EVIDENCE

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.

Witnesses

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.

Expert Witnesses

"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.

Hearsay

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

Objections

Evidentiary Objections

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 Answers

Is irrelevant

Is immaterial

Is privileged

Is a conclusion

Is improper opinion

Is hearsay

Is narrative

Is improper characterization

Nonevidentiary Objections

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.

further readings

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.

Polygraph Tests

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.

Journalists' Privilege

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 [1977]; In re Roche, 381 Mass. 624, 411 N.E.2d 466 [1980]).

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.

further readings

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).

cross-references

Freedom of the Press.

Judicial Notice

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.

Privileges

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 [1980]). 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.

further readings

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.

cross-references

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

Non-Evidentiary Proceedings in Biblical Law

The revelation of divine law is found not only in legislation but also in adjudication in particular cases (cf. Lev. 24:12–13; Num. 15:32–34; 27:1–8; Deut. 1:17), whether through Moses or judges or priests (Ex. 28:30; Num. 27:21; Deut. 17:9–12; 21:5; 33:8–10), and God requires no evidence: He is all knowing and His decision is infallible (cf. Gen. 31:50). That adjudications without evidence continued to survive in judicial, nondivine proceedings is demonstrated by the report of the trial held by King Solomon between the two women each claiming the same child (i Kings 3:24–25) and by contemporaneous trial reports from other civilizations. Judges appear to have devised their own tests of credibility.

Evidentiary Proceedings in Biblical Law

The existence and availability of human witnesses and other modes of proof seem from earliest times to have been part of judicial proceedings (cf. Ex. 22:9, 12). Witnesses appear to have testified to the facts prior to God being asked to pronounce the law (Num. 15:32–35); and eventually it came about that a person "able to testify, as one who has either seen or known of the matter," was guilty of an offense if he failed to come forward and testify (Lev. 5:1).

Evidence in Criminal Cases

proof of guilt

Biblical law had already established that in criminal cases the evidence of at least two witnesses is a sine qua non of any conviction and punishment (Deut. 17:6; 19:15). This rule appears to have applied both in judicial and in priestly adjudications (cf. Deut. 19:17), and was interpreted as prescribing a minimum burden of proof, from which no later legal development could in any way derogate.

Post-biblical law thus concentrated on devising measures to assure the greatest possible reliability of witnesses' testimony: they were cautioned by the court that they would be rigorously cross-examined, that they must not rely on hearsay or on opinions, and that they must be conscious of their grave responsibility – since a human life was at stake (Sanh. 4:5). They were in fact subjected to cross-examination by the court – each witness separately – and their evidence would not be accepted unless their respective testimonies were found to be consistent with each other in all relevant particulars (Sanh. 5:1–4; Maim. Yad, Sanh. 12:1–3; for particulars of the cross-examination of witnesses and their qualifications, see *Witness).

The further rule was evolved that it was not sufficient for witnesses to testify to the commission of the offense by the accused: they also had to testify that the accused had been warned by them beforehand against committing that particular offense (hatra'ah) – that is, that the accused knew that in committing the act he was violating the law (Tosef. Sanh. 11, 1; Sanh. 8b; et al.). Elaborate rules were laid down for the identification of the accused by the witnesses, and where the court was not satisfied beyond any doubt as to such identification, the accused was discharged even before the witnesses were examined on the merits of the case (Maim. ibid.). According to some scholars, he was also thus discharged where the victim of the offense had not been identified by the witnesses to the satisfaction of the court (see Leḥem Mishneh, ibid.).

evidence in defense

Whereas a witness testifying in a criminal case was not allowed to raise a point in defense of or against the accused (Maim. Yad, Edut 5:8) – a witness being disqualified from performing the function of a judge – when the evidence of the prosecuting witnesses had been found admissible and prima facie conclusive, public announcements had to be made inviting any person able to raise a point in favor (zekhut) of the accused, to come forward and speak (Sanh. 6:1). While the charge against the accused could be proved only by the viva voce evidence of witnesses, any shred of evidence from which a defense could be inferred would be used in his favor (Rashi, Sanh. 42b). For this purpose, a favorable point is not necessarily a rebuttal of the testimony of the prosecuting witnesses, but merely any fact or circumstance likely to arouse in the mind of the court a doubt as to the guilt of the accused; hence such points did not automatically result in an acquittal, but they were sufficient justification for the case to be remitted to the court for reconsideration – even four or five times. There is no explicit presumption of innocence in Jewish law; the requirements of proof of guilt are, however, so stringent and rigorous, and the possibilities of establishing a valid defense so wide and flexible, that a conviction is much more difficult and an acquittal much easier to obtain than under a rebuttable presumption of innocence.

post-talmudic law

In talmudic law the standards of proof required, even in criminal cases, were largely reduced where the jurisdiction rested on considerations of the "emergency" (hora'at sha'ah; see *Extraordinary Remedies). After the virtual cessation of jurisdiction in capital cases (see *Capital Punishment), and particularly in post-talmudic law, all criminal jurisdiction rested on considerations of "emergency" to which the provisions relating to the dispensation from the normal rules of evidence and procedure were held to apply. The rules of evidence prevailing in the Sanhedrin were held inapplicable in the courts of the Diaspora, when they were called upon to enforce public order by the imposition of *fines or *flogging (Resp. Rashba, vol. 4, no. 311).

Evidence in Civil Cases

burden of proof

It was in the law of evidence in civil cases in which the genius of the talmudic jurists, unfettered by scriptural restrictions, could develop fully. The obstacle that there was to be "one manner of law" (Lev. 24:22) in criminal and civil cases alike (Sanh. 4:1) was overcome with the assertion that the Torah takes pity on the money (property) of the people of Israel, and if the standards of proof in civil cases were as strict and rigorous as in criminal cases, nobody would lend his neighbor any money anymore, for fear the borrower would deny his debt or the memory of a witness would fail him (tj, Sanh. 4:1). Accordingly, a balance had to be struck between the exigencies of formal justice which required the burden of proof to be on the initiator of the proceedings (Sif. Deut. 16; bk 46b) and commercial and judicial convenience which required the greatest possible elasticity in handling and discharging that burden.

presumption of rightful possession

The fundamental rule that the plaintiff has the burden of proving his claim (hamoẓi mi-ḥavero alav ha-re'ayah) is based on the presumption (*ḥazakah) of the rightful possession by the defendant of the chose in action – i.e., the thing (or money) claimed (ḥezkat mamon): so long as the defendant's possession was not proved to be unrightful, it will not be disturbed – hence a defendant in possession is always in a better position than the plaintiff (Shevu'ot 46; Maim. Yad, To'en ve-Nitan, 8:1; Sh. Ar., Ḥm 133:1). But in order to raise the presumption of title, the possession must be accompanied by a claim of right (bb 3:3 and Codes); where the defendant in possession does not claim a specific right thereto, the burden is shifted to him to prove a right to retain the chose in action. Or where a claim is made according to custom, and the defense (that is, the possession) is contrary to custom, such as in a claim for workmen's wages (tj, bm 7:1, 11b), the presumption of rightfulness operates in favor of the plaintiff and shifts the burden of proof onto the defendant. In an action between heirs, where the defendant has seized part of the estate, his claim of right is not any better than that of the plaintiff, and he will have to prove that his possession is rightful (Yev. 37b and Tos. ibid.). Where a man was seen to take a chattel out of a house, it was held to be on him to prove that he took it rightfully (bb 33b; Hai Gaon, Sefer ha-Mikkaḥ veha-Mimkar, ch. 40), presumably because his possession was too recent to give rise to any presumption to that effect. Conversely, past possession which had meanwhile ceased (ḥezkat mara kamma) would give rise to a presumption of title only where the other party was not in possession either (bm 100a). These rules do not apply to possession of land and houses but only of money and chattels – for lands and other immovables there must be an uninterrupted possession of three years (bb 3:1), coupled with a claim of right (bb 3:3), in order to give rise to a presumption of title.

presumptions and quasi-presumptions of conduct

In order to mitigate the burden of proof and to simplify the judicial process, the sages have, presumably from their own accumulated judicial experience, established a vast number of quasi-presumptions, rooted in the psychology of human conduct, which apply to every litigant before the court, unless and until the contrary is proved. To give a few examples: a man does not waste his words or his money in vain without good cause (Ket. 58b, 10a); nor will he stand by inactive when his money is taken or his property endangered (Shab. 117b, 120b, 153a; Sanh. 72b) or when a wrong is being done or threatened to him (bb 60a). A man does not pay a debt before it falls due (bb 5a–b); nor does a man tolerate defects in a thing sold to him (Ket. 75b–76a). On the other hand, no man buys a chattel without having first seen and examined it (ibid.). A debtor will not easily lie in the face of his creditor (bm 3a), nor a wife in the face of her husband (Ket. 22b), nor anybody in the face of a man who must know the truth (Tos. Ket. 18a; bk 107a). A man is not expected to remember things which do not concern him (Shevu. 34b). A man will not leave his house empty and his household unprovided for (Ket. 107a). However, he is apt to understate his fortune so as not to appear rich (bb 174b–175a), and will rather have one ounce of his own than nine ounces of his neighbor's (bm 38a); nor will he sell and dispose of any of his goods unless he has to (bb 47b). No man commits a wrong unless for his own benefit (bm 5b) and the purpose of an act is its normal consequence ("everybody knows why the bride gets married"; Shab. 33a). No person is lighthearted in the hour of his death (bb 175a), or defrauds the Temple treasury (hekdesh; Shevu. 42b; Ar. 23a). Apart from such general presumptions, there are special ones relating to particular contracts or offices, as for example the presumption that an agent has duly performed the duties of his agency (Git. 64a), or that a priest has duly performed the duties of his office (tj, Shek. 7:2, 50c).

presumptions of credibility (ne'emanut)

Much stronger than these general and special presumptions of conduct are two further categories of presumptions, which are – theoretically at least – irrebuttable (comparable to, but not identical with, the Roman praesumptiones iuris et de iure). One is the presumption of credibility (ne'emanut) and the other is the presumption of common sense (umdana mukhaḥat).

The presumption of credibility is primarily based on the notion that the party or witness concerned has an intimate knowledge of the matter in issue and has no reason to distort it. Thus, where a man says he has divorced his wife, his word is taken as conclusive for the court to permit her remarriage – because the matter is within his own knowledge, and he has no reason to distort it, as he could even now divorce her any time (bb 134b–135a, but see Maim. Gerushin 12:5; Sh. Ar., eh 152:1; see also *Divorce). Or, a woman is believed when she says that her first husband has divorced her – because the matter is within her own knowledge and she need not have disclosed her previous marriage at all (ha-peh she-asar hu ha-peh she-hittir; Ket. 2:5). Or, an action will not lie for land which the defendant had told the plaintiff he had bought from the plaintiff's father, although the defendant could not prove the purchase: he will be believed that he bought it, because he need not have disclosed that it had ever belonged to the plaintiff's father in the first place (Ket. 2:2). The law would be different where the ownership of the plaintiff's father could be proved by witnesses (ibid.).

Some of these irrebuttable presumptions of credibility are based on Scripture, e.g., where a father says he has given his daughter in marriage (Deut. 22:16: "I gave this man my daughter to wife"; Ket. 22a), or a father's nomination of his firstborn son (bb 127b, following Deut. 21:17). There are, however, also presumptions of credibility which rank in weight with the rebuttable presumptions of conduct – that is, they are capable of being displaced by express evidence to the contrary. A man is presumed not to lie about matters which are easily ascertainable (Yev. 115a); and a man is presumed to remember matters which are extraordinary and astonishing (Hul. 75b). Conversely, a man whose words were proved false on one point, will no longer be believed on other points in the same case; notwithstanding any presumption in his favor, he will be required to adduce express proof for the other points (bm 17a; Maim. Yad, Gerushin 13:1). Credibility is also presumed for statements made for purposes unconnected with the litigation (mesi'aḥ lefi tummo: Git. 28b; cf. bk 114f.). A man is believed where his statement (e.g., that he had become a convert on his own, without a bet din) disqualifies him (Yev. 47a), but no such statement is accepted as proof of disqualification of anybody else, even his wife or children (ibid.).

presumptions of common sense (umdana mukhahat)

The presumption of common sense applies to bring acts or conduct into conformity with reason or propriety: the presumption is that a person acts reasonably and properly, notwithstanding any outward appearance to the contrary; and his acts will therefore be judged not according to appearances, but according to what, in reason and propriety, they ought to have been. Thus, a man is presumed not to give away the whole of his property during his lifetime; hence where a dying person disposed of all his property and then recovered, his act will not be enforced by the courts, and he is regarded as having acted in the mistaken belief that he was going to die (bb 146b). The same applies to transactions made for an ulterior motive; where a woman had given away her property in order to deprive her future husband of his legal rights thereto, and on divorce reclaimed the property, the court is reported to have torn the deed of gift into pieces (Ket. 78b; Maim. Zekhiyyah u-Mattanah 6:12). A husband giving his property to his wife is irrebuttably presumed to have made her only his trustee and not to have deprived himself and his children of all his property (bb 131b; for a list of these presumptions see Piskei ha-Rosh Ket. 11:9).

presumptions of conditions (umdana be-gillui da'at)

While these presumptions apply whether or not the mistake or motive was expressed or admitted, there are other cases in which these or similar presumptions apply only where such mistake or motive can be inferred from express statements made at the time of the transaction (umdanot be-gillui da'at). Thus, where a man disposed of his property, mentioning that he had decided to emigrate, and then he did not in fact emigrate, he will be presumed to have disposed of his property only conditional on his emigration (Kid. 49b). Or, where a man had made a will bequeathing his property to strangers, because he had heard that his sons had died, and then it appeared that they had not died, his will was set aside as having been made by mistake (bb 132a). Even where a vendor had stated, at the time of the sale, that he sold in order to have the money for a certain purpose, and that purpose could not afterward be effected, he was held entitled to have the sale set aside (Ket. 97a). It has been said that reservations giving rise to such presumptions must, however, always be reasonable: the man desiring to emigrate, for instance, could have the sale or gift of his landed properties set aside if the emigration did not transpire, but not the sale of his personal effects which he would be assumed to take with him on his emigration (Tos., Ket. 97a).

judicial notice (anan sahadei)

All these presumptions and quasi-presumptions are being taken notice of by the court ex officio (anan sahadei; Resp. Rosh 34:1; 81:1), and in this respect they are similar to matters of custom and usage (cf. tj, Pe'ah 7:6, 20b). Not unlike the concept of "judicial notice" in modern law, they replace formal evidence which would otherwise have to be adduced by the party on whom the burden of proof lies: in the language of the Mishnah, the disputant of a presumption of credibility in a given case would say, "we do not live from his mouth," but he has to adduce proof to verify his words (cf. Ket. 1:6–9). In some cases, especially those involving marital status, courts will take notice also of common repute or rumor (kol; Git. 89a; Ket. 36b; et al.; on presumptions see also *Ḥazakah).

modes of proof

Where neither presumption nor custom avails the party on whom the burden of proof lies, he may discharge it by adducing evidence, either in the form of an *oath, or in the form of a shetar, or in the form of the testimony of *witnesses.

evaluation of evidence

Notwithstanding the formal and apparent sufficiency of the evidence adduced, however, the court is not bound by it, but has to weigh its reliability and satisfy itself of its truth before deciding the case in accordance therewith: it is a matter for the mind and heart of the individual judge, and no hard-and-fast rules can be laid down (Maim. Yad, Sanh. 24:1–2).

fraud on the court

Where the judge has gained the impression that the case before him, though duly proven, is a fraud (din merummeh), Maimonides holds that he ought to disqualify himself and leave the case to be decided by some other judge (ibid. 3); but the better opinion appears to be that he ought to dismiss the case there and then (Resp. Rosh 68:20; Ḥm 15:3). Where it was the defendant who had deceived the court, judgment would be given in favor of the plaintiff, so as not to let "the sinner reap the fruits of his sin" (Resp. Rosh 107:6). The same rule would apply where a party sought to prevent the court from discovering the whole truth, whether by refusing to submit to cross-examination, or by suppressing evidence, or by any other means (ibid.).

additional evidence

Even though a case has been duly proved and decided, any party claiming that new evidence has been discovered, which might change the outcome of the proceedings, is entitled to have the case reopened (Sanh. 4:1). The only exceptions to this rule are, first, where the court has fixed a time limit for the adducing of additional evidence and that time has expired; and second, where the party has expressly declared in court that there is no additional evidence available to him (Sanh. 3:8) – in these cases it is apprehended that the additional evidence might have been fabricated (Rashi, Sanh. 31a).

formal evidence (gillui milta be-alma)

It is not only by vesting a wide discretion in the judge but also by legislatively relaxing the rules of evidence in proper cases that the law seeks to avoid any possible hardships which may arise from the objective difficulties of obtaining evidence. Such legislative relaxations are to be found particularly in respect of routine matters. Thus no formal evidence is required for the identification of litigants who identify themselves; even a relative or a minor can identify a brother-in-law for the purpose of ḥaliẓah (Yev. 39b; see *Levirate Marriage) or the evidence of one witness (who would nowadays be called a "formal" witness) is sufficient to establish matters of physical examination, such as the appearance of signs of puberty or the symptoms of a disease – matters which have to be proved, not because they can be seriously contested but in order "that judgment may be rendered without a stammer" (Rashi, Ket. 28a).

legislative relaxation of rules of evidence

In matters of marital status, there are many situations where the law contents itself with the evidence of a disqualified or a single witness, or hearsay, or other generally inadmissible modes of proof, because, in the language of Maimonides, these are generally matters which can be verified by other means and on which a man will not normally lie, as e.g., the death of another man; "and while the Torah insists on the testimony of two witnesses and all the other rules of evidence in cases which cannot be proved otherwise, as e.g., whether A killed B or A lent money to B, in these matters in which it is unlikely that any witness would lie, have the sages seen fit to relax the rules and to accept the evidence of bondswomen, and in writing, and without cross-examination, so that the daughters of Israel may not lose their remedy" (Gerushin 13, 29).

[Haim Hermann Cohn]

Circumstantial Evidence

The above discussion concerned various legal presumptions – based on conduct, on credibility, on common sense, presumptions of the existence of a given condition, and "judicial notice" – all of which involve interpretation of and legal consequences derived from known facts. There remains, however, a basic question, as to whether facts may be determined in reliance on circumstantial evidence. Circumstantial evidence is evidence that does not directly prove the specific fact for which proof is required, but necessitates a deductive process of drawing conclusions to prove that fact.

In dinei mamonot (monetary cases), as stated above, it is undisputed that a presumption may be relied upon for the determination of an actor's intent. However, regarding the commission of an act itself or the actor's identity, the rishonim take varying approaches: Maimonides (Yad, Sanhedrin 24:1) adopts the view that in such monetary cases facts can be determined on the basis of circumstantial evidence, provided that the evidence offers good and convincing proof. For example, if a person claims that he left a specific article as a deposit with a decedent and presents signs which prove that the article is his, and a judge is persuaded that the article is not the decedent's property – the article will be taken from the heirs and given to the claimant, even if there is no will directing that this be done. An opposite view appears in the responsum of R. Yosef Colon (Responsa Maharik, §129; Italy, 15^th century), which provides that a presumption can only be relied upon to determine the intention of an actor, but cannot be used as proof of the actual commission of the act or the actor's identity, regarding which judges only rely on direct evidence.

Regarding personal status, marriages and divorces, testimony that an act of divorce or marriage actually took place is required to confirm its validity; regarding marriage, all authorities agree that circumstantial evidence is sufficient to prove commission of the act. However, with respect to divorce, there is a need for constitutive evidence – supporting witnesses who witnessed the act of divorce – and the authorities are divided as to whether circumstantial evidence is sufficient for this. Rabbenu Tam (Tosafot at Gittin 4a) takes the view that actual witnesses are necessary and that circumstantial evidence is insufficient, while R. Alfasi (tb Gittin 47b–48a and Rabbenu Nissim, ad loc) reasons that circumstantial evidence can take the place of witnesses who confer validity to the get.

In penal law as well there are disputes about the status of circumstantial evidence. The accepted view is that capital cases may not be decided and punishments may not be imposed except on the basis of clear and direct proofs (see Maimonides, Yad, Sanhedrin 20:1), and there is a clear distinction in this context between monetary cases and capital cases (dinei mamonot and dinei nefashot).

However, the Tosafists (Shevuot 34a) take a different view, postulating that a person may also be convicted of murder in reliance on circumstantial evidence, when such evidence is absolute and incontrovertible – just as the same evidence would have substantiated the defendant's liability for monetary damages had he not actually killed the victim but only injured him.

According to some authorities, even Maimonides would agree that the prohibition against reliance on circumstantial evidence applies exclusively to actual capital cases, but that in other types of penal cases, such as malkot (lashes), circumstantial evidence can be relied upon in the same manner as in dinei mamonot (monetary cases) (Responsum Maharik, Part 87).

An exception to the rule with regard to capital cases is that of adultery, in which the basic rule is that circumstantial evidence is sufficient. The view of the amora Samuel in the Talmud (Makkot 7a) is that to convict a man and a woman of adultery, it is sufficient that the witnesses testify that they appeared to be engaged in an act of adultery, and there is no requirement that witnesses testify to having witnessed the actual sexual act. This opinion was accepted as the binding halakhic rule by most authorities (Yad, Issurei Bi'ah 1:19; Sh. Ar., eh 20:1). The main explanation for this divergence from the strict evidentiary requirements of criminal law, especially in capital matters, is that the sages considered it unreasonable to assume that biblical law required witnesses who witnessed the actual sexual act, both because of the technical difficulty and the indecency involved, and they therefore assumed that under biblical law it was sufficient that there be testimony that they were seen behaving "like adulterers" (see *Adultery).

lessening the burden of proof in criminal law – punishment in deviation from the law

Another category of cases which deviates from the rule that capital cases may only be decided in reliance upon direct evidence are those decided in accordance with the doctrine allowing the imposition of punishment in deviation from the strictures of criminal and evidentiary law when the exigencies of the times necessitate such punishment (le-migdar milta, i.e., to provide "a fence around the words" of Torah). This category was discussed at length in the Israeli Supreme Court decision in the Nagar case (Cr.A. 543/79 Nagar v. State of Israel, pd 35(1) 163–170, opinion of Justice Elon). We will review some of this discussion.

Toward the end of the Tanna'itic era, we read of the establishment of a principle – followed for many years beforehand – which constituted a significant change in Jewish criminal law, with respect to both penal law and the rules of procedure and evidence in criminal trials:

R. Eleazar b. Jacob stated, "I heard that even without any Torah [authority for their rulings], beth din may administer flogging and [death] penalties; not, however, for the purpose of transgressing the words of the Torah but in order to make a fence around the Torah" (tb Yevamot 90b; Sanhedrin 46a). In tj Yerushalmi, Ḥagigah 2.2, the text is "I heard that they administer penalties not in accordance with the halakhah and they administer penalties not in accordance with the Torah" (page 165 of the Nagar decision).

On the basis of this fundamental provision, which enabled the courts to deviate from the original law of the Torah in criminal and evidentiary law, in accordance with the needs of the time and the place, both the courts and the communal leaders utilized their authority to enact communal regulations (see *Takkanot):

Detailed legislation by way of regulations which were enacted during all of the periods against the background of variegated religious, societal, economic and moral circumstances…. This legislation granted broad power to determine criminal penalties and litigation procedures which conformed to the needs of the time and of society, and was accompanied by a serious warning not to infringe a person's stature as a human being, and his dignity more than necessary. After determining the scope of this extended authority given to the halakhic authorities in the area of criminal law Maimonides gives the following summary of the Sages' obligation when exercising these powers: "All these matters are carried out in accordance with what the judge deems necessary under the exigencies of that time, and his acts should always be for the sake of heaven and he should not take a frivolous attitude to human dignity" (Maimonides, Yad., Sanhedrin, ch. 24., 10) (ibid., pp. 165–66).

Formally, such regulations are defined as "temporary provisions," but they have become part of substantive Jewish law in practice. At various times, Jewish courts throughout the Diaspora have exercised this authority even in imposing death sentences without requiring a court of 23, and without the stringent rules of evidence imposed by the original Jewish Law (see Elon, Jewish Law, pp. 515–19, and notes 100, 104–108).

As noted, in its original format, Jewish Law was strict in its requirements for direct evidence. Maimonides makes the following illuminating observations on the strict evidentiary requirements of Jewish Law (Sefer ha-Mitzvot, Negative Commandments, §290): "Even if A pursues B with intent to kill, and B takes refuge in a house, and the pursuer follows him, and we enter after them and find B in his last gasp and his enemy, A, standing over him with a knife in his hand, and both of them are covered with blood, the Sanhedrin may not find the pursuer A liable for capital punishment, since there are no direct witnesses who actually saw the murder …" The reason given by Maimonides is that if the court was permitted to convict a suspect of a criminal offense on the basis of other than the unequivocal testimony of witnesses to the actual act, the court might soon find itself convicting of criminal offences on the basis of a "speculative evaluation of the evidence." He completes his comments with the observation, that "it is better and more desirable that a thousand guilty persons go free than that a single innocent person be put to death."

In contrast with the stringency that characterized the original Jewish Law, the authority to impose punishment in a manner that deviated from Torah law enabled the courts in numerous Jewish communities to be content with circumstantial evidence alone, even for purposes of conviction for serious offenses such as murder. R. Isaac b. Sheshet of Perfet (Spain and North Africa; late 14th century) ruled that defendants accused of murder could be convicted relying on circumstantial evidence alone, provided there are convincing proofs and plausible reasons.

In any event, in order to "create a safeguard," since someone from among you has died, if you decide that the death penalty is called for because a crime has been committed heinously, violently and deliberately (it appears that they lay in wait for him [the victim] at night and during day, and openly brandished weapons against him in the presence of the communal leaders), then you may [impose the death penalty]… even when there are no eyewitnesses, if there are convincing proofs and plausible reasons.

In another responsum, the Ribash ruled that for the same reason it is also possible to rely on the confession of a litigant supplemented by circumstantial evidence (similar to the provision in the law of evidence practiced in the State of Israel, allowing conviction of the accused on the basis of a confession given outside court, with the addition of "something extra"):

Jewish courts [at this time] impose flogging and punishment not prescribed by the law, for capital jurisdiction was abrogated, but in accordance with the needs of the time, and even without unequivocal testimony, so long as there are clear grounds to show that he [the accused] committed the offense. In such acase, it is the practice to accept the defendant's confession even in a capital case, even where there is no clear proof, in order that what he says, together with some measure of corroboration, may shed light on what happened (ibid., 234).

Not every part of the Jewish Diaspora enjoyed such broad autonomous criminal jurisdiction, and the extent of juridical authority differed according to the period and the location. However, jurisdiction similar to that enjoyed by the Spanish center in the Middle Ages also existed at a later period in the Jewish community of Poland. It was during this period that we hear of Polish communities exercising the power of "im-posing punishment not prescribed in the Torah," in order to convict defendants on the basis of circumstantial evidence (Nagar, ibid., pp. 167–169).

It is important to emphasize that, where convictions were based on circumstantial evidence, it was constantly reiterated that such evidence, even if not clear and direct, must be of a kind that the judges "believe to be the truth" (Resp. Rashba, attributed to Naḥmanides, §279), and that this kind of adjudication is only possible where "the accusation is proven to be well grounded"; and that "the sole intention is to pursue justice and truth and there is no other motive (Resp. Zikhron Yehudah § 79, Nagar, ibid. 170).

As noted above, these principles constituted the basis of the ruling of the Israeli Supreme Court in Nagar, under which one suspected of murder could be convicted relying on incontrovertible circumstantial evidence, even though the court had no direct evidence of his having committed the offense, and even though the body itself had not been found (see *Capital Punishment).

documents as evidence

There is evidence of written documents serving as legally valid proof in the Bible itself: "and written in the books and sealed, and witnesses called" (Jer. 32:44).

The talmudic rule is that deeds constitute valid proof in a court. "Resh Lakish said: If witnesses are signed on a deed it is as if their testimony had been examined in court" (tb Ketubbot 18b). Several reasons are given for this ruling: first, because the deeds are drawn up with the debtor's consent and he has mentally resolved to agree to their contents since he derives some benefit or profit thereby; second, because the texts of the deeds are uniform and everyone understands their import; and third, because people customarily rely on them, since otherwise they would be unable to do business with one another. The rishonim therefore ruled that, in order for a deed to be binding, it must be written with the debtor's consent and at his request; a deed which was written by witnesses of their own initiative is not binding (Tosafot, Ketubot 18b; Naḥmanides, Bava Bathra 171a; Hame'iri, Ketubot 20a).

Under biblical law, the authenticity of a deed is presumed, "a person does not dare to forge" (Rashi, at Gittin 3a). However, the changing times and different moral and social attitudes precluded continued adjudication of deeds on the basis of simple authentication by way of the witnesses' signature, on the presumption that this excluded the possibility of forgery. The Rabbis henceforth enacted that all deeds would require substantiation. Thus, a person making a claim based on a deed, or relying on it as evidence, bore the burden of proof of demonstrating that the witnesses' signature was genuine. Substantiating evidence for a deed could consist of additional testimony on the signature, comparison of the signatures to other recognized signatures of the witnesses who signed, or the summoning of the signing witnesses to testify that the signature on the deed was indeed theirs.

Maimonides took a different view regarding the nature of a deed. Maimonides contended (Hilkhot Edut 3:4) that under Biblical law oral testimony is sufficient in all areas of law, including dinei mamonot (monetary civil cases). According to Maimonides, the requirement and acceptance of the signature of witnesses as proof of a deed is rooted in a rabbinic regulation, enacted so as not to "lock the door against borrowers" – i.e., economic life would be impossible if it were necessary to confirm every loan by way of oral testimony in court. In Maimonides' view, the requirement of substantiation of a deed is an offshoot of this rabbinic regulation, intended to prevent forgery of deeds.

In addition to requiring that witnesses' signatures be substantiated in order to prevent forgery of a deed, the Talmud prescribes that deeds are not to be written on paper (on which the original text could be erased) or untanned animal skin, because writing on this kind of paper can be easily forged (tb Gittin 21a–22b). Similarly, deeds cannot be written in a manner that enables the forging of their concluding section, or the addition of words that did not appear in the original text; a deed written in such a manner is inadmissible as evidence (Tb bb 160 af.; cf. *Shetar).

objection to evidence by rival litigant

The litigants are allowed to make conditions regarding the rules of evidence in a civil case, in which they agree to admit otherwise inadmissible evidence. Nevertheless, so long as a trial has not yet finished, either litigant can object to the hearing of inadmissible evidence (Sh. Ar., Ḥm 22:1). Moreover, if the agreement between the parties was not made in the court, the litigant can renege on his consent to accept such evidence even after the trial's conclusion (Siftei Kohen., ad loc.). In order for a litigant to submit evidence that is otherwise inadmissible and deny the other litigant the right to object to such, he must make an agreement with the other litigant through an act of kinyan.

evidence that infringes privacy and violates human dignity

*Human dignity and the right to privacy are extensively protected in Jewish law. Nevertheless, at times the search for the truth necessitates the violation of a suspect's dignity or privacy. The conflict between the value of determining the truth (even by prohibited means) and that of preserving human dignity was discussed in the Israeli Supreme Court's decision in the rehearing of the Vaknin case (fh 9/83 Military Appeals Court v. Vaknin, pd 42(3) 837). In that case, the police obtained incriminating evidence against a defendant suspected of possessing dangerous drugs by forcing him to drink salt water, as a result of which he vomited up the drug packages that he had swallowed. The Court was requested to decide on whether the police action fell within the ambit of section 2 of the Protection of Privacy Law, 5741–1981. An affirmative ruling on this point could disqualify the illegally procured evidence, precluding reliance thereon for a conviction. On the other hand, if the conclusion was that the police action was not proscribed by the Protection of Privacy Law, then, even though the act itself was improper, the evidence obtained thereby would be admissible. (In general, under Israel law only evidence obtained through infringement of privacy as defined by the Protection of Privacy Law is rendered inadmissible.)

The Court ruled that this case did not involve an infringement of privacy, and the evidence was therefore admissible. Justice Elon held that the Protection of Privacy Law should be interpreted in accordance with Jewish law, and therefore adduced sources in Jewish law concerning the prohibition of disclosing secrets, the prohibition on opening another person's letters without permission, and others. Nevertheless, Elon indicated a number of specific cases in which the need to obtain evidence prevails over the need to protect privacy or human dignity – both with regard to penal law and monetary law:

Eavesdropping is an affirmative precept (mitzvah) in certain circumstances as for example in order to obtain evidence in a case involving grave criminal activity (such as incitement). In such a case, "they may hide witnesses [against] him behind a fence" (Mishnah Sanhedrin 7.10), and it is permitted to do so in order to obtain evidence regarding any manner of criminal activity. (See R. Joseph Babad's Minḥat Ḥinukh – Commandment §462: "This is evidently not the simple meaning of the Mishnah in Sanhedrin ad loc: 'Witnesses are not hidden against any who are subject to the death penalty according to the Torah law, other than these' – and the matter requires clarification.") Similarly, it was permitted to open a letter addressed to another person where there are grounds for suspecting that the letter's author intends to commit a wrongdoing with the addressee's money and the matter can be clarified by opening the letter and reading it (see Responsa Hikekei Lev, Part i, Yoreh De'ah, 49, responsa of R. Hayyim Palache, rabbi of Izmir in the mid-19^th century and one of the outstanding respondents during the period of the aḥaronim. See also ResponsaMaharik, n. 110, of R. Joseph *Colon, one of the great halakhic sages in Italy during the 15^th century, and Sh. Ar. yd, 228.33 Rema).

In addition to the principles elucidated in the Vaknin decision, there is also the issue of investigating the adulterous wife (sotah; see *Ordeal). Although this is a procedure based upon the occurrence of a miracle, which is not practiced in our time, it is intended to clarify guilt, and involves the humiliation of the woman being investigated.

An additional case raising the question of the clash between the need for evidence and the right to privacy came before the High Rabbinical Court of Appeals (Appeal 5733/216, r.d. 9, 331). The case concerned a husband who claimed that his wife was mentally ill, and therefore requested that the Court order her to undergo psychological treatment in order to restore "domestic peace." In the event of her refusal, he requested that she be declared "a rebellious wife" (moredet). The husband requested to summon her doctor as witness to her mental condition, but the latter conditioned his testimony on the wife's agreement to waiving medical confidentiality, which the wife refused to do. The president of the Court, Rabbi Shlomo Goren, and Rabbi Mordechai Eliyahu both held that the suspicion regarding a mental impairment was firmly based and that the doctor should therefore be compelled to testify to the court. On the other hand, Rabbi Yosef Kafah ruled that the probative value of the doctor's testimony was minimal, as he would only testify on her medical condition as it had been many years back. On the other hand, the testimony was liable to cause her serious damage, given that she was engaged in education and would be derided by her students. Rabbi Kafah therefore ruled that the doctor's testimony should not be required.

accepting evidence after the conclusion of the trial

The Mishnah (Sanhedrin 3:8) states that "when-ever evidence is brought – it can contradict the ruling." In other words, after the trial's conclusion, even if the obligation ruled upon was discharged, the ruling can be annulled if new evidence was brought before the court. In such a case, a new trial must be held. The tannaim (ibid.) disputed the issue of whether the Court can place a time limitation on the period during which a litigant can proffer new evidence. The law was decided according to R. Simeon b. Gamaliel – namely, that the court cannot impose a time limit on a litigant's submission of new evidence which, irrespective of when it was submitted, will be accepted. A limitation on the submission of new evidence is only effective if the litigant himself declared that he has no further evidence; in such a case he is prevented from bringing further evidence at a later stage (Maimonides, Yad, Sanhedrin 7:6–9; Sh. Ar., Ḥm 20).

[Menachem Elon (2^nd ed.)]

bibliography:

Z. Frankel, Der gerichtliche Beweis nach mosaisch-talmudischem Rechte (1846); J. Freudenthal, in: mgwj, 9 (1860), 161–75; N. Hirsch, in: Jeschurun, 12 (Ger., 1865/66), 80–88, 109–22, 147–65, 249–58, 382–94; J. Klein, Das Gesetz ueber das gerichtliche Beweisverfahren nach mosaisch-thalmudischem Rechte (1885); Gulak, Yesodei, 4 (1922), passim; S. Assaf, Battei Din ve-Sidreihem (1924), 102 ff.; S. Rosenbaum, in: Ha-Mishpat, 1 (1927), 280–90; S. Kaatz, in: Jeschurun, 15 (Ger., 1928), 89–98, 179–87; Z. Karl, in: Ha-Mishpat ha-Ivri, 3 (1928), 89–127; A. Gulak, Le-Ḥeker Toledot ha-Mishpat ha-Ivri bi-Tekufat ha-Talmud, 1 (Dinei Karka'ot, 1929), 66 f.; D.M. Shohet, The Jewish Court in the Middle Ages (1931), 171–85 (contains bibliography); P. Dickstein, in: Ha-Mishpat ha-Ivri, 4 (1932/33), 212–20; Herzog, Institutions, 1 (1936), 233, 255 ff., 367 ff.; 2 (1939), 185–8; et, 1 (1951³), 137–41; 2 (1949), 70 f.; 3 (1951); 106–10; 4 (1952), 199–208; 6 (1954), 85, 106, 705–14; 7 (1956), 290–5; 8 (1957), 404–44, 609–23, 722–43; 9 (1959), 64–103, 156–7, 448–9, 722–46; 12 (1967), 307–13; A. Karlin, in: Ha-Peraklit, 11 (1954/55), 49–57, 154–61, 247–54; 12 (1955/56), 185–91; J. Ginzberg, Mishpatim le-Yisrael (1956), passim; S. Fischer, in: No'am, 2 (1959), 211–22; E.E. Urbach, in: Mazkeret…Herzog (1962), 395–7, 402–8; Jaeger, in: Recueils de la Société Jean Bodin, 16 (1965); Ch. S. Hefez, in: Mishpatim, 1 (1969), 67 ff.; Elon, Mafte'aḥ, 279–302; J.S. Zuri, Mishpat ha-Talmud (1921), 38–64. add. bibliography: M. Elon, Ha-Mishpat ha-Ivri (1988), 1: 423, 502–504, 649, 800 f., 827; 3: 1377 f., 1442, 1486 f.; idem, Jewish Law (1994), 2:516, 610 f., 803, 981 f., 1013; 4: 1646 f., 1715, 1767 f.; idem, Jewish Law (Cases and Materials) (1999), 200 ff; M. Elon and B. Lifshitz, Mafte'aḥ ha-She'elot ve-ha-Teshuvot shel Ḥakhmei Sefarad u-Ẓefon Afrikah (1986), 1:135–42; 2:440–47; B. Lifshitz and E. Shohetman, Mafte'aḥ ha-She'elot ve-ha-Teshuvot shel Ḥakhmei Ashkenaz, Ẓarefat ve-Italyah (1997), 90–91, 298–304; S. Albeck, Ha-Re'ayotde-Dinei ha-Talmud (1987); E. Shochetman, Seder ha-Din (1988), 269–317; D. Frimer, "Kevi'at Abbahut al-yedei Bedikat Dam ba-Mishpat ha-Yisraeli u-va-Mishpat ha-Ivri," in: Shenaton ha-Mishpat ha-Ivri, 5 (5738), 219–42; Y. Ben Meir, "Re'ayot Nesibatiyyot ba-Mishpat ha-Ivri," in: Dinei Yisrael, 18 (5755–5756); Y. Ungar and A. Rachnitz (eds.), Mishpatei Ereẓ, 2 (2004); I. Warhaftig, "Beirur Uvdot ba-Mishpat toch Pegi'a be-Ẓeni'ut ha-Perat," in: Mishpatei Ereẓ, 2 (2004), 220–21.

Evidence

Sections within this essay:

Background

The law of evidence governs how parties, judges, and juries offer and then evaluate the various forms of proof at trial. In some ways, evidence is an extension of civil and criminal procedure. Generally, evidence law establishes a group of limitations that courts enforce against attorneys in an attempt to control the various events that the trial process presents in an adversarial setting. There are many arguments in favor of evidence law; here are five of the most common ones:

1. To ameliorate pervasive mistrust of juries
2. To further legal or social policies relating to a matter being litigated
3. To further substantive policies unrelated to the matter in suit
4. To create conditions to receive the most accurate facts in trials
5. To manage the scope and duration of trials

In the United States, the federal courts must follow the Federal Rules of Evidence (FRE); state courts generally follow their own rules, which are generally imposed by the various state legislatures upon their respective state courts. The FRE is the most influential body of American evidence law. The FRE encompasses the majority of the laws of evidence in 68 brief sections. Its language is accessible, easy to read, and mostly free of technical jargon and complicated cross-referencing. The FRE has been enormously influential in the development of U. S. evidence law. This influence in part is a result of its brevity and simplicity.

Before 1975, U. S. evidence law was mostly a creature of the common law tradition. The FRE was drafted and proposed by a distinguished advisory committee composed of practitioners, judges, and law professors appointed by the United States Supreme Court. Just 20 years after the FRE was adopted in the federal system, almost three-quarters of the states had adopted codes that closely resemble the FRE.

The FRE applies in all federal courts in both criminal and civil cases. Understanding some of the basic provisions of the FRE will enable most people to figure out what is going on at trial, even if there are de-viations between the FRE and applicable state laws of evidence.

Admissibility

Evidence comes in four basic forms:

1. Demonstrative evidence
2. Documentary evidence
3. Real evidence
4. Testimonial evidence

Some rules of evidence apply to all four types and some rules apply to one or two of them. All of these forms of evidence must be admissible, though, before they can be considered as probative of an issue in a trial.

Basically, if evidence is to be admitted at court, it must be relevant, material, and competent. To be considered relevant, it must have some reasonable tendency to help prove or disprove some fact. It need not make the fact certain, but at least it must tend to increase or decrease the likelihood of some fact. Once admitted as relevant evidence, the finder of fact (judge or jury) will determine the appropriate weight to give a particular piece of evidence. A given piece of evidence is considered material if it is offered to prove a fact that is in dispute in a case. Competent evidence is that evidence that accords with certain traditional notions of reliability. Courts are gradually diminishing the competency rules of evidence by making them issues related to the weight of evidence.

Real Evidence

Real evidence is a thing. Its existence or characteristics are considered relevant and material to an issue in a trial. It is usually a thing that was directly involved in some event in the case, such as a murder weapon, the personal effects of a victim, or an artifact like a cigarette or lighter belonging to a suspect. Real evidence must be relevant, material, and competent before a judge will permit its use in a trial. The process whereby a lawyer establishes these basic prerequisites (and any additional ones that may apply), is called laying a foundation. In most cases, the relevance and materiality of real evidence are obvious. A lawyer establishes the evidence's competence by showing that it really is what it is supposed to be. Establishing that real or other evidence is what it purports to be is called authentication.

Demonstrative Evidence

Evidence is considered "demonstrative" if it demonstrates or illustrates the testimony of a witness. It is admissible when it fairly and accurately reflects the witness's testimony and is otherwise unobjectionable. Maps, diagrams of a crime scene, charts and graphs that illustrate profits and losses are examples of demonstrative evidence.

Documentary Evidence

Evidence contained in or on documents can be a form of real evidence. For example, a contract offered to prove the terms it contains is both documentary and real evidence. When a party offers a document into evidence, the party must authenticate it the same way as any other real evidence, either by a witness who can identify the document or by witnesses who can establish a chain of custody for the document.

When people deal with documentary evidence, it is a good idea to consider these four potential pitfalls:

• Parol evidence
• Best evidence
• Authentication
• Hearsay

The parol evidence rule prohibits the admission of certain evidence concerning the terms of a written agreement. Parol evidence is usually considered an issue of substantive law, rather than a pure evidentiary matter.

A party can authenticate documentary evidence in much the same way as it can authenticate other real evidence. Also, some kinds of documents are essentially self-authenticating under the FRE. Some of these are:

• Acknowledged documents to prove the acknowledgment
• Certain commercial paper and related documents
• Certificates of the custodians of business records
• Certified copies of public records
• Newspapers
• Official documents

• Periodicals
• Trade inscriptions

The best evidence rule states that when the contents of a written document are offered in evidence, the court will not accept a copy or other proof of the document's content in place of the original document unless an adequate explanation is offered for the absence of the original. The FRE permits the use of mechanically reproduced documents unless one of the parties has raised a genuine question about the accuracy of the copy or can somehow show that its use would be unfair. Also under the FRE, summaries or compilations of lengthy documents may be received into evidence as long as the other parties have made the originals available for examination.

Testimony

Evidence given in the form of testimony is perhaps the most basic type of evidence. Testimonial evidence consists of what a competent witness at the proceeding in question says in court. Generally, witnesses are competent if they meet four broad requirements:

1. The witnesses must take the oath or a substitute and understand the oath,
2. The witnesses must have personal knowledge about the subject of their testimony.
3. The witnesses must recall what was perceived
4. The witnesses must be able to communicate what they perceived

The courts interpret competency quite liberally, which means that testimony based on the competency of a witness is rarely excluded

If at trial witnesses forgets their testimony, the attorney may help to refresh their memory in four ways:

1. First, the attorney can ask the judge for a recess to allow the witnesses time to calm down or otherwise collect themselves.
2. Second, the attorney can ask the witnesses a leading question to try to refresh their memory.
3. Third, the attorney can attempt to refresh the witness's recollection through a process known as past recollection refreshed. The witnesses must first say that they cannot remember the facts the attorney is trying to elicit from them. Then they must say that the refreshing object might help him them to remember. Almost anything that they says might help them can be used to help refresh their memory such as notes, photographs, an item of clothing, a smell, or some other object of some sort.
4. Fourth, the attorney can offer a writing as a past recollection recorded. The witnesses must first claim that they cannot remember the facts the attorney is trying to elicit from her. Next, the attorney presents the writing or other recording the attorney intended to use for the witness. If the attorney can refresh the witness's memory, they will be allowed to answer the question. If the writing does not refresh their memory, they must then identify the writing as one that they made or saw when hey did remember the fact in question and that they knew then that the writing was accurate.

Leading Questions

A leading question actually suggests an answer or substitutes the words of the questioning attorney for those of the witness. Many leading questions call for answers of either "yes" or "no." But not all questions that call for an answer of "yes" or "no" are leading questions.

Judges have discretion to allow leading questions during the direct examination of a witness when the questions have the following traits:

• deal with simple background issues
• will help to elicit the testimony of a witness who, due to age, incapacity, or limited intelligence, is having difficulty communicating her evidence
• are asked of an adverse or hostile witness. Witnesses are considered adverse or hostile when their interests or sympathies may lead them to resist testifying truthfully. In most cases, an adverse party or a witness associated with an adverse party is considered hostile for the purposes of this rule

Questions that call for a narrative answer are more or less the opposite of leading questions. Questions that call for a narrative often produce long speeches that can waste the time of the court and the parties. These kinds of questions are very unpopular with courts and should be avoided.

During cross-examination, attorneys may only ask about subjects that were raised upon the direct examination of the witness, including credibility. If cross-examiners stray into a new topical area, the judge may permit them to do so in the interest of time or efficiency, but harassment of the witness is not permitted under any circumstances.

The Lay Opinion Rule

Witnesses must answer questions in the form of statements of what they saw, heard, felt, tasted, or smelled. Usually they are not permitted to express their opinions or draw conclusions. Under the FRE, a court will permit a person who is not testifying as an expert to testify in the form of an opinion if the opinion is both rationally based on his perception and helps to explain the witness's testimony. Additionally, a competent layperson may provide opinions on certain subjects that are specifically permitted by rule, statute, or case law. Some of these are:

• Another person's identity
• Another person's sanity
• Demeanor, mood, or intent
• Identification of handwriting
• Intoxication or sobriety
• Ownership
• The state of health, sickness, or injury
• Speed, distance, and size
• The value of a witness's own property

Opinion testimony is not necessarily objectionable even if such testimony goes to the ultimate issue to be decided in the trial

Extrinsic evidence is evidence other than the answers of the witness whose testimony is being impeached. It may be offered to prove facts relevant to impeaching a witness. In addition to extrinsic evidence, a party may attack the credibility of another witness by attempting to show that the witness is or has:

1. Bias, prejudice, interest in the issue, or corruption
2. Criminal convictions, or other prior bad acts
3. Prior inconsistent statements
4. An untruthful character

There are some limits to questioning a witness about a prior criminal conviction. However, according to the FRE, a witness may generally be questioned about criminal convictions when the crime was punishable by a sentence of more than a year or involved fraud or a false statement such as perjury. Before people attempt to use such evidence in a trial, they need to understand the limits to this kind of evidence.

The FRE allows questions about prior bad acts of a witness to impeach that witness's credibility where, in the court's discretion, the questions will help get at the truth. Thus, an attorney may ask questions about prior inconsistent statements if the following apply:

• The questioner has a good faith basis for believing that the witness made an inconsistent statement
• The witness needs to be reminded of the time, place, and circumstances of the prior statement
• If the statement is written, a copy of the written statement must be provided to the opposing counsel upon request

Another way to impeach the testimony of a witness is to show that the witness has a character of untruthfulness. This departure from the basic rule states a party may not provide evidence of a witness's character to show that the witness acted in conformity with that character trait. The FRE permits evidence to prove a witness has a character of untruthfulness in:

• tTestimony of specific instances of untruthfulness
• The opinion of another witness concerning the honesty of another witness's character
• Testimony about the target witness's reputation for truthfulness in the community

It is important to know that a witness whose testimony is used to impeach the truthfulness of another witness may in turn be impeached

Character

Character is a general quality usually attributed to a person. Character cannot be used to show that someone acted on a particular occasion in conformity with a particular character trait. On the other hand, habit can be used that way. A habit is a behavior; it is specific, regular, and consistently repeated. Occasionally, some character traits can be linked with a habit, so the distinction between the two can be hard to make at times.

In civil cases, evidence that a person has a character trait generally cannot be used to prove that the person acted in conformity with that character trait on a particular occasion. Evidence of character may be proved where it is an integral issue in a dispute or where a party puts character in issue. Evidence of character is used frequently in criminal trials during the sentencing stage to show that a convicted defendant merits a lesser or greater sentence or other penalty.

Hearsay

The rule against hearsay is deceptively simple and full of exceptions. Hearsay is an out of court statement, made in court, to prove the truth of the matter asserted. In other words, hearsay is 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. For example, Witness A in a murder trial claimed on the stand: "Witness B (the "declarant") told me that the defendant killed the victim." The definition of hearsay is not too difficult to understand. But the matter can become very confusing when one considers all of the many exceptions to the general rule against hearsay.

Even if a statement meets the requirements for hearsay, the statement may yet be admissible under one of the exceptions to the hearsay rule. The FRE contains nearly thirty of these exceptions. Most of them are generally available, although a few of them are limited to times when the declarant is unavailable.

There are twenty-four exceptions in the federal rules that do not require proof that the person who made the statement is unavailable. These are:

1. Business records, including those of a public agency
2. Certain public records and reports
3. Evidence of a judgment of conviction for certain purposes
4. Evidence of the absence of a business record or entry
5. Excited utterances or spontaneous statements
6. Family records concerning family history
7. Judgments of a court concerning personal history, family history, general history, or boundaries, where those matters were essential to the judgment
8. Learned treatises used to question an expert witness
9. Market reports, commercial publications, and the like
10. Marriage, baptismal, and similar certificates
11. Past recollections recorded
12. Recorded documents purporting to affect interests in land
13. Records of religious organizations concerning personal or family history
14. Records of vital statistics
15. Reputation concerning boundaries or general history
16. Reputation concerning family history
17. Reputation of a person's character
18. Statements about the declarant's present sense impressions
19. Statements about the declarant's then existing mental, emotional, or physical condition
20. Statements in authentic ancient documents (at least 20 years old)
21. Statements in other documents purporting to affect interests in land and relevant to the purpose of the document
22. Statements made by the declarant for the purpose of medical diagnosis or treatment
23. Statements of the absence of a public record or entry
24. The "catchall" rule

The last exception, the so-called "catchall" rule, bears some explanation. This rule does not require that the declarant be unavailable to testify. It does say that evidence of a hearsay statement not included in one of the other exceptions may nevertheless be admitted if it meets these following conditions:

• It has sound guarantees of trustworthiness
• It is offered to help prove a material fact
• It is more probative than other equivalent and reasonably obtainable evidence
• Its admission would forward the cause of justice
• The other parties have been notified that it will be offered into evidence

Privileges

In general terms, privileges are rights held by individuals that permit them to refuse to provide evidence or to prevent certain evidence from being offered against them. Privileges exist only to serve specific interests and relationships; courts give them narrow scope.

Privileges are more or less disfavored by the courts because they run contrary to the principle that all relevant evidence should be admitted in a search for truth. Accordingly, the persons or entities whose confidentiality they are meant to shield or protect can waive their privileges. Individuals who possess a privilege are known as "holders" of the privilege. Often, the nonholder who is a party to a privileged communication must assert the privilege on behalf of the holder.

Congress could not agree on how to make laws regarding privileges, so this area was left up to the courts and to state law to define. Thus, under the FRE, when a party offers evidence on a federal claim the applicable privileges are determined by the federal case law. When a party offers evidence on a state claim, the state's law of privilege applies. The federal law of privilege is still developing, and the federal courts are usually less tolerant of parties' claims to privileges than are state courts.

Presumptions

Previously, there was a good deal of controversy among legal professionals and scholars over the effect of presumptions, but these have largely ended, at least in the federal system. Presumptions are just that, a presumption that certain evidence is what it is on its face. Sometimes, however, a presumption can be rebutted by other evidence. There are two kinds of rebuttable presumptions: those that affect the burden of producing evidence and those that affect the burden of proof. In most cases, courts interpret presumptions as rebuttable. A list of rebuttable presumptions includes the following:

• that a letter that has been correctly addressed and properly mailed is received by the addressee in the ordinary course of the mail
• that a person who possesses a thing is also the owner of that thing
• that a writing is dated accurately
• that a written obligation that has been surrendered to the debtor has been paid by the debtor (and vice versa)
• that some specific ancient documents are authentic
• that statements in the records of a process server are true
• that when a receipt for a payment on an installment debt is given, the debtor has paid all previous installment payments
• that the defendant was negligent when the requirements of res ipsa loquitur have been proven
• the presumptions that money or property delivered is in fact owed to the recipient

A presumption is not considered evidence. But if an opponent to a presumption puts on no evidence to rebut the presumption, the judge or jury must assume the existence of the presumed fact. On the other hand, if an opponent to a presumption does provide evidence to rebut the presumption, the presumption has no further effect.

Judicial Notice

Sometimes, the need for evidence on an issue in a case can be satisfied through formal admissions, stipulations, and judicial notice. Likewise, under the FRE, a judge may take judicial notice of facts that are not in issue because they are either generally known (e.g. George Washington was the first president of the United States), or they can be accurately and readily determined (e.g. the exact time of sunrise on a particular day). In addition, state and federal courts can take judicial notice of the laws of the states and of the federal system.

Additional Resources

An Introduction to the Law of Evidence Lilly, Graham C., West Wadsworth, 1996.

Evidence 2nd ed., Mueller, Christopher B., and Laird C. Kirkpatrick, Aspen Publishers, Inc., 1999.

Federal Evidence 4th ed., Weissenberger, Glen, and James J. Duane. Anderson Publishing Company, 2001.

"Federal Rules of Evidence." Legal Information Institute, 2002. Available at http://www.law.cornell.edu/rules/fre/overview.html. Legal Information Institute, 2002.

Federal Rules of Evidence in a Nutshell, 5th Ed. 5th ed., Graham, Michael H., West Publishing, 2001.

The New Wigmore: A Treatise on Evidence: Selected Rules of Limited Admissibility: Regulation of Evidence Tto Promote Extrinsic Policies and Values. Leonard, David P., and Richard D. Friedman, editors., Aspen Law & Business, 2002.

Trial Evidence, Second Edition. 2nd ed., Mauet, Thomas A., and Warren D. Wolfson. Aspen Law & Business, 2001.

Organizations

Criminal Justice Section of the American Bar Association (ABA)

740 15th Street, NW, 10th Floor
Washington, DC 20005-1009 USA
Phone: (202) 662-1500
Fax: (202) 662-1501
URL: http://www.abanet.org/crimjust/home.html

National Association of Criminal Defense Lawyers (NACDL)

1025 Connecticut Ave. NW, Ste. 901
Washington, DC 20036 USA
Phone: (202) 872-8600
Fax: (202) 872-8690
E-Mail: [email protected]
URL: www.nacdl.org

National District Attorneys Association

99 Canal Center Plaza, Suite 510
Alexandria, VA 22314 USA
Phone: (703) 549-9222
Fax: (703) 836-3195
URL: http://www.ndaa.org/index.html

Evidence

Genocide and crimes against humanity are the same as almost every other crime, in that a conviction requires proof beyond a reasonable doubt (or similar standard in the relevant lexicon of the jurisdiction) that a prohibited act (actus reus or "objective element") was carried out by the accused with the appropriate degree of fault (mens rea or "subjective element"). The international crime of genocide specifies five prohibited acts committed against a national, racial, ethnic, or religious group that need to be proved. The fault element requires proof that the act was committed with the intention of destroying the particular group in whole or in part. Crimes against humanity require proof that certain acts were carried out in the context of a widespread or systematic attack against the civilian population. The fault element requires proof that the accused participated in the act in the knowledge that it formed part of the context of the attack. No discriminatory intent is required.

Challenges of Evidence Collection and Investigations

Genocide and crimes against humanity can be referred to as "system crimes." These are a type of organized crime that will generally require a significant degree of planning, and a probable division of labor between those planning and those executing the plan. The key challenge is not normally in proving that the facts occurred, but in relation to the nature of the participation and the knowledge and intentions of those "behind the scenes." While it is generally the case that proving the facts is the least of the evidential problems in these crimes, there remain nonetheless significant matters to be considered regarding problems of evidence preservation, timing, scale, security, and appropriate treatment of witnesses. Proving the "crime base" presents its own challenges. Essentially, crime base is the proof that the criminal act has taken place. In general terms, this is done through traditional investigation techniques: the testimony of witnesses who are sufficiently proximate to the facts to be deemed credible and reliable, and the analysis of physical evidence from the crime scene, including ballistic and other forensic investigation.

The Issue of Timing and Preservation

The delay between the commission and investigation of a crime can have two key prejudicial effects on evidence: degradation and contamination. When investigating the crime base of genocide and crimes against humanity, contamination presents the more significant risk. Clandestine graves may be interfered with, either by relatives looking for remains of loved ones, or by those seeking to pervert the course of investigations. Any indications that this might have occurred could create serious difficulties for the admissibility of any evidence from a particular site.

The nature and context of the crimes makes it much less likely that witnesses will forget their experiences than might be the case in more mundane crimes. Similarly, the degradation of physical evidence such as human remains, while clearly undesirable, is not usually significantly damaging to its use as evidence. Exhumations are generally not required in order to clearly identify victims of genocide and crimes against humanity, but rather are needed to show with sufficient clarity the immediate circumstances of the victims' deaths and credible indications (in the case of genocide) that they belonged to a particular group. Several years between the event and the investigation will generally not degrade the remains so much that this kind of evidence cannot be obtained.

Scale

The fact that these are massive and complex crimes means that more evidence regarding the crime base will be required than in common and simple cases. However, evidence pertaining to the dimensions of the crime base has frequently been facilitated by the judicious use of experts and reliable objective observers. In the case of Jean-Paul Akayesu, for instance, the International Criminal Tribunal for Rwanda (ICTR) was satisfied that at least two thousand people had been killed between April and July 1994 primarily, though not exclusively, on the basis of experienced journalists and researchers (Akayesu, paras. 115–122, 181). This approach was much more swift and efficient than taking testimony from affected relatives in order to prove the loss of each individual.

In prosecutions arising from the Yugoslav and Rwandan conflicts, significant attention has been paid to the issue of rape and sexual abuse. Such crimes, and evidence of other serious physical or mental injury, do not have to be proved to the same degree of specificity that might be expected in an ordinary case of sexual assault. There is generally no requirement of medical evidence of the specific sexual attack, for instance. Instead, credible testimony from victims and witnesses has proved sufficient, as can be seen in the case of Stakic (Stakic, para. 229–236), which was prosecuted before the International Criminal Tribunal for the former Yugoslavia in connection with serial sexual assault in various prison camps, including Omarska. Similarly, the psychological impact of certain acts has not been addressed by seeking evidence from each victim as to specific consequences of their treatment, but instead has been sought on a broader level, with various kinds of experts (medical as well as anthropological) explaining the impact that certain treatment will have on individuals as well as on larger numbers of people.

The nature of the evidence presented in such trials is profoundly disturbing, not only for the witnesses, but also for the judges. Prosecutors have to strike the balance between providing sufficient proof and respecting the emotional capability of all concerned to absorb large quantities of distressing information.

Security and Sensitivity to Witness Needs

The biggest challenge to securing crime base evidence is encouraging witnesses to testify. The costs of effective witness protection over sustained periods are generally prohibitive except in a very limited number of cases. Even where trials take place far from the homes of such witnesses, they still have to return, and when they do, they may find themselves endangered. Significant strides have been made in understanding that protection is only one of a spectrum of issues that have to be dealt with, if witnesses are to be encouraged to cooperate with investigations. There is both an ethical imperative and strategic advantage in being absolutely honest with witnesses regarding the risk they may face should they agree to testify. No prosecutor should ever try to mislead witnesses in this regard. This is never acceptable, but it is even more reprehensible when the witnesses are survivors of horrendous crimes such as genocide.

Strategically, as well, prosecutors should understand that witnesses will provide more compelling testimony if they feel engaged and valued in the process as a whole. Sensitivity to the needs of such witnesses must be expressed through effective and regular communication, treatment that respects cultural and social influences that may govern the ability and speed with which certain matters can be spoken about, and, generally, the creation of a relationship of trust and respect. Such efforts may often prove sufficient to convince at-risk witnesses to accept danger in the interest of serving the cause of justice.

Proving Participation

In the case of Jelisić, the ICTY has confirmed that genocide does not necessarily require the prior existence of a plan or the participation of more than one person. Nonetheless, it is generally accepted that most cases will normally involve some form of organization and a division of labor. As with any form of organized crime, proving the participation of behind-the-scene actors requires an investigative approach that is quite different from crime base investigations. It requires a multidisciplinary investigation that is capable of understanding policy, strategy, and tactics, emphasizing especially the analysis of command structures, communications, disciplinary practices, logistics, and munitions. It is generally unlikely that those who work behind the scenes will leave unambiguous indications of their involvement, so proving the overall circumstances of the events allows the court to understand the context in which policy and operational decisions were made.

One important element in such investigations is the recovery of documentary evidence. Such evidence has several key advantages. For one thing, it is less susceptible to challenges from the defense and may be more directly incriminating than personal testimony. Human testimony will always carry the potential of being undermined in ways that are much less likely in relation to documentary evidence. The recovery of documentary evidence is susceptible to contamination, however. It is true that much documentary evidence may be destroyed, but it is surprising how often even apparently insignificant documents may be useful. The investigations between 1984 and 1987 into the torture and disappearances of thousands during Argentina's "dirty war" benefited considerably from the study of official military plans that explained political and strategic goals, even though they did not specify any treatment of individuals.

Improved technology also makes proving some aspects of participation more feasible. In the ICTY case of Kordic, the accused was convicted in relation to some matters (specifically, the attacks on Busovaca) based on the evidence of intercepted radio messages that indicated his direct role in ordering and facilitating the crimes that were committed (see also Krstic, paragraphs 105-117). However, an important aspect in proving the involvement of others who worked behind the scenes may be the ability to persuade people with inside knowledge to testify. This is always a difficult exercise, both psychologically and ethically, but it has proved key in some trials where high-ranking officials have been convicted. The conviction of General Krstic before the ICTY on charges of aiding and abetting genocide in Srebrenica depended partially upon the testimony of subordinate sources. The cooperation of Drazen Endemovic has proved important in the investigation of the Srebrenica genocide (Krstic, para. 234). His assistance in investigations was also important in the "Rule 61" hearings, which dealt with the culpability ofRadovan Karadzic and Ratko Mladic. Some forms of plea-bargaining may offer a valuable way to secure this type of evidence.

Evidence at Trial

Admissibility of evidence at trial in domestic systems is regulated by the system governing the conduct of the trials, be it common or civil law. In general, common law systems take a more technical approach to admissibility than do civil law systems. On occasion, however, these rules have been relaxed, particularly when dealing with cases of crimes against humanity and genocide. Civil law systems tend to be liberal in their admission of evidence, and are guided mainly by criteria of relevance.

The approach to admissibility before international criminal courts, from the Nuremberg and Tokyo Tribunals to the ad hoc International Criminal Tribunals for the former Yugoslavia and Rwanda, and most recently the Special Court for Sierra Leone, has resembled that of civil law systems, in that the general approach to admissibility is flexible. Thus, probative evidence is admitted regardless of its format, unless the rights of the accused are deemed to be prejudiced by admission. This flexibility is justified by the fact that evidence on these crimes can be difficult to secure. There may be few surviving witnesses, and physical evidence may have been destroyed. Because the international criminal courts are composed of professional judges, they are deemed capable of according a particular piece of evidence its appropriate weight, and of disregarding any evidence that is unreliable. For instance, hearsay evidence—that is, a statement, other than one made by the declarant while testifying at the trail or hearing, offered in evidence to prove the truth of the matter asserted—is readily available in such trials.

To date, the presentation of evidence at trial before international criminal courts has generally been adversarial, where each side presents its own evidence, and where witnesses are subjected to both direct and cross examination. It is not clear yet to what extent this trend will be followed by the International Criminal Court. According to the principle of equality of arms, the prosecution and defense have an equal opportunity before the court both to call witnesses and to submit facts into evidence. International courts have the power to call their own witnesses, but this has usually been used to supplement the witnesses called by the prosecution and the defense.

The ICTY and ICTR have also developed an extensive system of rules of disclosure by which evidence is shown ahead of time to the other side in the trial. Similar rules were not applied at Nuremberg and Tokyo, where rules of disclosure were far more rudimentary. In those earlier tribunals, documents were often disclosed twenty-four hours in advance as a matter of course, and they were sometimes purposely used to surprise witnesses during cross-examination.

Such "trial by ambush" is not permissible before the modern tribunals. The duty to disclose is greater for the prosecution than for the defense. As a general rule, the prosecutor has specified time limits within which he or she must disclose material supporting the indictment, prior statements by the accused, and copies of witness statements. Of particular significance is Rule 68, shared by both the ICTY and ICTR, which establishes the duty to disclose the "existence of material known to the prosecutor which in any way tends to suggest the innocence or mitigate the guilt of the accused or may affect the credibility of prosecution evidence." This rule has given rise to much litigation at the ICTY, including litigation on appeal charging that the prosecutor did not adequately meet this burden during trial.

Depending on the nature of the trial, the prosecution (and defense) may rely more heavily on live testimony or on documentary evidence. Assessing the credibility of witnesses may be particularly challenging when, as occurs with some frequency in international trials, the judge does not speak the same language and has no intimate knowledge of the cultural context. Many witnesses to genocide or other grave crimes may suffer from post-traumatic stress disorder, but judges have held that this does not necessarily affect their credibility. Many witnesses request protection, including measures to conceal their identity before and during trial. Such requests must be balanced against the right of an accused to a public trial.

Victims of sexual offenses benefit from additional rules that seek to protect them, including rules relating to the inadmissibility of their prior sexual conduct. This is the case for the International Criminal Court and both the Rwandan and Former Yugoslavian tribunals, which also recognize the principle that consent may not be inferred in certain coercive circumstances, and gives the courts the latitude to hear evidence in camera—that is, in private, excluding the public. Children are rarely called as witnesses in such trials, but when their testimony is required, they are able to give testimony via closed circuit television from a remote location. Witnesses may also be granted safe conduct, which confers on them a temporary immunity from arrest and prosecution.

Evidence from experts is common in trials of genocide and crimes against humanity. There are a variety of evidentiary categories that call for the testimony of experts including historical, ballistics, medical, regional, and anthropological evidence. An expert can be challenged on his or her qualifications and methodology, and does not testify directly on the matters which the court is called upon to decide. The court may choose to hear the evidence and simply disregard certain conclusions and not rely on them for conviction. At ICTY, a special regime governs the reception of expert evidence, aimed at expediting the trial. An expert's statement must be disclosed ahead of time and the opposing party must decide whether it wishes to cross-examine.

The ICTY and ICTR can generally compel individuals to testify, unless an individual benefits from a privilege or immunity. One exception to the principle of compellability is the lawyer-client privilege, which prohibits a witness from being compelled to divulge conversations occurring between a lawyer and his or her client. Another recognized exception is the privilege against self-incrimination, which holds that a witness cannot be forced to testify against his or her own interests. Other privileges have been recognized in the jurisprudence, where there is a public interest to keep certain information confidential. This includes, for instance, the official duties of court functionaries. In one case, the ICTY Appeals Chamber decided to extend a privilege to a war correspondent, except for evidence of direct and important value in determining a core issue in the case that cannot reasonably be obtained elsewhere. The ability of the ICC to compel individuals to testify is less clear than it is for the ICTY and the ICTR. The ICC's statute and rules state that requests for witnesses to appear must be directed through state parties.

The ad hoc tribunals have broad enforcement powers by virtue of their establishment by Security Council Resolution under Chapter VII of the UN Charter. They have the power to issue a binding order to a state to produce information, even if the information concerns national security. In such cases, certain measures can be put in place to safeguard the confidentiality of that information. This differs from the ICC, where states are able to deny requests for assistance on national security grounds. It also differs from the Special Court for Sierra Leone, which lacks such powers, as it was created by Agreement between the UN and government for Sierra Leone and not by a Security Council Resolution. International organizations do not have the same obligation as nations do when it comes to providing the ad hoc tribunals with information. For instance, in the case of Simic et al, the ICTY has recognized that the International Committee for the Red Cross benefits from a privilege and that its former employees cannot be forced to testify. A similar privilege is recognized in Rule 73 of the ICC.

Documentary evidence is particularly prevalent in cases where the defense is based on a claim of superior responsibility (being ordered to commit an act by a superior officer) or other forms of indirect participation. Documents are admissible depending on their relevance and probative value, but questions may arise as to their authenticity. With this type of evidence, as with others, the chain of custody may have to be demonstrated, to show that the evidence could not have been tampered with after the fact. Diaries and videos have proved a particularly powerful source of evidence in international criminal trials.

Documentary evidence may also be used in the place of live testimony. A particular challenge in trials of genocide and crimes against humanity has been the volume of the evidence, in part resulting from the adversarial nature of the proceedings. This constitutes a threat to the right of the accused to an expeditious trial. Live testimony is time-consuming, and many of the procedural developments in evidence at ICTY have sought to limit its scope. At Nuremberg and Tokyo, affidavit evidence was freely admissible, but rules on affidavits before the modern tribunals have proved difficult in practice. Instead, the ad hoc Tribunals allow for the admission of other forms of written statements in certain circumstances, bearing in mind the right of the accused to cross-examine witnesses against him or her. The jurisprudence on the admissibility of statements from deceased witnesses has been particularly inconsistent. Such statements are currently not admissible before the Sierra Leone Special Court.

An additional way to save time is by submitting a compilation of evidence. Unlike civil law systems, international criminal courts have not ordinarily allowed for the submission of "dossiers" or case-files, but they do allow for the production of compiled materials, as long as these do not contain analysis of the evidence. Transcripts from other trials may also be admitted into evidence as a way to save time, subject to certain rights to cross-examination. Judicial notice may be another way to save time, but before the ad hoc tribunals it has been limited to facts of common knowledge or facts adjudicated by the appeals chamber.

The absence of forensic evidence in killings is not decisive if there is convincing eyewitness testimony of the crimes. The rules of some national systems, requiring the production of a body as proof of death, therefore do not apply. The same holds true for torture or rape, neither of which require forensic or medical evidence. At the same time, forensic evidence often does play an important part in the trials.

According to rule ninety-five of the ICTY, evidence before the ad hoc tribunal may be excluded "if obtained by methods that cast substantial doubt on its reliability or if its admission is antithetical to, and would seriously damage, the integrity of the proceedings." If the rights of the accused are infringed to a certain threshold, so as to cause irreparable damage to the integrity of the proceedings, this may result in a discontinuance of the proceedings against the accused.

An appeal should not amount to a retrial, and the tribunals have strict rules on which new or additional evidence shall be permitted to be heard. For instance, the evidence on which an appeal is based cannot have been available at trial, or it must be in the interests of justice to admit it. Nonetheless, applications for additional evidence are very frequent. Also, the appeals chamber for both the ICTY and the ICTR may be called upon to review a judgment where a new fact has been discovered.

SEE ALSO Forensics; International Criminal Court; International Criminal Tribunal for Rwanda; International Criminal Tribunal for the Former Yugoslavia; Nuremberg Trials; Rape; War Crimes

BIBLIOGRAPHY

Kniriem, A. von (1959). The Nuremberg Trials. Chicago, Il.: Regnery.

Lee, Roy S., ed. (2001). The International Criminal Court: Elements of Crimes and Rules of Procedure and Evidence. Ardsley, N.Y.: Transnational Publishers, Inc.

Röling, B. V. A., and C. F. Rüter eds. (1977). The Tokyo Judgment: The International Military Tribunal for the Far East. Amsterdam: APA-University Press Amsterdam.

Paul Seils
Marieke Wierda

EVIDENCE

Excepting cases that may be decided by applying legal rules to undisputed facts, the determination of disputed factual propositions must be central to adjudicating the rights and liabilities of litigants. As an initial matter, a society might adopt an "inquisitorial" system, under which a public official investigates and decides the facts. In the Anglo-American legal tradition, however, we structure the litigation process so that every dispute has at least two parties, each charged with the primary responsibility for proving its factual propositions and therefore discovering and presenting the evidence to support its version of the facts before an impartial arbiter.

In criminal cases, this adversary system is reinforced by rules that place the burden of proof on the prosecution, presuming that the defendant is innocent, and that grant the defendant a right against self-incrimination—thus shielding him from being forced to be a witness against himself, and depriving the prosecution of an obvious source of evidence. The structuring of criminal litigation as a contest between the state as prosecutor and the defendant—with the judge as arbiter—has two major consequences. First, this procedure gives greater weight to the autonomy of the individual litigant. Second, placing responsibility on each party to advance its own cause will, in general, result in the production of more evidence for the finder of fact than would be produced by disinterested—and perhaps bored and overworked—public officials. Though our prototypical case is the criminal case, we use similar procedures and rules in civil cases.

In both civil and criminal cases, trial by jury means that a group of laymen decides issues of disputed fact. A great many of the intricacies of our laws of evidence result from two specific worries about the jury. The first is that the jury may systematically overvalue or undervalue some kinds of evidence, such as hearsay. The second is that the ad hoc nature of the jury, which is empaneled to decide a particular case, will produce a verdict at odds with the values of a legal system handling many cases over a long period of time. Often a rule of evidence will keep out testimony not so much because a jury might overweigh it but simply because other policies of the law are entitled to equal weight along with the proper resolution of factual issues. In this category fall the exclusion of reliable evidence because it has been unconstitutionally seized; because it has been obtained in violation of the miranda rules; because it is a coerced confession (which, though typically unreliable, may in a particular case be thoroughly corroborated); or because its exclusion is necessary to enforce a privilege, such as that protecting confidential communications between the attorney and the client.

Nor is the exclusion of evidence confined to cases where we choose this means of vindicating the rights of the individual. Though it is by no means clear that the rule is of constitutional dimension, every Anglo-American jurisdiction in civil and (until the passage of California's "Victims' Bill of Rights" initiative) in criminal cases kept from the jury certain evidence of the prior character of the accused—not so much because the jury might over-value it as out of fear that the jury might succumb to the temptation to be lawless and decide that the defendant was either so bad a person that he should be punished regardless of his fault in the particular case at issue. That kind of jury behavior might appeal to common sense, but it would be at odds with our principles requiring a particular act as a precondition of guilt and requiring fair notice of the charge made against a defendant.

Despite the huge body of statutory and common law evidence law, the Constitution nowhere states flatly a rule as to admissibility of evidence and refers to evidence in only one place—the requirement of two witnesses to the same overt act before a conviction of treason may be returned. Moreover, apart from the rules as to search and seizure and selfincrimination, the rules of evidence have largely escaped the Supreme Court's constitutional supervision. In criminal cases, however, two lines of cases have partially constitutionalized the law of evidence. The first involves the defendant's right to exclude inculpatory hearsay evidence that otherwise would be admitted under one or another of the exceptions to the general rule excluding hearsay; the second involves the defendant's rights to introduce exculpatory evidence notwithstanding common or statutory law purporting to exclude such evidence. Both these lines grow out of the Sixth Amendment. The first grows out of the confrontation clause, which guarantees that "[i]n all criminal prosecutions, the accused shall enjoy the right … to be confronted with the witnesses against him." The second line also stems in part from the Sixth Amendment right of the accused to " compulsory process for obtaining witnesses in his favor," and in part from the due process clause.

Historically, courts read the confrontation clause as guaranteeing only the right of the accused to be present at his trial and to cross-examine any witnesses testifying there. In the 1960s, however, the Supreme Court began to view the clause as forbidding use in a criminal trial of certain inculpatory hearsay declarations. Thus, the Court held in pointer v. texas (1965) that the clause rendered inadmissible at a criminal trial a transcript of inculpatory testimony elicited during a preliminary hearing at which the defendant was not represented by counsel from a prosecution witness who was no longer available to testify. Likewise, a codefendant's out-of-court confession that also implicated the accused was held inadmissible in Bruton v. United States (1968) when the codefendant invoked his right against self-incrimination and refused to take the stand at the trial. Similarly, in Barber v. Page (1968) the Court held that preliminary hearing testimony of an absent witness was inadmissible when the prosecutor had failed to make a good-faith effort to obtain the presence of the witness at the trial. These rulings by the Court threw the validity of inculpatory hearsay evidence into doubt. The Court seemed to be drifting toward a rule that would in effect preclude the use of all such hearsay.

California v. Green (1970) arrested this drift. In Green, a prosecution witness testified adversely to the defendant during a preliminary hearing at which the defendant's attorney subjected him to a rigorous cross-examination. At the later trial, however, the witness claimed to have suffered a memory lapse and refused to repeat his testimony. The prosecutor then read into evidence portions of the preliminary hearing testimony. The Court held that, under these circumstances, admission of the hearsay did not violate the confrontation clause. The Court stated that its previous confrontation clause decisions had all rested on the inability of the defendant effectively to cross-examine witnesses, and that where, as here, defendant had once had a full and fair opportunity to cross-examine, there was no constitutional impediment to the hearsay.

Green made it clear that when the declarant was unavailable at the trial, his declaration would be admissible if he had been subject to meaningful cross-examination by defendant's counsel at the time he made the declaration. The meaning of "unavailability" and the nature of "meaningful cross-examination" were left open to interpretation, but clearly where these criteria were met, the evidence was admissible. By the same token, Green left little doubt that when the declarant was available at the trial for meaningful cross-examination, evidence of his out-of-court declaration would be admissible even if he had not been subject to cross-examination at the time he made the statement.

Since Green, the Court's decisions have withdrawn even further from the constitutionalization of hearsay law. The Court made apparent in Ohio v. Roberts (1980) that hearsay evidence of a declarant's out-of-court statements will be admissible, even when the defendant has never had an opportunity to cross-examine the declarant, provided that the declarant is truly unavailable and that the statements bear adequate "indicia of reliability." "Reliability can be inferred without more in a case where the evidence fails within a firmly footed hearsay exception," that is, an exception "rest[ing] upon such solid foundations" that "virtually any evidence within them" will in fact be reliable. Thus, dying declarations are admissible, as are properly administered business and public records. Hearsay evidence is admissible even under less "firmly rooted" exceptions when there is a particularized showing of its trustworthiness under the circumstances. Thus, under some circumstances, at least, declarations against penal interest and party admissions by coconspirators (such as a spontaneous admission by a coconspirator to his prison cellmate) are admissible.

The Court's decisions since Green thus have confined the pre-Green decisions narrowly to their facts. Apparently, the Court is unlikely to find that evidence admitted under an established hearsay exception offends the confrontation clause, unless, as in Barber v. Page, a prosecutor falsely alleges for purposes of the exception that a declarant is unavailable, or, as in Bruton v. United States, the hearsay consists of a codefendant's confession which ostensibly is read into evidence against him alone but in fact contains statements inculpating other defendants in the same trial, and the codefendant refuses to take the stand. Moreover, even when a defendant alleges a Barber or Bruton violation, the Court is unlikely to find that the facts of the case at hand justify reversal. Twice since Green the Court has refused to sustain arguments that a prosecutor had failed to make a good-faith effort to find absent declarants, and repeatedly the Court has found even clear and admitted violations of the Bruton rule to result in merely harmless error not justifying reversal.

It would seem, then, that the Court has substantially withdrawn from the field of writing hearsay law. While it has not explicitly reverted to the traditional view of the confrontation clause in this area, the manner in which it has analyzed hearsay exceptions in recent cases leaves little doubt of its reluctance significantly to reduce the prosecutor's ability to introduce evidence falling within ancient, recognized exceptions.

The rules of evidence traditionally have been held to bind defendants as well as the state. The first significant developments in the line of cases recognizing defendants' rights to introduce exculpatory evidence despite rules of evidence excluding it grew out of the compulsory process clause. In Washington v. Texas (1967) the Court overturned a Texas statute that rendered accomplices incompetent to testify for each other. The Court held that the compulsory process clause forbade the state "arbitrarily [to] den[y defendants] the right to put on the stand a witness who was physically and mentally capable of testifying to events that he had personally observed and whose testimony would have been relevant and material to the defense."

In Chambers v. Mississippi (1973) the Court faced a case in which it might have used compulsory process reasoning but used the due process clause instead. In Chambersthe defendant was charged with murder for shooting a police officer during a crowd incident. Another man, McDonald, who had been in the crowd, had confessed to the shooting, and substantial evidence pointed to the truth of this confession, but McDonald had repudiated the confession and had not been charged in the case. The trial judge allowed Chambers to present two witnesses who claimed actually to have seen McDonald fire the shots, but the judge barred the testimony of witnesses who had not seen the incident but to whom McDonald had made damaging admissions, ruling that this testimony did not fall within any applicable state hearsay exception. In addition, the judge permitted Chambers to call McDonald to the stand and to read his prior confession into evidence, but when McDonald repudiated the confession on the stand and offered an alibi, the judge refused to allow Chambers to examine McDonald as an "adverse witness," ruling that because McDonald had not actually alleged the defendant's guilt, his testimony was not "adverse" within the meaning of Mississippi's exception to the rule that a party may not impeach his own witness.

The Supreme Court reversed, holding that the trial judge's exclusion of this exculpatory evidence had violated the due process clause of the fourteenth amendment. The trial judge's refusal to allow Chambers to examine McDonald, who was a "witness against him" even if not an "adverse" witness under Mississippi law, constituted prejudicial error. In addition, the Court held that the trial judge's refusal to allow the exculpatory hearsay testimony of the three witnesses to whom McDonald had confessed violated Chambers's right "to present witnesses in his own defense." Although the language used by the Court in discussing these issues is reminiscent of the confrontation and compulsory process clauses of the Sixth Amendment, the Court did not explicitly rest its decision on these clauses. Rather, the Court announced only that "[t]he right of an accused in a criminal trial to due process is, in essence, the right to a fair opportunity to defend against the State's accusations," and that "under the facts and circumstances of this case the rulings of the trial court deprived Chambers of a fair trial."

The Court has applied Chambers in only one other case. In Green v. Georgia (1979) the defendant was convicted of rape and murder, and a second trial was then held to decide whether capital punishment would be imposed. At this trial, the defendant sought to introduce a witness who had previously testified for the prosecution at the trial of Moore, the defendant's coconspirator. The witness intended to testify, as he had testified at Moore's trial, that Moore had admitted to him that Moore alone had fired the shots that killed the victim, and that the defendant had not been present when the shots were fired. The trial judge, however, ruled this testimony inadmissible as hearsay. At Moore's trial the witness's repetition of Moore's declaration had fallen within the admission exception to the hearsay rule, but its repetition at Green's trial did not fall within the exception. In a brief opinion, the Supreme Court reversed. It noted that the excluded evidence was highly relevant to a critical issue in the trial and that substantial reasons existed to assume its reliability: it was a statement against Moore's penal interest made spontaneously by him to a close friend and for which there was ample corroborating evidence. Most important, the prosecution had considered the evidence reliable enough to use against Moore at his trial. Under these circumstances, the Court ruled, "the hearsay rule may not be applied mechanistically to defeat the ends of justice."

The future of this line of cases is not easy to foresee. The cases may stand for no more than the proposition that the Court will reverse a conviction when it is convinced that a gross injustice has been done. But they seem to stand for more. They seem to suggest that the Court has begun to read into the Constitution the ethical rule that the state's proper goal is not merely to get a conviction but to get a conviction only if justice demands it. Thus, the cases suggest, the prosecutor may not object to evidence that the defense seeks to introduce on any ground other than that it is wasteful of time, or likely to distract the jury's attention from the real issues of the case. This consideration, always important ethically, rises to constitutional significance when failure to abide by it leads to the exclusion of strongly credible exculpatory evidence that is highly relevant to critical issues in the trial.

John Kaplan
(1986)

Bibliography

Maguire, John M. 1947 Evidence, Common Sense, and Common Law. Mineola, N.Y.: Foundation Press.

Mc Cormick, Charles T. 1954 Handbook of the Law of Evidence. St. Paul, Minn.: West Publishing Co.

Morgan, Edmund M. 1961 Basic Problems of Evidence. Philadelphia: American Bar Association.

Thayer, James Bradley 1898 Preliminary Treatise on Evidence at Common Law. Boston: Little, Brown.

Wigmore, John Henry 1961 Evidence in Trials at Common Law, rev. by John T. Naughton. Boston: Little, Brown.