Introduction
Traditionally there are four types of evidence that are applied by almost every common wealth country. These types include real, demonstrative, documentary as well as testimonial evidence (Daubert, 1999–2026). However, not all rules of evidence apply to the four types, as some rules are only applicable to either one or all of them. The only rule that applies to the various types of evidence is that of admissibility.
General rules of admissibility
For evidence to be admissible it has to be relevant, material and competent. Therefore, where it is shown that evidence is relevant material, and competent unless it is disqualified through exclusionary rule, it is considered to be permissible.
Evidence that is able make the fact it is offered to prove or disprove more or less probable is said to be relevant. If certainty can be shown from a fact offered then the same is relevant. Therefore, if any particular item of evidence tends to increase the likelihood of the fact upon which it is offered then it is relevant (Daubert 1999–2026). For instance, if the fact to be proved is that the defendant broke the plaintiff hand in a fight, testimony of an eye witness to that effect is admissible. Materiality of evidence occurs if the item of evidence is offered to prove a fact that is in issue in a suit. Issues in any given suit are borne by the pleadings, any formal stipulations or admissions as well as the applicable law. For instance if a defendant admits that plaintiff performed all his contractual obligations, proof of that performance becomes immaterial, unless it is relevant in some other issue.
On the aspect of evidence being competent it is construed to be competent if it meets certain prerequisites of reliability (Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 US 579, 589 (1993)). Those three aspects of evidence form what is known as foundations of evidence. Where any of the three elements of admissibility is wanting, the evidence is said to be lacking proper foundation. As a whole, competent evidence is generally admissible if it is offered to prove a relevant and material fact. For instance, in criminal cases evidence of prior conduct of the accused even though it is not admissible to show that he acted similarly, however it may be admissible to show motive, intent, plan or lack of mistake.
A court can exclude evidence otherwise admissible where there is greater chance of finder of that fact, to use it improperly. Under such circumstances the probative value of the evidence is said to outweigh its prejudicial effects. Courts are also vested with the discretion of excluding admissible evidence if the same orchestrates delay, waste of time or causes uncertainty (Bocchino et al 99-106).
Real evidence
Evidence is said to be real if there exists a thing or characteristics of which are relevant as well as material. Therefore, real evidence constitutes a thing that was directly involved in some event in the suit. For instance, written contract falls under this category of real evidence as well as murder weapon or scene of an accident. For real evidence to be admissible it must be relevant material and competent.
Evidence purporting to be what it is has to be proved. This prove is known as authentication. There are three methods of authenticating real evidence via identification of unique objects, identification of an object that has been made unique or through establishing a chain of custody. Unique objects can be identified by the testimony of a person who is familiar with the object. In identifying an object that has been made unique, a witness who has marked an object in court can be allowed to testify on its authenticity since he can differentiate it from other objects of bearing similarity. Missing link in the chain of custody of exhibit can bring problems if the exhibit was not marked (Rice et al, 4-9).
The last method of authenticating real evidence is through establishing a chain of custody. This requires that the whereabouts of the evidence ever since the beginning of the events to be authenticated by a competent witness (Bocchino et al 99-106). While authenticating he/she should testify to the effect that no alterations or change has been done to the object ever since the beginning of the trial. This sometimes requires a number of witnesses to testify to that effect.
Demonstrative evidence
As the name implies, this evidence illustrates the testimony of a witness and it is admissible if only it accurately and fairly illustrates that testimony and is unobjectionable. Diagrams and maps say of accident scene are some of the demonstrative evidence. The burden of authenticating demonstrative evidence lied with the witness whose testimony is being demonstrated. This is done through identifying salient features of the exhibit in addition to testifying that it fairly and accurately reflects what he saw or heard.
Evidence photographs taken by secret cameras can either be real or demonstrative depending on who authenticates it (Bocchino et al 99-106). Thus it is real evidence if authenticated by a technician while, where it is authenticated by a person who happened to be present at the time it was taken, it becomes demonstrative evidence.
Documentary Evidence
This is a form of real evidence a document produced to show prove of contract is authenticated in a similar manner as real evidence. Occasionally documents can suffice problems therefore it is always advisable in dealing with this type of evidence one to consider whether there is best evidence problem, authentication problem or hearsay problem. As a matter of substantive law parole evidence rule forbids the admission of extrinsic evidence that attempt to alter the terms of a written contract. With documents listed in the US evidence code, there are specific procedures regarding their authentication. Some documents are considered to be self authenticating such as certified copies of public records, official documents periodicals and newspapers among others.
Best Evidence Rule
This requires that a copy or other secondary evidence of the original not to be admitted in lieu of the original without substantive explanation being offered. This arose to mitigate fraud by clerks or even party to the suit. This rule however seems to be watered down in situations where there is no dispute as to the fairness of the photocopy. Therefore mechanically produced copies are nowadays admissible so long as the other party does not raise a genuine question as to its accuracy or show it would be unfair to admit it.
Testimonial Evidence
This type of evidence by a competent witness in proceedings is the only evidence that does not require another form of evidence. A person is said to be competent upon satisfying four requirements (Rothstein et al, 230-450); has to take a oath or substitute, demonstrate that he has knowledge of his testimony (here perception by sense is involved like hearing, seeing etc), must be able to comprehend what he or she perceived and his ability to communicate his perception.
It is important to note that these rules of competence are liberal hence it is rare to find them being utilized to exclude testimony. For instance prerequisite of oath allows for a simple confirmation to tell the truth, while communication may be through writing or an interpreter (Rothstein et al, 230-450).
Hearsay evidence
Under common law jurisdictions hearsay purports to offer one of the largest and most complex areas of law of evidence. Hearsay constitutes that statement made out of court and offered as prove to the fact in issue in any trial.
A party is said to be offering a statement to prove the truth of the asserted issue if it can be shown that he is trying to prove the maker of it to be true. For instance where a person not party to suit says ‘Gregory was present at the scene of crime’. If a party offering this statement as evidence at a trial is trying to prove that Gregory actually was there, the statement is being offered to prove the truth of the matter asserted. However, there several exemptions to hearsay rule under common law as well as US federal evidence code.
Circumstantial evidence
This constitutes a collection of facts other than the one sought, upon which an inference can be drawn about unknown thing (Romano, 2-4) While there is no inference in direct evidence, inference is employed in circumstantial evidence (Romano & Rodney, 3). For instance where Ann testifies that she saw Tony and his girlfriend enter the house and in few minutes she heard gunshots and screams of a woman and immediately Tony left with a smoking gun. The court has the discretion of believing the testimony of Ann based on its credibility. The jury can find that from Ann’s testimony Tony actually was the one who murdered her girlfriend.
References
- Romano, John F. 1999. Prohibitions in the Use of Circumstantial Evidence: Key Tips on Gaining Strategic Advantage. Trial Lawyer 22: 2–4.
- Romano, John F., and Rodney G. Romano.1998. The Circumstantial Evidence Generation: 25 Guidelines for Winning the Circumstantial Evidence Case. Trial Diplomacy Journal 21.
- Daubert: Interpreting the Federal Rules of Evidence. Cardozo Law Review 15 (1994): 1999–2026.
- McCormick, Charles t. (1954), Law of evidence. St. Paul, minn.: west publishing company. pp 67-98.
- Rothstein, Paul; Raeder, Myrna S.; Crump, David (2003). Evidence in a Nutshell, 4th edition, Thomson/West. Pp. 230-450.
- Rice, Paul R.; Delker, Neals-Erik W. (2000). Federal Rules of Evidence Advisory Committee: A Short History of Too Little Consequence. Federal Rules Decisions 191: 678.
- Bocchino, Anthony J., and David A. Sonenshein. 2003. Federal Rules of Evidence with Objections. South Bend, Ind.: National Institute for Trial Advocacy. 99-106
- Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 US 579, 589 (1993).