Federal Rules of Evidence
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The rules of evidence refer to the set of rules being followed by the courts in the United States in deciding whether the evidence being introduced by both the prosecution and the defense panels in civil and criminal cases should be admissible in trial. When a case is being tried in a federal court, the Federal Rules of Evidence is being followed by the federal judge. Judges presiding over state courts, on the other hand, have to abide by the rules of evidence established by the state legislatures. However, many states have patterned their rules of evidence after the federal rules (Legal Information Institute [a], n.d.).
The Federal Rules of Evidence were prescribed by the United States Supreme Court pursuant to its power under §2072 (a) of Title 28 of the United States Code which explicitly stated that “The Supreme Court shall have the power to prescribe general rules of practice and procedure and rules of evidence for cases in the United States district courts (including proceedings before magistrate judges thereof) and courts of appeals.” These rules were initially enacted by Public Law 93-595. After it was approved on January 2, 1975, the United States Congress introduced several amendments. The up-to-date version, which incorporated the final amendment introduced by the United States Supreme Court, took effect on December 1, 2006 (Committee on the Judiciary, 109th Congress, 2006).
The stated purposes of the Federal Rules of Evidence are “to secure fairness in administration, elimination of unjustifiable expense and delay, and promotion of growth and development of the law of evidence to the end that the truth may be ascertained and proceedings justly determined.” In other words, the rules were put together specifically to eliminate any unnecessary delays in court proceedings without excluding any single piece of evidence that could contribute to the ultimate goal of establishing the truth (Legal Information Institute [a], n.d.). For this reason, not every evidence introduced by the prosecution and the defense could be admitted in trial. Traditionally, evidence has been judged as to admissibility according to its “relevance, materiality, and competence.” The general rule is for the courts to admit evidence which satisfy these three elements, unless otherwise prohibited by any of the “exclusionary rules.” Recently, however, materiality has been considered a part of the element of relevance while the significance of the rule of competence has been increasingly reduced (Dicarlo, n.d.).
Evidence could be excluded from trial based on constitutional and nonconstitutional exclusionary rules. An example of a nonconstitutional exclusionary rule is the introduction of the testimony of a witness who was not disclosed by the party calling him or her (either the defense or the prosecution) before the start of the trial. This refers to Rule 26 of the Federal Rules of Civil Procedure concerning witnesses. According to the rule, a party should provide the opposing party with a list of the witnesses it plans to call before the trial starts. If the witness is to be qualified as an expert witness, the list should be provided at least 90 days earlier. The list should include the names, addresses, contact numbers, educational background, professional qualifications, including the substance of the testimony of the witnesses (Legal Information Institute [b], n.d.)
The constitutional exclusionary rules, on the other hand, were based on the constitutional right of the people to guard their property against trespass or encroachment. This was the primary concern of the founding fathers when they introduced the Fourth Amendment. They cited the laws of England which decreed that even the slightest invasion of private property constituted trespass. As Lord Camden declared in Entick v. Carrington, “No man can set foot upon my ground without my licence but he is liable to an action though the damage be nothing.” The Fourth Amendment specifically applies in cases involving search and seizure where the evidence obtained are meant to be used as evidence in trial. Specifically, it protects a person’s privacy right in places where that person has reasons to expect some privacy from intrusion by government agents such as his or her private home.
For this reason, under the provisions of the Fourth Amendment, police officers are required to obtain a warrant from the court in order to conduct search and seizure proceedings. The court, on the other hand, should only issue the warrant after having been convinced that there is indeed a reasonable cause that a search is warranted for the purpose of solving a crime. The application for a search warrant should specifically describe the particular objects that would be seized. This element of “particularity” was meant to limit the search to areas where said objects could possibly be found and prevent police officers from abusing their authority under the constitution (FOURTH AMENDMENT, n.s.). So when the prosecution introduces evidence which was seized by police officers without a valid warrant, said evidence, regardless of whether it is admissible under normal conditions, is considered illegally obtained and could be excluded from trial. However, there are certain exceptions which could allow police officers to conduct warrantless search and seizure proceedings and still produce admissible evidence.
Exceptions to warrantless searches
One example of an exception to the search warrant rule is “consent search.” This means that police officers were able to obtain a voluntary consent from the owner to search a place for evidence even without a warrant. In the absence of the legal owner, consent could be granted by any person who has “a lawful right of access” to the place. This refers to persons who have been authorized by the legal owner to enter and stay within the premises anytime.
However, there also exceptions to this “lawful right of access” rule. For instance, while parents could allow police officers to legally search any property which belong to their minor children, the latter could not authorize a search of any property owned by the former (Police Magazine, 2007). The other exceptions to the warrant requirement could occur when police officers are conducting a “protective sweep” of premises including the private residence of an arrestee if there is “reasonable belief” that a dangerous individual could be hiding in said premises. Another is a random search of vehicles when police officers could establish “probable cause” to suspect that a criminal activity is in progress in the area. In both these situations, contraband in plain view of police officers could be seized without the need for a warrant and is still admissible evidence. If a person who is driving a vehicle, for instance, is stopped by a police officer for valid reasons, say speeding or defective taillights, contraband in “plain view” of police officers are also subject to warrantless seizure and become admissible evidence (FOURTH AMENDMENT, n.d.).
Standards of admissibility
Determining the admissibility of an item of evidence is based on its “relevance, materiality, and competence” (Dicarlo, n.d.).
Evidence is said to be relevant when it tends to contribute to the probability of a fact being proved or disproved. In other words, the evidence being introduced should not necessarily establish the certainty or the probability of a certain fact for it to be relevant. What is required is merely for the evidence “to have some tendency to increase the likelihood of the fact for which it is offered.” It is the function of a judge (in a bench trial) or a jury to determine or “weigh” whether the evidence (even if it is weak when judged by itself) has this tendency to contribute to the likelihood of the fact. For instance, if the prosecutor wants to prove that A stabbed B, the most relevant evidence would be the account of an eyewitness to the stabbing. However, the testimony provided by another person who witnessed a quarrel between A and B the day before the stabbing could also be relevant – although it could not establish for certain that A stabbed B because of the quarrel, it has the tendency to show that A probably stabbed B because of the quarrel (Dicarlo, n.d.).
Nowadays, materiality of evidence is usually considered hand-in-hand with its relevance. An item of evidence is material if it is introduced in order to prove a fact which is central to the case. For instance, in a case involving breach of contract, if the plaintiff’s claim that he or she has performed his or her part of the contract is being disputed by the defendant, the proof or evidence of such performance is material to the case. However, if the defendant has already admitted that the plaintiff, indeed, has performed his or her part of the contract, then the evidence is no longer material. If another witness testifies that a bomb went off in the vicinity when the plaintiff and the defendant were affixing their signatures on the contract, the evidence is considered immaterial because it has nothing to do with whether one party breached the contract (Dicarlo, n.d.).
An item of evidence is believed to be competent if it satisfies “certain traditional requirements of reliability.” This means that before the evidence is offered, it should first pass the test of reliability. This requirement is referred to as “foundational evidence.” In other words, if an item of evidence has not yet been established to be competent, it could not yet be introduced because it is said to lack the proper foundation. For example, evidence that a defendant has a previous record of shoplifting could not be used as evidence that he or she was responsible for lifting a certain item from a store just because he or she had been observed in the premises at the time of the incident. This is because it has not been properly established that he or she acted similarly in the current case or that he or she was the one who actually lifted the item. In other words, the competence of the previous record as an item of evidence has not been fully established. However, the previous record could be used to establish his or her intent to shoplift. In other words, it could be concluded that based on his or her previous record, it is very likely that the defendant went to the store with the intention of shoplifting (Dicarlo, n.d.).
Types of evidence
There are four types of evidence, namely: “real evidence, demonstrative evidence, documentary evidence, and testimonial evidence” (Dicarlo, n.d.).
This refers to any item of evidence whose characteristics alone already make it relevant to the case because it has been involved in the case directly. In other words, its relevance is rather obvious. The gun used to murder someone is an example of real evidence in a murder case. The scene of a vehicular accident and the smashed vehicles which were involved in the accident are considered real evidence of the accident. The contract cited in a breach of contract case is another example of real evidence. However, before real evidence could be considered relevant, it should first be authenticated using one or a combination of the following methods: “by identification of a unique object, by identification of an object that has been made unique, and by establishing a chain of custody” (Dicarlo, n.d.).
In the case of a murder weapon, authentication is done using the first method: “identification of a unique object.” This is done through what is called “forensic firearm identification” which makes use of “toolmarks” which are the microscopic marks found on a bullet which are supposed to be unique for every gun. Gun identification involves comparing the “toolmarks” found in a bullet recovered from the scene of a crime with the “toolmarks” in the bullet which was test-fired from the gun owned by a prime suspect. Authentication is obtained once the marks from the two bullets match (National Academies, 2008). This method is also used in authenticating documents which are used as real evidence. For instance, a contract used as evidence in a breach of contract case. The authentication is being done by a handwriting expert who could identify the signatures found on the contract (Dicarlo, n.d.).
The second method: “identification of an object that has been made unique” could be used in identifying certain documents. For instance, an investigator finds an important document at the scene o a crime. He affixes his signature in a corner before turning it in for safekeeping. When the document later proves relevant to the case, the same investigator could authenticate it by identifying his signature and testify that he, indeed, found it in the scene of the crime. Finally, the third method: “establishing a chain of custody” is considered to be the least desirable. This method “requires that the whereabouts of the evidence at all times since the evidence was involved in the events at issue be established by competent testimony.” To achieve this, authentication sometimes needs the testimony of several competent witnesses to really account for the whereabouts of the evidence so that the chain of custody from the date of the event up to the time of trial is not broken. The opposing party has only to prove that the chain has been broken to have the evidence excluded. Even if the chain of custody is established, sometimes it is also necessary for the party offering the evidence to prove that its condition, especially of the relevant part, has not substantially changed (Dicarlo, n.d.).
As the term implies, this type of evidence demonstrates the testimony or the evidence offered by the witness. Its admissibility depends upon how accurate the evidence illustrates the offered proof. Examples of this type of evidence are drawings made of the scene of a crime, maps, and still photographs. For instance, when an individual who witnessed an event is called to testify, it is important for him or her to be able to identify important features of the scene based on a map, a diagram, or photograph of the scene to corroborate what he or she heard or saw during a particular event especially when it concerns the number of individuals present at the scene and their specific locations (Dicarlo, n.d.).
Documentary evidence is sometimes turned into real evidence. A specific instance is when a contract is used as evidence in a breach of contract case where the purpose of the introduction of the contract is to prove the contract terms claimed by one of the parties. When such a document is used this way, the contract becomes both real and documentary evidence. However, since documents involve human language, problems sometimes arise which distinguish documentary evidence from other kinds of real evidence, including the possibility that certain documents might contain hearsay.
When documentary evidence is involved, certain questions should be asked. The first question is whether there is a “parol evidence” problem involved or allegations of oral or previous written agreements not found in the contract introduced as evidence. Parol evidence is not covered by the rules of evidence but by substantive law. The second question is: “Is there a best evidence problem?” The rule concerning best evidence specifies that whenever a document is introduced as evidence, “a copy or other secondary evidence of its content will not be received in place of the original document unless an adequate explanation is offered for the absence of the original.” In other words, before a document could be authenticated, it should first be determined whether it is the original or a copy. The party offering the evidence should then satisfactorily justify the absence of the original or else the evidence would not be admissible. This rule was created in order to prevent altered or doctored documents from being introduced as evidence (Dicarlo, n.d.).
This is considered to be the most standard form of evidence. It is also the only kind of evidence that could be admissible without being supported by other forms of evidence. Testimonial evidence is given by a witness in response to questions asked by the prosecutor and the defense counsel during the direct questioning (the calling party is the one posing the questions to the witness he or she called) and cross examination (the questioning is being done by opposing counsel) portions of the trial. Certain requirements must be met before a witness could be considered competent to testify. First, he or she should take the required oath before the questioning starts. Later, any lies or distortions of truth uttered by the witness while under oath are reasons for judicial action against the witness. Second, his or her knowledge about the subject matter on which he or she will be testifying should be personal or should have been acquired directly through his or her own senses and not from other people or sources. Third, it should be clearly shown by the witness that he or she remembers exactly what he or she perceived through his or her own senses during the event in question. Finally, the witness should be able to describe or convey with adequate clarity everything that was perceived through his or her senses (Dicarlo, n.d.).
Although in theory, any substantial or highly questionable noncompliance of the above requirements may be reasons for opposing counsel to question the competence of the witness and move for the exclusion of his or her testimony, in practice, testimonial evidence are seldom excluded because of the leniency that the court takes with regards these requirements. For instance, communicating what the witness saw or heard may be done using an interpreter who could explain what the witness wants to say even through sign language. Then said communication could also be done in writing if the witness feels that he or she could do it better in writing than orally. Then the witness’ recollection of the incident could always be aided in several ways.
One of the usual methods used in helping the witness remember what he or she saw or heard is by counsel who is calling the witness to request for a recess to enable the witness – especially when he or she is abnormally nervous or fearful – to regain his or her composure. Then the lawyer who is doing the questioning could also help in refreshing the memory of the witness by employing leading questions. This method is often objected to by opposing counsel especially during direct questioning (the rule is for the attorney to let the witness narrate by asking open ended questions) but could also be justified by the attorney asking the question and could be allowed by the judge if he or she also desires to know the answer (Dicarlo, n.d.).
The third method is what is referred to as “past recollection refreshed.” This is usually done when the witness declares that he or she could not exactly remember what the counsel would like him or her to recall. The counsel may refresh the memory of the witness by asking him or her what, if any, could help him or her remember. The witness could request a specific song to be replayed if said song has been playing in the background during the event in question (say, A Hard Day’s Night by the Beatles). It could even be in the form of notes which the witness took after witnessing something relevant if he or she was able to take down any notes. There were even instances when the witness would like to smell the favorite perfume of the victim so that he or she could remember some specific things about the incident in question. The requested “refreshers” could be made available to the witness and after he or she states that it has already served its purpose of helping him or her remember, the object is then withdrawn and the questioning resumes. The evidence, in this case, is the answer of the witness after being refreshed, not the object which helped him or her remember things (Dicarlo, n.d.).
The rule against hearsay
Hearsay refers to “evidence of a statement that was made other than by a witness while testifying at the hearing in question and that is offered to prove the truth of the matter stated.” The definition is clear: any statement made by anybody who is not in the witness stand but is offered as evidence is hearsay. However, being hearsay does not automatically exclude a statement from trial. This is why law practitioners opine that this rule is easier to state than to apply. There are many exceptions to the hearsay rule. The overriding principle to be remembered, though, when dealing with hearsay is that it is often admissible if its probative value outweighs its prejudicial value. In plain language, when hearsay could do more good than harm and admitting it could contribute to the administration of justice, then it is admissible. Otherwise, hearsay could be excluded. There are more than 27 exceptions to the rule of hearsay. Some of these concern declarants who are unavailable but in most of them the declarants are available (Dicarlo, n.d.).
There is a “catchall provision” which is considered to be one of the most known exceptions to the hearsay rule. This exception says that
evidence of a hearsay statement not included in one of the other exceptions may nevertheless be admitted if it has equivalent guarantees of trustworthiness, it is offered to prove a material fact, it is more probative than other reasonably obtainable evidence, its admission would serve the interests of justice, and the other parties have been given notice of its intended use (Dicarlo, n.d.).
This restates the thesis that when the probative value of hearsay outweighs its prejudicial value, it is admissible. Since the ultimate objective of a trial is to search for the truth, convict the guilty and exonerate the innocent, the court admits hearsay if it serves the interest of justice more effectively than other relevant items of evidence provided that the opposing party is properly advised of its introduction (Dicarlo, n.d.).
Aside from the exceptions, there are specific statements which, although uttered out of court, are not considered hearsay, therefore relevant and admissible. These are: previous statements of a witness which were also made under oath (in other trials) which are contradicting his or her present testimony; previous statements made by a witness under oath which support his or her current testimony and which are being introduced to disprove allegations by opposing party that the same witness is guilty of lying in connection with the current case; statements which identify a person; and statements made by a coconspirator of the accused which were made to move their conspiracy forward. There are 24 exceptions to the hearsay rule which could be availed of without the proponent attesting to the unavailability of the declarant and two exceptions which do not require proof that the declarant is not available (Dicarlo, n.d.).
Circumstantial evidence refers to a testimony made by a witness attesting to the fact that an event occurred and out of which event a logical conclusion could be made that another event also took place. In the case of circumstantial evidence, however, it is important to determine whether the witness is credible and whether it is safe to assume that the event to which he or she is attesting to actually occurred (State of Connecticut Judicial Branch, 2008). For instance, an apartment is occupied by three male friends. On a Monday evening, before the three of them retired for the evening, two of the occupants, persons A and B, confessed to having no money in their pockets. Person C, on the other hand, told them that he had a $100 bill in his wallet.
Early the following morning, person C could no longer find his money. When he asked his friends if they had seen it, neither of the two would admit to having taken the money. They had established that nobody entered or left the apartment since they retired and woke up that morning. However, out of the blue, person A volunteered that since person C had no more money, he would buy their breakfast for that morning. This is a circumstantial evidence that person A was the culprit because although he said that he had no money the evening before, he was able to come up with some amount the following morning just as person C lost his money. However, the value of this evidence depends on whether persons A and C are credible. In other words, was person A telling the truth when he said the evening before that he had no money? What if he had only been joking? In the same vein, did person C likewise tell the truth when he told them that he had $100 in his wallet? What if he had actually no money left?
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