We have all seen lawyer shows on television when one of the actors leaps up and says “objection” when a piece of evidence is about to be offered or a statement from someone is about to be made or a document used. The lawyer/actor may cite a ground for the objection as “hearsay” or some other reason for the court to rule on. Have you ever wondered what the actors are really saying? This article will touch upon the highlights of evidence that may come up civil litigation.
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Hearsay is the out of court statement that has been submitted for the truth of the matter asserted. The law does not favor evidence coming in from persons who are not present before it in some manner. If the witness testifying to the court of the light in an auto accident case never saw the light, his/her testimony is worthless. If the witness says, I heard person X say the light was red, it should not come into evidence. The court wants to have the persons who saw the light come testify. The credibility and the perception of that witness will be judged by the trier of fact (judge and/or jury) and the party against whom the testimony is offered will have the chance to cross-examine the witness. This being said, the law has created various exceptions to the hearsay rule that may allow some evidence to come before the court.
An admission by a party is strong evidence that would come into evidence. The law favors admissions because it puts issues to rest. The party may try to explain the circumstances of their admission. However, unless compelling circumstances exist, it may be difficult to undo the admission . If the party in our auto accident case yelled out at the scene “I should have seen the red light”, it may be very difficult for this to be undone at the time of trial. The concept of declarations against interest tie in with admissions. The declaration has to be the party’s against penal, pecuniary or propriety interest. In the accident case, the statement could come into evidence as satisfying all three exceptions noted above.
Dying declarations also come into evidence as an exception to the hearsay rule because the law has stated that no one wants to die with a lie on their lips. The law has included various limits on this. The declaration has to be done in imminent fear of death, the declaration as to be tied in with the cause of death and must be reasonable. Another exception is the business records exception. This allows records to be considered by the court provided that the records were prepared at or near the time of the event, the records were prepared in the normal course of business operations and their is a custodian of records to satisfy the evidence foundation to allow them to be admitted into evidence.
Excited utterances are admitted into evidence because the law feels that a spontaneous expression at or near the time of the event is a better barometer than a later thought statement. Past recollection recorded allows prior statement to be admitted into evidence when a person does not recall what they said. If the recording was done at or near the time of the event. The flip side of this is prior recollection refreshed. This allows a witness to “refresh” their memory by looking at prior recordings done by them and they can then testify as though they have present recollection.
There are various other exceptions that still exist. If a person asks, “why do you think he did this?”. This is pure speculation. You cannot testify to what someone else thought unless they said or did something which would allow this to come into evidence. The laws favors certainty, not guessing at a persons perception, motive, etc. The law also only wants relevant evidence. Relevance is defined as giving evidence more probative than prejudicial. Motions are filed with the court to exclude evidence that is more prejudicial than probative. For example, if a person was convicted of a felony 35 years ago, introduction of this evidence would be for the sole purpose of prejudicing a trier of fact of the felony conviction of many years ago. Therefore, states and the federal government have time limits for which felony convictions can be introduced due to remoteness in time and prejudice.
Hopefully, this quick overview of evidence (it is a one year course in law school) will get you to think about evidence both on television and in the courtroom.