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Any career in the justice system will require a fundamental understanding of evidence law. Exactly how does the criminal and civil justice system utilize evidence? Why is evidence the cornerstone of a free society? What rules and case laws guide the use of evidence in the courtroom? How do police, investigators, lawyers, and judges use evidence in their day to day operations? For what purposes is evidence necessary?
Law and Evidence is a primer for those yearning to master them any complexities of evidence law in the American justice system. Join this evidentiary journey of discovery, witnessing evidence at street level during the investigative process; discern and fathom the various forms of evidence types (e.g. real, forensic, testimonial, documentary and the like); employ evidence in the litigation arena with exhibits, witnesses, and proof and become comfortable with the principles that guide and manifest innocence or guilt, liability or exoneration, and truth or falsity in the courtroom. Become familiar with the culture of trial combat and evidence advocacy and the tools that seasoned litigators and investigators utilize in civil and criminal litigation. In "Evidence," the case comes to fruition and those entrusted with the maintenance of law and order see the results of their labor.
The study of evidence is often a forgotten component injustice studies. For some, evidence law is the province of lawyers and judges alone. For others, its technical and statutory nature makes it too complex for the average undergraduate. There are even those who fail to appreciate the relevance of evidence analysis. These perceptions are flawed for a host of good reasons.
In evidence law, the justice system reaches its fruition, its ending point, and its ultimate aim. Evidence is the stuff of conviction and judgment. Without it, the functions and roles of criminal justice are meaningless. Evidence is what drives the machinery of the justice system. Evidence convicts people. Evidence leads to verifiable damage claims in civil actions. Evidence provides the basis for the injunction, the protective order, or the restraining order. Evidence serves as the underpinning in judicial case law and analysis. Evidence is what guides jurors as they carry out their profound responsibilities. Evidence opens up improper convictions, serves as the basis for appeals, and triggers judicial intervention. In short, why students and practitioners should be shortchanged in evidentiary analysis is a mysterious phenomenon injustice education.
It is my hope that this text will change some of these erroneous preconceptions. It is an overview of evidence law, not a compendium or treatise. Readers will soon discover that its overall approach is primarily litigation driven. Why? Because evidence law lives, for the most part, in the environs of courthouses, not the theoretical think-tanks of justice policy-makers. Evidence law commences its life on thestreet, as police and investigators toil in the collection. It then leaps to those entrusted with its evaluation and advocacy, whether it be private lawyers, prosecutors, public defenders, or judges and magistrates. Put another way, this text hopes to take you on a trip filled not only with concepts, but also with action—the action of litigation. This is the best place for evidence law to come to life. For more than two decades, I have instructed hundreds of students in evidence analysis, and it is clear that theoretical evidence alone cannot convey the richness of these principles.
Within this text, I have attempted to infuse energy, to vivify often very dull concepts, and to show how the lawyer, the investigator, and the judge contend with evidence principles. In addition, I have made a concerted effort to portray evidence law in a realistic light, not as detached principles left to the intelligentsia to determine. How evidence is argued, how it is evaluated, how it is included or excluded, and how trials depend on its content are a few of the many topics this work covers. In this way, it is very different from its competition. I want you to finish this journey with a feel for how evidence law works in the place it lives—the courthouse.
Chapter 1 commences the journey with definitional parameters. Exactly what is evidence, and how many types are there? Where does evidence law come from? How can we find the basis for an evidentiary principle? Is it custom, habit, common law, or statute, or has a court defined it? How much weight is given particular types of evidence? Are some things presumed to be true? Who has the evidentiary burden to prove or disprove a case? Other introductory questions are sprinkled throughout this first chapter.
Chapter 2 zeroes in on the most fundamental evidence form—real evidence. If it is real, what is not? What types of evidence are real—guns, blood, fingerprints, paint chips, physical injuries, and the like? Is real evidence the best type of evidence? When is it relevant and irrelevant? How does one ensure its reliability and integrity? How can an advocate challenge it? When will police be on the defensive about its content? Who is responsible for its preservation?
The illustration of demonstrative evidence occurs in Chapter 3. Demonstrative evidence portrays or manifests the real form. Our litigation system heavily depends on its usage. How do police rely on the demonstrative form? Why is it an essential part of the investigator's arsenal? Why are cases more understandable with demonstrative evidence? How do lawyers employ the demonstrative means? What types of demonstrative evidence are there—photographs, charts, diagrams, molds, casts, animations? What evidentiary rules guide the use of demonstrative means? What legal challenges are successfully employed to deny admissibility?
Chapter 4 focuses on documentary evidence. Documents are the most relevant form of evidence in many types of criminal and civil cases, such as fraud and forgery, official tampering, kidnapping, and commercial crimes. Documents instruct investigators on criminal profiles and identity. The chapter deals with traditional and expanding evidentiary principles applicable to documents. What is the best evidence rule? What is an original? What is a copy? Who can attest to the authenticity of a document? What types of documents are automatically admissible? What documents are helpful during the investigative process?
Witnesses are not often termed evidentiary, but, in fact, they are. Chapter 5 covers the testimony of lay witnesses. Whether law enforcement officers or security specialists, witnesses are evidentiary sources during the investigation of cases. Lawyers utilize witnesses in and out of the courtroom. Cases are built or deconstructed using witnesses. Exactly what the admissibility requirements for lay witness testimony are is the central theme of this chapter. What makes a lay witness competent to testify? How can a lay witness be challenged before giving testimony? How is a lay witness prepared? What role does cross-examination play in the tug and pull of advocacy? Even though lay witnesses lack scientific or specialized expertise, their testimony is just as probative as that of their expert counterparts.
Chapter 6 dwells in the land of expert evidence. An explosion of expert evidence has occurred in all American jurisdictions over the last 30 years. Experts, those holding themselves out as having specialized knowledge that is beneficial to the trier of fact, communicate their expertise in a host of ways, including pretrial assessment, evaluation of damages, determination of the viability of defenses, and mental and physical competency reviews. During trial, experts often dominate the proceedings. Whether the expert testifies on mental health or ballistics, the judicial system increasingly looks to specialized evidentiary presentations before issuing judgments. What qualifies experts? Where do they come from? How are they to be utilized and prepared? How can they be challenged or puffed up? What are the pitfalls of expert usage in the trial environs? How much power do experts have in the adjudication of cases? How have our courts attempted to define or redefine their role?
Chapter 7's content is rather provincial—that of admissions and stipulations. Evidence that can be agreed on is evidence without dispute. The identification of evidence that both parties agree not to challenge fosters efficiency in the courtroom environment and reduces the trifles and turmoil of objection and appeal. In this short review, readers will see how effective these two tools of the justice system are in ferreting out evidence that should not be subject to challenge and in identifying those forms of evidence that are surely subject to disagreement. Admissions and stipulations eliminate contentiousness in the legal arena.
The world of motions and its intimate relationship with evidence law are the subject matter of Chapter 8. Evidence motions encompass a vast array of legal strategies. For example, defendants may wish evidence excluded or suppressed, or they may wish even more fervently for the admission of some avant garde evidence form that will buttress their defense (e.g., the PMS or the Twinkle defense). Motions address matters of dispute or controversy When police acquire evidence in violation of a constitutional principle, a motion to exclude or suppress will be likely. When a defendant claims he or she is insane, the motion for a physical or mental examination, if granted, verifies or refutes the claim. When physical evidence has been tainted or corrupted, a challenge by motion makes perfect sense. Motions in limine are appropriate when new and controversial evidence will be introduced. Motions are as varied as the evidentiary subject matter. It seems ludicrous not to cover such essential concepts when motions often make or break the state's or the defense's case and support or refute the claims in a civil action.
Chapter 9 ends this long journey through evidence law by gazing deeply into the final resting place of evidence—the courtroom. Exactly how is evidence employed in the trial setting? What form and format are required? How is evidence packaged? What is an exhibit? What rules govern the usage of evidence in the trial environment? How will the proponent of the evidence use witnesses to confirm or corroborate content? How does a litigation team prepare for trial? What skills of administration and organization are essential to courtroom success?
To be sure, the study of evidence law is a lifelong journey. Even experienced litigators and investigators are stumped by the natural problems that emerge in the acquisition and 2dvocacy of evidence. It is a highly technical enterprise. From documents to witness recollection, from serological specimens to photographic displays, from psychological profiles to forensic innovation, evidence law covers broad territory. It takes a person with an eclectic mind to master it all.
This text begins that challenging and sometimes cumbersome excursion. One hopes that upon reaching the end of the book, readers will tangibly appreciate how evidence is used in the justice system and how heavily our justice operations depend upon it. Evidence, in its many forms, is what we need to see and discern to carry out justice. Hunches and surmises will not suffice. The beauty of evidence law lies in its rigor and complexity; even after a lifetime of working with it, one never tires of it. Good luck as your adventure unfolds.
This project would not have reached completion without the assistance of so many individuals. None was more central to success than Hope Haywood, whose editorial work continues to be remarkable. I am forever impressed by her ability to corral details, to administratively center the production, and to be steadfast in keeping me on the straight and narrow. A person of extraordinary talent, Hope has a very bright future.
To Kim Davies of Prentice Hall, I deliver gratitude for the opportunity to publish with this major player in the collegiate marketplace. Her quick and efficient negotiations are unrivaled in the rough and tumble world of publishing.
At the State University of New York at Brockport, the climate is favorable to scholarship. President Pau Yu, Academic Vice President Timothy Flanagan, and Dean Joseph Mason appreciate the quality and significance of these types of activities, while balancing them with the university's ultimate end—the education of students. I was also fortunate to have the assistance of Linda Ferguson, whose service is sterling by any measure. Students aided and abetted as well. In particular, my thanks go to Pamela Chimino, whose contributions were regular during this production. Her editorial skills are impressive for an undergraduate. On the final revisions, student Christopher Rice was most helpful. As I embark on a new appointment at California University of Pennsylvania, I am already indebted to President Angelo Armenti, Vice President/Provost Curtis Smith, and Dr. Ronald Michael, who chaired the search committee.
Many of the photographs, artwork, tables, charts, proprietary material, and commercial input come from an eclectic source base. Some need mentioning. Lieutenant Charles Loray and Sergeant Richard Gosnell of the Central Investigations Unit at the Rochester Police Department, New York, were exceptionally generous in making dead case files available. These representations and graphics give life to often dull concepts. Many other service providers graciously lent their materials to complement the text. They include Concord Press; Legal Graphic Communicators; Anatomical Chart Company; Bionet, Inc.; Wesley Neville, Forensic Artist; Forensic Imaging Systems; TASA; Medical Legal Art; WolfTechnical Service; and Suplee Envelope Co., Inc. Thanks are also extended to Lawyers-Cooperative Publishing and West Group; The American Bar Association; Aspen Publishers, Inc.; North Carolina Bar Foundation; and George T Bisel Co.
Finally, there is little I can accomplish without the loyalty, fidelity, and, most important, generosity of my family. To Jean Marie, partner of 29 years, and my wonderful children, Eleanor, Stephen, Anne Marie, John, Joseph, Mary Claire, and Michael Augustine, my perpetual love and affection for making these projects come to life.
Charles P Nemeth JD, Ph.D., LL.M.
Gazing at the Floating Ice of Ontario
February 10, 2000
1. Overview of Evidence.
2. Real Evidence.
3. Demonstrative Evidence.
4. Documentary Evidence.
5. Lay Witnesses.
6. Expert Evidence.
7. Admissions and Stipulations.
8. Motion Practice and Evidence.
9. Trial Evidence.