" objection is easy to understand. In a traffic accident trial, the witness says, "On that day I was wearing my most favorite green t-shirt". The opposition will say, "Objection. His wearing a green

t-shirt is irrelevant to this case".  The judge will definitely say, "Objection sustained".