Any matter of fact that a party to a lawsuit offers to prove or disprove an issue in the case. A system of rules and standards that is used to determine which facts may be admitted, and to what extent a judge or jury may consider those facts, as proof of a particular issue in a lawsuit.
Until 1975, the law of evidence was largely a creature of the common law: Evidence rules in most jurisdictions were established by cases rather than by organized, official codifications. Legal scholars long pushed for legislation to provide uniformity and predictability to the evidentiary issues that arise during litigation. Following a lengthy campaign begun by the American Law Institute, which drafted its Model rules of evidence in 1942, and the National Conference of Commissioners on Uniform State Rules, which drafted the Uniform Rules of Evidence in 1953, Congress in 1975 adopted the federal rules of evidence. The Federal Rules of Evidence are the official rules in federal court proceedings. Most states now also have codified rules of evidence based on these federal rules. Both state and federal rules of evidence serve as a guide for judges and attorneys so that they can determine whether to admit evidence—that is, whether to allow evidence to be observed by the judge or jury making factual conclusions in a trial.
One important benchmark of admissibility is relevance. Federal Rule of Evidence 402 states, in part, "All relevant evidence is admissible, except as otherwise provided." The goal of this rule is to allow parties to present all of the evidence that bears on the issue to be decided, and to keep out all evidence that is immaterial or that lacks probative value. Evidence that is offered to help prove something that is not at issue is immaterial. For example, the fact that a defendant attends church every week is immaterial, and thus irrelevant, to a charge of running a red light. Probative value is a tendency to make the existence of any material fact more or less probable. For instance, evidence that a murder defendant ate spaghetti on the day of the murder would normally be irrelevant because people who eat spaghetti are not more or less likely to commit murder, as compared with other people. However, if spaghetti sauce were found at the murder scene, the fact that the defendant ate spaghetti that day would have probative value and thus would be relevant evidence.
The most common form of evidence is the testimony of witnesses. A witness can be a person who actually viewed the crime or other event at issue, or a witness can be a person with other relevant information—someone who heard a dog bark near the time of a murder, or who saw an allegedly injured plaintiff lifting weights the day after his accident, or who shared an office with the defendant and can describe her character and personality. Any competent person may testify as a witness, provided that the testimony meets other requirements, such as relevancy.
The Federal Rules of Evidence contain broad competency requirements. To testify, a witness must swear or affirm that he or she will testify truthfully; possess personal knowledge of the subject matter of the testimony; have the physical and mental capacity to perceive accurately, record, and recollect fact impressions; and possess the capacity to understand questions and to communicate understandably, with an interpreter if necessary. When an issue of state law is being determined, the state rules of evidence govern the competency of a witness. States that have not adopted the Federal Rules of Evidence may have other grounds for incompetency, such as mental incapacity, immaturity, religious beliefs, and criminal convictions. The Federal Rules of Evidence and most jurisdictions state that jurors and presiding judges are not competent to testify in the case before them.
To be admissible, testimony must be limited to matters of which the witness has personal knowledge, meaning matters that the witness learned about using any of his or her senses. Second, the witness must declare under oath or affirmation that the testimony will be truthful. The purpose of this requirement is to "awaken the witness' conscience and impress the witness' mind with the duty to [be truthful]" (Fed. R. Evid. 603). The oath or affirmation requirement also serves as a ground for perjury if the witness does not testify truthfully. Although the oath frequently invokes the name of God, the witness need not possess any religious beliefs; a secular affirmation is sufficient.
Witnesses may be called to testify by any party to the lawsuit. The party who calls a witness to testify generally questions the witness first, in what is known as direct examination. The judge may exercise reasonable control over the questioning of witnesses in order "(1) to make the interrogation and presentation effective for the ascertainment of the truth; (2) to avoid needless consumption of time, and (3) to protect the witnesses from harassment, or undue embarrassment" (Fed. R. Evid. 611(a)). Thus, the judge may prevent a witness from rambling in a narrative fashion and may require an attorney to ask specific questions in order to ascertain the truth quickly and effectively.
The federal rules and most jurisdictions discourage the use of leading questions on direct examination. These are questions that are designed to elicit a particular answer by suggesting it. For example, the question "Didn't the defendant then aim the gun at the police officer?" is a leading question, and normally it would not be permitted on direct examination. By contrast, "What did the defendant do next?" is a nonleading question that would be permitted on direct examination. In most cases, questions that can be answered with either "Yes" or "No" are considered to be leading questions. Courts generally will permit leading questions during direct examination if the witness is adverse or hostile toward the questioning party.
Leading questions are permitted, and are common practice, during cross-examination. Once a party conducts a direct examination, the opposing party is entitled to cross-examine the same witness. The scope of questions asked during cross-examination is limited to the subject matter that was covered during direct examination, and any issues concerning the witness's credibility. Attorneys use cross-examination for many purposes, including eliciting from a witness favorable facts; having the witness modify, explain, or qualify unfavorable versions of disputed facts elicited during direct examination; and impeaching, or discrediting, the witness.
If a witness is a lay witness (i.e., not testifying as an expert), the witness generally may testify as to facts and not as to opinions or inferences, unless the opinions or inferences are "(a) rationally based on the perception of the witness and (b) helpful to a clear understanding of the witness' testimony or the determination of a fact in issue" (Fed. R. Evid.). For example, a witness may not testify that she smelled marijuana unless she can sufficiently establish that she knows what marijuana smells like. Lay witnesses commonly testify about such things as the speed that a car was going, or someone's approximate age, but these types of inferences are less likely to be permitted the more closely they address critical issues in the case.
"If scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue, a witness who is qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise" (Fed. R. Evid. 702). The admissibility of expert testimony hinges on whether such testimony would help the judge or jury, and whether the witness is properly qualified as an expert. Expert witnesses may, and usually do, testify in the form of an opinion. The opinion must be supported by an adequate foundation of relevant facts, data, or opinions, rather than by conjecture. Thus, an expert frequently relies on firsthand or secondhand observations of facts, data, or opinions perceived prior to trial, or presented at trial during testimony or during a hypothetical question posed by an attorney. Courts do not require experts to have firsthand knowledge of facts, data, or opinions because experts in the field do not always rely on such firsthand knowledge. For instance, physicians routinely make diagnoses based on information from several sources, such as hospital records, X-ray reports, and opinions from other physicians.
When an expert offers a scientific fact as substantive evidence or as the basis of his or her opinion, the court must determine the reliability of the scientific fact by looking at such things as the validity of the underlying scientific principle, the validity of the technique applying that principle, adherence to proper procedures, the condition of instruments used in the process, and the qualifications of those who perform the test and interpret the results. Issues frequently arise over such scientific tools and techniques as lie detectors, DNA testing, and hypnosis. Some scientific tests, such as drug tests, radar, and paternity blood tests, generally are accepted as reliable, and their admissibility may be provided for by statute.
In Kumho Tire Co. v. Carmichael 526 U.S. 137, 119 S.Ct. 1167, 143 L.Ed.2d 238 (U.S.Ala., Mar 23, 1999) (NO. 97-1709), a tire on the vehicle driven by Carmichael blew out, and the vehicle overturned, killing one passenger and injuring others. The survivors and decedent's representative brought a diversity suit against Kumho, the tire's maker, and its distributor. Their claim that the tire was defective relied mainly upon the depositions of a tire-failure analyst, whose expert testimony was to have been that a defect in the tire's manufacture or design caused the blow-out. The expert's opinion was based upon an inspection of the tire and upon the theory that in the absence of certain symptoms indicating tire abuse, a failure of the sort that occurred was caused by a defect. Kumho moved to exclude the expert's testimony, claiming that his methodology failed to satisfy Federal Rule of Evidence 702, which does not distinguish between "scientific" knowledge and "technical" or "other specialized" knowledge. The U.S. Supreme Court disagreed and ruled that the trial judge has the power to test the reliability of all expert testimony, whether by a scientific expert or by an expert who is not a scientist. The court held that Rule 702 does not address the testimony of scientists only, but that it applies to any type of expert testimony.
The american medical association maintains guidelines for physicians who testify both as treating physician experts and as nontreating expert witnesses. Many state medical associations also have guidelines for doctors who testify.
The credibility of any witness's testimony depends upon three factors: (1) whether the witness accurately perceived what he or she described; (2) whether the witness retained an accurate memory of that perception; and (3) whether the witness's narration accurately conveys that perception. In order to be allowed to testify, the witness generally must take an oath, must be personally present at the trial, and must be subjected to cross-examination. These conditions promote the factors that lend themselves to the witness's credibility. The rule against hearsay further bolsters the oath, personal presence, and cross-examination requirements.
Hearsay is a statement, made out of court, offered in court to prove the truth of the matter asserted. The statement may be oral or written, or it may be nonverbal conduct intended as an assertion, such as pointing to a crime suspect in a police line-up. The act of pointing in response to a request for identification is the same as stating, "He did it." Not all nonverbal conduct is intended as an assertion, of course. For example, a person usually opens an umbrella to stay dry, not to make the assertion, "It is raining."
Sometimes, statements made out of court are not hearsay because they are not offered for the purpose of proving the truth of the matter asserted. For example, suppose that a man who
At every trial or hearing requiring the admission of evidence, attorneys have the duty to object to evidence that the rules of court deem inadmissible. Objections must be made in a timely fashion, as soon as the witness or opposing party attempts to improperly introduce evidence. An attorney who fails to immediately recognize and object to inadmissible evidence faces serious consequences: the evidence may be admitted for the judge or jury to consider, and should the case be appealed, the appellate court will allow it to stand as admitted. On the other hand, an attorney who makes frequent objections to proper, admissible evidence runs the risk of alienating the jury or angering the judge. A trial lawyer therefore must learn to quickly recognize and correctly object to inadmissible evidence.
Once an attorney objects, the judge must decide whether to sustain the objection and disallow the evidence, or overrule the objection and permit the evidence. To assist this decision, the attorney must generally tell the judge the legal basis for the objection.
|Objections to Questions|
|Calls for an irrelevant answer||The answer to the question would not make the existence of any consequential fact more or less probable.|
|Calls for an immaterial answer||The answer to the question would have no logical bearing on an issue in the case.|
|Is asked of an incompetent witness||The witness is disqualified by statute from testifying, owing to age, lack of knowledge, or mental illness.|
|Violates the best evidence rule||The original document, rather than testimony, contains the best evidence.|
|Calls for privileged communication||The information sought is privileged communication, such as that between attorney and client, physician and patient, or husband and wife, and is barred from disclosure.|
|Calls for a conclusion||The question improperly asks the witness to reach a legal conclusion, which is a job reserved for the judge or jury.|
|Calls for an opinion.||Generally, only expert witnesses may render their opinions; lay witnesses must testify only regarding their observations.|
|Calls for a narrative answer.||Witnesses must respond concisely to individual questions, not give a long, rambling explanation.|
|Calls for hearsay||The answer would be inadmissible hearsay.|
|Is leading.||The questioning attorney may not frame a question in such a way that it suggests the answer.|
|Is repetitive (or has already been asked and answered)||The question has already been asked and answered.|
|Is beyond the scope||On cross-examination, questions normally may not address matters not covered on direct examination.|
|Assumes facts not in evidence||Part of the question assumes that certain facts are true, when such facts have not been admitted into evidence or their existence is in dispute.|
|Is confusing (or misleading or ambiguous or vague or unintelligible)||A question must be posed in a manner that is specific and clear enough that the witness reasonably knows what information the examiner seeks.|
|Calls for speculation||Questions that ask the witness to guess or speculate are improper.|
|Is compound||The question brings up two or more separate facts, and any simple answer would be unclear.|
|Is argumentative||The question is essentially an argument to the judge or jury; it elicits no new information but rather states a conclusion and asks the witness to agree with it.|
|Is an improper characterization||For example, the question calls the defendant a spoiled brat, greedy pig, or frenzied dog; characterization is something the jury or judge, not a witness or attorney, should infer.|
|Mistakes evidence (or misquotes the witness)||Misstating or distorting evidence, or misquoting a witness, is improper.|
|Is cumulative||When numerous witnesses testify to the same facts or numerous exhibits demonstrate the same things, without adding anything new, the evidence is objectionable.|
|Constitutes an improper impeachment||Rules surrounding the impeachment of a person's character or credibility are highly technical. For example, evidence of a prior inconsistent statement made by a witness may be used only if the statement is materially inconsistent and is offered in the proper context.|
|Violates the parol evidence rule||The parol evidence rule bars evidence of oral, or verbal, modifications or contradictions of a written contract that is complete and clear on its face.|
|Is unresponsive (or volunteered)||An answer that does not directly respond to a question is objectionable as unresponsive; an answer that goes beyond what is necessary to answer the question is objectionable as volunteered. Only the attorney who called the witness may object on these grounds.|
Objections to Answers
Is a conclusion
Is improper opinion
Is improper characterization
|Objections to Exhibits|
|Lacks proper foundation (or lacks foundation, or has no foundation)||Before exhibits can be admitted into evidence, attorneys must establish the necessary foundation, or the facts that indicate the exhibit is what it purports to be. For a photograph of a crime scene, this might include calling the person who took the picture as a witness and asking whether she was at the crime scene, had a camera, and took a picture, and whether the exhibit is that picture.|
|Lacks authentication||Writings and conversations must be authenticated, or shown to have been executed by a party or that party's agent. For example, before testifying about a telephone conversation, a witness must demonstrate his knowledge of who was speaking on the other end of the telephone.|
|Is prejudicial||The exhibit's prejudicial effect outweighs its probative value. This objection is often raised with photo exhibits. A color photo of a murder victim may so prejudice the jury, without adding information helpful to determining the murderer, that the judge may disallow the photo as evidence.|
|Contains inadmissible matter||Exhibits in the forms of charts, diagrams, and maps must not disclose otherwise inadmissible material to the jury. For example, in most jurisdictions, evidence that a defendant in a personal injury case has insurance that may pay for the plaintiff's damages is inadmissible. A chart, shown to the jury, that conveys the name of the defendant's insurance company is improper and objectionable.|
Attorneys may also object to situations that arise during a trial or hearing that do not concern matters of evidence. During voir dire, or jury selection, attorneys may not argue to prospective jurors the law or the facts that will arise at trial; if they do, they will likely receive an objection from opposing counsel. Likewise, attorneys often object to arguments made during opening statements, because opening statements are limited to a discussion of the evidence that will be presented during the trial. An attorney's personal opinion on any evidentiary matter is also objectionable because it places the attorney's credibility directly at issue. And a personal attack by an attorney against a party, witness, or opposing counsel is unprofessional and will almost always result in a sustainable objection.
Park, Roger C. 2001. Trial Objections Handbook 2d. St. Paul, Minn.: West Group.
claims that a collision between his car and a truck rendered him unconscious files a lawsuit against the truck driver for negligence. The truck driver wishes to introduce as evidence a statement that the man made seconds after the accident: "I knew I should have gotten my brakes fixed; they haven't been working for weeks!" If the purpose of offering the statement is only to prove that the man was conscious and talking following the accident, the statement is not hearsay. However, if the statement is offered to prove that the man's brakes were not working and therefore that he caused the accident, then the statement is offered for its truth, and it is hearsay.
The Federal Rules of Evidence state generally that hearsay is not admissible evidence. The reason is that it is impractical, and in most cases simply impossible, to cross-examine the declarant of an out-of-court statement, or to have the declarant take an oath prior to making the statement. Thus, the credibility of an out-of-court statement cannot be easily ascertained. But the hearsay doctrine is extremely complex. Under the federal rules, for example, most admissions of guilt are not considered hearsay and are therefore admissible, even though they might be stated out of court and then offered as evidence. The federal rules list more than 25 exceptions to the general hearsay prohibition. These exceptions apply to circumstances believed to produce trustworthy assertions.
Some exceptions to the hearsay rule require that the person who made the statement be unavailable to testify at trial. One example of this is when a person who is mortally wounded makes a statement about the cause of her death, just before dying. Under this hearsay exception, the victim's statement assigning guilt or causation is made admissible because the victim is not available to testify at trial, and the need for the information is given greater weight than the fear that she lied. Some have argued that the dying declaration exception exists at least in part because of the belief that persons would not waste their last breaths to utter a falsehood. One federal court commented, "More realistically, the dying declaration is admitted because of compelling need for the statement, rather than any inherent trustworthiness" (United States v. Thevis, 84 F.R.D. 57 [N.D. Ga. 1979]). This exception proved noteworthy in the October 1995 trial and ultimate conviction of Yolanda Saldivar, who was accused of gunning down tejana singing star Selena Quintanilla Perez in a Corpus Christi, Texas, motel. Motel employees testified that Selena's last words before collapsing and dying were, "Lock the door! She'll shoot me again!" and "Yolanda Saldivar in Room 158." Saldivar received a sentence of life in prison following her conviction of murdering the 23-year-old recording artist.
Under some circumstances, the availability of the declarant to testify is immaterial. For example, the excited-utterance exception to the hearsay rule allows the admission of an out-of-court statement "relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition" (Fed. R. Evid.803(2)). The premise for this exception is that excitement caused by the event or condition leaves a declarant without sufficient time or capacity for reflection to fabricate, thus the statement is considered truthful. An example of an admissible excited utterance is the statement, "Look out! That green truck is running a red light and is headed toward that school bus!" Other examples of hearsay exceptions include statements of medical diagnosis, birth and marriage certificates, business records, and statements regarding a person's character or reputation.
Authentication and Identification
Evidence is not relevant unless its authenticity can be demonstrated. A letter in which the defendant admits her guilt in a tax-fraud trial is inadmissible unless the prosecution can first show that the defendant actually wrote it. Blood-stained clothing is irrelevant without some connection to the issues of the trial, such as evidence that the clothing belonged to the accused murderer. The process of linking a piece of evidence to a case—of authenticating or identifying the evidence—is frequently referred to as laying a foundation. Under the Federal Rules of Evidence, a foundation is sufficient if a reasonable juror would find it more probably true than not true that the evidence is what the party offering it claims it to be.
The most basic way to lay an evidentiary foundation is to demonstrate that a witness has personal knowledge. For example, the witness may testify that he wrote the letter, or that he saw the plaintiff sign the contract, or that he found the bullet in the kitchen. When the evidence is an object, the witness must testify that the object introduced at the trial is in substantially the same condition as it was when it was witnessed.
Objects that are not readily identifiable often must be authenticated through chain-of-command testimony. In the case of a blood sample, a proper foundation would include testimony from each individual who handled the blood—from the nurse who drew the blood, to the lab technician who tested it, to the courier who delivered it to the courthouse for trial. Unless each individual can testify that the blood sample's condition remained substantially the same from the time it was drawn until the time it was offered as evidence (accounting for any loss in amount, due to testing), the court could sustain an objection from the other side. The sample then would be inadmissible for lack of authentication.
Under the Federal Rules of Evidence, some evidentiary items are self-authenticating and need no additional authentication before being admitted. Documents containing the official seal of a government unit within the United States, and certified copies of public records such as birth certificates, are self-authenticating, as are newspapers and congressional documents.
In United States v. Scheffer, 523 U.S. 303, 118 S.Ct. 1261, 140 L.Ed.2d 413 (U.S., Mar 31, 1998) (NO. 96-1133), the U. S. Supreme Court upheld a military court evidence rule, Rule 707, which prohibits the use of polygraph, or lie detector, test results in military trials. Scheffer, a military investigator, took a routine urine test, which came back positive for amphetamines. Scheffer then asked for, and was given, a polygraph test which showed that he had no knowledge of amphetamine use. At his trial on drug-use charges based on the urine test, Scheffer tried to introduce evidence of his favorable lie-detector results. The court refused to admit this evidence on the basis of military evidence Rule 707. Scheffer appealed, claiming that he should have been able to introduce the test results as part of his constitutional right "to prepare a defense". The Court upheld the exclusion of the lie-detector test on the grounds that there is too much controversy about the reliability of lie-detector test results; that lie-detector tests might undercut the role of the jury in assessing witness credibility; and that lie-detector tests create too much possibility of side issues about the reliability of the test.
The Best-Evidence Rule
The Best-evidence rule is a misleading name for the courts' preference for original writings, recordings, and photographs over copies, when the contents are sought to be proved. The purpose of this rule at common law was to avoid the potential for inaccuracies contained in handmade copies. The current rule contained in the Federal Rules of Evidence requires the use of original writings, recordings, and photographs (including X-rays and motion pictures), but the rule defines original to include most photocopies or prints from the same negative. The risk of inaccuracies from these types of duplicates is almost non-existent. When the original evidence is lost, destroyed, unobtainable, or in the possession of the opponent, the court will not require a party to produce the original.
In 1972, information leaked to the Washington Post by a confidential informant, set the stage for the fall of a U.S. president. A source they called "Deep Throat," told journalists Bob Woodward and Carl Bernstein that several improprieties, including a break-in at the Democratic National Committee headquarters in Washington, D.C., had been orchestrated by a committee to reelect President richard m. nixon. News articles that Woodward and Bernstein wrote based on that information marked the beginning of watergate, a scandal that led to Nixon's resignation in 1974 in the face of impeachment. Almost 30 years later, the true identity of Deep Throat remains unknown.
Reliance on anonymous news sources can create problems when lawyers, judges, or juries seek information during a judicial proceeding. It is a basic principle in the U.S. legal system that "the public has a right to every [person's] evidence" (8 J. Wigmore, Evidence § 2192 [McNaughton rev. 1961]). With very few exceptions, individuals who possess knowledge or information that may help a judge or jury, must testify or produce the information in court. Journalistic privilege, where recognized, is the right of journalists to withhold from the court certain sources, notes, or materials used to gather news. It is not among the privileges commonly recognized by courts, such as attorney-client privilege or marital privilege.
Since the 1850s, journalists have sought a privilege to protect the identity of news sources or to protect the newsgathering process from discovery at trial. As the number of reporters subpoenaed (ordered by a court to testify) increased dramatically in the 1960s and 1970s, so did their efforts. Reporters argue that to effectively gather vital information and disseminate it to the public, they must have the legal right to withhold the identity of a source. Without such a privilege, sources who fear the disclosure of their name will be less likely to talk with reporters. Reporters who fear reprisal, or who simply do not wish to testify or hire a lawyer, will be less likely to print or broadcast sensitive information. Journalists argue that this chilling effect on reporters' willingness to print or broadcast sensitive information will ultimately harm the public, which relies on reporters to relay even the most sensitive and secretive news and information.
In resisting subpoenas, journalists usually invoke the first amendment, which prohibits laws abridging a free press. Unlike the fifth amendment, which explicitly grants individuals the right to refuse to testify against themselves, the First Amendment contains no explicit language protecting journalists from having to testify. Nonetheless, reporters have long argued that the purpose of the First Amendment is to allow the news media to freely gather and report the news, without encumbrances by the government. Forcing reporters to testify, they argue, violates the First Amendment.
A divided U.S. Supreme Court rejected this argument in the landmark decision Branzburg v. Hayes, 408 U.S. 665, 92 S. Ct. 2646, 33 L. Ed. 2d 626 (1972). Branzburg involved the appeals of three reporters who had been ordered in three separate incidents to testify before a grand jury (a jury convened to determine whether to indict a criminal suspect). In all three cases, prosecutors wanted to know what the reporters had observed or to whom they had spoken. One reporter had written an article about the process of converting marijuana into hashish; the other two were covering the militant Black Panther organization, believed to be planning guerrilla warfare to support its cause. In all three cases, the reporters had promised to keep their sources' identities secret or not to divulge their observations. The reporters refused to answer certain questions and provide certain information, arguing that doing so would jeopardize or destroy their working relationships with news sources and, ultimately, their ability to disseminate vital information to the public. The Supreme Court pointed out that the duty to testify has roots as deep as the First Amendment's guarantee of a free press, and refused to find a First Amendment privilege protecting reporters from being forced to testify before a grand jury.
According to the Court in Branzburg, the First Amendment does not override all other public interests, or exempt reporters from the same obligations to testify imposed on other citizens, merely because the news-gathering process may become more difficult if confidential sources are revealed. "It is clear that the First Amendment does not invalidate every incidental burdening of the press that may result from the enforcement of civil or criminal statutes of general applicability," the Court stated. The Court also acknowledged the importance of a free press to the country's welfare, and recognized that to be effective, the First Amendment must protect not only the dissemination of information but the news-gathering process itself. Yet, the Court made the point that a requirement to testify or otherwise disclose information to a judicial body is not a prohibition on the press's ability to employ confidential sources. The Court stated, "[N]o attempt is made to require the press to publish its sources of information or indiscriminately to disclose them on request."
Justices potter stewart, william j. brennan jr., and thurgood marshall dissented in Branzburg, emphasizing that the independence of the press becomes threatened when journalists are called upon as "an investigative arm of government." When reporters are forced to testify in courtrooms, the three justices found, their constitutionally protected functions are impaired. Such impairment will, "in the long run, harm rather than help the administration of justice." The Court's dissenters stressed that the Constitution protects journalists not for the benefit of journalists but for the benefit of society. "Enlightened choice by an informed citizenry is the basic ideal upon which an open society is premised, and a free press is thus indispensable to a free society," stated the dissenting opinion.
The Branzburg decision held that the First Amendment does not protect journalists from grand jury subpoenas seeking evidence in criminal cases, and that there is no testimonial privilege for reporters who witness crimes. The decision did not address whether the Constitution protects reporters' notes, tape recordings, or other news-gathering items; whether there can be a privilege if there is no reason to think the reporter observed illegal activity; and whether reporters are entitled to a privilege in civil actions or other legal proceedings besides grand juries.
Despite the uncertainty, reporters since Branzburg have successfully invoked privileges. In some jurisdictions, they have been helped by shield laws, which are statutes allowing journalists to withhold certain information. Even in state jurisdictions without shield laws, many courts have upheld a reporter's claim of privilege using a three-part test championed in the Branzburg dissent: a reporter may be forced to reveal confidences only when the government demonstrates (1) that there is probable cause to believe that the journalist has information clearly relevant to a specific legal violation, (2) that the same information is not available by alternative means less destructive to the First Amendment, and (3) that there is a compelling and overriding interest in the information. Yet other courts have interpreted Branzburg as prohibiting state courts from creating reporter privileges at all (Caldero v. Tribune Publishing Co., 98 Idaho 288, 562 P.2d 791 ; In re Roche, 381 Mass. 624, 411 N.E.2d 466 ).
More than half the states have passed shield laws, making the reporters' privilege statutory. Shield laws range in their coverage: some protect only the identities of confidential sources; others protect everything from sources, notes, videotapes, and film negatives to the reporter's thought processes. At least 14 states and most federal jurisdictions recognize the privilege based on common law, state constitutional law, or the First Amendment. These jurisdictions generally apply a version of the three-part test outlined in the Branzburg dissent. Even where the privilege is recognized, it is rarely absolute. Courts may order reporters to disclose information under certain compelling circumstances, and a reporter who refuses to obey the court faces a charge of contempt and fines or imprisonment.
Journalists react differently to the threat of incarceration. Los Angeles radio station manager Will Lewis, in 1973, initially refused to comply with a federal grand jury subpoena seeking the originals of a letter and a tape recording sent to him by radical groups claiming inside knowledge of the kidnapping of patty hearst. Lewis was held in contempt and sent to Terminal Island Federal Prison, where he spent 16 days in solitary confinement before being released pending his appeal. He lost (In re Lewis, 377 F. Supp. 297 [C.D. Cal. 1974], aff'd 501 F.2d 418 [9th Cir.]). Faced with returning to prison, Lewis turned over the documents.
But William Farr, a reporter for the Los Angeles Herald-Examiner, spent two months in jail rather than name his source. Farr had received a copy of a deposition transcript from a prosecuting attorney in the case of serial murderer Charles Manson. The judge in the case had forbidden officers of the court to publicize the case, which contained particularly gruesome facts. When the judge ordered Farr to name the individual who leaked the information, Farr refused (Farr v. Superior Court of Los Angeles County, 22 Cal. App. 2d 60, 99 Cal. Rptr. 342 [Ct. App. 1971]).
Many reporters and their attorneys view the threat of contempt as an opportunity to educate the public on the issue. In 1990, Tim Roche was a 21-year-old reporter for a Florida newspaper, the Stuart News, when he was subpoenaed to disclose the name of a confidential source who had shown him a sealed (confidential) court order in a child custody battle. Roche refused to comply, maintaining that he had promised the source confidentiality. He was found in contempt of court and received a 30-day jail sentence.
Attorneys for Roche appealed, but both the Florida Supreme Court and the U.S. Supreme Court declined to hear the case. Roche then sought clemency (an act to lower or moderate the sentence) from Governor Lawton M. Chiles, of Florida. Chiles refused the plea for clemency, but offered Roche three hundred hours of community service as an alternative to jail. Roche declined the offer, stating that he would not compromise his principles, as he had done nothing wrong. The governor retorted that he also would not compromise his principles, and that no one is above the law. On March 16, 1993, Roche entered the Martin County Jail, where he served 19 days. National publicity surrounding Roche's plight led to the introduction and passage of a Florida bill designed to protect reporters and their confidential sources. Chiles, however, vetoed the Tim Roche Bill on May 14, 1993.
Vanessa Leggett holds the dubious distinction of being the journalist incarcerated for the longest period of time in United States history over such an issue. In 2001 and 2002, Leggett spent 168 days in federal detention in Texas, a state without a shield law, for refusing to comply with a sweeping subpoena for confidential source materials. Leggett had been working on a nonfiction book about the killing of Houston socialite Doris Angleton, who was found shot to death in April 1997. Mrs. Angleton's millionaire husband, Robert, was accused of paying his brother, Roger, to kill his wife. Both brothers were charged with capital murder. In the course of her research, Leggett conducted a series of prison interviews with Roger Angleton, who subsequently committed suicide.
Leggett initially turned over tapes of her interviews with Roger to a grand jury. However, after Robert Angleton was acquitted in state court, a federal investigation into his activities was launched. In November 2000, the federal bureau of investigation (FBI) contacted Leggett about becoming an informant. She declined, citing a possible loss of her integrity and objectivity as a reporter, and expressed a concern over the loss of confidentiality with her sources. Leggett was then subpoenaed to testify in front of the grand jury. She agreed to do so after the FBI assured her she would not have to reveal the sources of her information. However, the federal grand jury subpoenaed all of Leggett's tape-recorded conversations with anyone she had interviewed about the Angleton case. She claimed reporter's privilege protected her from being forced to disclose confidential sources. On July 6, 2001, U.S. District Judge Melinda Harmon ruled that the Fifth Circuit does not recognize such a privilege as protecting a journalist from divulging confidential or nonconfidential information in a criminal case. Leggett was ruled in contempt, and on July 20, 2001, was ordered imprisoned without bail for 18 months or until termination of the grand jury.
In August 2001, while avoiding the question of whether Leggett is a journalist entitled to a reporter's privilege (the government had argued she was not), the Court of Appeals for the Fifth Circuit upheld the ruling that no reporter's privilege exists against a grand jury subpoena. In November 2001, the same court declined to reconsider the case or release Leggett on bond until she had exhausted her appeals. On January 2, 2002, Leggett's attorney filed an appeal on her behalf to the U.S. Supreme Court. Two days later, Leggett was released after the federal grand jury completed its term, in compliance with her original sentence.
Leggett's ordeal raised several important legal issues, including the definition of who is and who is not a journalist for purposes of claiming the privilege, the extent to which journalists are able to protect confidential sources in stories relating to criminal proceedings, the differences among state shield laws, and the lack of shield protection under federal law. Leggett also proved that journalists will risk jail sentences to protect their reputation as well as their sources: a reporter who is known to have identified a source after promising confidentiality may have a difficult time obtaining information from other sources in the future.
Opponents of the reporters' privilege, however, argue that journalists who ignore requests for evidentiary information breach other important societal interests. For example, the sixth amendment guarantees a criminal defendant the right to a fair trial. This right is lost when a reporter who possesses information that may help prove the defendant's innocence refuses to testify. The same argument applies to society's interest in prosecuting criminals, who may go free when incriminating evidence is withheld by a journalist.
Fargo, Anthony. 2003. "Evidence Mixed on Erosion of Journalists' Privilege." Newspaper Research Journal 24 (spring).
Kopel, David B., and Paul H. Blackman. 2002. "Abuse of Power: Jailing Journalists." National Review (January 22).
"Summer Mystery: Why Jail Vanessa Leggett?" 2002. Center for Informational Freedom. Available online at <www.cfif.org/htdocs/freedomline/current/america/free_line_summer.htm> (accessed September 2, 2003).
Some matters that are relevant to a trial are so obvious that a court will not require evidence to prove them—for example, that it is dark outside at midnight, or that April 30, 1995, fell on a Sunday. To prevent wasting a court's time, the rules of evidence permit courts to take judicial notice of such matters; that is, to accept them as true without formal evidentiary proof. Courts may take judicial notice of facts that are generally known to be true (e.g., that gasoline is flammable) or facts that are verifiable from dependable sources (e.g., that Des Moines, Iowa, is in Polk County, which can be verified on a map). As a matter of course, courts judicially notice the contents of laws of and within the United States.
It is a basic tenet in U.S. jurisprudence that "the public … has a right to every [person's] evidence," and that parties in litigation should avail themselves of all rational means of ascer taining truth (Trammel v. United States, 445 U.S. 40, 100 S. Ct. 906, 63 L. Ed. 2d 186 ). Yet courts view certain interests and relationships to be of such importance that they protect those interests and relationships from certain efforts to gather evidence. These protections, or exclusions from the general rule of free access to evidence, are known as privileges.
Federal courts recognize several types of privileges. To encourage clients to communicate freely with their lawyers and to fully disclose any information that may enable their lawyers to provide appropriate legal advice, courts allow clients to refuse to disclose and to prevent any other person from disclosing confidential communications made when seeking legal services. This privilege applies to clients' communications with their attorneys and with the attorneys' office staff. It protects only confidential communications, not communications made to friends or acquaintances in addition to an attorney.
The attorney-client privilege applies to the client, not the attorney. Thus, the client, but not the attorney, has the right to waive the privilege and to testify regarding protected communications. The privilege does not terminate even when the attorney-client relationship does. The privilege does not apply to a client's allegations of a breach of duty by the attorney.
To promote open communication within marital relationships, the rules of evidence also recognize a marital privilege. In criminal cases, a person has the privilege to refuse to testify against a spouse. This privilege covers only evidentiary matters that would incriminate the non-testifying spouse (i.e., the defendant), as other matters are not likely to jeopardize the marriage relationship. The non-testifying spouse does not have the right to assert the privilege; the privilege belongs only to the testifying spouse.
In criminal and civil cases, testimony about any confidential communications between spouses is also afforded a privilege. Either spouse, not just the testifying spouse, may assert this privilege. Unlike the testifying-spouse privilege, the confidential-marital-communications privilege survives the termination of the marriage by death or divorce, but it does not apply to permanently separated spouses.
Courts also recognize a political-vote privilege, a clergy-penitent privilege, and qualified privileges for trade secrets, state secrets, and the identity of an informant. Some courts also recognize a physician-patient privilege, an accountant-client privilege, and a privilege granted to journalists seeking to protect their news sources.
Past Bad Acts
Generally, evidence of past bad acts by a criminal defendant is not admissible to prove that the defendant is a bad person and therefore committed the crime charged. However, evidence of past bad acts will be admitted for other purposes such as to show motive, intent, preparation, plan, knowledge, identity, or absence of a mistake or accident. Such evidence is also admissible for impeachment purposes, (for example, if a defendant takes the stand) and when a defendant seeks to introduce the evidence in his or her defense.
In Ohler v. United States, 529 U.S. 753, 120 S.Ct. 1851, 146 L.Ed.2d 826 (U.S.Cal., May 22, 2000) (NO. 98-9828), the defendant Ohler was tried for importation of marijuana and possession of marijuana with the intent to distribute. After the trial court granted the government's motion to admit evidence of her previous conviction for methamphetamine possession, as impeachment evidence under Federal Rule of Evidence 609(a)(1), Ohler decided to bring out her prior conviction under direct examination, in order to "remove the sting" from the prosecutor's possible elicitation of the conviction on cross-examination. (Under the trial court's ruling, the prior conviction was only admissible in the event that Ohler testified.) The jury convicted Ohler on both counts, and she appealed, claiming that the trial court erred in admitting her prior conviction. The U.S. Court of Appeals for the Ninth Circuit and the United States Supreme Court affirmed her conviction, holding that Ohler had waived her objection to the evidence by introducing it herself.
Gillmor, Barron, and Terry Simon. 1990. Mass Communication Law Cases and Comment. 5th ed. St. Paul, Minn.: West.
Leonard, David P. 1995. "Foreword: Twenty Years of the Federal Rules of Evidence." Loyola of Los Angeles Law Review 28 (June).
Mauet, Thomas A. 1988. Fundamentals of Trial Techniques. 2d ed. Boston: Little, Brown.
McCormick on Evidence. 1984 and Supp. 1987. 3d ed. St. Paul, Minn.: West.
Attorney-Client Privilege; Best Evidence; Character Evidence; Circumstantial Evidence; Cumulative Evidence; Derivative Evidence; Direct Evidence; DNA Evidence; Documentary Evidence; Exclusionary Rule; Extrinsic Evidence; Forensic Science; Parol Evidence; Privileged Communication; Polygraph.
"Evidence." West's Encyclopedia of American Law. . Encyclopedia.com. (February 18, 2017). http://www.encyclopedia.com/law/encyclopedias-almanacs-transcripts-and-maps/evidence
"Evidence." West's Encyclopedia of American Law. . Retrieved February 18, 2017 from Encyclopedia.com: http://www.encyclopedia.com/law/encyclopedias-almanacs-transcripts-and-maps/evidence
Evidence is any item or information gathered at the scene of a crime, or at related locations, which is found to be relevant to an investigation. There are many different types of evidence, from DNA and tire marks, to bloodstains and fingerprints. Different kinds of evidence may require different types of expertise in interpretation. Analyzing DNA is a completely different discipline from understanding bite marks or bullet trajectories. However, there are some basic principles that apply to all forms of evidence. Perhaps the most important rule is that maintaining evidence is paramount; strict procedures must be observed by all involved in the investigation when it comes to collecting, labeling, and analyzing it. Above all, every effort must be made to ensure that evidence is not lost, damaged, or contaminated.
Evidence has many different roles in the investigation of a crime. It can link a suspect to a crime scene if, for instance, a footprint matching the shoe of the suspect is found. Evidence can also eliminate a suspect. If the shoe size of the suspect does not match that of footprint evidence, then those footprints cannot tie them to the crime scene. Evidence could also back up or contradict a witness statement, which may help guide the police in further investigations. Evidence such as DNA or fingerprints is also valuable in providing a firm identification of a perpetrator or suspect.
Forensic scientists place evidence into various categories. Direct evidence establishes fact without the need for further analysis. Perhaps the most important form of direct evidence is the eyewitness account. If someone saw a murder , then there may be nothing to add, although the witness could give false testimony and other evidence may be needed to prove this. Circumstantial evidence is more indirect and it is up to the forensic scientist to provide an explanation for it through his or her investigations. Most of the evidence handled in the forensic lab is circumstantial evidence. Although more objective than direct evidence, there is always the danger of losing or contaminating circumstantial evidence.
Forensic evidence is divided up into two basic classes, physical and biological. Physical evidence covers items of non-living origin, such as fingerprints, tire marks, footprints, fibers , paint, and building materials . Biological evidence comes from a living source, usually the victim or perpetrator. Biological evidence includes DNA extracted from blood or other bodily fluids , semen , hair, and saliva . Botanical items, such as pollen and plants, would also be considered as biological evidence. Fingerprints are probably the most valued type of physical evidence because of their ability to identify or eliminate a suspect. However, as DNA analysis technology becomes increasingly automated and rapid, it is likely that forensic investigators will place more emphasis on the collection of biological evidence.
In terms of the investigation as a whole, reconstructive evidence is relevant to understanding what actually happened at the crime scene and the sequence of events. Cast off blood, blood spatters and bullet holes can help determine exactly how the victim was attacked. Tool marks and broken glass can reveal how a perpetrator entered and left the scene. Associative evidence is used to create or eliminate a link between a suspect and a crime scene.
There are two kinds of associative evidence, class and individual. Class evidence relates to items that are, to some extent at least, mass-produced. In itself, class evidence cannot tie a crime to any one individual. For instance, a gun found at the crime scene will be of a particular make, but it will not be unique. Similarly, relatively new shoes all make similar footprints if they are the same brand and cannot be tied to any one person. However, if the shoe is worn, then the footprint may be particular to an individual, as people wear down their shoes in a unique way. Fingerprints and DNA are the most significant forms of individual evidence. In all investigations, it is individual evidence that provides the most information and is therefore, the most valued. Class evidence is also important but usually has to be taken in context with other evidence; the more, the better.
Trace evidence may fall into various categories and includes microscopic evidence such as hair, fibers, paint, and bloodstains. Locard's exchange principle explains that every contact between a suspect and people or objects at the scene of crime, including the victim, leaves traces. Evidence is transferred from suspect to scene and vice-versa. The suspect may leave their own hair behind and take seemingly invisible splashes of the victim's blood with them, for instance. Trace evidence can be a powerful form of associative evidence that can lead to identification of the perpetrator. Most often, trace evidence is found in the form of textile fibers and paint flakes.
When investigators arrive at the scene of a crime, they are faced with a wide range of evidence—from something as obvious as a body to the various kinds of trace evidence which may be present. All of it must be located, collected and packaged with the greatest care to avoid destroying or contaminated. The investigators will make a "fingertip" search to ensure that every part of the crime scene is searched for evidence. There are various ways of making this search. If a body is present, this will be searched first for trace evidence, like fibers, and swabs will be taken before it is removed. A further search will take place at the mortuary.
The investigators then might work outwards from a focal point, which could be where a body was found, or in towards it. Depending on the size and location of the scene, investigators will go over the ground in a systematic fashion in a specific pattern such as a grid or spiral. Usually two searches are carried out.
The first items to be collected are those which are fragile and could easily be damaged such as fingerprints, shoeprints , fibers, and hair. A systematic approach must be taken to ensure that the collection of one item of evidence will not destroy another. Taking casts of footprints is one example. The casting process will destroy any fingerprints present. Therefore, the location of the footprint must be dusted first for fingerprints. Some evidence may be invisible to the naked eye and may need special techniques for visualization. Luminol can reveal bloodstains and ultraviolet light shows semen stains. The investigators will also take control samples for use back in the laboratory to distinguish relevant from irrelevant evidence. For instance, if there are chemicals on a carpet, then samples of unaffected carpet must be taken for comparison. If a blanket was used to cover a corpse, then fibers must be taken to show that these do not have anything to do with the crime. The collection of individualizing evidence such as fingerprints and biological samples for DNA usually takes priority.
Each item of evidence is packaged separately to avoid contamination and damage. Every time an item is transferred from one person to another, it is signed and accounted for. The evidence is handled through a strict chain of custody , in other words. If it were not, then it could easily be challenged in court. Just one break in the chain of custody can invalidate the claim that the item of evidence was present at the scene or on the suspect and is relevant to the crime.
Of course, the forensic service does not have the resources to investigate all crimes to the extent described above. Volume crime such as burglary is distinguished from serious crime such as rape or murder. In the former case, the search for evidence may be confined to fingerprints. In the latter case, all possible evidence will be collected. The investigators cannot usually go back a second time to collect evidence. Even if it were intact, they could not prove that it had not been placed there after the crime, so it would not be admissible in a court of law. For this reason, it is generally considered important to collect too much evidence rather than too little.
The forensic scientist is charged with answering various key questions about the evidence. First, and most obvious, is identification—what the evidence actually is. On its own, however, the identity of the evidence is insufficient to shed much light on the crime. The next stage is to carry out comparison studies, using the control samples that will be collected. For instance, if bloodstains are found in the suspect's car or on their clothes, samples of blood from the victim are needed so that comparison tests can be made. These can establish whether or not the blood associated with the suspect is that of the victim. Sometimes, however, the evidence will not be of sufficient quality to allow a clear result from the comparison test. The main thrust of the forensic investigators' work is to establish links through evidence—between a suspect and a victim, place, or object. Even if there is no link, then at least the suspect can be eliminated and the investigation narrowed down. Sometimes a link can be created between a suspect and one or more places. A footprint may be found at two or more scenes, for instance. Even if there is not a suspect at this stage, the very existence of this evidence may help police know more about the suspect they are searching for, or the crime they are attempting to solve.
see also Analytical instrumentation; Animal evidence; Anthropology; Anthropometry; Artificial fibers; Autopsy; Ballistic fingerprints; Bloodstain evidence; Bite analysis; Crime scene investigation; Crime scene reconstruction; CODIS: Combined DNA Index System; Death, cause of; Decomposition; DNA fingerprint; Entomology; Exhumation; Fingerprint; Hair analysis; Impression evidence; Pathology; Trace evidence.
"Evidence." World of Forensic Science. . Encyclopedia.com. (February 18, 2017). http://www.encyclopedia.com/science/encyclopedias-almanacs-transcripts-and-maps/evidence
"Evidence." World of Forensic Science. . Retrieved February 18, 2017 from Encyclopedia.com: http://www.encyclopedia.com/science/encyclopedias-almanacs-transcripts-and-maps/evidence
evidence, in law, material submitted to a judge or a judicial body to resolve disputed questions of fact. The rules discussed in this article were developed in England for use in jury trials. Today, they are generally observed in all countries having the common law, although they have been extensively modified by statute in some jurisdictions. The first juries were not neutral triers of fact; rather they were convened because of their immediate knowledge of the dispute before the court. Later, the practice developed of having witnesses testify before an impartial jury. The groundwork of the rules of evidence was laid between 1500 and 1700.
The Role of Evidence in a Trial; Burdens of Proof
In criminal trials, the prosecution has to prove each element necessary to its case beyond a reasonable doubt. In civil trials, on the other hand, a party has the burden only of proving affirmative contentions by a preponderance of the evidence. Thus the plaintiff must offer some proof of each of the elements that combine to constitute the defendant's alleged wrong (see procedure), while the defendant must prove his or her affirmative defenses, e.g., in a suit for negligence, that the plaintiff's own negligence contributed to the injury.
Satisfying the burden of proof requires the prosecutor or the plaintiff to present evidence first. At the close of this presentation the criminal or civil defendant may move for acquittal or a nonsuit if admissible evidence supporting necessary contentions has not been offered. Proof may be dispensed with when an adversary formally admits a fact either in the pleadings or in court, or when the court may take judicial notice of the fact, i.e., when the fact is universally known or is easily ascertainable by the judge beyond reasonable dispute.
In recent years the problems of procuring evidence have been eased somewhat by the introduction of broader discovery (i.e., disclosure) rules. In civil cases, these rules compel each party to a suit to allow the other to have access to its witnesses and to certain types of evidence before the trial. In criminal cases, the judge has the discretionary power to order discovery; in any event, the prosecutor must release all exculpatory evidence on request.
Allegedly damaging errors in the admission of evidence are reviewable on appeal if an objection was made during the trial. In their final summing up, the attorneys may make any assertion that is supported to some degree by evidence. British judges and U.S. federal and, in some jurisdictions, state judges are permitted to comment on the credibility of the witnesses and the weight of the evidence. However, the judge must tell the jury that they are not bound by his or her remarks.
See also verdict.
Evidence is often presented in a tense, emotional atmosphere in a courtroom long after the event in question took place. The object of the law of evidence is to assure a high probability that questions of fact are resolved correctly. To that end, material introduced at the trial is ordinarily restricted to items of great probative value; that which may arouse unreasoning passion is ordinarily excluded. The nature of the legal controversy and the written pleadings determine what assertions of fact each party must prove or disprove to win the case, and an item of evidence that at best has a remote bearing on the factual issues must be excluded as irrelevant or immaterial. A judge prefers direct evidence (such as an official document or a witness's assertion of immediate knowledge of the question at issue) to indirect or circumstantial evidence, which merely tends to establish the issue by proving surrounding circumstances from which the principal fact may be inferred.
In addition to being relevant, evidence must be competent, i.e., it must not fall under an exclusionary rule. Obviously if the evidence is documentary (e.g., a birth certificate introduced to prove a person's age) or if it is "real" (e.g., a bloody garment exhibited to prove that the victim suffered injury), there can be a question only whether the proffered evidence is itself incompetent. The courtroom presentation of documentary evidence has been complicated by new computer technologies and the digitalization of information, which make the successful forging of texts and photographs far easier than previously.
Most evidence is offered by witnesses who testify before the court. Here, the question of the witness's personal competency must be resolved; it must be shown that the witness was able to know, understand, and remember the matters on which he or she is to be examined. Thus, a witness must possess the sensory faculties needed to apprehend the facts reported and must not be considered mentally ill or incompetent. Children offered as witnesses are examined by the judge to determine their intelligence and understanding.
The witness is first directly examined by the party who offers him or her, then is cross-examined by the adversary. No witness may express an opinion on any matter when the jury can draw its own conclusions from the facts; but on technical questions an expert witness (e.g., a physician) may state an opinion. Hearsay declarations (e.g., testimony concerning a statement made out of court by a person not now before the court) usually are excluded on the grounds that the person who made the statement is not available for cross-examination or for evaluation by the judge or jury. Only when the circumstances of the statement afford a high probability of its truth may it be admitted.
A witness may be excused from testifying about certain matters if he or she pleads personal privilege. In general, information confided in the course of the relations of attorney and client, priest and penitent, physician and patient, and husband and wife is subject to this privilege. In some jurisdictions such witnesses are incompetent to testify (cannot testify). Witnesses are further protected by the Fifth Amendment privilege of withholding evidence that might be self-incriminating. Criminal defendants have the privilege of refusing to take the witness stand (in which case the jury may make no negative assumptions concerning the reasons for such a refusal) and, in most situations, evidence of previous criminal convictions is inadmissible. Under the common law, parties to a civil suit and the defendant in a criminal action were not permitted to testify, but these rules have been abandoned.
Among the many modern treatises on the law of evidence those of J. H. Wigmore are often accorded the highest authority. See also studies by M. J. Saks and R. Van Duizend (1983); P. Achinstein (1984); I. Younger and M. Goldsmith (1984); J. H. Friedenthal and M. Singer (1985).
"evidence." The Columbia Encyclopedia, 6th ed.. . Encyclopedia.com. (February 18, 2017). http://www.encyclopedia.com/reference/encyclopedias-almanacs-transcripts-and-maps/evidence
"evidence." The Columbia Encyclopedia, 6th ed.. . Retrieved February 18, 2017 from Encyclopedia.com: http://www.encyclopedia.com/reference/encyclopedias-almanacs-transcripts-and-maps/evidence
The two main sources of evidence in psychical research and parapsychology, as in other sciences, are observation and experiment. The question of observation is a peculiarly difficult one. Because claimed paranormal phenomena of a spontaneous nature, often produced by human beings, are involved, it is difficult to devise conditions that will preclude fraud or a misreading of what is observed. The borderlines between pre-conception, expectation, and actual observation are often very fuzzy, and even well-trained scientific observers have been deceived by hoaxes or by their own conscious or subconscious desire to prove or disprove the reality of claimed phenomena. Even the best of scientific observers are but amateurs in the arts of conjuring and stage magic and may easily be deceived by the skillful tricks of amateur or professional conjurers, and it is often dangerous to trust the apparent evidence of one's senses. The special effects developed by the movie industry, and available at some levels to the general public, now make the observation of various kinds of psychic phenomena even more questionable.
It is also not surprising that the observations of believers tend to endorse the paranormal, while the observations of skeptics tend in the opposite direction. Skeptics will go out of their way to protect their comfortable world. However, psychical researchers are frequently less than rigorous in applying Occam's razor (i.e., the simplest of competing theories is the preferred) and seeking the most parsimonious explanation for what is observed.
Experimenting with the psychic also presents a unique set of problems. Paranormal phenomena are not producible at the experimenter's will as in a chemical laboratory, and the human element involves numerous difficulties. "One good experiment," said Humphrey Davy, "is of more value than the ingenuity of a brain like Newton's. Facts are more useful when they contradict, than when they support received theories." Because nearly all the facts that psychical research has tried to establish contradict received theories, the importance of experimental data cannot be overemphasized.
From Psychical Research to Parapsychology
Although many areas of psychical research and parapsychology are virtually identical, their main distinction is one of emphasis, with psychical research emphasizing observation and parapsychology focusing upon experiments under laboratory conditions. It has been the hope of parapsychology that paranormal realities might be demonstrated or disproved under control conditions and evaluated by quantitative statistical methods. This approach came to the fore in the 1930s when championed by J. B. Rhine (1895-1980) and his associates in the United States, although the groundwork for such an approach had been laid by such British psychical researchers asG. N. M. Tyrrell (1897-1952), W. W. Carington (1884-1947), and S. G. Soal (1889-1975). It has to be admitted, however, that after decades of thousands of laboratory experiments over a wide range of claimed paranormal faculties and phenomena, there is still little generally accepted scientific evidence. This does not mean that the paranormal is disproved, only that it remains difficult to capture within the rigorous demands of laboratory scientific method and evidence. Such a situation has led many to move toward more open methods used successfully in the various branches of psychology.
The search for scientific understanding of paranormal experiences such as spiritual healing, out-of-the-body travel, telepathy, clairvoyance, seeing phantoms, and various forms of mystical states of consciousness may seem irrelevant to some. In such personal instances, objective scientific evidence is inaccessible. However, the qualitative nature of the experience itself, often accompanied by special knowledge, exaltation, wonder, or inspiration, is convincing to the person having the experience, even if unsatisfactory to observers.
Although there are obvious dangers in overemphasizing subjective experience at the expense of objective evidence, they need not be mutually exclusive approaches. Too great an emphasis on experimental data glosses over the problem that scientists are often as prejudiced as the general public, and it is now possible to discuss the "experimenter effect," where the hostile skepticism or uncritical beliefs of scientific investigators may respectively inhibit or enhance paranormal phenomena. Moreover, there is disturbing evidence that scientists can also cheat; review of the evidence for the paranormal has disclosed some probable manipulation of data.
Barrett, W. F. On the Threshold of a New World. London: Kegan Paul, 1908. Revised as On the Threshold of the Unseen: An Examination of the Phenomena of Spiritualism and of the Evidence for Survival After Death. New York: E. P. Dutton, 1971.
Dingwall, Eric J., and John Langdon-Davies. The Unknown—Is It Nearer? New York: New American Library, 1956.
Ducasse, C. J. Paranormal Phenomena, Science, and Life After Death. New York: Parapsychology Foundation, 1969.
Garrett, Eileen J. My Life As a Search for the Meaning of Mediumship. London: Rider, 1939. Reprint, New York: Arno Press, 1975.
Heywood, Rosalind. ESP: A Personal Memoir. London: Chat-to & Windus, 1964. Reprint, New York: E. P. Dutton, 1964.
Leonard, Gladys Osborne. My Life in Two Worlds. London: Cassell, 1931.
Marbewick, Betty. "The Soal-Goldney Experiments with Basil Shackleton: New Evidence of Data Manipulation." Proceedings of the Society for Psychical Research 56, no. 211 (May 1978).
Murchison, Carl A., ed. The Case For and Against Psychical Belief. Worcester, Mass.: Clark University, 1927. Reprint, New York: Arno Press, 1975.
Neff, H. Richard. Psychic Phenomena and Religion: ESP, Prayer, Healing, Survival. Philadelphia: Westminster Press, 1971.
Podmore, Frank. Studies in Psychical Research. New York: G. P. Putnam's and Son, 1897. Reprint, New York: Arno Press, 1975.
Prince, Walter Franklin. The Enchanted Boundary: Being a Survey of Negative Reactions to Claims of Psychic Phenomena, 1820-1930. Boston, Mass.: Boston Society for Psychic Re-search, 1930. Reprint, New York: Arno Press, 1975.
Rao, K. Ramakrishna. Experimental Parapsychology: A Review and Interpretation. Springfield, Ill.: Thomas, 1966.
Rhine, Louisa E. Mind Over Matter: Psychokinesis. New York: Macmillan, 1970. Reprint, New York: Collier, 1972.
Smythies, J. R., ed. Science and ESP. New York: Humanities Press, 1967.
Tuckett, Ivor L. The Evidence for the Supernatural. London, 1911.
Tyrrell, G. N. M. Science and Psychical Phenomena. New York: Harper, 1938. Reprint, New York: Arno Press, 1975.
"Evidence." Encyclopedia of Occultism and Parapsychology. . Encyclopedia.com. (February 18, 2017). http://www.encyclopedia.com/science/encyclopedias-almanacs-transcripts-and-maps/evidence-0
"Evidence." Encyclopedia of Occultism and Parapsychology. . Retrieved February 18, 2017 from Encyclopedia.com: http://www.encyclopedia.com/science/encyclopedias-almanacs-transcripts-and-maps/evidence-0
ev·i·dence / ˈevədəns/ • n. the available body of facts or information indicating whether a belief or proposition is true or valid: the study finds little evidence of overt discrimination. ∎ Law information given personally, drawn from a document, or in the form of material objects, tending or used to establish facts in a legal investigation or admissible as testimony in court: without evidence, they can't bring a charge. ∎ signs; indications: there was no obvious evidence of a break-in. • v. [tr.] (usu. be evidenced) be or show evidence of: that it has been populated from prehistoric times is evidenced by the remains of Neolithic buildings. PHRASES: in evidence noticeable; conspicuous: his dramatic flair is still very much in evidence.
"evidence." The Oxford Pocket Dictionary of Current English. . Encyclopedia.com. (February 18, 2017). http://www.encyclopedia.com/humanities/dictionaries-thesauruses-pictures-and-press-releases/evidence-0
"evidence." The Oxford Pocket Dictionary of Current English. . Retrieved February 18, 2017 from Encyclopedia.com: http://www.encyclopedia.com/humanities/dictionaries-thesauruses-pictures-and-press-releases/evidence-0
So evidence significant appearance, token XIII; ground for belief XIV; information (given in a legal inquiry) tending to establish fact XVI; clarity XVII. — (O)F. — L.; whence evidential XVII. evidently XIV.
"evident." The Concise Oxford Dictionary of English Etymology. . Encyclopedia.com. (February 18, 2017). http://www.encyclopedia.com/humanities/dictionaries-thesauruses-pictures-and-press-releases/evident-1
"evident." The Concise Oxford Dictionary of English Etymology. . Retrieved February 18, 2017 from Encyclopedia.com: http://www.encyclopedia.com/humanities/dictionaries-thesauruses-pictures-and-press-releases/evident-1
ev·i·dent / ˈevədənt/ • adj. plain or obvious; clearly seen or understood: she ate the cookies with evident enjoyment. ORIGIN: late Middle English: from Old French, or from Latin evidens, evident- ‘obvious to the eye or mind,’ from e- (variant of ex-) ‘out’ + videre ‘to see.’
"evident." The Oxford Pocket Dictionary of Current English. . Encyclopedia.com. (February 18, 2017). http://www.encyclopedia.com/humanities/dictionaries-thesauruses-pictures-and-press-releases/evident-0
"evident." The Oxford Pocket Dictionary of Current English. . Retrieved February 18, 2017 from Encyclopedia.com: http://www.encyclopedia.com/humanities/dictionaries-thesauruses-pictures-and-press-releases/evident-0
"evidence." Oxford Dictionary of Rhymes. . Encyclopedia.com. (February 18, 2017). http://www.encyclopedia.com/humanities/dictionaries-thesauruses-pictures-and-press-releases/evidence
"evidence." Oxford Dictionary of Rhymes. . Retrieved February 18, 2017 from Encyclopedia.com: http://www.encyclopedia.com/humanities/dictionaries-thesauruses-pictures-and-press-releases/evidence
"evident." Oxford Dictionary of Rhymes. . Encyclopedia.com. (February 18, 2017). http://www.encyclopedia.com/humanities/dictionaries-thesauruses-pictures-and-press-releases/evident
"evident." Oxford Dictionary of Rhymes. . Retrieved February 18, 2017 from Encyclopedia.com: http://www.encyclopedia.com/humanities/dictionaries-thesauruses-pictures-and-press-releases/evident