the presentation of evidence

Rule 611. Mode and Order of Examining Witnesses and Presenting Evidence

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(a) Control by the Court; Purposes. The court should exercise reasonable control over the mode and order of examining witnesses and presenting evidence so as to:

(1) make those procedures effective for determining the truth;

(2) avoid wasting time; and

(3) protect witnesses from harassment or undue embarrassment.

(b) Scope of Cross-Examination. Cross-examination should not go beyond the subject matter of the direct examination and matters affecting the witness’s credibility. The court may allow inquiry into additional matters as if on direct examination.

(c) Leading Questions. Leading questions should not be used on direct examination except as necessary to develop the witness’s testimony. Ordinarily, the court should allow leading questions:

(1) on cross-examination; and

(2) when a party calls a hostile witness, an adverse party, or a witness identified with an adverse party.

(Pub. L. 93–595, §1, Jan. 2, 1975, 88 Stat. 1936; Mar. 2, 1987, eff. Oct. 1, 1987; Apr. 26, 2011, eff. Dec. 1, 2011.)

Notes of Advisory Committee on Proposed Rules

Subdivision (a) . Spelling out detailed rules to govern the mode and order of interrogating witnesses presenting evidence is neither desirable nor feasible. The ultimate responsibility for the effective working of the adversary system rests with the judge. The rule sets forth the objectives which he should seek to attain.

Item (1) restates in broad terms the power and obligation of the judge as developed under common law principles. It covers such concerns as whether testimony shall be in the form of a free narrative or responses to specific questions, McCormick §5, the order of calling witnesses and presenting evidence, 6 Wigmore §1867, the use of demonstrative evidence, McCormick §179, and the many other questions arising during the course of a trial which can be solved only by the judge's common sense and fairness in view of the particular circumstances.

Item (2) is addressed to avoidance of needless consumption of time, a matter of daily concern in the disposition of cases. A companion piece is found in the discretion vested in the judge to exclude evidence as a waste of time in Rule 403(b).

Item (3) calls for a judgement under the particular circumstances whether interrogation tactics entail harassment or undue embarrassment. Pertinent circumstances include the importance of the testimony, the nature of the inquiry, its relevance to credibility, waste of time, and confusion. McCormick §42. In Alford v. United States , 282 U.S. 687 , 694, 51 S.Ct. 218, 75 L.Ed. 624 (1931), the Court pointed out that, while the trial judge should protect the witness from questions which “go beyond the bounds of proper cross-examination merely to harass, annoy or humiliate,” this protection by no means forecloses efforts to discredit the witness. Reference to the transcript of the prosecutor's cross-examination in Berger v. United States , 295 U.S. 78 , 55 S.Ct. 629, 79 L.Ed. 1314 (1935), serves to lay at rest any doubts as to the need for judicial control in this area.

The inquiry into specific instances of conduct of a witness allowed under Rule 608(b) is, of course, subject to this rule.

Subdivision (b) . The tradition in the federal courts and in numerous state courts has been to limit the scope of cross-examination to matters testified to on direct, plus matters bearing upon the credibility of the witness. Various reasons have been advanced to justify the rule of limited cross-examination. (1) A party vouches for his own witness but only to the extent of matters elicited on direct. Resurrection Gold Mining Co. v. Fortune Gold Mining Co ., 129 F. 668, 675 (8th Cir. 1904), quoted in Maguire, Weinstein, et al., Cases on Evidence 277, n. 38 (5th ed. 1965). But the concept of vouching is discredited, and Rule 607 rejects it. (2) A party cannot ask his own witness leading questions. This is a problem properly solved in terms of what is necessary for a proper development of the testimony rather than by a mechanistic formula similar to the vouching concept. See discussion under subdivision (c). (3) A practice of limited cross-examination promotes orderly presentation of the case. Finch v. Weiner , 109 Conn. 616, 145 A. 31 (1929). While this latter reason has merit, the matter is essentially one of the order of presentation and not one in which involvement at the appellate level is likely to prove fruitful. See for example, Moyer v. Aetna Life Ins. Co ., 126 F.2d 141 (3rd Cir. 1942); Butler v. New York Central R. Co ., 253 F.2d 281 (7th Cir. 1958); United States v. Johnson , 285 F.2d 35 (9th Cir. 1960); Union Automobile Indemnity Ass'n. v. Capitol Indemnity Ins. Co ., 310 F.2d 318 (7th Cir. 1962). In evaluating these considerations, McCormick says:

“The foregoing considerations favoring the wide-open or restrictive rules may well be thought to be fairly evenly balanced. There is another factor, however, which seems to swing the balance overwhelmingly in favor of the wide-open rule. This is the consideration of economy of time and energy. Obviously, the wide-open rule presents little or no opportunity for dispute in its application. The restrictive practice in all its forms, on the other hand, is productive in many court rooms, of continual bickering over the choice of the numerous variations of the ‘scope of the direct’ criterion, and of their application to particular cross-questions. These controversies are often reventilated on appeal, and reversals for error in their determination are frequent. Observance of these vague and ambiguous restrictions is a matter of constant and hampering concern to the cross-examiner. If these efforts, delays and misprisions were the necessary incidents to the guarding of substantive rights or the fundamentals of fair trial, they might be worth the cost. As the price of the choice of an obviously debatable regulation of the order of evidence, the sacrifice seems misguided. The American Bar Association's Committee for the Improvement of the Law of Evidence for the year 1937–38 said this:

“The rule limiting cross-examination to the precise subject of the direct examination is probably the most frequent rule (except the Opinion rule) leading in the trial practice today to refined and technical quibbles which obstruct the progress of the trial, confuse the jury, and give rise to appeal on technical grounds only. Some of the instances in which Supreme Courts have ordered new trials for the mere transgression of this rule about the order of evidence have been astounding.

“We recommend that the rule allowing questions upon any part of the issue known to the witness * * * be adopted. * * *’ ” McCormick, §27, p. 51. See also 5 Moore's Federal Practice  43.10 (2nd ed. 1964).

The provision of the second sentence, that the judge may in the interests of justice limit inquiry into new matters on cross-examination, is designed for those situations in which the result otherwise would be confusion, complication, or protraction of the case, not as a matter of rule but as demonstrable in the actual development of the particular case.

The rule does not purport to determine the extent to which an accused who elects to testify thereby waives his privilege against self-incrimination. The question is a constitutional one, rather than a mere matter of administering the trial. Under Simmons v. United States , 390 U.S. 377 , 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968), no general waiver occurs when the accused testifies on such preliminary matters as the validity of a search and seizure or the admissibility of a confession. Rule 104(d), supra . When he testifies on the merits, however, can he foreclose inquiry into an aspect or element of the crime by avoiding it on direct? The affirmative answer given in Tucker v. United States , 5 F.2d 818 (8th Cir. 1925), is inconsistent with the description of the waiver as extending to “all other relevant facts” in Johnson v. United States , 318 U.S. 189 , 195, 63 S.Ct. 549, 87 L.Ed. 704 (1943). See also Brown v. United States , 356 U.S. 148 , 78 S.Ct. 622, 2 L.Ed.2d 589 (1958). The situation of an accused who desires to testify on some but not all counts of a multiple-count indictment is one to be approached, in the first instance at least, as a problem of severance under Rule 14 of the Federal Rules of Criminal Procedure. Cross v. United States , 118 U.S.App.D.C. 324, 335 F.2d 987 (1964). Cf. United States v. Baker , 262 F.Supp. 657, 686 (D.D.C. 1966). In all events, the extent of the waiver of the privilege against self-incrimination ought not to be determined as a by-product of a rule on scope of cross-examination.

Subdivision (c) . The rule continues the traditional view that the suggestive powers of the leading question are as a general proposition undesirable. Within this tradition, however, numerous exceptions have achieved recognition: The witness who is hostile, unwilling, or biased; the child witness or the adult with communication problems; the witness whose recollection is exhausted; and undisputed preliminary matters. 3 Wigmore §§ 774–778. An almost total unwillingness to reverse for infractions has been manifested by appellate courts. See cases cited in 3 Wigmore §770. The matter clearly falls within the area of control by the judge over the mode and order of interrogation and presentation and accordingly is phrased in words of suggestion rather than command.

The rule also conforms to tradition in making the use of leading questions on cross-examination a matter of right. The purpose of the qualification “ordinarily” is to furnish a basis for denying the use of leading questions when the cross-examination is cross-examination in form only and not in fact, as for example the “cross-examination” of a party by his own counsel after being called by the opponent (savoring more of re-direct) or of an insured defendant who proves to be friendly to the plaintiff.

The final sentence deals with categories of witnesses automatically regarded and treated as hostile. Rule 43(b) of the Federal Rules of Civil Procedure has included only “an adverse party or an officer, director, or managing agent of a public or private corporation or of a partnership or association which is an adverse party.” This limitation virtually to persons whose statements would stand as admissions is believed to be an unduly narrow concept of those who may safely be regarded as hostile without further demonstration. See, for example, Maryland Casualty Co. v. Kador , 225 F.2d 120 (5th Cir. 1955), and Degelos v. Fidelity and Casualty Co ., 313 F.2d 809 (5th Cir. 1963), holding despite the language of Rule 43(b) that an insured fell within it, though not a party in an action under the Louisiana direct action statute. The phrase of the rule, “witness identified with” an adverse party, is designed to enlarge the category of persons thus callable.

Notes of Committee on the Judiciary, House Report No. 93–650

As submitted by the Court, Rule 611(b) provided:

A witness may be cross-examined on any matter relevant to any issue in the case, including credibility. In the interests of justice, the judge may limit cross-examination with respect to matters not testified to on direct examination.

The Committee amended this provision to return to the rule which prevails in the federal courts and thirty-nine State jurisdictions. As amended, the Rule is in the text of the 1969 Advisory Committee draft. It limits cross-examination to credibility and to matters testified to on direct examination, unless the judge permits more, in which event the cross-examiner must proceed as if on direct examination. This traditional rule facilitates orderly presentation by each party at trial. Further, in light of existing discovery procedures, there appears to be no need to abandon the traditional rule.

The third sentence of Rule 611(c) as submitted by the Court provided that:

In civil cases, a party is entitled to call an adverse party or witness identified with him and interrogate by leading questions.

The Committee amended this Rule to permit leading questions to be used with respect to any hostile witness, not only an adverse party or person identified with such adverse party. The Committee also substituted the word “When” for the phrase “In civil cases” to reflect the possibility that in criminal cases a defendant may be entitled to call witnesses identified with the government, in which event the Committee believed the defendant should be permitted to inquire with leading questions.

Notes of Committee on the Judiciary, Senate Report No. 93–1277

Rule 611(b) as submitted by the Supreme Court permitted a broad scope of cross-examination: “cross-examination on any matter relevant to any issue in the case” unless the judge, in the interests of justice, limited the scope of cross-examination.

The House narrowed the Rule to the more traditional practice of limiting cross-examination to the subject matter of direct examination (and credibility), but with discretion in the judge to permit inquiry into additional matters in situations where that would aid in the development of the evidence or otherwise facilitate the conduct of the trial.

The committee agrees with the House amendment. Although there are good arguments in support of broad cross-examination from perspectives of developing all relevant evidence, we believe the factors of insuring an orderly and predictable development of the evidence weigh in favor of the narrower rule, especially when discretion is given to the trial judge to permit inquiry into additional matters. The committee expressly approves this discretion and believes it will permit sufficient flexibility allowing a broader scope of cross-examination whenever appropriate.

The House amendment providing broader discretionary cross-examination permitted inquiry into additional matters only as if on direct examination. As a general rule, we concur with this limitation, however, we would understand that this limitation would not preclude the utilization of leading questions if the conditions of subsection (c) of this rule were met, bearing in mind the judge's discretion in any case to limit the scope of cross-examination [see McCormick on Evidence, §§24–26 (especially 24) (2d ed. 1972)].

Further, the committee has received correspondence from Federal judges commenting on the applicability of this rule to section 1407 of title 28. It is the committee's judgment that this rule as reported by the House is flexible enough to provide sufficiently broad cross-examination in appropriate situations in multidistrict litigation.

As submitted by the Supreme Court, the rule provided: “In civil cases, a party is entitled to call an adverse party or witness identified with him and interrogate by leading questions.”

The final sentence of subsection (c) was amended by the House for the purpose of clarifying the fact that a “hostile witness”—that is a witness who is hostile in fact—could be subject to interrogation by leading questions. The rule as submitted by the Supreme Court declared certain witnesses hostile as a matter of law and thus subject to interrogation by leading questions without any showing of hostility in fact. These were adverse parties or witnesses identified with adverse parties. However, the wording of the first sentence of subsection (c) while generally, prohibiting the use of leading questions on direct examination, also provides “except as may be necessary to develop his testimony.” Further, the first paragraph of the Advisory Committee note explaining the subsection makes clear that they intended that leading questions could be asked of a hostile witness or a witness who was unwilling or biased and even though that witness was not associated with an adverse party. Thus, we question whether the House amendment was necessary.

However, concluding that it was not intended to affect the meaning of the first sentence of the subsection and was intended solely to clarify the fact that leading questions are permissible in the interrogation of a witness, who is hostile in fact, the committee accepts that House amendment.

The final sentence of this subsection was also amended by the House to cover criminal as well as civil cases. The committee accepts this amendment, but notes that it may be difficult in criminal cases to determine when a witness is “identified with an adverse party,” and thus the rule should be applied with caution.

Notes of Advisory Committee on Rules—1987 Amendment

The amendment is technical. No substantive change is intended.

Committee Notes on Rules—2011 Amendment

The language of Rule 611 has been amended as part of the restyling of the Evidence Rules to make them more easily understood and to make style and terminology consistent throughout the rules. These changes are intended to be stylistic only. There is no intent to change any result in any ruling on evidence admissibility.

Compilation and Presentation of Evidence

ARTICLE 2 October 2023

Evidence is how you or the opposing party can prove or refute the facts in your case.

When presenting evidence in a trial, it's essential to consider a series of recommendations to avoid problems in the final stages of the case, states our Head of Litigation and Arbitration Department, Rubén Rivas.

"The compilation of evidence involves the search, acquisition, and organization of documents, records, witness testimonies, experts, and any other means of proof that may be relevant to the case. This process may include research, requesting documents from third parties, conducting interviews with witnesses, and obtaining expert reports," says Rivas.

Our associate attorney lists the steps for compiling and presenting evidence:

• Know the rules of evidence: Familiarize yourself with the specific rules and procedures governing the presentation of evidence in the court where the trial takes place. This includes knowing the objections that can be raised, authenticity requirements, and admissibility standards.
• Gather relevant and credible evidence: Identify and carefully gather evidence that supports your case. Ensure that it is relevant to the issues in dispute and credible. This may include documents, records, witness testimonies, photographs, or other means of proof.
• Prepare and organize your evidence: Organize your evidence clearly and systematically to facilitate its presentation at the trial. Use labels, indexes, or folders to keep it orderly and accessible. Additionally, prepare additional copies of relevant documents to share with the court, attorneys, and involved parties.
• Obtain affidavits or testimonies: If you have relevant witnesses, make sure to obtain their affidavits or written testimonies in advance. This will allow you to present their testimonies consistently and coherently during the trial.
• Consult experts: If the evidence requires specialized knowledge, consider consulting experts in the relevant field. These experts can provide opinions and technical analysis that support your case and help interpret the evidence more accurately.
• Be clear and concise when presenting evidence: When presenting evidence during the trial, be clear, concise, and focused on key points. Avoid digressions or irrelevant details that may distract or confuse the court. Use charts, images, or audiovisual media if necessary to enhance the understanding of the evidence.
• Maintain objectivity: When presenting evidence, avoid manipulating or distorting it to support your position. Evidence should be presented objectively and honestly, allowing the court to assess its weight and credibility.
• Prepare your witnesses: If you have witnesses who will testify during the trial, make sure to prepare them adequately. Review relevant facts with them, the questions they will be asked, and potential objections. This will help ensure that they provide clear and coherent testimonies.
• Respect the court's rules: During the presentation of evidence, follow the judge's instructions and adhere to procedural rules. Avoid unnecessary interruptions, do not interrupt opposing attorneys, and maintain a respectful tone at all times.
• Work closely with your attorney: Collaborate closely with your attorney in the preparation and presentation of evidence. Trust their expertise and follow their advice on how to present your case more effectively.

-Written by the Torres Legal Team.

10 Steps for Presenting Evidence in Court

When you go to court, you will give information (called “evidence”) to a judge who will decide your case. This evidence may include information you or someone else tells to the judge (“testimony”) as well as items like email and text messages, documents, photos, and objects (“exhibits”). If you don’t have an attorney, you will need to gather and present your evidence in the proper way. Courts have rules about evidence so that judges will make decisions based on good information, not gossip and guesswork.

Although the rules can be confusing, they are designed to protect your rights, and you can use them to help you plan for your court appearance. Even though courts work differently, this publication will introduce you to the nuts and bolts of presenting evidence at a hearing. As you read it, please consider the kind of help you might want as you prepare and present your case.

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By Prof. Penny White

Federal Rules of Evidence

The Federal Rules of Evidence govern the introduction of evidence at civil and criminal trials in United States federal trial courts. The current rules were initially passed by Congress in 1975 after several years of drafting by the Supreme Court.  The rules are broken down into 11 articles:

• General Provisions
• Judicial Notice
• Presumptions in Civil Actions and Proceedings
• Relevancy and Its Limits
• Opinions and Expert Testimony
• Authentication and Identification
• Contents of Writings, Recordings and Photographs
• Miscellaneous Rules

This article will focus on Rule 901 — Authenticating or Identifying Evidence — and the judge’s role in the Federal Rules of Evidence.

Establish Evidentiary Foundations

Evidentiary foundations must be established before any type of evidence can be admitted. These predicates to admission apply regardless of whether the evidence is verbal or tangible, but for some types of evidence, the foundation is largely subsumed into the presentation of the evidence itself. For example, the foundation for verbal evidence is generally a requirement that the testifying witness have personal knowledge of the matter in question. This foundation is rarely established by asking the witness specifically whether he or she has personal knowledge. Rather, it is included in the witness’ testimony which discloses that the witness experienced the occurrence. But for all types of evidence, the evidentiary foundation requires authentication before other issues of admissibility are considered.

Tangible Items of Evidence

Scholars at common law recognized that authentication and identification of tangible items of evidence represented a “special aspect of relevancy.” McCormick §§179, 185; Morgan, Basic Problems of Evidence 378 (1962). Wigmore describes the need for authentication as “an inherent logical necessity.” 7 Wigmore §2129, p. 564. The authenticity requirement falls into the category of conditional relevancy – before the item of evidence becomes relevant and admissible, it must be established that the item is what the proponent claims.

Authentication of Tangible Items of Evidence

The basic codified standard for the authentication of tangible items of evidence is “evidence sufficient to support a finding that the item is what the proponent claims it is.” Fed. R. Evid. 901. It is not necessary that the court find that the evidence is what the proponent claims, only that there is sufficient evidence from which the jury might ultimately do so. This is a low threshold standard. The laws of evidence set forth the general standard, followed by illustrations and a list of several types of self-authenticated documents. The proponent of any tangible or documentary evidence has an obligation, or burden of proof, to authenticate the evidence before requesting to admit or publish it to the fact- finder; if the opponent objects to its admissibility, based on any of a collection of rules, then the proponent must address that admissibility objection as well. Thus, all evidence must be both authenticated and admissible.

Determine the Presentation of Evidence

If both authentication and admissibility are established, then the court must determine how the evidence will best be presented to the trier of fact, bearing in mind that the court is obligated to exercise control over the presentation of evidence to accomplish an effective, fair, and efficient proceeding. Under Federal Rules 611, the court’s duty is to “exercise reasonable control over the mode and order of examining witnesses and presenting evidence so as to:

• Make those procedures effective for determining the truth
• Avoid wasting time
• Protect witnesses from harassment or undue embarrassment

Sometimes tangible evidence consists of fungible items that are not identifiable by sight. For tangible evidence that is not unique or distinctive, counsel must authenticate the item by establishing a chain of custody.

Establish a Chain of Custody

A chain of custody is, in essence, a consistent trail showing the path of the item from the time it was acquired until the moment it is presented into evidence. In establishing a chain of custody, each link in the chain should be sufficiently established. However, it is not required that the identity of tangible evidence be proven beyond all possibility of doubt. Most courts hold that “when the facts and circumstances that surround tangible evidence reasonably establish the identity and integrity of the evidence, the trial court should admit the item into evidence [but] the evidence should not be admitted, unless both identity and integrity can be demonstrated by other appropriate means.” See generally State v. Cannon, 254 S.W.3d 287, 296-97 (Tenn. 2008).

Additional Rules of Evidence Considerations for Tangible Evidence

For tangible evidence, in addition to authentication, the court must consider the following.

• Relevance rules
• The hearsay rules
• The original writing rules
• When appropriate, must balance the probative value of the tangible evidence against the dangers that its introduction may cause

The court in a jury trial must also consider what method of producing the evidence to a jury is most conducive to a fair and efficient fact-finding process.

Electronic Evidence

In order to admit electronic evidence, the same rules apply, but the content of electronic electronically stored information (ESI evidence) may implicate other rules such as the opinion rules and the personal knowledge rule. Most scholars and courts agree that the issues related to the authentication and admissibility of electronic evidence simply depend on an application of the existing evidence rules. Although technical challenges may arise, the rules are flexible enough in their approach to address this new kind of evidence.

Checklist for Authenticating Evidence in Court

The Federal Rules of Evidence apply regardless of whether the evidence is submitted in a civil case or criminal trial. To ensure that evidence is authentic and admissible, follow this five-point generic checklist for the authentication of tangible, documentary, or electronic evidence:

1. Is the evidence relevant?

Does it make a fact that is of consequence to the action more or less probable than it would be without the evidence?

2. Has the evidence been authenticated?

Has the proponent produce “evidence sufficient to support a finding that the electronic evidence is what the proponent claims?”

3. Is the evidence hearsay?

Is the evidence offered to prove the truth of what it asserts? If so, does it satisfy a hearsay exception? Are confrontation rights implicated?

4. Is the evidence a writing, recording, or photograph?

Is it offered to prove the content? If so, is it either the original or a duplicate (counterpart produced by the same impression as the original, or from the same matrix, etc.) unless genuine questions of authenticity or fairness exist?

5. Is the probative value of the evidence substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence?

Of course, there are many other tools that a judge may use to rule on tangible and electronic evidence, each with its own benefits and limitations.

Penny White is the Director of the Center for Advocacy and Elvin E. Overton Distinguished Professor of Law at the University of Tennessee College of Law. She teaches in several of NJC’s evidence courses including Fundamentals of Evidence, Advanced Evidence, and Criminal Evidence.

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Nonrational sources of evidence

Semirational sources of evidence, the influence of roman-canonical law.

• Oral proceedings
• The burden of proof
• Relevance and admissibility
• The free evaluation of evidence
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Our editors will review what you’ve submitted and determine whether to revise the article.

• State Library of NSW - Find Legal Answers - Precedent and evidence
• Stanford Encyclopedia of Philosophy - Evidence
• Table Of Contents

evidence , in law, any of the material items or assertions of fact that may be submitted to a competent tribunal as a means of ascertaining the truth of any alleged matter of fact under investigation before it.

To the end that court decisions are to be based on truth founded on evidence, a primary duty of courts is to conduct proper proceedings so as to hear and consider evidence. The so-called law of evidence is made up largely of procedural regulations concerning the proof and presentation of facts, whether involving the testimony of witnesses, the presentation of documents or physical objects, or the assertion of a foreign law. The many rules of evidence that have evolved under different legal systems have, in the main, been founded on experience and shaped by varying legal requirements of what constitutes admissible and sufficient proof.

Although evidence, in this sense, has both legal and technical characteristics, judicial evidence has always been a human rather than a technical problem. During different periods and at different cultural stages, problems concerning evidence have been resolved by widely different methods. Since the means of acquiring evidence are clearly variable and delimited, they can result only in a degree of probability and not in an absolute truth in the philosophical sense. In common-law countries, civil cases require only preponderant probability, and criminal cases require probability beyond reasonable doubt. In civil-law countries so much probability is required that reasonable doubts are excluded.

The early law of evidence

Characteristic features of the law of evidence in earlier cultures were that no distinction was made between civil and criminal matters or between fact and law and that rational means of evidence were either unknown or little used. In general, the accused had to prove his innocence.

The appeal to supernatural powers was, of course, not evidence in the modern sense but an ordeal in which God was appealed to as the highest judge. The judges of the community determined what different kinds of ordeals were to be suffered, and frequently the ordeals involved threatening the accused with fire, a hot iron, or drowning. It may be that a certain awe associated with the two great elements of fire and water made them appear preeminently suitable for dangerous tests by which God himself was to pass on guilt or innocence. Trial by battle had much the same origin. To be sure, the powerful man relied on his strength, but it was also assumed that God would be on the side of right.

The accused free person could offer to exonerate himself by oath . Under these circumstances, in contrast to the ordeals, it was not expected that God would rule immediately but rather that he would punish the perjurer at a later time. Nevertheless, there was ordinarily enough realism so that the mere oath of the accused person alone was not allowed. Rather, he was ordered to swear with a number of compurgators , or witnesses, who confirmed, so to speak, the oath of the person swearing. They stood as guarantees for his oath but never gave any testimony about the facts.

The significance of these first witnesses is seen in the use of the German word Zeuge , which now means “witness” but originally meant “drawn in.” The witnesses were, in fact, “drawn in” to perform a legal act as instrumental witnesses. But they gave only their opinions and consequently did not testify about facts with which they were acquainted. Nevertheless, together with community witnesses, they paved the way for the more rational use of evidence.

By the 13th century, ordeals were no longer used, though the custom of trial by battle lasted until the 14th and 15th centuries. The judicial machinery destroyed by dropping these sources of evidence could not be replaced by the oath of purgation alone. With the decline of chivalry , the flourishing of the towns, the further development of Christian theology, and the formation of states, both social and cultural conditions had changed. The law of evidence, along with much of the rest of the law of Europe, was influenced strongly by Roman-canonical law elaborated by jurists in northern Italian universities. Roman law introduced elements of common procedure that became known throughout the continental European countries and became something of a uniting bond between them.

Under the new influence, evidence was, first of all, evaluated on a hierarchical basis. This accorded well with the assumption of scholastic philosophy that all the possibilities of life could be formally ordered through a system of a priori , abstract regulations. Since the law was based on the concept of the inequality of persons, not all persons were suitable as witnesses, and only the testimony of two or more suitable witnesses could supply proof.

The formal theory of evidence that grew out of this hierarchical evaluation left no option for the judge: in effect, he was required to be convinced after the designated number of witnesses had testified concordantly. A distinction was made between complete, half, and lesser portions of evidence, evading the problem posed by such a rigid system of evaluation. Since interrogation of witnesses was secret, abuses occurred on another level. These abuses were nourished by the notion that the confession was the best kind of evidence and that reliable confessions could be obtained by means of torture.

Despite these obvious drawbacks and limitations, through the ecclesiastical courts Roman-canonical law gained influence. It contributed much to the elimination of nonrational evidence from the courts, even though, given the formality of its application, it could result only in formal truths often not corresponding to reality.

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Though many people choose to plead guilty or settle before trial, anyone is within their right to take their disagreement to trial.  After voir dire , the trial begins.  Each step of the trial process is part of a rigorous system driven by a single purpose – to protect the rights of citizens by resolving disputes fairly.

(c) Sam Fentress, Courtesy of HOK

1. Opening Statements

Every trial proceeds in basically the same way.   Both parties are seated in the courtroom.  In a criminal trial, this includes the prosecuting attorney for the government, as well as the defendant and their defense attorney .  In civil cases, both the plaintiff and defendant , and their respective attorneys, if any, need to be present.

The attorneys will begin by making their opening statements .  The attorneys use this time to give the jury an overview of the case they intend to present.  They are just statements, however, and cannot be considered as evidence by the jury.  The side bringing the case is the side that bears the burden of proof , and thus always goes first.  This is the prosecuting attorney in a criminal case, or the plaintiff in a civil case.  The defense then follows with their opening statement.

As the trial moves forward, the prosecutor or plaintiff presents their case, but the defense has an opportunity to respond.  This process of two sides going back and forth, is the heart of our trial procedure, and is based on an adversarial system .

2. Presenting the Prosecution/Plaintiff's Evidence

Opening statements are followed by the case-in-chief .  The prosecutor or plaintiff’s attorney again goes first.  They present evidence in the form of physical evidence or documents and also the testimony of witnesses.  A witness is someone who has personal knowledge of a situation that may be helpful to the jury in deciding the outcome of the case.  This personal knowledge is shared with the judge and jury through a series of questions between the witness and the plaintiff’s attorney or prosecutor.  This is called direct examination .

Once the direct examination is finished, the defendant’s attorney gets an opportunity to question the witness.  This is called cross examination .  When the cross examination is complete, the judge may allow the plaintiff to ask more questions in response to things mentioned during cross examination.  This is called re-direct examination .

Once the prosecutor or plaintiff has presented all their evidence and witness testimony, and the defendant has had a chance to cross examine, the prosecution or plaintiff then rests their case.

3. Presenting the Defense's Evidence

The defendant then presents their evidence and witnesses in the same fashion; by direct examination.  The plaintiff or prosecution is allowed to cross-examine, and the defendant gets to ask further questions on re-direct.

In a federal criminal case, because the burden of proof is always on the prosecution, the defendant never has the burden of doing anything.  This means that the defendant does not have to present any evidence whatsoever.  Additionally, the defendant has a constitutional right to remain silent in order to prevent self-incrimination when testifying.  If the defendant doesn’t think the prosecution has proven the case, they may chose not to take the witness stand or to present any further evidence.

On the other hand, in civil cases , it is almost always in the defendant’s best interest to disprove the claims of the plaintiff.  Therefore, the defendant will usually testify in a civil trial.  Sometimes, the plaintiff calls the defendant as a witness.  When this happens, the defendant is called a hostile witness .

Evidence is used by the parties to prove or disprove unresolved issues in the case.  There are rules in place to govern how evidence is collected, what evidence can be admitted in the case, and how the judge and jury may consider evidence to render a decision.

If you watch television programs that depict the legal process, you may incorrectly think that physical evidence is the most common type.  Actually, the most common type of evidence is provided by witness testimony .  Often witness testimony may be the only evidence presented.  It’s up to the jury, or the judge in a bench trial, to decide the true facts from what is said by each party and each witness.

• Eyewitness testimony – The testimony of someone who observed the actual event taking place.
• Witness testimony – Testimony of a person who has personal knowledge of relevant information.  Because this witness is not an eyewitness, inferences will need to be made by the jury or judge based on the testimony.
• Expert witness testimony – Testimony of a person who is qualified to help the jury or judge understand specialized details of the case.  Expert witnesses are asked to express their professional opinion during the trial.
• Physical evidence – Physical objects and documents can be used by either side to prove or disprove issues.  An example would be DNA, fingerprints, or a photograph.

All witnesses must swear or affirm that their testimony will be truthful.  If a witness makes false claims while under oath , they can be charged with perjury , which is itself a crime.

If you’ve watched a fictional trial on television, you’ve probably heard a character scream “I object!”  Objections do happen in the courtroom, though they are usually less dramatic.  During testimony, the opposing party can formally object if the questioning is not following the rules of evidence.  Unlike on television, the attorney making the objection has to state a legal reason for interrupting the testimony.  There are many kinds of standard objections.   The following are examples:

• Hearsay – Even if a witness didn’t directly observe the event in question, they still may only testify from their own personal knowledge.  Discussing something that was said by another person is called hearsay, and is prohibited.
• Irrelevant – Witness testimony must be related to the issue or event in question.  Off-topic testimony is not allowed.

Ruling on objections.   Because it’s the job of judges to interpret and apply the law, they rule on each objection.  If the objection is sustained , the attorney must stop that line of questioning and move on to the next question.  If the objection is overruled , the attorney can continue with the question.  All objections and rulings are recorded in the official record of the trial by the court reporter.

4. Closing Arguments

Once the attorneys for both sides have presented their evidence, they each will give closing arguments .  This is their opportunity to summarize for the jury, and draw attention to the facts that support their side.  The closing arguments are not evidence. The plaintiff or prosecutor goes first, followed by the defendant.

5. The Jury's Verdict

After closing arguments, the judge will give final jury instructions to the jury

The judge will instruct the jury to select a foreperson who will act as their organizer and spokesperson.  The judge will give them a verdict form to complete, and they will then retire to the deliberation room to decide upon their verdict.  All deliberations of the jury are private and confidential, and do not become part of the official court record.

Once the jury has reached a verdict , the foreperson alerts the court it has done so.  This may take one hour, one day, or one week; there is no time limit or deadline.  In federal court, all jury verdicts must be unanimous.  All parties are called back to the courtroom and the foreperson or the clerk officially announces the verdict in open court.  A criminal verdict can only be guilty or not guilty on each of the charges.   When defendants are found not guilty, they are free to go and can’t be tried again for the same crime.  This is called protection from Double Jeopardy , found in the 5 th Amendment .  If the defendant is found guilty, the punishment is to be decided by the judge, at a later date.

A civil verdict can be much more complicated, and may include whether or not the defendant’s actions or lack of actions caused injury to the plaintiff, and, if so, then the amount of compensation or penalty the plaintiff has to pay.

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The Role of Evidence in Court Hearings: A Deep Dive into Legal Proceedings

• Updated: December 20, 2023

Home / Blog / The Role of Evidence in Court Hearings: A Deep Dive into Legal Proceedings

Imagine a courtroom as a stage where truth unfolds, drama ensues, and justice takes center stage. At the heart of this legal theater, evidence exhibits play a pivotal role, acting as the silent narrators of compelling stories. In this article, we’ll delve into the fascinating world of evidence in court hearings, exploring their significance and their powerful role in the pursuit of truth and justice. So, fasten your legal seatbelt as we embark on a journey through the intricacies of evidence within the courtroom drama.

What Is Considered Evidence In Court?

In the intricate tapestry of the legal system, evidence emerges as the very essence of justice . This multifaceted entity weaves through courtrooms, shaping narratives and influencing the course of legal proceedings . Delving into the expansive realm of what evidence is and signifies entails an exploration of its various types, the nuanced challenges it poses, and its pivotal role in upholding the fundamental tenets of fairness and truth-seeking within the justice system.

Evidence, in the context of law, refers to information or materials presented before a court to establish facts during a legal proceeding . It serves as the basis for legal arguments and decisions, aiding the trier of fact in understanding and determining the truth. Evidence can encompass a wide range of forms, such as witness testimony, documents, physical objects, demonstrative aids, and digital records. Admissibility rules govern the inclusion of evidence, ensuring that it is both relevant and reliable in the pursuit of justice.

Understanding the Types of Evidence:

1. Testimonial Evidence:

   At the heart of many legal proceedings lies the human element—testimony. Whether delivered by lay witnesses or seasoned experts, verbal accounts under oath stand as a cornerstone. Cross-examination dynamics and witness statements’ reliability add layers of complexity to the courtroom narrative.

2. Documentary Evidence:

   Tangible records, from contracts and agreements to letters and official documents, compose the intricate fabric of documentary evidence. These artifacts serve as tangible timestamps, creating a chronological trail that lawyers meticulously follow to reconstruct events.

3. Physical Evidence:

   Objects, often referred to as real or physical evidence, possess an undeniable gravity in courtrooms. Murder weapons, stolen goods, or other tangible items serve as silent witnesses, providing tangible links to the events under scrutiny.

4. Demonstrative Evidence:

   In an era of complex litigation, charts, graphs, simulations, and reconstructions fall under the umbrella of demonstrative evidence. These aids help translate intricate concepts into visual representations, facilitating a clearer understanding of the court .

5. Digital Evidence:

   The digital age has ushered in a new frontier for legal practitioners, as digital evidence assumes a paramount role. The virtual realm becomes integral to the evidentiary landscape, from emails and social media posts to surveillance footage and forensic data.

Admissibility and Relevance:

Yet, the journey of evidence from discovery to courtroom presentation is far from straightforward. The legal system imposes stringent rules of admissibility, designed to sift through the vast array of information and allow only the most relevant and reliable to reach the trier of fact. Evidence must be probative—capable of proving something—and material, directly tied to a key issue in the case.

Challenges within the Courtroom:

Navigating the labyrinth of evidence is a complex dance, where legal minds engage in battles of objection, rulings, and evidentiary hearings. The delicate balance between pursuing truth and protecting rights shapes the contours of legal arguments and courtroom drama.

Presumption of Innocence:

In criminal cases, the foundational principle of the presumption of innocence underscores the significance of evidence. The prosecution bears the weighty burden of proving guilt beyond a reasonable doubt, emphasizing evidence’s crucial role in dispelling uncertainty and reinforcing the presumption of innocence until proven otherwise.

Understanding The Court Hearing Process 

A court hearing , the cornerstone of the judicial system, is a multifaceted legal event that encapsulates the essence of justice. At its core, a court hearing serves as a forum for the resolution of disputes, where parties present evidence and legal arguments and engage in a structured dialogue before an impartial adjudicator—often a judge or jury. The significance of this process extends far beyond its surface, delving into the intricacies of legal procedures , the art of persuasion, and the pursuit of truth.

The Prelude: Filing and Notice

Before the courtroom drama unfolds, the journey commences with the initiation of legal action. A party, known as the plaintiff, files a complaint or petition outlining the grievances and seeking redress. This marks the genesis of the court hearing process . Subsequently, the defendant receives notice of the legal proceedings, ensuring that all involved parties are apprised of the impending confrontation on the legal battleground.

Setting the Stage: Preliminary Matters

As the courtroom doors swing open, the initial moments of a hearing often revolve around procedural matters. These preliminary steps set the stage for addressing jurisdictional challenges, establishing the admissibility of evidence, and resolving any pre-existing motions. The legal chessboard is carefully arranged, each move shaping the terrain for the battle of arguments to come.

The Dance of Advocacy: Presenting Cases and Arguments

The heart of a court hearing lies in the advocacy of opposing parties . Attorneys, the maestros of legal rhetoric, present their cases with finesse, weaving narratives that sway the scales of justice. Witnesses may take the stand, their testimony a crucial chord in the symphony of evidence. Exhibits are unveiled, documents scrutinized, and the courtroom transforms into a stage where the pursuit of truth is both an art and a science.

Judicial Adjudication: The Role of the Judge

Central to the court hearing is the role of the judge—a legal arbiter tasked with interpreting the law, applying it to the facts at hand, and ensuring a fair and just resolution. The judge acts as a referee, guiding the proceedings, ruling on objections, and ultimately rendering decisions that shape the legal landscape.

The Crucible of Cross-Examination

No court hearing is complete without the crucible of cross-examination. Attorneys probe and challenge witnesses, testing the veracity of their statements. The courtroom transforms into an arena of verbal jousting, where the skill of cross-examination can tip the scales of credibility.

Closing Arguments: The Grand Finale

As the crescendo approaches, attorneys deliver their closing arguments—an impassioned summation of their case, urging the adjudicator to see the merits of their position. Now a theater of persuasion, the courtroom awaits the final act—the pronouncement of judgment.

The Verdict: A Pivotal Moment

The court hearing culminates in the pronouncement of a verdict—a pivotal moment that determines the course of justice. Guilt or innocence, liability or innocence, are distilled into the judge’s or jury’s decision, bringing closure to the legal saga.

Beyond the Courtroom: Enforcement and Appeals

However, the echoes of a court hearing reverberate beyond the courtroom doors. Verdicts must be enforced, and in some cases, the legal drama may extend to appellate courts , where decisions undergo scrutiny at a higher echelon of the judicial hierarchy.

The Role Of Evidence In Court Hearings 

In the riveting realm of court hearings, evidence stands as the cornerstone upon which justice is built. Its role is nothing short of pivotal, weaving through the legal narrative like a guiding thread that either strengthens or weakens the case presented. Let’s explore the multifaceted role of evidence in court hearings, unraveling the nuances and significance that shape the very foundation of our judicial system.

The Essence of Evidence:

At its core, evidence serves as the factual basis upon which legal decisions are made. It is the means by which parties substantiate their claims or defenses, transforming mere allegations into verifiable truths. Evidence takes myriad forms in the courtroom – from documents and witness testimonies to tangible objects and expert opinions. Each piece contributes to the intricate mosaic of information that the court considers in its pursuit of a just resolution.

The Burden of Proof:

In the legal arena, the burden of proof is a critical concept. It places the responsibility on the party making a claim to substantiate it with credible evidence. The prosecution in a criminal case or the plaintiff in a civil suit must convince the court, through a preponderance of the evidence or beyond a reasonable doubt, that their version of events is accurate. Failure to meet this burden can tip the scales in favor of the opposing party.

Admissibility and Exclusion:

Not all evidence is created equal; its admissibility hinges on adherence to strict rules . Courts carefully assess whether evidence is relevant, reliable, and obtained legally. Hearsay, for instance, often finds itself on the chopping block as it involves relaying statements made by someone other than the witness testifying. Understanding the rules governing evidence is paramount for legal practitioners seeking to present a compelling case.

The Impact of Technology:

In the digital age, technology has reshaped the landscape of evidence presentation. Digital evidence , ranging from surveillance footage to social media posts, has become increasingly prevalent. Courts grapple with the challenges of ensuring the authenticity and integrity of such evidence, ushering in a new era where legal professionals must navigate the complexities of electronic data.

Challenges and Controversies:

Despite its central role, evidence is not immune to controversy. The courtroom is a battleground where skilled attorneys engage in fierce battles over the admissibility of evidence, attempting to sway the court in their favor. Issues of witness credibility, the reliability of scientific evidence, and the fine line between relevant and prejudicial information add layers of complexity to the legal tapestry.

Conclusion:

In the grand theater of a court hearing, evidence takes center stage, wielding the power to shape destinies. Its role transcends the mundane; it is the essence of justice, a force that demands scrutiny, respect, and a nuanced understanding. As we navigate the intricate dance of legal proceedings, let us not underestimate the profound impact of evidence – the silent protagonist that guides the scales of justice toward their delicate balance.

What are the rules for admitting evidence in court?

Evidence must adhere to strict rules of admissibility, ensuring it is both relevant and reliable. Courts assess factors such as authenticity, legality of acquisition, and adherence to hearsay rules. Legal practitioners must navigate these rules to present a compelling case.

How has technology impacted the presentation of evidence?

Technology has reshaped evidence presentation, introducing digital evidence from surveillance footage to social media posts. Courts grapple with ensuring the authenticity and integrity of electronic data, presenting new challenges for legal professionals in navigating these complexities.

What challenges and controversies surround the admissibility of evidence?

The courtroom is a battleground for legal professionals, engaging in battles over evidence admissibility. Challenges include issues of witness credibility, reliability of scientific evidence, and determining the fine line between relevant and prejudicial information.

How does the court ensure a fair hearing while considering evidence?

The court ensures a fair hearing by impartially applying rules of evidence, ruling on objections, and guiding the proceedings. The judge plays a crucial role as a legal arbiter, interpreting the law and ensuring a just resolution based on the presented evidence.

What happens after a court hearing, and a verdict is pronounced?

After a court hearing, the legal saga may extend beyond the courtroom. Verdicts must be enforced, and in some cases, decisions may undergo scrutiny in appellate courts at a higher level of the judicial hierarchy.

Oluwatukesi Joseph is a Content Writer at LOBF. He holds a Master’s Degree from Obafemi Awolowo University in Architecture, However, his love for writing and content creation has transitioned him into the writing and content marketing field. He has gained relevant certification from other notable Universities where he developed a strong foundation in content marketing and writing. Outside of work, Joseph enjoys spending quality time with friends and family and playing chess, which he finds often complements his professional pursuits. Joseph is excited to be part of the dynamic team at The Law Office of Bryan Fagan, contributing his expertise to spreading the good news of LOBF to Families across Texas.

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The Legal Concept of Evidence

The legal concept of evidence is neither static nor universal. Medieval understandings of evidence in the age of trial by ordeal would be quite alien to modern sensibilities (Ho 2003–2004) and there is no approach to evidence and proof that is shared by all legal systems of the world today. Even within Western legal traditions, there are significant differences between Anglo-American law and Continental European law (see Damaška 1973, 1975, 1992, 1994, 1997). This entry focuses on the modern concept of evidence that operates in the legal tradition to which Anglo-American law belongs. [ 1 ] It concentrates on evidence in relation to the proof of factual claims in law. [ 2 ]

It may seem obvious that there must be a legal concept of evidence that is distinguishable from the ordinary concept of evidence. After all, there are in law many special rules on what can or cannot be introduced as evidence in court, on how evidence is to be presented and the uses to which it may be put, on the strength or sufficiency of evidence needed to establish proof and so forth. But the law remains silent on some crucial matters. In resolving the factual disputes before the court, the jury or, at a bench trial, the judge has to rely on extra-legal principles. There have been academic attempts at systematic analysis of the operation of these principles in legal fact-finding (Wigmore 1937; Anderson, Schum, and Twining 2009). These principles, so it is claimed, are of a general nature. On the basis that the logic in “drawing inferences from evidence to test hypotheses and justify conclusions” is governed by the same principles across different disciplines (Twining and Hampsher-Monk 2003: 4), ambitious projects have been undertaken to develop a cross-disciplinary framework for the analysis of evidence (Schum 1994) and to construct an interdisciplinary “integrated science of evidence” (Dawid, Twining, and Vasilaki 2011; cf. Tillers 2008).

While evidential reasoning in law and in other contexts may share certain characteristics, there nevertheless remain aspects of the approach to evidence and proof that are distinctive to law (Rescher and Joynt 1959). Section 1 (“conceptions of evidence”) identifies different meanings of evidence in legal discourse. When lawyers talk about evidence, what is it that they are referring to? What is it that they have in mind? Section 2 (“conditions for receiving evidence”) approaches the concept of legal evidence from the angle of what counts as evidence in law. What are the conditions that the law imposes and must be met for something to be received by the court as evidence? Section 3 (“strength of evidence”) shifts the attention to the stage where the evidence has already been received by the court. Here the focus is on how the court weighs the evidence in reaching the verdict. In this connection, three properties of evidence will be discussed: probative value, sufficiency, and degree of completeness.

1. Conceptions of Evidence: What does Evidence Refer to in Law?

2.1.1 legal significance of relevance, 2.1.2 conceptions of logical relevance, 2.1.3 logical relevance versus legal relevance, 2.2 materiality and facts-in-issue, 2.3.1 admissibility and relevance, 2.3.2 admissibility or exclusionary rules, 3.1 probative value of specific items of evidence, 3.2.1 mathematical probability and the standards of proof, 3.2.2 objections to using mathematical probability to interpret standards of proof, 3.3 the weight of evidence as the degree of evidential completeness, other internet resources, related entries.

Stephen (1872: 3–4, 6–7) long ago noted that legal usage of the term “evidence” is ambiguous. It sometimes refers to that which is adduced by a party at the trial as a means of establishing factual claims. (“Adducing evidence” is the legal term for presenting or producing evidence in court for the purpose of establishing proof.) This meaning of evidence is reflected in the definitional section of the Indian Evidence Act (Stephen 1872: 149). [ 3 ] When lawyers use the term “evidence” in this way, they have in mind what epistemologists would think of as “objects of sensory evidence” (Haack 2004: 48). Evidence, in this sense, is divided conventionally into three main categories: [ 4 ] oral evidence (the testimony given in court by witnesses), documentary evidence (documents produced for inspection by the court), and “real evidence”; the first two are self-explanatory and the third captures things other than documents such as a knife allegedly used in committing a crime.

The term “evidence” can, secondly, refer to a proposition of fact that is established by evidence in the first sense. [ 5 ] This is sometimes called an “evidential fact”. That the accused was at or about the scene of the crime at the relevant time is evidence in the second sense of his possible involvement in the crime. But the accused’s presence must be proved by producing evidence in the first sense. For instance, the prosecution may call a witness to appear before the court and get him to testify that he saw the accused in the vicinity of the crime at the relevant time. Success in proving the presence of the accused (the evidential fact) will depend on the fact-finder’s assessment of the veracity of the witness and the reliability of his testimony. (The fact-finder is the person or body responsible for ascertaining where the truth lies on disputed questions of fact and in whom the power to decide on the verdict vests. The fact-finder is also called “trier of fact” or “judge of fact”. Fact-finding is the task of the jury or, for certain types of cases and in countries without a jury system, the judge.) Sometimes the evidential fact is directly accessible to the fact-finder. If the alleged knife used in committing the crime in question (a form of “real evidence”) is produced in court, the fact-finder can see for himself the shape of the knife; he does not need to learn of it through the testimony of an intermediary.

A third conception of evidence is an elaboration or extension of the second. On this conception, evidence is relational. A factual proposition (in Latin, factum probans ) is evidence in the third sense only if it can serve as a premise for drawing an inference (directly or indirectly) to a matter that is material to the case ( factum probandum ) (see section 2.2 below for the concept of materiality). The fact that the accused’s fingerprints were found in a room where something was stolen is evidence in the present sense because one can infer from this that he was in the room, and his presence in the room is evidence of his possible involvement in the theft. On the other hand, the fact that the accused’s favorite color is blue would, in the absence of highly unusual circumstances, be rejected as evidence of his guilt: ordinarily, what a person’s favorite color happens to be cannot serve as a premise for any reasonable inference towards his commission of a crime and, as such, it is irrelevant (see discussion of relevance in section 2.1 below). In the third sense of “evidence”, which conceives of evidence as a premise for a material inference, “irrelevant evidence” is an oxymoron: it is simply not evidence. Hence, this statement of Bentham (1825: 230): [ 6 ]

To say that testimony is not pertinent, is to say that it is foreign to the case, has no connection with it, and does not serve to prove the fact in question; in a word, it is to say, that it is not evidence.

There can be evidence in the first sense without evidence in the second or third sense. To pursue our illustration, suppose it emerges during cross-examination of the expert that his testimony of having found a finger-print match was a lie. Lawyers would describe this situation as one where the “evidence” (the testimony of the expert) fails to prove the fact that it was originally produced to prove and not that no “evidence” was adduced on the matter. Here “evidence” is used in the first sense—evidence as testimony—and the testimony remains in the court’s record whether it is believed or not. But lawyers would also say that, in the circumstances, there is no “evidence” that the accused was in the room, assuming that there was nothing apart from the discredited expert testimony of a fingerprint match to establish his presence there. Here, the expert’s testimony is shown to be false and fails to establish that the accused’s fingerprints were found in the room, and there is no (other) factual basis for believing that he was in the room. The factual premise from which an inference is sought to be drawn towards the accused’s guilt is not established.

Fourthly, the conditions for something to be received (or, in technical term “admitted”) as evidence at the trial are sometimes included in the legal concept of evidence. (These conditions are discussed in section 2 below.) On this conception, legal evidence is that which counts as evidence in law. Something may ordinarily be treated as evidence and yet be rejected by the court. Hearsay is often cited as an example. It is pointed out that reliance on hearsay is a commonplace in ordinary life. We frequently rely on hearsay in forming our factual beliefs. In contrast, “hearsay is not evidence” in legal proceedings (Stephen 1872: 4–5). As a general rule, the court will not rely on hearsay as a premise for an inference towards the truth of what is asserted. It will not allow a witness to testify in court that another person X (who is not brought before the court) said that p on a certain occasion (an out-of-court statement) for the purpose of proving that p .

In summary, at least four possible conceptions of legal evidence are in currency: as an object of sensory evidence, as a proposition of fact, as an inferential premise and as that which counts as evidence in law. The sense in which the term “evidence” is being used is seldom made explicit in legal discourse although the intended meaning will often be clear from the context.

2. Conditions for Receiving Evidence: What Counts as Evidence in Law?

This section picks up on the fourth conception of evidence. To recall, something will be accepted by the court as evidence—it is, to use Montrose’s term, receivable as evidence in legal proceedings—only if three basic conditions are satisfied: relevance , materiality, and admissibility (Montrose 1954). These three conditions of receivability are discussed in turn below.

2.1 Relevance

The concept of relevance plays a pivotal role in legal fact-finding. Thayer (1898: 266, 530) articulates its significance in terms of two foundational principles of the law of evidence: first, without exception, nothing which is not relevant may be received as evidence by the court and secondly, subject to many exceptions and qualifications, whatever is relevant is receivable as evidence by the court. Thayer’s view has been influential and finds expression in sources of law, for example, in Rule 402 of the Federal Rules of Evidence in the United States. [ 7 ] Thayer claims, and it is now widely accepted, that relevance is a “logical” and not a legal concept; in section 2.1.3 , we will examine this claim and the dissent expressed by Wigmore. Leaving aside the dissenting view for the moment, we will turn first to consider possible conceptions of relevance in the conventional sense of logical relevance.

Evidence may be adduced in legal proceedings to prove a fact only if the fact is relevant. Relevance is a relational concept. No fact is relevant in itself; it is relevant only in relation to another fact. The term “probable” is often used to describe this relation. We see two instances of this in the following well-known definitions. According to Stephen (1886: 2, emphasis added):

The word “relevant” means that any two facts to which it is applied are so related to each other that according to the common course of events one either taken by itself or in connection with other facts proves or renders probable the past, present, or future existence or non-existence of the other.

The second definition is contained in the United States’ Federal Rule of Evidence 401 which (in its restyled version) states that evidence is relevant if “it has a tendency to make a fact more or less probable than it would be without the evidence” (emphasis added). The word “probable” in these and other standard definitions is sometimes construed as carrying the mathematical meaning of probability. [ 8 ] In a leading article, Lempert gave this example to show how relevance turns on the likelihood ratio. The prosecution produces evidence that the perpetrator’s blood found at the scene of the crime is type A. The accused has the same blood type. Suppose fifty percent of the suspect population has type A blood. If the accused is in fact guilty, the probability that the blood found at the scene will be type A is 1.0. But if he is in fact innocent, the probability of finding type A blood at the scene is 0.5—that is, it matches the background probability of type A blood from the suspect population. The likelihood ratio is the ratio of the first probability to the second—1.0:0.5 or, more simply, 2:1. Evidence is considered relevant so long as the likelihood ratio is other than 1:1 (Lempert 1977). If the ratio is 1:1, that means that the probability of the evidence is the same whether the accused is guilty or innocent.

The conventional view is that relevance in law is a binary concept: evidence is either relevant or it is not. So long as the likelihood ratio is other than 1:1, the evidence is considered relevant. [ 9 ] However, the greater the likelihood ratio deviates from 1:1, the higher the so-called probative value of the evidence (that is, on one interpretation of probative value). We will take a closer look at probative value in section 3.1 below.

While the likelihood ratio may be useful as a heuristic device in analysing evidential reasoning, it is controversial as to whether it captures correctly the concept of relevance. In the first place, it is unclear that the term “probable” in the standard definitions of relevance was ever intended as a reference to mathematical probability. Some have argued that relevance should be understood broadly such that any evidence would count as relevant so long as it provides some reason in support of the conclusion that a proposition of fact material to the case is true or false (Pardo 2013: 576–577).

The mathematical conception of relevance has been disputed. At a trial, it is very common for the opposing sides to present competing accounts of events that share certain features. To use Allen’s example, the fact that the accused drove to a particular town on a particular day and time is consistent with the prosecution’s case that he was driving there to commit a murder and also with the defence’s case that he was driving there to visit his mother. This fact, being a common feature of both sides’ explanations of the material events, is as consistent with the hypothesis of guilt as with the hypothesis of innocence. On the likelihood ratio conception of relevance, this fact should be irrelevant and hence evidence of it should not be allowed to be adduced. But in such cases, the court will let the evidence in (Park et al. 2010: 10). The mathematical theory of relevance cannot account for this. (For critical discussion of this claim, see section 4.2 of the entry on legal probabilism .) It is argued that an alternative theory of relevance better fits legal practice and is thus to be preferred. On an explanatory conception of relevance, evidence is relevant if it is explained by or provides a reason for believing the particular explanation of the material events offered by the side adducing the evidence, and it remains relevant even where, as in our example, the evidence also supports or forms part of the explanation offered by the opponent (Pardo and Allen 2008: 241–2; Pardo 2013: 600).

One possible response to the above challenge to the likelihood ratio theory of relevance is to deny that it was ever meant to be the exclusive test of relevance. Evidence is relevant if the likelihood ratio is other than 1:1. But evidence may also be relevant on other grounds, such as when it provides for a richer narrative or helps the court in understanding other evidence. It is for these reasons that witnesses are routinely allowed to give their names and parties may present diagrams, charts and floor plans (so-called “demonstrative evidence”) at the trial (McCormick 2013: 995). The admission of evidence in the scenario painted by Allen above has been explained along a similar line (Park et al. 2010: 16).

The concept of relevance examined in the preceding section is commonly known as “logical relevance”. This is somewhat of a misnomer: “Relevance is not a matter of logic, but depends on matters of fact” (Haack 2004: 46). In our earlier example, the relevance of the fact that the accused has type A blood depends obviously on the state of the world. On the understanding that relevance is a probabilistic relation, it is tempting to think that in describing relevance as “logical”, one is subscribing to a logical theory of probability (cf. Franklin 2011). However, the term “logical relevance” was not originally coined with this connotation in mind. In the forensic context, “logic” is used loosely and refers to the stock of background beliefs or generalisations and the type of reasoning that judges and lawyers are fond of labelling as “commonsense” (MacCrimmon 2001–2002; Twining 2006: 334–335).

A key purpose of using the adjective “logical” is to flag the non-legal character of relevance. As Thayer (1898: 269) famously claimed, relevance “is an affair of logic and not of law.” This is not to say that relevance has no legal dimension. The law distinguishes between questions of law and questions of fact. An issue of relevance poses a question of law that is for the judge to decide and not the jury, and so far as relevance is defined in legal sources (for example, in Federal Rule of Evidence 401 mentioned above), the judge must pay heed to the legal definition. But legal definitions of relevance are invariably very broad. Relevance is said to be a logical, and non-legal, concept in the sense that in answering a question of relevance and in applying the definition of relevance, the judge has necessarily to rely on extra-legal resources and is not bound by legal precedents. Returning to Federal Rule of Evidence 401, it states generally that evidence is relevant if “it has a tendency to make a fact more or less probable than it would be without the evidence”. In deciding whether the evidence sought to be adduced does have this tendency, the judge has to look outside the law. Thayer was most insistent on this. As he put it, “[t]he law furnishes no test of relevancy. For this, it tacitly refers to logic and general experience” (Thayer 1898: 265). That the accused’s favorite color is blue is, barring extraordinary circumstances, irrelevant to the question of his intention to commit theft. It is not the law that tells us so but “logic and general experience”. On Thayer’s view, the law does not control or regulate the assessment of relevance; it assumes that judges are already in possession of the (commonsense) resources to undertake this assessment.

Wigmore adopts a different position. He argues, against Thayer, that relevance is a legal concept. There are two strands to his contention. The first is that for evidence to be relevant in law, “a generally higher degree of probative value” is required “than would be asked in ordinary reasoning”:

legal relevance denotes…something more than a minimum of probative value. Each single piece of evidence must have a plus value. (cf. Pattenden 1996–7: 373)

As Wigmore sees it, the requirement of “plus value” guards against the jury “being satisfied by matters of slight value, capable to being exaggerated by prejudice and hasty reasoning” (Wigmore 1983b: 969, cf. 1030–1031). Opponents of Wigmore acknowledge that there may be sound policy reasons for excluding evidence of low probative value. Receiving the evidence at the trial might raise a multiplicity of issues, incur too much time and expense, confuse the jurors or produce undue prejudice in their mind. When the judge excludes evidence for any of these reasons, and the judge has the discretion to do so in many countries, the evidence is excluded despite it being relevant (e.g., United States’ Federal Rule of Evidence 403). Relevance is a relation between facts and the aforesaid reasons for exclusion are extrinsic to that relation; they are grounded in considerations such as limitation of judicial resources and jury psychology. The notion of “plus value” confuses relevance with extraneous considerations (James 1941; Trautman 1952).

There is a second strand to Wigmore’s contention that relevance is a legal concept. Relevance is legal in the sense that the judge is bound by previously decided cases (“judicial precedents”) when he has to make a ruling on the relevance of a proposed item of evidence.

So long as Courts continue to declare…what their notions of logic are, just so long will there be rules of law which must be observed. (Wigmore 1983a: 691)

Wigmore cites in support the judgment of Cushing C.J. in State v LaPage where it was remarked:

[T]here are many instances in which the evidence of particular facts as bearing on particular issues has been so often the subject of discussion in courts of law, and so often ruled upon, that the united logic of a great many judges and lawyers may be said to furnish…the best evidence of what may be properly called common -sense, and thus to acquire the authority of law. (1876 57 N.H. 245 at 288 [Supreme Court, New Hampshire])

Wigmore’s position on relevance is strangely at odds with his strong stand against the judge being bound by judicial precedents in assessing the weight or credibility of evidence (Wigmore 1913). More importantly, the second strand of his argument also does not sit well with the first strand. If, as Wigmore contends, evidence must have a plus value to make it legally relevant, the court has to consider the probative value of the evidence and to weigh it against the amount of time and expense likely to be incurred in receiving the evidence, the availability of other evidence, the risk of the evidence misleading or confusing the trier of fact and so forth. Given that the assessment of plus value and, hence, legal relevance is so heavily contextual, it is difficult to see how a judicial precedent can be of much value in another case in determining a point of legal relevance (James 1941: 702).

We have just considered the first condition of receivability, namely, relevance. That fact A is relevant to fact B is not sufficient to make evidence of fact A receivable in court. In addition, B must be a “material” fact. The materiality of facts in a particular case is determined by the law applicable to that case. In a criminal prosecution, it depends on the law which defines the offence with which the accused is charged and at a civil trial, the law which sets out the elements of the legal claim that is being brought against the defendant (Wigmore 1983a, 15–19; Montrose 1954: 536–537).

Imagine that the accused is prosecuted for the crime of rape and the alleged victim’s behaviour (fact A ) increases the probability that she had consented to have sexual intercourse with the accused (fact B ). On the probabilistic theory of relevance that we have considered, A is relevant to B . Now suppose that the alleged victim is a minor. Under criminal law, it does not matter whether she had consented to the sexual intercourse. If B is of no legal consequence, the court will not allow evidence of A to be adduced for the purpose of proving B : the most obvious reason is that it is a waste of time to receive the evidence.

Not all material facts are necessarily in dispute. Suppose the plaintiff sues the defendant for breach of contract. Under the law of contract, to succeed in this action, the plaintiff must prove the following three elements: that there was a contract between the parties, that the defendant was in breach of the contract, and that the plaintiff had suffered loss as a result of that breach. The defendant may concede that there was a contract and that he was in breach of it but deny that the plaintiff had suffered any loss as a result of that breach. In such a situation, only the last of the material facts is disputed. Following Stephen’s terminology, a disputed material fact is called a “fact in issue” (Stephen 1872: 9).

The law does not allow evidence to be adduced to prove facts that are immaterial. Whether evidence may be adduced to prove a material fact may depend on whether the material fact is disputed; for instance, the requirement that it must be disputed exists under Rule 210 of the Evidence Code of California but not Rule 401 of the Federal Rules of Evidence in the United States. “Relevance” is often used in the broader sense that encompasses the concepts under discussion. Evidence is sometimes described as “irrelevant” not for the reason that no logical inference can be drawn to the proposition that is sought to be proved (in our example, A is strictly speaking relevant to B ) but because that proposition is not material or not disputed (in our example, B is not material). [ 10 ] This broader usage of the term “relevance”, though otherwise quite harmless, does not promote conceptual clarity because it runs together different concepts (see James 1941: 690–691; Trautman 1952: 386; Montrose 1954: 537).

2.3 Admissibility

A further condition must be satisfied for evidence to be received in legal proceedings. There are legal rules that prohibit evidence from being presented at a trial even though it is relevant to a factual proposition that is material and in issue. These rules render the evidence to which they apply “inadmissible” and require the judge to “exclude” it. Two prominent examples of such rules of admissibility or rules of exclusion are the rule against hearsay evidence and the rule against character evidence. This section considers the relation between the concept of relevance and the concept of admissibility. The next section ( section 2.3.2 ) discusses general arguments for and against exclusionary or admissibility rules.

Here, again, the terminology is imprecise. Admissibility and receivability are not clearly distinguished. It is common for irrelevant evidence, or evidence of an immaterial fact to be described as “inadmissible”. What this means is that the court will refuse to receive evidence if it is irrelevant or immaterial. But, importantly, the court also excludes evidence for reasons other than irrelevance and immateriality. For Montrose, there is merit in restricting the concept of “inadmissibility” to the exclusion of evidence based on those other reasons (Montrose 1954: 541–543). If evidence is rejected on the ground of irrelevance, it is, as Thayer (1898: 515) puts it, “the rule of reason that rejects it”; if evidence is rejected under an admissibility or exclusionary rule, the rejection is by force of law. The concepts of admissibility and materiality should also be kept apart. This is because admissibility or exclusionary rules serve purposes and rationales that are distinct from the law defining the crime or civil claim that is before the court and it is this law that determines the materiality of facts in the dispute.

Thayer (1898: 266, 530) was influential in his view that the law of evidence has no say on logical relevance and that its main business is in dealing with admissibility. If the evidence is logically irrelevant, it must for that reason be excluded. If the evidence is logically relevant, it will be received by the court unless the law—in the form of an exclusionary or admissibility rule—requires its exclusion. In this scheme, the concept of relevance and the concept of admissibility are distinct: indeed, admissibility rules presuppose the relevance of the evidence to which they apply.

Stephen appears to hold a different view, one in which the concept of admissibility is apparently absorbed by the concept of relevance. Take, for example, Stephen’s analysis of the rule that in general no evidence may be adduced to prove “statements as to facts made by persons not called as witnesses”, in short, hearsay (Stephen 1872: 122). As a general rule, no evidence may be given of hearsay because the law prohibits it. The question then arises as to the rationale for this prohibition. Stephen’s answer to this question is often taken to be that hearsay is not “relevant” and he is criticised for failing to see the difference between relevance and admissibility (Whitworth 1881: 3; Thayer 1898: 266–268; Pollock 1876, 1899; Wigmore 1983a: §12). His critics point out that hearsay has or can have probative value and evidence of hearsay is excluded despite or regardless of its relevance. On the generalisation that there is no smoke without fire, the fact that a person claimed that p in a statement made out-of-court does or can have a bearing on the probability that p , and p may be (logically relevant to) a material fact in the dispute.

Interestingly, Stephen seemed to have conceded as much. He acknowledged that a policeman or a lawyer engaged in preparing a case would be negligent if he were to shut his ears to hearsay. Hearsay is one of those facts that are “apparently relevant but not really so” (Stephen 1872: 122; see also Stephen 1886: xi). In claiming that hearsay is irrelevant, Stephen appears to be merely stating the effect of the law: the law requires that hearsay be treated as irrelevant. He offered a variety of justifications for excluding hearsay evidence: its admissibility would “present a great temptation to indolent judges to be satisfied with second-hand reports” and “open a wide door to fraud”, with the result that “[e]veryone would be at the mercy of people who might tell a lie, and whose evidence could neither be tested nor contradicted” (Stephen 1872: 124–125). For his detractors, these are reasons of policy and fairness and it disserves clarity to sneak such considerations into the concept of relevance.

Although there is force to the criticism that Stephen had unhelpfully conflated admissibility and relevance (understood as logical relevance), something can perhaps be said in his defence. Exclusionary rules or rules of admissibility—at any rate, many of them—are more accurately seen as excluding forms of reasoning rather than prohibiting proof of certain types of facts (McNamara 1986). This is certainly true of the hearsay rule. On one authoritative definition of the rule (decision of the Privy Council in Subramaniam v PP , (1956) 1 Weekly Law Reports 965), what it prohibits is the use of a hearsay statement to prove the truth of the facts asserted therein. [ 11 ] The objection is to the drawing of the inference that p from X ’s out-of-court statement that p where X is not available to be examined in court. But the court will allow the evidence of X ’s hearsay statement to be admitted—it will allow proof of the statement— where the purpose of adducing the evidence is to persuade the court that X did make the statement and this fact is relevant for some other purpose. For instance, it may be relevant as to the state of mind of the person hearing the statement, and his state of mind may be material to his defence of having acted under duress. Hence, two writers have commented that “there is no such thing as hearsay evidence , only hearsay uses ” (Roberts and Zuckerman 2010: 385).

Other admissibility rules are also more accurately seen as targeted at forms of reasoning and not types of facts. In the United States, Federal Rule of Evidence 404(a)(1) bars the use of evidence of a person’s character “to prove that on a particular occasion the person acted in accordance with the character” and Federal Rule of Evidence 404(b)(1) provides that evidence of a crime or wrong

is not admissible to prove a person’s character in order to show that on a particular occasion the person acted in accordance with the character.

It is doubtful that evidence of a person’s character and past behaviour can have no probabilistic bearing on his behaviour on a particular occasion; on a probabilistic conception of relevance, it is difficult to see why the evidence is not relevant. Even so, there may be policy, moral or other reasons for the law to prohibit certain uses of character evidence. In declaring a fact as irrelevant for a particular purpose, we are not necessarily saying or implying anything about probability. We may be expressing a normative judgment. For policy, moral or other reasons, the law takes the position that hearsay or the accused’s character or previous misconduct must not be used as the premise for a particular line of reasoning. The line of reasoning might be morally objectionable (“give a dog a bad name and hang him for it”) or it might be unfair to permit the drawing of the inference when the opponent was not given a fair opportunity to challenge it (as in the hearsay situation) (Ho 2008: chs. 5, 6). If we take a normative conception of relevance instead of a logical or probabilistic one, it is not an abuse of language to describe inadmissible evidence as irrelevant if what is meant is that the evidence ought not to be taken into account in a certain way.

On one historical account, admissibility or exclusionary rules are the product of the jury system where citizens untrained in assessing evidence sit as judges of fact. These rules came about because it was thought necessary to keep away from inexperienced jurors certain types of evidence that may mislead or be mishandled by them—for instance, evidence to which they are likely to give too much weight or that carries the risk of creating unfair prejudice in their minds (Thayer 1898; Wigmore 1935: 4–5). Epistemic paternalism is supposedly at play (Leiter 1997: 814–5; Allen and Leiter 2001: 1502). Subscription to this theory has generated pressure for the abolition of exclusionary rules with the decline of the jury system and the replacement of lay persons with professional judges as triers of fact. There is doubt as to the historical accuracy of this account; at any rate, it does not appear capable of explaining the growth of all exclusionary rules (Morgan 1936–37; Nance 1988: 278–294).

Even if the theory is right, it does not necessarily follow that exclusionary rules should be abolished once the jury system is removed. Judges may be as susceptible to the same cognitive and other failings as the jury and there may be the additional risk that judges may over-estimate their own cognitive and intellectual abilities in their professional domain. Hence, there remains a need for the constraints of legal rules (Schauer 2006: 185–193). But the efficacy of these rules in a non-jury system is questionable. The procedural reality is that judges will have to be exposed to the evidence in order to decide on its admissibility. Since a judge cannot realistically be expected to erase the evidence from his mind once he has decided to exclude it, there seems little point in excluding the evidence; we might as well let the evidence in and allow judge to give the evidence the probative value that it deserves (Mnookin 2006; Damaška 2006; cf. Ho 2008: 44–46).

Bentham was a strong critic of exclusionary rules. He was much in favour of “freedom of proof” understood as free access to information and the absence of formal rules that restrict such access (Twining 2006: 232, n 65). The direct object of legal procedure is the “rectitude of decision”, by which he means the correct application of substantive law to true findings of facts. The exclusion of relevant evidence—evidence capable of casting light on the truth—is detrimental to this end. Hence, no relevant evidence should be excluded; the only exceptions he would allow are where the evidence is superfluous or its production would involve preponderant delay, expense or vexation (Bentham 1827: Book IX; Bentham 1825: Book VII; Twining 1985: ch. 2). Bentham’s argument has been challenged on various fronts. It is said that he overvalued the pursuit of truth, undervalued procedural fairness and procedural rights, and placed too much faith in officials, underestimating the risk of abuse when they are given discretion unfettered by rules (Twining 1985: 70–71).

Even if we agree with Bentham that rectitude of decision is the aim of legal procedure and that achieving accuracy in fact-finding is necessary to attain this aim, it is not obvious that a rule-based approach to admissibility will undermine this aim in the long run. Schauer has defended exclusionary rules of evidence along a rule-consequentialist line. Having the triers of fact follow rules on certain matters instead of allowing them the discretion to exercise judgment on a case-by-case basis may produce the greatest number of favourable outcomes in the aggregate. It is in the nature of a formal rule that it has to be followed even when doing so might not serve the background reason for the rule. If hearsay evidence is thought to be generally unreliable, the interest of accuracy may be better served overall to require such evidence to be excluded without regard to its reliability in individual cases. Given the imperfection of human reason and our suspicion about the reasoning ability of the fact-finder, allowing decisions to be taken individually on the reliability and admissibility of hearsay evidence might over time produce a larger proportion of misjudgements than on the rule-based approach (Schauer 2006: 180–185; Schauer 2008). However, this argument is based on a large assumption about the likely effects of having exclusionary rules and not having them, and there is no strong empirical basis for thinking that the consequences are or will be as alleged (Goldman 1999: 292–295; Laudan 2006: 121–122).

Other supporters of exclusionary rules build their arguments on a wide range of different considerations. The literature is too vast to enter into details. Here is a brief mention of some arguments. On one theory, some exclusionary rules are devices that serve as incentives for lawyers to produce the epistemically best evidence that is reasonably available (Nance 1988, 2016: 195–201). For example, if lawyers are not allowed to rely on second-hand (hearsay) evidence, they will be forced to seek out better (first-hand) evidence. On another theory, exclusionary rules allocate the risks of error. Again, consider hearsay. The problem with allowing a party to rely on hearsay evidence is that the opponent has no opportunity to cross-examine the original maker of the statement and is thus deprived of an important means of attacking the reliability of the evidence. Exclusionary rules in general insulate the party against whom the evidence is sought to be adduced from the risks of error that the evidence, if admitted, would have introduced. The distribution of such risks is said to be a political decision that should not be left to the discretion of individual fact-finders (Stein 2005; cf. Redmayne 2006 and Nance 2007a: 154–164). It has also been argued that the hearsay rule and the accompanying right to confront witnesses promote the public acceptance and stability of legal verdicts. If the court relies on direct evidence, it can claim superior access to the facts (having heard from the horse’s mouth, so to speak) and this also reduces the risk of new information emerging after the trial to discredit the inference that was drawn from the hearsay evidence (the original maker of the statement might turn up after the trial to deny the truth of the statement that was attributed to him) (Nesson 1985: 1372–1375; cf. Park 1986; Goldman 1999: 282; Goldman 2005: 166–167).

3. Strength of Evidence

The decision whether to allow a party to adduce a particular item of evidence is one that the judge has to make and arises in the course of a trial. Section 2 above dealt with the conditions that must be satisfied for a witness’s testimony, a document or an object to be received as evidence. At the end of the trial, the fact-finder must consider all the evidence that has been presented and reach a verdict. Although verdict deliberation is sometimes subjected to various forms of control through legal devices such as presumptions and corroboration rules, such control is limited and the fact-finder is expected to exercise personal judgment in the evaluation of evidence (Damaška 2019). Having heard or seen the evidence, the fact-finder now has to evaluate or ‘weigh’ it in reaching the verdict. Weight can refer to any of the following three properties of evidence: (a) the probative value of individual items of evidence, (b) the sufficiency of the whole body of evidence adduced at the trial in meeting the standard of proof, or (c) the relative completeness of this body of evidence. The first two aspects of weight are familiar to legal practitioners but the third has been confined to academic discussions. These three ideas are discussed in the same order below.

In reaching the verdict, the trier of fact has to assess the probative value of the individual items of evidence which have been received at the trial. The concept of probative value can also play a role at the prior stage (which was the focus in section 2 ) where the judge has to make a ruling on whether to receive the evidence in the first place. In many legal systems, if the judge finds the probative value of a proposed item of evidence to be low and substantially outweighed by countervailing considerations, such as the risk of causing unfair prejudice or confusion, the judge can refuse to let the jury hear or see the evidence (see, e.g., Rule 403 of the United States’ Federal Rules of Evidence).

The concept of probative value (or, as it is also called, probative force) is related to the concept of relevance. Section 2.1.2 above introduced and examined the claim that the likelihood ratio is the measure of relevance. To recapitulate, the likelihood of an item of evidence, E (in our previous example, the likelihood of a blood type match) given a hypothesis H (that the accused is in fact guilty) is compared with the likelihood of E given the negation of H (that the accused is in fact innocent). Prior to the introduction of E , one may have formed some belief about H based on other evidence that one already has. This prior belief does not affect the likelihood ratio since its computation is based on the alternative assumptions that H is true and that H is false (Kaye 1986a; Kaye and Koehler 2003; cf. Davis and Follette 2002 and 2003). Rulings on relevance are made by the judge when objections of irrelevance are raised in the course of the trial. The relevance of an item of evidence is supposedly assessed on its own, without consideration of other evidence, and, indeed, much of the other evidence may have yet to presented at the point when the judge rules on the relevance of a particular item of evidence (Mnookin 2013: 1544–5). [ 12 ]

Probative value, as with relevance, has been explained in terms of the likelihood ratio (for detailed examples, see Nance and Morris 2002; Finkelstein and Levin 2003). It was noted earlier that evidence is either relevant or not, and, on the prevailing understanding, it is relevant so long as the likelihood ratio deviates from 1:1. But evidence can be more or less probative depending on the value of the likelihood ratio. In our earlier example, the probative value of a blood type match was 1.0:0.5 (or 2:1) as 50% of the suspect population had the same blood type as the accused. But suppose the blood type is less common and only 25% of the suspect population has it. The probative value of the evidence is now 1.0:0.25 (or 4:1). In both cases, the evidence is relevant; but the probative value is greater in the latter than in the former scenario. It is tempting to describe probative value as the degree of relevance but this would be misleading as relevance in law is a binary concept.

There is a second way of thinking about probative value. On the second view, but not on the first, the probative value of an item of evidence is assessed contextually. The probative value of E may be low given one state of the other evidence and substantial given a different body of other evidence (Friedman 1986; Friedman and Park 2003; cf. Davis and Follette 2002, 2003). Where the other evidence shows that a woman had died from falling down an escalator at a mall while she was out shopping, her husband’s history of spousal battery is unlikely to have any probative value in proving that he was responsible for her death. But where the other evidence shows that the wife had died of injuries in the matrimonial home, and the question is whether the injuries were sustained from an accidental fall from the stairs or inflicted by the husband, the same evidence of spousal battery will now have significant probative value.

On the second view, the probative value of an item of evidence ( E ) is not measured simply by the likelihood ratio as it is on the first view. Probative value is understood as the degree to which E increases (or decreases) the probability of the proposition or hypothesis ( H ) in support of (or against) which E is led. The probative value of E is measured by the difference between the probability of H given E (the posterior probability) and the probability of H absent E (the prior probability) (Friedman 1986; James 1941: 699).

Probative value of \(E = P(H | E) - P(H)\)

\(P(H | E)\) (the posterior probability) is derived by applying Bayes’ theorem—that is, by multiplying the prior probability by the likelihood ratio (see discussion in section 3.2.2 below). On the present view, while the likelihood ratio does not itself measure the probative value of E , it is nevertheless a crucial component in the assessment.

A major difficulty with both of the mathematical conceptions of probative value that we have just examined is that for most evidence, obtaining the figures necessary for computing the likelihood ratio is problematic (Allen 1991: 380). Exceptionally, quantitative base rates data exist, as in our blood type example. Where objective data is unavailable, the fact-finder has to draw on background experience and knowledge to come up with subjective values. In our blood type example, a critical factor in computing the likelihood ratio was the percentage of the “suspect population” who had the same blood type as the accused. “Reference class” is the general statistical term for the role that the suspect population plays in this analysis. How should the reference class of “suspect population” be defined? Should we look at the population of the country as a whole or of the town or the street where the alleged murder occurred? What if it occurred at an international airport where most the people around are foreign visitors? Or what if it is shown that both the accused and the victim were at the time of the alleged murder inmates of the same prison? Should we then take the prison population as the reference class? The distribution of blood types may differ according to which reference class is selected. Sceptics of mathematical modelling of probative value emphasize that data from different reference classes will have different explanatory power and the choice of the reference class is open to—and should be subjected to—contextual argument and requires the exercise of judgment; there is no a priori way of determining the correct reference class. (On the reference class problem in legal factfinding, see, in addition to references cited in the rest of this section, Colyvan, Regan, and Ferson 2001; Tillers 2005; Allen and Roberts 2007.)

Some writers have proposed quantifiable ways of selecting, or assisting in the selection, of the appropriate reference class. On one suggestion, the court does not have to search for the optimal reference class. A general characteristic of an adversarial system of trial is that the judge plays a passive role; it is up to the parties to come up with the arguments on which they want to rely and to produce evidence in support of their respective arguments. This adversarial setting makes the reference class problem more manageable as the court need only to decide which of the reference classes relied upon by the parties is to be preferred. And this can be done by applying one of a variety of technical criteria that statisticians have developed for comparing and selecting statistical models (Cheng 2009). Another suggestion is to use the statistical method of “feature selection” instead. The ideal reference class is defined by the intersection of all relevant features of the case, and a feature is relevant if it is correlated to the matter under enquiry (Franklin 2010, 2011: 559–561). For instance, if the amount of drug likely to be smuggled is reasonably believed to co-vary with the airport through which it is smuggled, the country of origin and the time period, and there is no evidence that any other feature is relevant on which data is available, the ideal reference class is the class of drug smugglers passing through that airport originating from that country and during that time period. Both suggestions have self-acknowledged limitations: not least, they depend on the availability of suitable data. Also, as Franklin stresses, while statistical methods “have advice to offer on how courts should judge quantitative evidence”, they do so “in a way that supplements normal intuitive legal argument rather than replacing it by a formula” (Franklin 2010: 22).

The reference class problem is not confined to the probabilistic assessment of the probative value of individual items of evidence. It is a general difficulty with a mathematical approach to legal proof. In particular, the same problem arises on a probabilistic interpretation of the standard of proof when the court has to determine whether the standard is met based on all the evidence adduced in the case. This topic is explored in section 3.2 below but it is convenient at this juncture to illustrate how the reference class problem can also arise in this connection. Let it be that the plaintiff sues Blue Bus Company to recover compensation for injuries sustained in an accident. The plaintiff testifies, and the court believes on the basis of his testimony, that he was run down by a recklessly driven bus. Unfortunately, it was dark at the time and he cannot tell whether the bus belonged to Blue Bus Company. Assume further that there is also evidence which establishes that Blue Bus Company owns 75% of the buses in the town where the accident occurred and the remaining 25% is owned by Red Bus Company. No other evidence is presented. To use the data as the basis for inferring that there is 0.75 probability that the bus involved in the accident was owned by Blue Bus Company would seem to privilege the reference class of “buses operating in the town” over other possible reference classes such as “buses plying the street where the accident occurred” or “buses operating at the time in question” (Allen and Pardo 2007a: 109). Different reference classes may produce very different likelihood ratios. It is crucial how the reference class is chosen and this is ultimately a matter of argument and judgment. Any choice of reference class (other than the class that shares every feature of the particular incident, which is, in effect, the unique incident itself) is in principle contestable.

Critics of the mathematization of legal proof raise this point as an example of inherent limitations to the mathematical modelling of probative value (Allen and Pardo 2007a). [ 13 ] Allen and Pardo propose an alternative, the explanatory theory of legal proof. They claim that this theory has the advantage of avoiding the reference class problem because it does not attempt to quantify probative value (Pardo 2005: 374–383; Pardo and Allen 2008: 261, 263; Pardo 2013: 600–601). Suppose a man is accused of killing his wife. Evidence is produced of his extra-marital affair. The unique probative value of the accused’s infidelity cannot be mathematically computed from statistical base rates of infidelity and uxoricides (husbands murdering wives). In assessing its probative value, the court should look instead at how strongly the evidence of infidelity supports the explanation of the material events put forward by the side adducing the evidence and how strongly it challenges the explanation offered by the opponent. For instance, the prosecution may be producing the evidence to buttress its case that the accused wanted to get rid of his wife so that he could marry his mistress, and the defence may be advancing the alternative theory that the couple was unusual in that they condoned extra-marital affairs and had never let it affect their loving relationship. How much probative value the evidence of infidelity has depends on the strength of the explanatory connections between it and the competing hypotheses, and this is not something that can be quantified.

But the disagreement in this debate is not as wide as it might appear. The critics concede that formal models for evaluating evidence in law may be useful. What they object to is

scholarship arguing … that such models establish the correct or accurate probative value of evidence, and thus implying that any deviations from such models lead to inaccurate or irrational outcomes. (Allen and Pardo 2007b: 308)

On the other side, it is acknowledged that there are limits to mathematical formalisation of evidential reasoning in law (Franklin 2012: 238–9) and that context, argument and judgment do play a role in identifying the reference class (Nance 2007b).

3.2 Sufficiency of Evidence and the Standards of Proof

In the section 3.1 above, we concentrated on the weight of evidence in the sense of probative value of individual items of evidence. The concept of weight can also apply to the total body of evidence presented at the trial; here “weight” is commonly referred to as the “sufficiency of evidence”. [ 14 ] The law assigns the legal burden of proof between parties to a dispute. For instance, at a criminal trial, the accused is presumed innocent and the burden is on the prosecution to prove that he is guilty as charged. To secure a conviction, the body of evidence presented at the trial must be sufficient to meet the standard of proof. Putting this generally, a verdict will be given in favour of the side bearing the legal burden of proof only if, having considered all of the evidence, the fact-finder is satisfied that the applicable standard of proof is met. The standard of proof has been given different interpretations.

On one interpretation, the standard of proof is a probabilistic threshold. In civil cases, the standard is the “balance of probabilities” or, as it is more popularly called in the United States, the “preponderance of evidence”. The plaintiff will satisfy this standard and succeed in his claim only if there is, on all the evidence adduced in the case, more than 0.5 probability of his claim being true. At criminal trials, the standard for a guilty verdict is “proof beyond a reasonable doubt”. Here the probabilistic threshold is thought to be much higher than 0.5 but courts have eschewed any attempt at authoritative quantification. Typically, a notional value, such as 0.9 or 0.95, is assumed by writers for the sake of discussion. For the prosecution to secure a guilty verdict, the evidence adduced at the trial must establish the criminal charge to a degree of probability that crosses this threshold. Where, as in the United States, there is an intermediate standard of “clear and convincing evidence” which is reserved for special cases, the probabilistic threshold is said to lie somewhere between 0.5 and the threshold for proof beyond reasonable doubt.

Kaplan was among the first to employ decision theory to develop a framework for setting the probabilistic threshold that represents the standard of proof. Since the attention in this area of the law tends to be on the avoidance of errors and their undesirable consequences, he finds it convenient to focus on disutility rather than utility. The expected disutility of an outcome is the product of the disutility (broadly, the social costs) of that outcome and the probability of that outcome. Only two options are generally available to the court: in criminal cases, it must either convict or acquit the accused and in civil cases, it has to give judgment either for the plaintiff or for the defendant. At a criminal trial, the decision should be made to convict where the expected disutility of a decision to acquit is greater than the expected disutility of a decision to convict. This is so as to minimize the expected disutilities. To put this in the form of an equation:

P is the probability that the accused is guilty on the basis of all the evidence adduced in the case, Dag is the disutility of acquitting a guilty person and Dci is the disutility of convicting an innocent person. A similar analysis applies to civil cases: the defendant should be found liable where the expected disutility of finding him not liable when he is in fact liable exceeds the expected disutility of finding him liable when he is in fact not liable.

On this approach, a person should be convicted of a crime only where P is greater than:

The same formula applies in civil cases except that the two disutilities ( Dag and Dci ) will have to be replaced by their civil equivalents (framed in terms of the disutility of awarding the judgment to a plaintiff who in fact does not deserve it and disutility of awarding the judgment to a defendant who in fact does not deserve it). On this formula, the crucial determinant of the standard of proof is the ratio of the two disutilities. In the civil context, the disutility of an error in one direction is deemed equal to the disutility of an error in the other direction. Hence, a probability of liability of greater than 0.5 would suffice for a decision to enter judgment against the defendant (see Redmayne 1996: 171). The situation is different at a criminal trial. Dci , the disutility of convicting an innocent person is considered far greater than Dag , the disutility of acquitting a guilty person. [ 15 ] Hence, the probability threshold for a conviction should be much higher than 0.5 (Kaplan 1968: 1071–1073; see also Cullison 1969).

An objection to this analysis is that it is incomplete. It is not enough to compare the costs of erroneous verdicts. The utility of an accurate conviction and the utility of an accurate acquittal should also be considered and factored into the equation (Lillquist 2002: 108). [ 16 ] This results in the following modification of the formula for setting the standard of proof:

Ucg is the utility of convicting the guilty, Uag is the utility of acquitting the guilty, Uai is the utility of acquitting the innocent and Uci the utility of convicting the innocent.

Since the relevant utilities depend on the individual circumstances, such as the seriousness of the crime and the severity of the punishment, the decision-theoretic account of the standard of proof would seem, on both the simple and the modified version, to lead to the conclusion that the probabilistic threshold should vary from case to case (Lillquist 2002; Bartels 1981; Laudan and Saunders 2009; Ribeiro 2019). In other words, the standard of proof should be a flexible or floating one. This view is perceived to be problematic.

First, it falls short descriptively. The law requires the court to apply a fixed standard of proof for all cases within the relevant category. In theory, all criminal cases are governed by the same high standard and all civil cases are governed by the same lower standard. That said, it is unclear whether factfinders in reality adhere strictly to a fixed standard of proof (see Kaplow 2012: 805–809).

The argument is better interpreted as a normative argument—as advancing the claim about what the law ought to be and not what it is. The standard of proof ought to vary from case to case. But this proposal faces a second objection. For convenience, the objection will be elaborated in the criminal setting; in principle, civil litigants have the same two rights that we shall identify. According to Dworkin (1981), moral harm arises as an objective moral fact when a person is erroneously convicted of a crime. Moral harm is distinguished from the bare harm (in the form of pain, frustration, deprivation of liberty and so forth) that is suffered by a wrongfully convicted and punished person. While accused persons have the right not to be convicted if innocent, they do not have the right to the most accurate procedure possible for ascertaining their guilt or innocence. However, they do have the right that a certain weight or importance be attached to the risk of moral harm in the design of procedural and evidential rules that affect the level of accuracy. Accused persons have the further right to a consistent weighting of the importance of moral harm and this further right stems from their right to equal concern and respect. Dworkin’s theory carries an implication bearing on the present debate. It is arguable that to adopt a floating standard of proof would offend the second right insofar as it means treating accused persons differently with respect to the evaluation of the importance of avoiding moral harm. This difference in treatment is reflected in the different level of the risk of moral harm to which they are exposed.

There is a third objection to a floating standard of proof. Picinali (2013) sees fact-finding as a theoretical exercise that engages the question of what to believe about the disputed facts. What counts as “reasonable” for the purposes of applying the standard of proof beyond reasonable doubt is accordingly a matter for theoretical as opposed to practical reasoning. Briefly, theoretical reasoning is concerned with what to believe whereas practical reasoning is about what to do. Only reasons for belief are germane in theoretical reasoning. While considerations that bear on the assessment of utility and disutility provide reasons for action, they are not reasons for believing in the accused’s guilt. Decision theory cannot therefore be used to support a variable application of the standard of proof beyond reasonable doubt.

The third criticism of a flexible standard of proof does not directly challenge the decision-theoretic analysis of the standard of proof. On that analysis, it would seem that the maximisation of expected utility is the criterion for selecting the appropriate probabilistic threshold to apply and it plays no further role in deciding whether that threshold, once selected, is met on the evidence adduced in the particular case. It is not incompatible with the decision-theoretic analysis to insist that the question of whether the selected threshold is met should be governed wholly by epistemic considerations. However, it is arguable that what counts as good or strong enough theoretical reason for judging, and hence believing, that something is true is dependent on the context, such as what is at stake in believing that it is true. More is at stake at a trial involving the death penalty than in a case of petty shop-lifting; accordingly, there should be stronger epistemic justification for a finding of guilt in the first than in the second case. Philosophical literature on epistemic contextualism and on interest-relative accounts of knowledge and justified belief has been drawn upon to support a variant standard of proof (Ho 2008: ch. 4; see also Amaya 2015: 525–531). [ 17 ]

The premise of the third criticism is that the trier of fact has to make a finding on a disputed factual proposition based on his belief in the proposition. This is contentious. Beliefs are involuntary; we cannot believe something by simply deciding to believe it. The dominant view is that beliefs are context-independent; at any given moment, we cannot believe something in one context and not believe it in another. On the other hand, legal fact-finding involves choice and decision making and it is dependent on the context; for example, evidence that is strong enough to justify a finding of fact in a civil case may not be strong enough to justify the same finding in a criminal case where the standard of proof is higher. It has been argued that the fact-finder has to base his findings not on what he believes but what he accepts (Cohen 1991, 1992: 117–125, Beltrán 2006; cf. Picinali 2013: 868–869). Belief and acceptance are propositional attitudes: they are different attitudes that one can have in relation to a proposition. As Cohen (1992: 4) explains:

to accept that p is to have or adopt a policy of deeming, positing or postulating that p —i.e. of including that proposition or rule among one’s premises for deciding what to do or think in a particular context.

Understanding standards of proof in terms of mathematical probabilities is controversial. It is said to raise a number of paradoxes (Cohen 1977; Allen 1986, 1991; Allen and Leiter 2001; Redmayne 2008). Let us return to our previous example. The defendant, Blue Bus Company, owns 75% of the buses in the town where the plaintiff was injured by a recklessly driven bus and the remaining 25% is owned by Red Bus Company. No other evidence is presented. Leaving aside the reference class problem discussed above, there is a 0.75 probability that the accident was caused by a bus owned by the defendant. On the probabilistic interpretation of the applicable standard of proof (that is, the balance of probabilities), the evidence should be sufficient to justify a verdict in the plaintiff’s favour. But most lawyers would agree that the evidence is insufficient. Another familiar hypothetical scenario is set in the criminal context (Nesson 1979: 1192–1193). Twenty five prisoners are exercising in a prison yard. Twenty four of them suddenly set upon a guard and kill him. The remaining prisoner refuses to participate. We cannot in the ensuing confusion identify the prisoner who refrained from the attack. Subsequently, one prisoner is selected randomly and prosecuted for the murder of the guard. Those are the only facts presented at the trial. The applicable standard is proof beyond a reasonable doubt. Assume that the probabilistic threshold of this standard is 0.95. On the statistical evidence, there is a probability of 0.96 that the defendant is criminally liable. [ 18 ] Despite the statistical probability of liability exceeding the threshold, it is widely agreed that the defendant must be acquitted. In both of the examples just described, why is the evidence insufficient and what does this say about legal standards of proof?

Various attempts have been made to find the answers (for surveys of these attempts, see Enoch and Fisher 2015: 565–571; Redmayne 2008, Ho 2008: 135–143, 168–170; Gardiner 2019b; section 6 of the entry on legal probabilism ). It has been argued that meeting a legal standard of proof is not merely or fundamentally a matter of adducing evidence to establish a mathematical probability of liability beyond a certain level. Standards of proof should be interpreted in epistemic rather than probabilistic terms. According to one interpretation, the evidence is sufficient to satisfy a standard of proof only if it is capable of justifying full or outright belief in the material facts that constitute legal liability and bare statistical evidence, as in our examples, cannot justify such a belief. (Nelkin 2021; Smith 2018; Buchak 2014; Ho 2008: 89–99.) On Smith’s account, the statistical evidence in our two examples fails to justify belief in the proposition that the defendant is liable because the evidence does not normically support that proposition. Evidence normically supports a proposition just in case the situation in which the evidence is true and the proposition is false is less normal, in the sense of requiring more explanation, than the situation in which the evidence and the proposition are both true. Where all that we have is statistical evidence, it could just so happen that the material proposition is false (it could just so happen that the accident-causing bus was red or that the accused was the one who refused to join in the murder), so no further explanation is needed where the proposition is false than where it is true (Smith 2018).

On a different epistemic interpretation, the evidence is sufficient to meet a legal standard of proof, and a finding of legal liability is permissible, only if the factfinder can gain knowledge of the defendant’s liability—to be precise, of the material facts establishing such liability—from the evidence (Duff et al. 2007: 87–91; Pardo 2010; for a critical overview of knowledge-centered accounts, see Gardiner forthcoming). High probability of liability alone will not suffice. On more subtle knowledge-centered theories, the standards of proof are met only if, on the available evidence, there is a sufficiently high probability that the fact finder knows that the defendant is liable (Littlejohn 2020 and 2021; Blome-Tillmann 2017), or only if the fact finder’s credence in the defendant’s liability exceeds the relevant legal threshold and the credence constitutes knowledge (Moss 2018). It is further claimed that the relevant knowledge necessary for a finding of liability cannot be obtained from statistical evidence alone (Littlejohn 2020 and 2021; Blome-Tillmann 2017; Moss 2018 and forthcoming). According to Thomson, this is because the statistical evidence (to take our first example, the 75% ownership of blue buses) is not causally connected with the fact sought to be proved and cannot guarantee the truth of the relevant belief (that the bus which caused the accident was blue) (Thomson 1986). An alternative argument is that knowledge requires the ruling out of all relevant alternatives and, to take our prison scenario, there is no evidence that addresses the possibility that the defendant was the one who refrained from joining in the attack or the possibility that the defendant is less likely to be guilty than an arbitrary prisoner in the yard. (See Moss forthcoming; Moss 2018: 213. Gardiner 2019a adapts the relevant alternatives framework to model legal standards of proof in a non-mathematical way while eschewing a knowledge account of those standards.) Another possible explanation for the failure to know relies on the notion of sensitivity. The belief that the defendant is liable is not sensitive to the truth where it is based on bare statistical evidence; in the bus example, evidence of the market share of buses remain the same whether it is true or not that a blue bus caused the accident (cf. Enoch, Spectre, and Fisher 2012; Enoch and Fisher 2015; Enoch and Spectre 2019 – while suggesting that the lack of knowledge has generally to do with the insensitivity of the belief, the authors deny that knowledge should matter to the imposition of legal liability). Yet another explanation is that it is unsafe to find a person liable on bare statistical evidence. Though safety is sometimes treated as a condition of knowledge (in that knowledge requires a true belief that is safe), one can treat safety as a condition for finding the defendant liable without also taking the position that the finding must be based on knowledge of liability. Safety is commonly understood in terms of whether a belief formed on the same basis would be true in close possible worlds. Roughly, a finding of liability is unsafe where it can easily be wrong in the sense that little in the actual world needs to change for it to be wrong. Whether the requirement of safety can explain why judgment should not entered against the defendant in our two hypothetical cases would depend on whether it can easily happen that the accident-causing bus was red or that the accused is innocent. (See Pritchard 2015 and 2018; Pardo 2018; cf. Gardiner 2020.) While theorizing of standards of proof in epistemic terms has gathered pace in recent years, it is criticised for relying on unrealistic hypotheticals that fail to attend to the actual operation of legal systems and for making impossible epistemological demands (Allen 2020).

There is another paradox in the mathematical interpretation of the standard of proof. This is the “conjunction paradox”. To succeed in a civil claim (or a criminal prosecution), the plaintiff (or the prosecution) will have to prove the material facts—or “elements”—that constitute the civil claim (or criminal charge) that is before the court (see discussion of “materiality” in section 2.2 above). Imagine a claim under the law of negligence that rests on two elements: a breach of duty of care by the defendant (element A ) and causation of harm to the plaintiff (element B ). To win the case, the plaintiff is legally required to prove A and B . For the sake of simplicity, let A and B be mutually independent events. Suppose the evidence establishes A to a probability of 0.6 and B to a probability of 0.7. On the mathematical interpretation of the civil standard of proof, the plaintiff should succeed in his claim since the probability with respect to each of the elements exceeds 0.5. However, according to the multiplication rule of conventional probability calculus, the probability that A and B are both true is the product of their respective probabilities; in this example, it is only 0.42 (obtained by multiplying 0.6 with 0.7). Thus, the overall probability is greater that the defendant deserves to win than that the plaintiff deserves to win, and yet the verdict is awarded in favour of the plaintiff.

One way of avoiding the conjunction paradox is to take the position that it should not be enough for each element to cross the probabilistic threshold; the plaintiff (or the prosecution) should win only if the probability of the plaintiff’s (or prosecution’s) case as a whole exceeds the applicable probabilistic threshold. So, in our example, the plaintiff should lose since the overall probability is below 0.5. But this suggested solution is unsatisfactory. The required level of overall probability would then turn on how many elements the civil claim or criminal charge happens to have. The greater the number of elements, the higher the level of probability to which, on average, each of them must be proved. This is thought to be arbitrary and hence objectionable. As two commentators noted, the legal definition of theft contains more elements than that for murder. Criminal law is not the same in all countries. We may take the following as a convenient approximation of what the law is in some countries: murder is (1) an act that caused the death of a person (2) that was done with the intention of causing the death, and to constitute theft, there must be (1) an intention to take property, (2) dishonesty in taking the property, (3) removal of the property from the possession of another person, and (4) lack of consent by that person. Since the offence of theft contains twice the number of elements as compared to murder, the individual elements for theft would have to be proved to a much higher level of probability (in order for the probability of their conjunction to cross the overall threshold) than the individual elements for the much more serious crime of murder (Allen and Leiter 2001: 1504–5). This is intuitively unacceptable.

Another proposal for resolving the conjunction paradox is move away from thinking of the standard of proof as a quantified threshold of absolute probability and to construe it, instead, as a probability ratio. The fact-finder has to compare the probability of the evidence adduced at the trial under the plaintiff’s theory of the case with the probability of the evidence under the defendant’s theory of the case (the two need not add to 1), and award the verdict to the side with a higher probability (Cheng 2013). One criticism of this interpretation of the standard of proof is that it ignores, and does not provide a basis for ignoring, the margin by which one probability exceeds the other, and the difference in probability may vary significantly for different elements of the case (Allen and Stein 2013: 598).

There is a deeper problem with the probabilistic conception of the standard of proof. There does not seem to be a satisfactory interpretation of probability that suits the forensic context. The only plausible candidate is the subjective meaning of probability according to which probability is construed as the strength of belief. The evidence is sufficient to satisfy the legal standard of proof on a disputed question of fact—for example, it is sufficient to justify the positive finding of fact that the accused killed the victim—only if the fact-finder, having considered the evidence, forms a sufficiently strong belief that the accused killed the victim. Guidance on how to process evidence and form beliefs can be found in a mathematical theorem known as Bayes’ theorem; it is the method by which an ideal rational fact-finder would revise or update his beliefs in the light of new evidence. [ 19 ] To return to our earlier hypothetical scenario, suppose the fact-finder initially believes the odds of the accused being guilty is 1:1 (“prior odds”) or, putting this differently, that there is a 0.5 probability of guilt. The fact-finder then receives evidence that blood of type A was found at the scene of the crime and that the accused has type A blood. Fifty percent of the population has this blood type. On the Bayesian approach, the posterior odds are calculated by multiplying the prior odds (1:1) by the likelihood ratio (which, as we saw in section 2.1.2 above, is 2:1). The fact-finder’s belief in the odds of guilt should now be revised to 2:1; the probability of guilt is now increased to 0.67 (Lempert 1977).

The subjectivist Bayesian theory of legal fact-finding has come under attack (see generally Amaya 2015: 82–93; Pardo 2013: 591). First, as we already saw in section 3.1 , ascertainment of the likelihood ratios is highly problematic. Secondly, the Bayesian theory is not sensitive to the weight of evidence which, roughly put, is the amount of evidence that is available. This criticism and the concept of weight are further explored in section 3.3 .

Thirdly, while the Bayesian theorem offers a method for updating probabilities in the light of new evidence, it is silent on what the initial probability should be. In a trial setting, the initial probability cannot be set at zero since this means certainty in the innocence of the accused. No new evidence can then make any difference; whatever the likelihood ratio of the evidence, multiplying it by zero (the prior probability) will still end up with a posterior probability of zero. On the other hand, starting with an initial probability is also problematic. This is especially so in a criminal case. To start a trial with some probability of guilt is to have the fact-finder harbouring some initial belief that the accused is guilty and this is not easy to reconcile with the presumption of innocence. (Tribe 1971: 1368–1372; cf. Posner 1999: 1514, suggesting starting the trial with prior odds of 50:50, criticized by Friedman 2000. The problem of fixing the prior probability is said to disappear if we base fact-finding simply on likelihood ratios: Sullivan, 2019: 45–59.)

Fourthly, we have thus far relied for ease of illustration on highly simplified—and therefore unrealistic—examples. In real cases, there are normally multiple and dependent items of evidence and the probabilities of all possible conjunctions of these items, which are numerous, will have to be computed. These computations are far too complex to be undertaken by human beings (Callen 1982: 10–15). The impossibility of complying with the Bayesian model undermines its prescriptive value.

Fifthly, according to Haack, the Bayesian theory has it the wrong way round. What matters is not the strength of the fact-finder’s belief itself. The standard of proof should be understood instead in terms of what it is reasonable for the fact-finder to believe in the light of the evidence presented, and this is a matter of the degree to which the belief is warranted by the evidence. Evidence is legally sufficient where it warrants the contested factual claim to the degree required by law. Whether a factual claim is warranted by the evidence turns on how strongly the evidence supports the claim, on how independently secure the evidence is, and on how much of the relevant evidence is available to the fact-finder (that is, the comprehensiveness of the evidence—see further discussion in section 3.3 below). Haack is against identifying degrees of warrant with mathematical probabilities. Degrees of warrant do not conform to the axioms of the standard probability calculus. For instance, where the evidence is weak, neither p nor not- p may be warranted; in contrast, the probability of p and the probability of not- p must add up to 1. Further, where the probability of p and the probability of q are both less than 1, the probability of p and q , being the product of the probability of p and the probability of q , is less than the probability of either. On the other hand, the degree of warrant for the conjunction of p and q may be higher than the warrant for either. [ 20 ] (See Haack 2004, 2008a,b, 2012, 2014 for the legal application of her general theory of epistemology. For her general theory of epistemology, see Haack 1993: ch. 4; Haack 2009: ch. 4; Haack 2003: ch. 3.)

Sixthly, research in experimental psychology suggests that fact-finders do not evaluate pieces of evidence one-by-one and in the unidirectional manner required under the mathematical model (Amaya 2015: 114–5). A holistic approach is taken instead where the discrete items of evidence are integrated into large cognitive structures (variously labelled as “mental models”, “stories”, “narratives” and “theories of the case”), and they are assessed globally against the legal definition of the crime or civil claim that is in dispute (Pennington and Hastie 1991, 1993; Pardo 2000). The reasoning does not progress linearly from evidence to a conclusion; it is bi-directional, going forward and backward: as the fact-finder’s consideration of the evidence inclines him towards a particular verdict, his leaning towards that conclusion will often produce a revision of his original perception and his assessment of the evidence (Simon 2004, 2011).

The holistic nature of evidential reasoning as revealed by these studies has inspired alternative theories that are of a non-mathematical nature. One alternative, already mentioned, is the “explanatory” or “relative plausibility” theory advanced by Allen together with Pardo and other collaborators (Allen 1986, 1991, 1994; Pardo 2000; Allen and Leiter 2001; Allen and Jehl 2003; Pardo and Allen 2008; Allen and Pardo 2019; cf. Nance 2001, Friedman 2001). [ 21 ] They contend that fact-finders do not reason in the fashion portrayed by the Bayesian model. Instead, they engage in generating explanations or hypotheses on the available evidence by a process of abductive reasoning or drawing “inferences to the best explanation”, and these competing explanations or hypotheses are compared in the light of the evidence. [ 22 ] The comparison is not of a hypothesis with the negation of that hypothesis, where the probability of a hypothesis is compared with the probability of its negation. Instead, the comparison is of one hypothesis with one or more particular alternative hypotheses as advocated by a party or as constructed by the fact-finder himself. On this approach, the plausibility of X, the factual account of the case that establishes the accused’s guilt or defendant’s liability, is compared with the plausibility of a hypothesis Y, a specific alternative account that points to the accused’s innocence or the defendant’s non-liability, and there may be more than one such specific alternative account.

On this theory, the evidence is sufficient to satisfy the preponderance of proof standard when the best-available hypothesis that explains the evidence and the underlying events include all of the elements of the claim. Thus, in a negligence case, the best-available hypothesis would have to include a breach of duty of care by the plaintiff and causation of harm to the defendant as these are the elements that must be proved to succeed in the legal claim. For the intermediate “clear-and-convincing” standard of proof, the best-available explanation must be substantially better than the alternatives. To establish the standard of proof beyond reasonable doubt, there must be a plausible explanation of the evidence that includes all of the elements of the crime and, in addition, there must be no plausible explanation that is consistent with innocence (Pardo and Allen 2008: 238–240; Pardo 2013: 603–604).

The relative plausibility theory itself is perceived to have a number of shortcomings. [ 23 ] First, the theory portrays the assessment of plausibility as an exercise of judgment that involves employment of various criteria such as coherence, consistency, simplicity, consilience, and more. However, the theory is sketchy on the meaning of plausibility and the criteria for evaluating plausibility are left largely unanalyzed. [ 24 ]

A second criticism of the relative plausibility theory is that, despite the purported utilisation of “inference to the best explanation” reasoning, the verdict is not controlled by the best explanation. For instance, even if the prosecution’s hypothesis is better than the defence’s hypothesis, neither may be very good. In these circumstances, the court must reject the prosecution’s hypothesis even though it is the best of alternatives (Laudan 2007). One suggested mitigation of this criticism is to place some demand on the epistemic effort that the trier of fact must take (for example, by being sufficiently diligent and thorough) in constructing the set of hypotheses from which the best is to be chosen (Amaya 2009: 155).

The third criticism is targeted at holistic theories of evidential reasoning in general and not specifically at the relative plausibility theory. While it may be descriptively true that fact-finders decide verdicts by holistic evaluation of the plausibility of competing explanations, hypotheses, narratives or factual theories that are generated from the evidence, such forms of reasoning may conceal bias and prejudice that stand greater chances of exposure under a systematic approach such as Bayesian analysis (Twining 2006: 319; Simon 2004, 2011; Griffin 2013). A hypothesis constructed by the fact-finder may be shaped subconsciously by a prejudicial generalisation or background belief about the accused based on a certain feature, say, his race or sexual history. Individuating this feature and subjecting it to Bayesian scrutiny has the desirable effect of putting the generalisation or background belief under the spotlight and forcing the fact-finder to confront the problem of prejudice.

A third idea of evidential weight is prompted by this insight from Keynes (1921: 71):

As the relevant evidence at our disposal increases, the magnitude of the probability of the argument may either decrease or increase, according as the new knowledge strengthens the unfavourable or the favourable evidence; but something seems to have increased in either case,—we have a more substantial basis upon which to rest our conclusion. I express this by saying that an accession of new evidence increases the weight of an argument. New evidence will sometimes decrease the probability of an argument, but it will always increase its “weight”.

This idea of evidential weight has been applied by some legal scholars in assessing the sufficiency of evidence in satisfying legal standards of proof. [ 25 ] At its simplest, we may think of weight in the context of legal fact-finding as the amount of evidence before the court. Weight is distinguishable from probability. The weight of evidence may be high and the mathematical probability low, as in the situation where the prosecution adduces a great deal of evidence tending to incriminate the accused but the defence has an unshakeable alibi (Cohen 1986: 641). Conversely, the state of evidence adduced in a case might establish a sufficient degree of probability—high enough to cross the supposed threshold of proof on the mathematical conception of the standard of proof—and yet lack adequate weight. In the much-discussed gate-crasher’s paradox, the only available evidence shows that the defendant was one of a thousand spectators at a rodeo show and that only four hundred and ninety nine tickets were issued. The defendant is sued by the show organiser for gate-crashing. The mathematical probability that the defendant was a gate-crasher is 0.501 and this meets the probabilistic threshold for civil liability. But, according to the negation principle of mathematical probability, there is probability of 0.499 that the defendant did pay for his entrance. In these circumstances, it is intuitively unjust to find him liable (Cohen 1977: 75). A possible explanation for not finding him liable is that the evidence is too flimsy or of insufficient weight.

Proponents of the mathematical conception of the standard of proof have stood their ground even while acknowledging that weight has a role to play in the Bayesian analysis of probative value and the sufficiency of evidence. If a party does not produce relevant evidence that is in his possession, resulting in the court facing an evidential deficiency, it may draw an adverse inference against him when computing the posterior probability (Kaye 1986b: 667; Friedman 1997). One criticism of this approach is that, in the absence of information about the missing evidence, the drawing of the adverse inference is open to the objection of arbitrariness (Nance 2008: 274). A further objection is that the management of parties’ conduct relating to evidence preservation and presentation should be left to judges and not to the jury. What a judge may do to optimize evidential weight is to impose a burden of producing evidence on a party and to make the party suffer an adverse finding of fact if he fails to produce the evidence. This will serve as an incentive for the party to act in a manner that promotes the interest in evidential completeness (Nance 2008, 2010, 2016).

Cohen suggests that the standard of proof should be conceived entirely as a matter of evidential weight which, on his theory, is a matter of the number of tests or challenges to which a factual hypothesis is subjected to in court. He offers an account of legal fact-finding in terms of an account of inductive probability that was inspired by the work of writers such as Francis Bacon and J.S. Mill. Inductive probability operates differently from the classical calculus of probability. It is based on inductive support for the common-sense generalisation that licences the drawing of the relevant inference. Inductive support for a generalisation is graded according to the number of tests that it has passed, or, putting this in another way, by the degree of its resistance to falsification by relevant variables. The inductive probability of an argument is equal to the reliability grade of the inductive support for the generalisation which covers the argument.

Proof beyond reasonable doubt represents the maximum level of inductive probability. The prosecution may try to persuade the court to infer that the accused was guilty of burglary by producing evidence to establish that he was found in the vicinity of the victim’s house late at night with the stolen object on him. This inference is licensed by the generalisation that normally if a stranger is found immediately after a burglary in possession of the stolen object, he intentionally removed it himself. The defence may try to defeat the inference by showing that the generalization does not apply in the particular case, for example, by presenting evidence to show that the accused had found the object on the street. The prosecution’s hypothesis is now challenged or put to the test. As a counter-move, it may produce evidence to establish that the object could not have been lying in the street as alleged. If the generalisations on which the prosecution’s case rest survive challenges by the defence at every possible point, then guilt is proved beyond reasonable doubt. [ 26 ] The same reasoning structure applies in the civil context except that in a civil case, the plaintiff succeeds in proof on the preponderance of evidence so long as the conclusion to be proved by him is more inductively probable than its negation. (Cohen 1977, 1986; cf. Schum 1979.) [ 27 ]

Cohen’s theory seems to require that each test to which a hypothesis is put can be unequivocally and objectively resolved. But usually this is not the case. In our example, we may not be entirely convinced that the accused found or did not find the object on the street, and our evaluation would involve the exercise of judgment that is no less subjective as the sort of judgments required when applying the standard probabilistic conception of proof (Nance 2008: 275–6; Schum 1994: 261).

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• Legal Information Institute , at Cornell Law School. This site makes available the full text of the Federal Rules of Evidence with commentaries by the Advisory Committee on Rules.
• Statistics and the Law , page at the Royal Statistical Society.

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Library of Congress Catalog Data: ISSN 1095-5054

Definition of Evidence

Gathering and submitting evidence, types of evidence.

Evidence comes in many forms, as by its very definition, evidence is any thing presented to prove that something is true.

Scientific Evidence

Trace evidence.

In order for trace evidence to be useful, investigators must have sample items from the suspect by which to compare it. For example, footprints are most useful if the suspect owns a pair of boots with tread to match the prints.

About DNA Evidence

Physical evidence, testimonial evidence.

Testimonial evidence is that given by a witness under oath. Such testimony may be given verbally or in writing, under penalty of perjury . Any witness who is not testifying as an expert witness is generally limited to providing testimony only of those things of which he has personal knowledge, and may not interject opinion . Testimonial evidence is an important part of the legal process, though the opposing party may introduce additional testimony, or other evidence, to disprove or discredit a witness’ testimony.

Circumstantial Evidence

Roger is accused of breaking into a woman’s home and raping her. Although the woman cannot identify the man, as it was dark, and he wore a mask, the prosecution shows that Roger had previously made threats to the victim, his footprints were found outside the victim’s back door, fibers found caught in the broken window match those of Roger’s jacket, and Roger had been seen by neighbors in the neighborhood earlier that day. While all of these are circumstantial evidence, they add up to a logical conclusion that Roger committed the crime.

Hearsay Evidence

Hearsay evidence is a statement made out of court, whether verbally or in writing, that is introduced to prove the truth of whatever the statement asserts. In most cases, hearsay evidence is testimony by one person of what another person said. Hearsay evidence is not considered reliable, since the person who actually made the statement is not available to be questioned. Because of this, hearsay evidence is not usually accepted at trial. There are exceptions, however. For example, if a robbery victim stumbled up to Allison and said, “Victor robbed me!” before falling down unconscious, Allison’s testimony of what the victim said cannot be used to prove that Victor committed the robbery. Her testimony could, however, be used to prove that the victim was still alive and able to speak at that time.

Exculpatory Evidence

Rules of evidence, scott peterson and the circumstantial evidence.

Four months after she vanished, the badly decomposed remains of Lacy and her unborn child washed ashore in Richmond, California, near the marina at which Scott Peterson claimed he spent the day fishing the day Laci vanished.

Although prosecutors strongly suspected Scott Peterson was guilty of murdering his wife, there was little direct evidence connecting him to the crime. What the prosecution did have was a whole string of circumstantial evidence, including inconsistencies in Peterson’s story, his admitted affair, and a 6-inch long dark hair found on a pair of pliers in Peterson’s boat. Although the defense attempted to explain away each item of circumstantial evidence, in an effort to create reasonable doubt in the minds of the jury members, Peterson was convicted of first degree murder of his wife and unborn child.

Related Legal Terms and Issues

Letter to young lawyers—Basic tips and presentation of evidence

Dear Attorney Jane Doe and Attorney John Doe:

As a young lawyer, you are in a place that I left some time ago. However, I have watched you step into jury courtrooms with a level of anticipation and excitement that is refreshing. While a few of you mask it well, I know there is also some anxiety lurking in the background. Don’t worry, because that anxiety strikes even the most seasoned litigators. Now I sit on the bench, and I sometimes wish I could call a time out during the trial to share with you some simple tips that will put you more at ease as you proceed with your case.

Being a member of the judiciary is an honor that comes with extraordinary powers and responsibilities. These powers do not include a coach’s ability to call for substitution of players, so in this note I want to briefly address some basic practical pointers to improve your overall practice as well as touch upon the specific issue of presentation of evidence to a jury. I hope by doing so I give you peace of mind and contribute, in a small way, to your growth as a fine attorney.

Basic Pointers

How quickly you acclimate yourself to courtroom practice depends in large part on you, your learning style, and how many opportunities you have to appear before the court. In the beginning, you may feel overwhelmed by the number of items you must remember, track and recall at a moment’s notice. In your haste, you may overlook a few very basic points that can actually help you. Here’s a brief list:

• Be on time. Factor into your schedule delays caused by traffic jams, security checkpoints and elevator.

• Be prepared. That’s your job.

• Admit what you know and what you don’t know. Don’t try to fool the judge and jury.

• Keep all conversations about the case (including settlement discussions) between you and judge on the record.

• Make sure all the evidence you want to include in your closing argument has been admitted before presenting your closing argument.

• Confirm that you have issued trial subpoenas to all witnesses you may need to call to help lay a foundation for evidence you wish to admit.

• Be respectful of your opponent, court staff and the trial judge when communicating with them.

• Outline how you envision your case proceeding and then follow your outline.

• When things are not going your way keep an even keel and refer to your outline.

Now, I’m going to move onto the specific issue of presenting evidence at criminal and civil trials. From my years as a practicing attorney as well as on the bench, I have noticed that litigators are not always aware of how they present evidence to the jury. This is unfortunate because the manner in which you present evidence to them can greatly affect the outcome of your case. To better assist you, I will give you an overview of how to present evidence at both criminal and civil trials.

Criminal Trials

Criminal trial attorneys can enhance their trial practice by remembering a few points: take advantage of all available exhibits, consider the size of each piece of evidence in the context of a large courtroom and how it will appear to the jury. In general, items presented to the jury include bats, knives, guns, articles of clothing, blood, DNA, foot and/or finger prints, et cetera. Attorneys introduce this type of evidence to clarify facts for the judge and jury. Keep in mind that not all evidence may be categorized as demonstrative. Demonstrative evidence includes charts, graphs, enlarged copies of documents, x-rays, computer simulations, diagrams of scenes, videos, and models.

First, trial attorneys often do not take full advantage of the exhibits available to them. They hold up an exhibit and put it down too quickly. Before replacing any exhibit, such as a photograph, make sure that all of the jurors see it. If you are presenting a photograph, consider the impact you want to make. While a 5x7 photograph seems large in your hand imagine six to twelve sets of eyes straining to see it from the jury box. Instead, consider using blown-up photographs, especially of important exhibits, to emphasize a particular scene or event.

Also, consider the power of presenting an actual item into evidence, rather than a diagram or photograph of the item, if possible. For example consider jurors’ reactions when they view a photograph of the gun at issue versus their reaction to seeing you holding up the gun. Offering the exhibit itself, when it is available, will have an indelible impact on jurors.

Back to the 5x7 photograph—an attorney who shows the photograph to a witness on the stand and points “right there” conveys nothing to the jurors. Jurors are not comfortable speaking out in court and you want each juror to clearly see the exhibit, especially if the material is important to your case. To solve this problem, place your oversized photograph on an easel in the courtroom. Scout out possible locations to place the photograph prior to the start of the trial. You want to make certain the jurors and judge all have an unobstructed view of the image. Then, with the court’s permission, ask the witness to leave the stand and point out the necessary information. As an aside, if possible do not use black and white photographs. Often times, these photographs are grainy or out of focus, especially if you enhance a portion of it.

Don’t disregard the possibility of publishing photographs. I have found that many judges are amenable to this idea. Of course, you must publish it properly. To publish a photograph, you must first lay the foundation for each photograph and then obtain the judge’s permission to publish. Then you may distribute the photographs to the jury to pass around.

Similarly, to show evidence to a jury during trial, lay the foundation, ask the judge to strike the identification numbers of on each exhibit, and then ask for permission to put the exhibit into evidence. Lastly, ask to publish the exhibit and then publish it in the manner just described.

Finally, consider situations where you want a witness to describe specific actions they or someone else took. In these scenarios, it is very easy to confuse yourself, the witness and the jury. A simple solution is to have the witness step off the stand, with the judge’s permission of course, and have them demonstrate the action to the jury. This is very powerful and will capture any juror’s attention. Do not forget to describe the witness’s actions for the record.

Most importantly, make sure you lay the proper foundation for each item you intend to introduce into evidence. While discussed at length in evidence books, foundation requirements actually consist of several simple questions. Immediately below is a compilation of foundation questions for different types of evidence:

Photographs:

• Is the witness familiar with scene in photographs?

• Is the witness familiar with scene on that date?

• Does the photograph truly and accurately display the scene as it appeared on the relevant date?

• Who took the photograph?

Tangible Objects:

• Does the witness recognize the exhibit?

• Does the witness know what the exhibit looked like on the relevant date?

• Does the exhibit appear in the same or substantially same condition as when the witness saw it on the relevant date?

• Is the witness familiar with the scene presented by the diagram?

• Is the diagram similar to the scene on the relevant date?

• Is the diagram helpful to a witness in explaining information to the jury?

• Is the diagram relevantly accurate?

Sound and video recordings:

• Did the witness see or hear what was recorded?

• After the recording was made did the witness hear/see the tape and verify it was accurately recorded? Confirm that no alterations or deletions were made to the sound or images after verification.

• Does the witness recognize sounds and images on the tapes?

Illustrations:

• Does the probative value of the demonstration outweigh any prejudicial effect?

• Does the witness display a physical act to the jury?

Civil Trials

While the subject matter, process and procedures vary from criminal to civil trials, the basic problems in presentation of evidence remains similar. Oftentimes, civil cases involve photographs of an accident site, photographs of a product or a model of an injured body part.

In fact graphs, charts and three dimensional models all help witnesses explain the extent of any bodily injury to jurors. Take for example a lawsuit where a party suffered a hip injury. In this case, bring in a model of the hip joint area. You, or your expert, can use it to show the exact area on the body that is injured or the extent of the injury. Similar to criminal cases make sure the judge and jury has a clear view of your graphs and demonstrations. Projectors and PowerPoint displays also serve as good demonstrative aids.

Here are some additional mistakes that, at one point or another, have tripped up some attorneys:

• Failure to mark the demonstrative evidence as an exhibit. All exhibits should be properly marked prior to trial.

• Failure to show your exhibits to opposing counsel in advance of trial may lead to its exclusion. Copies of all evidentiary exhibits should be tendered during discovery. If you cannot tender a copy of the exhibit to counsel, i.e. model to scale, then make other arrangements in advance of trial.

• Not providing a clear view of the exhibit. Whatever you choose to use, chart or PowerPoint, double check that your jurors and judge can clearly see it. Confirm that it is viewable from a variety of angles.

• Forgetting to lay the foundation before presenting a model. As shown above, you can easily lay the foundation for a model exhibit by asking the maker of the model a few simple questions. Only if the attorneys reach an agreement regarding the source of the model and how it was constructed may you bypass the foundation step.

• Not properly planning ahead and making the most of any models or diagrams. For example, if your model is not made to scale, such as a reconstructed body part, then take additional steps to ensure your jurors derive the full benefit of having the model present. Ask the court for permission to have the witness step down from the stand, bring the model in front of the jury box, and have the witness then manipulate the model to make his/her point. Conversely, if the model is extremely large, then make arrangements to have these items brought in ahead of time.

Regardless of whether you are handling a criminal or civil trial, do not be afraid to bring everyday technology into the courtroom. As younger attorneys, you grew up in a more digitalized world. Odds are you are already comfortable with different gadgets and programs. Use that knowledge to more easily and efficiently present evidence to jurors.

For example, use a computer or other visual aid to project photographs onto a large screen. Also, consider video conferencing. With new laws regarding videotaping of statements, the number of video cameras available in cities, and the general ease and access people have to video and phone cameras, teleconferencing or video conferencing is on the rise. In fact, some courts even provide the necessary equipment upon request. Whether you borrow it from the court or, as more often will be the case, you transport it to the court yourself, set it up and make sure everything works smoothly before the jurors even come in.

As always, regardless of what means you use to present the information, whether it is a projector or graph, verify that it can be viewed by both the jurors and judge. I cannot emphasize this point enough. In a similar vein, do not overlook the importance of audio and acoustics.

Many attorneys have encountered unforeseen problems because of a given courtroom’s acoustics. By the time a case proceeds to trial, you will have examined and reexamined your exhibits numerous times. Therefore, you can pinpoint an item in a 5x7 photograph and hear every nuance in someone’s voice in a videotaped conversation. However, the jurors see the same exhibits for the first time in less than ideal conditions, and they may easily miss an important statement, or worse mistake it for something else.

One solution to a tape with unclear audio is to print a transcript for jurors to follow as they view the video. Moreover, certain computer programs will run the dialogue along the bottom of the screen. In any event, keep in mind that the judge must instruct jurors that they need to rely on their own interpretation of the audio tape.

A word of caution, the purpose of utilizing technology is to create ease and efficiency in presenting evidence to jurors. If you are not comfortable with a piece of technology, then become comfortable with it before using it in front of a jury. Jurors do not want to watch you fumble or have problems with technology. I have seen trials be delayed for up to 20 minutes as the attorneys try to fix the problem or wait for assistance from their office. This tactic is especially problematic if you are a sole practitioner and such additional assistance is not available to you.

Finally, and I cannot emphasize this enough, use your exhibits strategically. Some attorneys cannot pare down their evidence. In their haste to persuade jurors, they fail to realize that one or two carefully selected photographs speak volumes. Having 100 photographs in your possession does not mean that each one will add value to your case. In fact, you may actually do yourself a disservice by presenting them all because, for example, you may district a juror from the important photos or details. It’s a simple point, but for many new attorneys it’s easy to overlook.

Well, that’s about it for now. I hope you have found these points helpful, and I am excited that I had this opportunity to contribute to your development as an attorney. I wish you much luck. ■

Very truly yours,

E. Kenneth Wright, Jr.

Presiding Judge

First Municipal District

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• Original Article
• Open access
• Published: 02 March 2020

Experiences of evidence presentation in court: an insight into the practice of crime scene examiners in England, Wales and Australia

• K. Sheppard   ORCID: orcid.org/0000-0003-0806-7077 1 ,
• S. J. Fieldhouse 2 &
• J. P. Cassella 2  

Egyptian Journal of Forensic Sciences volume  10 , Article number:  8 ( 2020 ) Cite this article

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The ability to present complex forensic evidence in a courtroom in a manner that is fully comprehensible to all stakeholders remains problematic. Individual subjective interpretations may impede a collective and correct understanding of the complex environments and the evidence therein presented to them. This is not fully facilitated or assisted in any way with current non-technological evidence presentation methods such as poor resolution black and white photocopies or unidimensional photographs of complex 3D environments. Given the wide availability of relatively cheap technology, such as tablets, smartphones and laptops, there is evidence to suggest that individuals are already used to receiving visually complex information in relatively short periods of time such as is available in a court hearing. courtrooms could learn from this more generic widespread use of technology and have demonstrated their ability to do so in part by their adoption of the use of tablets for Magistrates. The aim of this current study was to identify the types of digital technology being used in courts and to obtain data from police personnel presenting digital evidence in court.

A questionnaire study was conducted in this research to explore current technology used within courtrooms from the perspective of crime scene personnel involved in the presentation of complex crime scene evidence. The study demonstrated that whilst many of the participants currently utilize high-end technological solutions to document their crime scenes, such as 360° photography or laser scanning technologies, their ability to present such evidence was hindered or prevented. This was most likely due to either a lack of existing technology installed in the court, or due to a lack of interoperability between new and existing technology.

This study has contributed to this academic field by publishing real life experiences of crime scene examiner’s, who have used advanced technology to record and evaluate crime scenes but are limited in their scope for sharing this information with the court due to technological insufficiency. Contemporary recording techniques have provided the opportunity for further review of crime scenes, which is considered to be a valuable property over previous documentation practice, which relied upon the competency of the investigator to comprehensively capture the scene, often in a single opportunity.

Introduction

The delivery of evidence in the UK Courts of Law in part involves extensive oral descriptions of events and evidence from an investigation, which can be a time consuming and laborious task (Schofield 2016 ). In terms of evidence relating to a crime scene, verbal statements, printed photographs and sketches of the scene may be used (Lederer 1994 ; McCracken 1999 ).

Conveying evidence from a scene, which both experts and laypersons can fully understand, remains an “ever-difficult task” (Chan 2005 ). This is because individuals may misinterpret or find difficulty in understanding the information being described to them (Schofield and Fowle 2013 ). It is entirely likely that cognitive processes contribute to variance in the interpretation of the evidence amongst listeners, and perhaps unsurprisingly, a survey conducted by the American Bar Association ( 2013 ) has demonstrated that significant volumes of technical information or complex facts can not only overwhelm the jury, but also often confuses them, leaving them feeling bored and frustrated (Kuehn 1999 ; Schofield 2009 ). In turn, this can present difficulties in absorbing and retaining information (Krieger 1992 ). Lederer and Solomon ( 1997 ) noted an increase in people’s attention when moving object displays were used in the courtroom.

There have been research studies which have investigated and considered the effects and impact that evidence presentation methods may have on jurors’ decisions in the courtroom (Schofield 2016 ; Schofield and Fowle 2013 ; Dahir 2011 ; Kassin and Dunn 1997 ; Dunn et al. 2006 ; Schofield 2011 ). Alternative research has started to develop our understanding of the effects that technology may have on jurors and the decisions which they make in the courtroom (Burton et al. 2005 ). Whilst visual presentation methods offer significant advantages in presenting complex evidence in an understandable way, research would suggest that such methods could also mislead, or unfairly persuade a jury (Schofield 2016 ; Burton et al. 2005 ).

Manlowe ( 2005 ) details the practical considerations which need to be made before introducing visual presentations into the courtroom, such as whether the technology installed permits graphical displays to be presented. Manlowe ( 2005 ) advocates the use of visual evidence in the courtroom in combination with oral presentations, as it has been found that jurors can retain six times as much information when compared with just oral presentations alone. Schofield and Fowle ( 2013 ) also extensively described the advantages and disadvantages associated with different graphical technologies for presenting evidence in the courtroom, and provided guidelines for using such evidence.

Given the availability of technical devices, such as tablets, smartphones and laptops, there is some evidence to suggest that individuals are used to receiving high-impact information in relatively short periods of time (Manlowe 2005 ; Pointe 2002 ). This information is highly visual, and as it utilizes technology might suggest that members of the court, including the jury, are equipped for a shift towards an increase in the quantity of visual data and technological advancement. It might also suggest that traditional methods of presenting evidence relating to a crime scene, such as sketches and photographs lack the flexibility and ability to deliver the intended information in a comprehensive manner. According to Manlowe ( 2005 ), basic demonstrative exhibits in the courtroom were time consuming and expensive and were limited in their ability to be edited. Technological advancements in the presentation of crime scene evidence include scene recording and visualization (Schofield 2016 ). Such technology ultimately aims to facilitate effective and rapid communication of crime scene environments between users within law enforcement agencies and in court (O’Brien and Marakas 2010 ; Manker 2015 ).

The presentation of forensic evidence using reconstructed virtual environments, such as computer-generated (CG) displays and virtual reality (VR) have been developed through the necessity to improve jurors’ understanding of complex evidence without technical, jargon-filled explanations. It is thought that jurors place more credibility on what they can “see and touch” (Schofield 2009 ). Virtual environments present unique opportunities to visually illustrate a scene, with the ability to “walk through” and virtually interact with the environment, and this can be more compelling for juries (Agosto et al. 2008 ; Mullins 2016 ). Howard et al. ( 2000 ) explored the use of virtual reality to create 3D reconstructions of crime scenes and demonstrated that the system they introduced made the evidence being presented to them easier to comprehend, and substantially shortened the length of trials.

Panoramic photography is another means of technological advancement that has been used to aid the presentation of crime scene evidence. In 2014, a 360° panorama was used to demonstrate material as part of a murder trial. The jury in Birmingham experienced a virtual “walk through” of a scene for a murder trial, created using an iSTAR® panoramic camera (NCTech). Warwickshire Police have used an iSTAR® camera to document serious road traffic collisions (RTCs), which contributed to the evidence revealed during the trial of Scott Melville for the murder of Sydney Pavier. Principal Crown advocate of the Crown Prosecution Service, Peter Grieves Smith commended the technology used stating “It was invaluable footage that greatly assisted the jury in understanding the layout of the property. It will surely become the norm to use this in the future in the prosecution of complex and grave crime”. Judge Burbidge QC also commended Warwickshire Police for their professional pursuit of justice in this case.

Reportedly, the state of courtroom technology integration differs significantly around the world (Manker 2015 ; Reiling 2010 ; Ministry of Justice 2013 ). Basic technology, such as tablets and television screens are being used within some courtrooms in the USA and Australia (Schofield 2011 ) with a limited number integrating more high-end technological solutions, such as CG presentations in the USA (Chan 2005 ). The integration of technology within the UK courtrooms is still in its infancy and is a significantly slower process than the USA or Australia (Schofield 2016 ). As part of a strategic new plan introduced in 2014, the UK criminal justice system was due to be transformed through digital technology. The plan sought to make courtrooms “digital by default” with an end to the reliance on paper by 2016, and to provide “swifter justice” through the digital dissemination of information (Ministry of Justice 2013 ). The ultimate aim was to digitize the entire UK criminal justice system by 2020, to simplify processes and improve efficiency. In 2013, Birmingham’s Magistrates court produced the UK’s first digital concept court, a courtroom that trialled technology to aid in the speed and efficiency of trials using laptops to store electronic case files as opposed to large paper folders, and to facilitate the sharing of files with other members of the courtroom.

In 2016, the UK National Audit Office conducted an investigation to determine the current situation of courtrooms in terms of the digital reform. Results demonstrated how some parts of the criminal justice system were still heavily paper based, creating inefficiencies. The report concluded that the time frames that were originally employed, were overambitious (National Audit Office 2016 ).

The aim of this study was to explore the current situation regarding technology use in courtrooms from the perspective of persons involved in the presentation of crime scene evidence, and to explore barriers and facilitators to its greater and effective use. In this study, the following objectives were considered: to establish the state of current literature associated with the use of technology in courtrooms; to obtain data regarding the experiences of the UK police service personnel with respect to presenting digital evidence in courtrooms; to identify the types of technology that are currently being utilized in courtrooms in the UK; to seek the opinions of police service personnel with regard to digital technology use in the courtrooms and to use these outcomes to define a fresh starting point to debate the exploitation of digital technology use in the UK courtrooms to facilitate more efficient, better value for money and robust judgements with complex forensic content.

The study has focused on the experiences of crime scene personnel because of the advancements of technology in this particular area, such as the use of 360° photography and laser scanning. The subject area also falls within the remit of the research team. By sharing opinions and experience, the paper hopes to aid both legal professionals and police service personnel to a more comprehensive understanding of the current use of technology in the courtroom, the advantages which technology can provide to their case, and the barriers which have been affecting the adoption of technology.

Participant questionnaires

A qualitative phenomenological research study was conducted to explore the experiences of police service personnel regarding the current use of information technology in courtrooms and in their experience of evidence presentation. The sample group included vehicle collision investigators and forensic photographers/imaging technicians. A snowball sample of 21 police service personnel from England and Wales and Australia were recruited via email and a UK police forum for participation within this study. It was considered useful to recruit participants from these countries because of the similarities with their respective criminal justice systems (McDougall 2016 ) but where differences in the rate of technology integration had also been previously reported (Schofield 2016 ) which could offer meaningful and experience based solutions in technological advancement.

Participants were required to formally consent to participation in line with the ethical requirements of the host institution. Participants were emailed a semi-structured, open-ended questionnaire and were asked to type or handwrite their responses. The questions asked were as follows:

What is your job title and role within the criminal justice system?

As part of your role, are you required to present evidence in a courtroom?

Can you tell me what, if any, technology has been integrated into the courtroom?

What has your experience been in terms of the introduction of new technology into the courtroom?

Have there been any difficulties with technology being integrated into the courtroom?

With the implementation of technology with existing and current courtroom systems?

And whether there have been barriers, if any, to the adoption of such technology?

If there has not, why do you think this is?

In terms of the current methods with which forensic evidence is presented in court, do you think anything needs to be changed? Please explain.

What has your experience been with the presentation of evidence in court? Please explain.

New technology is becoming available to police services and forensic services for the documentation and presentation of crime scenes. 360° photography or laser scanning is being implemented into police services to speed up the data capture as well as to capture more detail and information from the scene.

Have you had any experience in this area—do you yourself use these methods for documenting crime scenes?

Have you ever had to present this type of evidence in court? Please explain.

What has the response been to this method of presenting evidence

From the judges?

Barristers?

The jury members?

Is the courtroom fully equipped to allow you to present this type of evidence? Please explain.

Do you feel there is anything, which needs improvement? Please explain.

Can you give me your opinion on presenting evidence in this manner? Advantages/disadvantages.

Data analysis

Thematic analysis based on Manker ( 2015 ) methodology, originally adapted from Guest et al. ( 2012 ), was used to analyse the data that was collected from the 21 participants. The data analysis consisted of breaking down and coding the text responses obtained from the participants’ questionnaires, to identify themes and to construct thematic networks. A computer software program NVivo was used to store, organize and code the open-ended data collected from participants. Participant text responses were re-structured within an Excel spread sheet and the data set uploaded into the NVivo software. The data was explored using the NVivo software through word frequency queries to analyse the most frequently used words in the participant data. Emerging themes were identified and coded using specific keywords or “nodes”. Nodes were created based on these recurring themes, and any responses were coded at the relevant nodes. For example, for question 11 which asked the participants “What has the response been to this method of presenting evidence”, potential responses from participants could suggest a good response, a bad response, little response, no response or not applicable. These identified nodes would allow the researcher to link a node to the relevant response from participants. Within the NVivo software, the researcher could search nodes and easily identify all participants who had the same response. This was used to analyse the different themes identified within the participant data. As the analysis of the data progressed, new nodes were identified and these were checked against all other participants.

Thematic categories were determined by the researchers: to include courtroom technology, ease of use, implementation, limited use, recommendations, advantages and disadvantages. Some of the thematic categories were further broken down to include additional related categories. For example, courtroom technology was further broken down to include specific categories such as television screens, audio-visual technology, computers, 360° photography and laser scanning.

The nodes were associated with the thematic categories described above. The participant responses were analysed, described and tables created which documented the number of respondents to have reported such a response relevant to the nodes. The nodal frequency within each theme was used to determine the existence of trends within the data.

Results and discussion

The purpose of this qualitative phenomenological research study was to explore and describe experiences of police service personnel with responsibilities within crime scene examination with regard to the current use of technology within the courtroom. This research covered over one third of the total 43 police services within England and Wales (15 services), as shown in Fig.  1 . Each police service has their own policy and procedures for conducting criminal investigations and as such different individuals within the same police service would likely follow the same procedures.

Map to show the 15 police service regions represented by the participants who completed the questionnaire (highlighted in purple). Adapted from original by HMIC

Although the use of questionnaires allowed exploration of the participants’ experiences regarding the use of technology in the courtroom, they restricted further explanation or prompts for more detail which would be available in interviews. The authors accept that participant responses to questions that are likely to change based on different stimuli, such as the context of the request and their mood, in addition to what information they could recall from memory at that particular time. Consequently, participants may not recollect a particular experience or event at the time that they completed the questionnaire, and as a result may not mention it. In response to this, the paper presents a thematic analysis of the data, where collective themes are presented based on responses from the entire sample group rather than isolated incidents.

A consideration for the authors throughout the study related to the opportunities for participants to respond to questions in a manner that would be viewed favourably. This is termed “social desirability bias” (Manker 2015 ; Saris and Gallhofer 2014 ). As a result, participants may have been inclined to over exaggerate “good behaviour” or under report “bad behaviour”. Reportedly, the effects of social desirability bias is reduced in situations where an interviewer is not present, which is why, in part, the experimental design included questionnaire data. When the data was analysed, six themes were identified. These were “current technology in the courtroom”, “lack of technology in the courtroom”, “difficulties/barriers associated with the integration of technology into the courtroom”, “improvements/changes that are required”, “the future of courtroom technology” and “360° photography and laser scanning”.

Theme 1: Technology used in the courtroom

Within the first theme, participants were asked about their experiences of technology within the courtroom, which prompted responses that described the use of television screens, DVD players/CCTV viewing facilities, basic PC’s/laptops, paper files, photographs, basic audio-visual systems, live link capability, projectors and the specialist software to view 3D data. Four participants described how the current technology within the courtroom was limited to that of traditional paper files and printed albums of photographs. Given the use of the term “technology” within the question, the answers that were given were perceived to describe very basic methods, and some of the participants equally commented that “the courts need to catch up”. Those courtrooms that had initiated technology into trials had implemented what many participants claimed to be “basic and limited audio-visual technology” .

The UK National Audit Office ( 2016 ) identified that courtrooms have been slow to adopt technology and still heavily rely on paper files, which has worked for many years. The experiences described by the participants in this study would support these findings. The reason paper files have worked for many years could be attributed to the fact that people like to have something in their hands that they can see in front of them. Paper files and photographs allow a jury to look closely and examine what they are being shown, compared with distance viewing of a screen. However, printing photographs often leads to a loss in clarity and detail, which could make it more difficult to interpret what they are seeing. Often, it is the case that something may be visible on screen in a digital photograph that is not visible once recreated through print.

According to the data, the type of court and crime was a factor which determined whether any technology was implemented, and the type of technology that was implemented. For one participant, the majority of their cases were produced for the coroner’s courts, who were reportedly “yet to embrace” new evidential technology. It was also noted, however, that although slow to embrace technology, in the majority of cases at the coroner’s court, it was not needed.

Theme 2: Lack of technology in the courtroom

According to the results of this study, little technology had reportedly been implemented into the courtrooms. One participant stated that, “there has been little investment by the courts in modern technology” and “generally there hasn’t been any [implementation] and under investment seems to have been the greatest problem”.

Some of the participants described how limited technology had negatively impacted upon their ability to appropriately present evidence in court. In one instance the following scenario was described:

I was presenting evidence on blood spatter in court. The jury were looking at photocopies taken from the album of blood spatter on a door. So I had to ask the jury to accept that there were better quality images where the spatter could be seen and I was able to interpret the pattern. Not only does this allow a barrister to claim I was making it up but, it is much easier to explain something if people can see it.

A similar experience was reported by another participant, who took personal measures to aid their presentation of evidence:

I had to show each individual juror an original printed photograph from the report I had brought with me as those provided in their bundle were of such poor quality that the subject of my oral evidence was not clearly visible to them.

Primarily evidence is verbal, [and that the] presentation of photographs are by way of rather dodgy photocopied versions lovingly prepared by the Crown Prosecution Service (CPS).

The significance of these statements relates to the potential for the evidence under presentation to be misunderstood or unfairly dismissed, which has implications for the case. These experiences would suggest that the most basic opportunities to provide equivalent quality photographs to the jury were missed. Forensic evidence is often highly visual, and even with an articulate speaker and extensive descriptive dialogue, the ability to effectively communicate the appearance and location of evidence such as blood spatter is likely to be strengthened by effective visual aids. Aside from high quality photographs, alternative digital presentation methods, such as portable screening devices may have provided an appropriate and just communication of the evidence.

Burton et al. ( 2005 ) and Schofield ( 2016 ) each made reference to the effects of visual presentation methods on jurors’ interpretation of evidence. In this research, reference has been made to actual evidence and not reconstructed scenarios; therefore, in our opinion, visual presentation opportunities to illustrate complex evidence such as blood spatter is only likely to improve jurors’ understating of the evidence being presented to them. It may also improve jurors’ retainment of information, as demonstrated by Manlowe ( 2005 ).

Paper files in the courtroom are still heavily relied upon, with the UK’s Crown Prosecution Service (CPS) producing roughly 160 million sheets of paper every year (Ministry of Justice 2013 ). In addition to the limited presentation quality of photocopied images, printed copies of two dimensional presentations were also criticized in terms of their inability to interact with jury members, as follows:

Tend to be clumsy and fill the witness box with paper that is pointed to in front of the witness and this is never conveyed to the jury.

If, maybe through the use of tablets, or some form of interactive media, this could be displayed on screen, then the witnesses’ thoughts and explanations may be better conveyed to the jury.

For other participants, the use of printed paper was seemingly appropriate:

For most cases, a simple 2D plan and photographs is more than sufficient. There is the ability to produce flashy reconstruction DVD’s, but I think there is a huge danger of a reconstruction showing things that did not happen, putting images to the court and jury that may only be a representation of a possible scenario rather than what is definite. This is particularly true for collision investigation where there are often unknowns and using a computer model cannot be certain that is what happened. Videos shown are talked through as they are run.

In this instance, the opposite explanation appears to be true. Here, the participant is suggesting that technology could facilitate the presentation of inappropriate and misrepresenting evidence, equally impacting negatively on the case. This would reasonably support the idea that the use of technology should be considered in the context of the evidence under presentation, and/or used in instances where facts are being communicated. The experiences described by this participant implied that the photographs that they had used had adequately supported the presentation of their evidence.

In cases where multiple types of evidence were being presented, the need for technology reportedly varied, but its availability was also restricted for some participants.

One participant described,

to date, I haven’t used any visual aids/props. Generally, I will have compiled a report, which contains photographs and a scale plan, but as part of the wider investigation there may be digital data such as CCTV footage, 3D laser scans and animated reconstructions. My evidence is given orally and the relevant sections of the jury bundle referred to for context. I have presented a case involving CCTV footage which was played on too small a screen for the jurors to see properly, therefore making it difficult for them to understand the intricacies of what it showed. The footage itself had to be provided in a format that could be played in a DVD player present in the courtroom, leading to an overall reduction in quality.

The restrictive nature of this environment for the presentation of CCTV evidence is surprising in a society that thrives on visual media. In this example, the presentation of evidence has been compromised for the cost of a larger screen, or the distribution of visual display devices, such as tablets. In terms of operation, these devices simply need to facilitate functions such as “play”, “stop” and “pause”. If there is a concern that jury members may be unable to comply, there are options to screen mirror devices, thus giving control to a single competent user. It was reported by an Australian participant that some courtrooms already had individual screens for each jury member. Many courtrooms in the USA had also installed multiple computer screens or individual tablets for the jury so that evidence was more easily viewed (Schofield 2016 ; Wiggins 2006 ).

One of the UK participants claimed that,

until the improvement of the visual aids for the jury i.e. much larger or closer/individual monitors are implemented even the products we provide at the moment are of limited use in the courtroom.

Any concern over difficulties with technology operation by jury members should be considered alongside the fact that according to the Office of Communications (Ofcom), in 2017, 76% of adults living in the UK had a smartphone; therefore, the authors question whether courtroom technological advancement should account for this and look at the cultural shift in technology. This was supported with the data, where a participant made reference to the introduction of technology into the courtroom stating how it can

depend very much on the attitudes of the judge, prosecutors and investigators. Some are technologically averse whilst others are happy to accommodate new technology.

In the USA, the courtroom 21 project (founded in 1993) has sought to address issues with technology integration into courtrooms by active research, demonstrating the software and hardware to users, as well as discussing ideas for use in court. This could be a useful learning opportunity for alternative justice systems moving forward, given that an evaluation of US courts in Rawson ( 2004 ) revealed some similarity between the US and UK current practice. There is some evidence to suggest that evidence presentation in the USA is similarly restricted by technological advancement.

The use of live links or videoconferencing, which allows expert witnesses to present their testimony off site was reported by two participants. This type of technology is widely used within courtrooms by police officers that can remain working until required to present evidence, to interview vulnerable witnesses, and to arrange suitable dates for a defendant’s trial. This is believed to save time and money transporting defendants to the courtroom location for hearings.

Theme 3: Difficulties/barriers associated with the integration of technology into the courtroom

This study highlighted some of the difficulties participants had experienced with the integration of technology into the courtroom and problems arising with the already installed basic courtroom equipment. One participant described,

people always seem to be finding their feet when trying to play with digital evidence, making things connect and work. Also, the actual devices are not always reliable

A lack of training and knowledge regarding existing technology was identified by several participants. One participant described the frustrations of the situations when technology was not operated correctly, describing,

the court clerk always seems to have difficulty getting the existing system to work correctly, albeit a DVD player. It is a great source of frustration for all involved.

we occasionally use video footage, which has to be converted to DVD format to play at court –assuming the usher knows how to work it.

This raises a training issue within courtrooms, which was supported by the Rt Hon Sir Brian Leveson in his review of efficiency in criminal proceedings (Leveson 2015 ). In this document, the Rt Hon Sir Brian Leveson highlighted the requirement for judges, court staff and those individuals who have regular access to courtroom technology to be sufficiently trained. In addition, he highlighted the need for technical assistance to prevent underutilisation of technology due to technological failures, or defective equipment, which often delay proceedings (Leveson 2015 ). In 2014, 13 cases in Crown court and 275 in Magistrates were postponed because of problems with technology. The National Audit Office ( 2016 ) reported that the police had so little faith in the courts equipment that they hired their own at a cost of £500 a day.

Issues regarding the compatibility of technology in the courtroom and a lack of staff training are not restricted to the UK. A report generated by the Attorney General of New South Wales, Australia, identified the same issues arising from technology in the courtroom (Leveson 2015 ; NSW Attorney Generals Department 2013 ).

Participants’ reported lack of investment/funding as the most commonly occurring “barrier”. According to one participant,

Under investment seems to have been the greatest problem; we have the opportunity to bring 3D interactive virtual scenes to the courtroom for example, however the limited computing power available means that this is impossible and there is little or no will on the part of the Ministry of Justice (MoJ) to invest in this technology.

CPS protocol is resistant to change and it also requires funding.

This supports the work of Manker ( 2015 ), who found that participants considered cost of equipment to be the main reason for the limited use of technology. Although technology may be expensive to purchase in the first instance, the significant returns should outweigh the initial expenditure. For example, technology aided trials may aid juries in understanding evidence, reaching a verdict and thus bringing the case to a close more quickly, reducing case costs and allowing more trials to be conducted concurrently (Marder 2001 ). In addition, there are benefits that cannot be quantified, such as juror satisfaction and engagement through the use of technology over laborious descriptions.

Barriers can also include a resistance to change or a lack of acceptance. One participant commented on the reluctance of individuals to accept new technology;

barriers include reluctance of some judges, investigators and lawyers to consider or implement newer technologies into their investigation or courtroom presentation … these challenges are reducing as time progresses and the technologies are increasingly established and the general paradigm is altered.

In some circumstances it may be necessary to integrate newer systems alongside, or in conjunction with, already existing equipment effectively. In many cases, the technologies may not be compatible, as evidenced through one participant’s response, who described,

the current systems seem incapable of keeping up with the advance on modern technologies or simply do not work more often than not.

Leveson ( 2015 ) found that many judges were in favour of exploiting technology in order to aid in the efficiency of the criminal justice system but had doubts regarding the ability to adapt current technology and its capacity to undertake its current duties.

This is not seemingly consistent with some participants’ experiences of technology outside of the courtroom, but within their investigative roles fear of technology and change also presents a barrier to the adoption of technology, particularly the risks associated with such technological change. Some changes may be successful, and others may not, but until these changes are made, it is impossible to know the outcomes of the technology use and what it can provide to the courtroom (Marder 2001 ).

There is some suggestion that technological change within courtrooms will be adopted. A report by the Ministry of Justice ( 2016 ) explains how the entire UK criminal justice system is being digitized to modernize courts using £700 million government funding. The funding aims to create a new online system that will link courts together. The digitisation of the UK criminal justice system is due to be completed in 2019, and an influx of funding should enable more rapid adoption of technology into the courtrooms.

Theme 4: Improvements/changes required to facilitate technological integration

Seven participants commented that no change in the courtroom was necessary with regards to technology. For example,

I think current methods are sufficient and like I said anything more complicated we provide our own laptop for.

As discussed, the technological requirements for evidence presentation are case specific, which is likely to be more prevalent in areas that utilize technology such as 360° photography and laser scanning.

Eight participants commented that a significant technological upgrade was required within courtrooms to cope with the ever-increasing demand of technology. This was emphasized in the following quotes:

The majority of courtrooms need a radical update. I’d hope that those being built now incorporate the required technology; however, I wouldn’t count on it,

the courts need full modernising,

the basic court infrastructure needs upgrading to allow it to handle the significant increase in demand that comes with the use of 3D animations software,

the court process has changed very little in the 12 years I have been a collision investigator whilst the equipment we use and evidence we produce has changed exponentially.

The adoption of technology to aid with the documentation and recovery of evidence from crime scenes by police services can only support effective evidence presentation with the alignment of such technological advancements in the courtroom. Failure to align technology could mean that such evidence is unlikely to be presented in its most effective format. This change could be alleviated with the standardization of file formats. According to one participant,

standardisation of digital formats used in the courtrooms would help in the preparation of evidence knowing which format to use when supplying evidence, to police and the courts. The most common remark we get from police and the courts regarding digital file formats is “can you supply or convert this or these files to a usable format, we just need it to be playable in court”.

Theme 5: courtrooms of the future

Participants were asked about their thoughts on the future of evidence presentation. Virtual reality (VR) featured within several responses, with the idea being that courtroom users could be transported to a scene, allowing them to view and navigate themselves through it in 3D. Research has been conducted to investigate the use of VR courtrooms, whereby jurors wear VR headsets and are transported to the crime scene, allowing them to explore the scene (Bailenson et al. 2006 ; Schofield 2007 ).

In this study, one participant commented that,

When presenting evidence in an innovative way it generally means in a way that is better for the jury to understand, and that means clarity.

This will provide the ability for jurors, judges and the coroner to revisit a scene without leaving the courtroom and see things from the perspective of various people involved (victim, accused, witnesses).

In terms of its overall aim, one participant commented,

The aim is surely to assist the jury with understanding the complexities of the crime scene and to do that they need to be able to visualise the location and the evidence identified within it so I believe the future of a courtroom will be to provide this as realistically as possible.

This participant does not state what technology will be used to provide this experience to the jury only that the visual evidence will need to be as realistic as possible.

The effectiveness of VR technology for evidence presentation is likely to encourage debate, given the clarity with which crime scenes can be presented, but with the consideration of contextual information and its effects on juror response.

There will however be a fine line between giving a jury enough information with which to make an informed decision and traumatising them in vivid technicolour. Technology should not be adopted for the sake of it as this could have profound effects on the trials outcome. Any evidence presented in a courtroom needs to describe the incident that occurred in a manner which is easily understandable.

Although the perceived benefits of the technology were discussed by some, other participants commented on how VR was “still a long way off from being used for evidence”. Issues regarding the persuasive impact of demonstrative evidence have already been explicitly expressed with regard to 360° photography and laser scanning (Narayanan and Hibbin 2001 ). Other researchers claim that such evidence can lead a jury to blindly believe and accept the evidence, as shown in the work of Schofield and Fowle ( 2013 ) and Selbak ( 1994 ). Consequently, the use of visual presentation using CG could have profound implications on the case outcome if the jurors instantly believe what they are seeing. Evidence presented in such a way must remain scientifically accurate and truthfully reflect the scientific data and augment witness testimony (Manker 2015 ). This was supported by participant comments regarding the probative value of the evidence. Here,

the probity value is yet to be determined, in addition to juries not being allowed on many occasions to witness certain graphic images for fear of being overly influenced. Virtual reality would compound this.

Another participant commented that,

it may be perceived as entertainment rather than a judicial process.

Theme 6: 360° photography and laser scanning

Given the considerable amount of technology available with respect to crime scene documentation, such as 360° photography and laser scanning, and the expertise of the participant group, participants were asked to describe their experiences of such technological advancements.

Most participants (18 out of 21) described how their respective police services currently utilize 360° photography or laser scanning methods to document their crime scenes, but due to limitation of the court, facilities were unable to present such evidence to the courts. In such situations, 3D laser scan data was used to create 2D plans which were then printed for the court. This was criticized by one participant, who expressed their opinion on having to print 2D plans as,

a travesty really when you consider what capability this data offers.

Often, such technology requires access to a data cloud, which raised an issue for two participants for evidence presentation.

One participant stated that it is,

unfortunate as the benefits of the data cloud as a contextual visual aid are unrivalled. In situations where the 3D data was allowed, it was only accepted into the court as a 3D animated “fly-through” played directly from a DVD. This participant stated that using this DVD method it was not possible to move through the scene in real time.

One participant did report being able to successfully present their 360° panoramas.

I was the first to show 360° panoramas along with point cloud data. I had to explain to the court what it was and how it was used prior to the case commencing. We have presented this type of evidence now in live court 3 times and received no criticism. There have been at least another 3 cases where we have produced it but not required to show it. It does require some advanced preparation and several visits to the court room to be used, to make sure it all works.

With the Ministry of Justice driving the adoption of technology and providing significant funding to ensure the uptake of technology by courtrooms, it is inevitable that courtrooms will become “digital by default”. This will provide a more efficient CJS and allow information transfer to become more seamless.

The results of the qualitative phenomenological research in this study identified six key themes from the responses of participants, representing 15 of the current 43 UK police services. The themes covered the “current use of technology in the courtroom”, “lack of technology in the courtroom”, “difficulties/barriers associated with the integration of technology into the courtroom”, “improvements/changes that are required for technology integration”, “the future of courtroom digital technology”, and “360° photography and laser scanning”. The participants reported a general lack of technological integration within any court environments. It was clear that a significant change is required to existing courtrooms and their infrastructure to allow the use of existing technology to be utilized effectively, particularly for crime scene documentation, such as 360° photography or laser scanning from crime scenes or of evidence types. These areas, along with virtual reality represented aspects which participants believed would describe future-proofed courtrooms. However, concerns were voiced by the study group questioned, over the contextual influence that immersive technology may potentially cause and questioned the need to expose jurors to such information. Clearly, not only does digital-technological development within the courtroom require consideration, the attendant psychological benefits and ethical aspects also require developing in parallel to make the use of digital technology a fully useful and integrated feature in the decision-making process of Jurys and the UK courts and to provide a digital end-to-end common platform. As part of the ethical concerns to be addressed and those of “evidence continuity and potential contamination” of data, the opportunity that may exist to manipulate visual images needs to be carefully explored and future-proofed into any systems being developed. The authors firmly believe and attest that there is considerable scope for exploring this area further, although realize that the restricted access for courtroom presentation are likely, which limits the academic study of this area.

Availability of data and materials

The datasets used and/or analysed during the current study are available from the corresponding author on reasonable request.

Abbreviations

Computer generated

Criminal justice system

Crown Prosecution Service

Virtual reality

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KS collected, analysed and interpreted the participant data regarding the use of technology in the criminal justice system with assistance from SF and JP. All authors were contributors in writing the manuscript and reading and approving the final manuscript.

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Sheppard, K., Fieldhouse, S.J. & Cassella, J.P. Experiences of evidence presentation in court: an insight into the practice of crime scene examiners in England, Wales and Australia. Egypt J Forensic Sci 10 , 8 (2020). https://doi.org/10.1186/s41935-020-00184-5

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• Courtroom evidence
• 360° photography
• Evidence presentation

How to use evidence effectively in your next presentation

Logic and emotion are a winning combination in a presentation..

Emotion is of course crucial in a presentation.

If your presentation is pure logic, stuffed with fact after fact, evidence, and statistics, it will be difficult for your audience to relate to it.

They will be informed but disconnected. This is not a presentation they will rush to share with their colleagues or bring up in key discussions. And nor will it necessarily be particularly memorable.

A presentation hits home when an audience can relate to it, through storytelling and the personality of the presenter.

However, a presentation without evidence and logic also has its flaws. Your audience might feel warmly about your presentation but without memorable evidence to back it up they are left with nothing to hold on to afterwards.

It’s all show with no substance.

Evidence in a presentation is used to prove an argument being made by an individual or group. Alternatively, evidence can be used to disprove or refute a fact or argument people disagree with or hold to be false.

In order to persuade any internal or external audience, you need a combination of compelling evidence and effective storytelling, topped off with exceptional delivery.

So how do you bring evidence to the table?

The best way to incorporate evidence is to be selective. Quality rather than quantity. Less is more.

Instead of amassing as many facts as possible to prove your credentials, and bolster your argument, focus on a few strong ones that support your claim.

The power of 3 is a useful technique for this.

Your audience will retain three key points rather than many. Which are your three key points?

If you need ideas, we are surrounded by 3s in branding, messaging in our everyday lives. ⠀

Quick examples: ⠀⠀

Nike: ‘Just do it’⠀

McDonalds: ‘I’m loving it’⠀

Three blind mice⠀

The Holy Trinity⠀

Location location location⠀

‘See it, Say it, sorted’⠀

‘Stay home, Protect the NHS, Save lives’.

What kind of evidence is compelling and credible?

Naturally, not all evidence is equal – and what makes evidence compelling and credible will vary vastly depending on the point you are trying to make, and on your audience.

For example, if you want to demonstrate that your brand of sponge is popular to an audience of fathers, then survey results of 300 men, or the testimonial of a dad could count as great evidence.

If you are trying to persuade your audience about the dangers of a brand of sponge, that same evidence won’t cut muster. You’d need more scientifically rigorous data. A peer reviewed paper perhaps, or a quote from a leading scientist.

A few more good practices to check your evidence is reliable:

• If you’ve obtained the quote or statistic from an online list, find out where it originally came from and check if it is accurately represented. It’s easy for messages to get distorted that way, and you don’t want to be at the end of a long Telephone Game.
• In an era of fake news, double check that your source is credible. There are a few online guides to help you to detect whether you are dealing with a real or fake news story.
• Check the date. This might seem obvious, but it’s worth doing! If your topic is topical, it’s not a good look to use supporting evidence from 2004 unknowingly.

Following the above steps will support your credibility.

Make it visual

Whilst testimonials can be convincing evidence, visuals are everything in a presentation, whether offline or online.

Making your evidence come to life visually will help your audience take in your message easily and effortlessly, especially if it is supported by exceptional delivery.

Ask yourself:

• Can these statistics be turned into a chart?
• Can these survey results be represented by an image?
• What is the core message from a set of stats?

If you are sharing facts that have percentages in them, give each one its space in a slide, as with the example below.

An example of making statistics pop visually

So, there you have it – Habit 9 of The 12 Habits of Exceptional Presenters – Provide compelling and credible evidence. Evidence is used to back up or refute arguments, and it helps our audiences to make decisions at work. Using evidence allows us to work out what is effective and what is not and is critical to providing a persuasive presentation.

Want to find out more about the other 11 Habits of Exceptional Presenters?

You can download my guide to the 12 Habits of Exceptional Presenters right here.

Did you know we have a LinkedIn page and an Instagram page now? Follow us for more advice to improve your presentations!

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Police identified 14-year-old Colt Gray, a student at Apalachee High School, as the gunman who killed two students and two teachers.

• LATEST DETAILS

Prosecutor wants charge reinstated against Alec Baldwin in 'Rust' case

by MORGAN LEE | Associated Press

SANTA FE, N.M. (AP) — A prosecutor asked a New Mexico judge to reconsider the decision to dismiss an involuntary manslaughter charge against Alec Baldwin in the fatal shooting of a cinematographer on the set of a Western movie, according to a court filing made public Wednesday.

Special prosecutor Kari Morrissey said there were insufficient facts to support the July ruling and that Baldwin’s due process rights had not been violated.

State District Court Judge Mary Marlowe Sommer dismissed the case halfway through a trial based on the withholding of evidence by police and prosecutors from the defense in the 2021 shooting of cinematographer Halyna Hutchins on the set of the film “Rust.”

The charge against Baldwin was dismissed with prejudice, meaning it can't be revived once any appeals of the decision are exhausted.

Baldwin, the lead actor and co-producer on “Rust,” was pointing a gun at cinematographer Halyna Hutchins during a rehearsal when it went off, killing her and wounding director Joel Souza. Baldwin has said he pulled back the hammer — but not the trigger — and the revolver fired.

The case-ending evidence was ammunition that was brought into the sheriff’s office in March by a man who said it could be related to Hutchins’ killing. Prosecutors said they deemed the ammunition unrelated and unimportant, while Baldwin’s lawyers alleged that they “buried” it and filed a successful motion to dismiss the case.

In her decision to dismiss the Baldwin case, Marlowe Sommer described “egregious discovery violations constituting misconduct" by law enforcement and prosecutors, as well as false testimony about physical evidence by a witness during the trial.

In the request to reconsider, Morrissey argued again that the undisclosed ammunition was not relevant to the case against Baldwin, which hinged on his responsibility to handle a gun safely under familiar industry guidelines.

“No one on the prosecution team ... ever intentionally kept evidence from the defendant, it simply didn’t occur to the prosecution that the rounds were relevant to the case even if they were the same or similar to the live rounds found on the set of ‘Rust,'” Morrissey wrote.

She asserted that defense attorneys knew about the rounds but canceled an opportunity to view them prior to trial.

“This is a smoke screen created by the defense and was intended to sway and confuse the court ... and it was successful," Morrissey wrote.

Baldwin attorney Luke Nikas said a response will be filed with the court, without further comment.

Movie armorer Hannah Gutierrez-Reed is serving an 18-month sentence on a conviction for involuntary manslaughter. She was accused of flouting standard safety protocols and missing multiple opportunities to detect forbidden live ammunition on set. Assistant director and safety coordinator David Halls pleaded no contest to the negligent use of a deadly weapon and was sentenced to six months of unsupervised probation. A no contest plea isn't an admission of guilt but is treated as such for sentencing purposes.

It hasn't been officially determined who brought the live rounds that killed Hutchins to the set, though prosecutors allege that Gutierrez-Reed was responsible.

The ammunition that skuttled the case was handed over to a Santa Fe County Sheriff's Office crime scene technician who filed the evidence under an unrelated case number. Three of those rounds resembled live rounds that were collected from the “Rust” set after the fatal shooting.

The mysterious ammunition was dropped off at the sheriff's office by Troy Teske, of Bullhead City, Arizona, who routinely stored weapons and ammunition for his friend and longtime movie-gun coach Thell Reed — Gutierrez-Reed's stepfather and mentor as a film-set armorer.

Morrissey asked the judge to order defense attorneys to show when and how they learned of the ammunition provided by Teske, calling the defense motion to dismiss the case “all a ruse.”

Attorneys for Baldwin have said he was unaware that live ammunition had been brought to the film set and that prosecutors hid evidence while trying to establish a link between the live ammo on set and Gutierrez-Reed. They said prosecutors wanted to drive home the argument that Baldwin should have recognized the armorer's blundering youth and inexperience.

Gutierrez-Reed is seeking the dismissal of her involuntary manslaughter conviction based on the allegations of suppressed evidence that emerged at Baldwin’s trial.

Separately, Gutierrez-Reed has requested a hearing on a proposal to change her plea to guilty in exchange for a deferred sentence on a felony firearms charge pertaining to accusations that she took a gun into a Santa Fe bar weeks before “Rust” began filming.

Under the agreement with prosecutors, Gutierrez-Reed would serve 18 months under supervised probation with the potential for incarceration for probation violations. Terms of probation agreement, if approved, would forbid possession of firearms and the consumption of drugs or alcohol and would require registration in a criminal justice DNA database.

The Illusion of Explanatory Depth and the Presentation of Expert Evidence

Mary Catherine Way and Lauren Grinder

Sep 12, 2023

Even if you’ve never heard the phrase “illusion of explanatory depth” (or IOED), it is a challenge you’ve likely faced if you’ve presented complex scientific or medical evidence to a jury. Yale researchers conceived the term to describe their observation that, especially when people initially hear an explanation, “[m]ost people feel they understand the world with far greater detail, coherence, and depth than they really do.” Leonid Rozenblit & Frank Keil, The misunderstood limits of folk science: an illusion of explanatory depth , Cogn Sci. 26(5): 521-562 (2002). The researchers asked participants to rank their understanding of how certain items (including helicopters and zippers) worked, to write a step-by-step causal explanation, re-rate their understanding, and then compare their understanding to an expert description. Importantly, though participants had less confidence in their knowledge after having to explain how each of the items worked, they felt their knowledge increased “dramatically” after reading the expert explanations. Id. The researchers proposed that “knowledge of complex causal relations is particularly susceptible to illusions of understanding.” Id. at 2.

Why is this relevant to the presentation of expert evidence to a jury? An overconfident juror operating under the IOED will likely share (convincingly!) their inaccurate understanding of the evidence with other jurors, making it crucial to equip jurors with the right questions to ask during deliberations to expose flimsy reasoning as well as providing them with answers for the weakest parts of your narrative.

The following are three practical ways to combat the IOED as you consider the presentation of expert evidence to a jury:

• Clearly show the jury what your opponent’s expert had to ignore in order to reach their conclusion. In favor of clarity over complexity, the jury has likely heard an apparently simple explanation for a rather complicated outcome in the case. This explanation was probably accompanied by just enough scientific rhetoric to make a jury feel like it has more than enough information to understand the issues presented in the case. Your job when you stand up to cross-examine the expert is not only to, depending on the case and the expert, call into question the expert’s qualifications, emphasize where the expert agrees with your expert (and facts favorable to narrative), and expose problems with the expert’s methodology, but to also show the jury what the expert had to ignore (or at least rule out) in order to reach their conclusion. This is easiest to illustrate when there are multiple potential causes for an injury. What causes did the expert rule in (or should have ruled in) and what did the expert do (or not do) to rule those causes out? A well-organized cross-examination may serve to confront the overconfident juror with the reality that they may not actually understand the subject as much as they thought and, more importantly, equips other jurors with the right questions to counter the overconfident one with information that supports your position in the case.
• Use your expert to combat the “Dr. Google” mindset. In a world where each juror sitting in the box has likely relied on their own googling for self-diagnosis, you must show them why they should listen to your expert. This is more than just going through your expert’s education and experience as a matter of routine to establish they are qualified under the rules to give their opinion. This is emphasizing the depth of your expert’s knowledge and why that depth of knowledge matters to the particular issue the jury needs to decide. Your direct examination should demonstrate to the jury that your expert has a clear understanding of the complex issues in your case. You can do this by asking questions that demonstrate (1) why your expert is uniquely situated to speak directly to the key issues in the case and (2) the depths of your expert’s understanding. This simultaneously shows exactly what those overconfident jurors suffering from IOED do not know while building confidence in your expert.
• Lay the groundwork for the jurors in your camp to convince the rest. This requires equipping jurors with answers to the hard questions that involve the weakest parts of your narrative. This may be a factual question outside the expert’s purview, but it may also be a question of science or medicine that your expert must answer. Additionally, it could be a matter of providing a framework for certain evidence, like using the advancement of technology and science over time to explain a decision to withdraw a certain product from the market. In whatever ways the expert intersects with the hard questions, consider carefully how to present the jury with answers. This will aid your jurors during deliberations.  

While it is no surprise that people tend to overestimate their own knowledge, especially in today’s world where deceptively simple explanations for complex phenomena abound on the internet, it is a reality trial teams should not forget in the presentation of expert evidence.

Mary Catherine Way

DLA Piper LLP (US)

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Lauren Grinder

The University of Chicago The Law School

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Clinic students and our community-based clients won a complete overhaul of the policies that govern residential search warrants in Chicago in months-long court supervised multi-party negotiations, briefs, and court proceedings. CPD’s new policies will seek to restrict home raids to circumstances in which they are necessary and forbid raids whenever the potential harms outweigh the expected benefits. CPD will be required to develop a written plan for the execution of every residential warrant to minimize the harm, trauma, and intrusion to families and their homes. Officers will be evaluated for their success in mitigating harm when executing search warrants. The new policies will protect children and vulnerable people from unnecessary harm, including requiring police to schedule raids at times when they are least likely to be home. They ban high-risk nighttime raids and limit no-knock warrants to circumstances in which people’s lives and physical safety are in jeopardy. They prohibit police from leaving families with broken doors and locks vulnerable to crime. And they will require police to thoroughly document and publicly report on each raid to enhance transparency and accountability. In addition, we won measures that will prevent wrong raids, including requiring CPD to independently investigate and corroborate tips, maintain records of any instance in which the informant provided false or inaccurate information, and provide the prosecutor and court with any information that may undermine the credibility of the informant and tip before seeking a warrant. The proposed new policies will soon be subject to public review and comment in anticipation of full implementation. The public and judicial scrutiny that we brought to bear during our enforcement proceedings has already resulted in a tenfold reduction of home raids and prevented the traumatization of thousands of children.

Protecting First Amendment Rights to Protest and the DNC

In spring 2023, we learned that the CPD intended to implement a new policy to facilitate mass arrests during protests and other First Amendment activities in anticipation of the Democratic National Convention. The proposed new policy would have eviscerated relief that we had won in 2021 that fundamentally transformed Chicago police policies governing the policing of First Amendment activities—relief that requires CPD to protect the rights of people to engage in public protest and dissent rather than to stamp out protests. The Clinic filed an emergency enforcement action to enjoin the proposed mass arrest policy. In the proceedings that followed, we succeeded in preventing the parts of the policy that threatened people’s First Amendment rights from taking effect. The First Amendment policy that we had won in 2021 continues to govern during the DNC and all public demonstrations now and in the future. For example, the revised policy on mass arrests will now prohibit police from arresting people engaged in First Amendment conduct for minor offenses unless they pose an immediate threat to the physical safety or property of others. It also explicitly bans retaliation against people for exercising their First Amendment rights.

Strengthening the Consent Decree and Advancing Racial Justice

Having won our community-based clients’ historic power to enforce the Decree, Clinic students continue to fight to strengthen the Decree to make our clients—people who have been most impacted by CPD’s civil rights violations—full and equal partners in the process. As a result of our advocacy, throughout the 2023-24 academic year, the federal court ordered the City to engage with community representatives when developing policies, procedures, and training—including the recent mass arrests policy that the CPD had initially sought to impose without any meaningful community engagement. Clinic students participated in five full-day public hearings in federal court focusing on potential modifications to the Decree and issues of racial justice. Students presented powerful testimony and legal memoranda that advocated for Consent Decree revisions that (a) require de-escalation and reductions in CPD violence; (b) divert people from the criminal legal system through alternatives to arrest and the elimination of unnecessary negative interactions with police; (c) develop non-criminal responses to people experiencing mental health crises (we won implementation of an historic pilot program on this); (d) prohibit police from pointing guns at people unless they present an immediate threat to serious injury or death to another person; (e) require officers to file a written report each time they point a gun at a community member; (f) provide services to survivors of CPD violence and their family members; and (g) address barriers to police accountability that were erected in the new collective bargaining agreements with the unions representing Chicago police officers. We also succeeded in subjecting CPD’s racially discriminatory stop-and-frisk practices to federal court supervision.

The court is currently deciding whether to also subject CPD traffic stops to federal court oversight under the Consent Decree, as traffic stops have become a flashpoint for unnecessary police violence in Chicago as they have skyrocketed in Black and Brown communities. Eighty-five percent of the instances in which Chicago police used force in traffic stops have been directed at Black people. We presented testimony and briefs that seek to outlaw CPD’s practice of using pretextual stops to harass Black and Brown people, disband police tactical units that have been responsible for unnecessary and disproportionate violence directed toward Black and Brown people, and limit CPD traffic stops to violations that pose genuine threats to public safety.

Ending Incommunicado Detention—A Second Consent Decree

The Clinic continues to advance its historic work in making real the fifty-eight-year-old promise of Miranda v. Arizona in Chicago. Tyler Lawson, ’24 , and Katherine Stanton, ’25, led a team of Clinic students that did outstanding advocacy work with our community-based clients and the Office of the Cook County Public Defender after having won a second consent decree that went into effect in February 2023 in Cook County Circuit Court—a decree that is designed to end the decades-long practice of incommunicado detention in CPD stations that has facilitated torture, coerced confessions, and wrongful convictions. Clinic students produced an empirical report with Professor Kyle Rozema that analyzed data from every arrest in Chicago that took place during the first year of the Decree. The Report found ninety-nine percent of people in CPD custody did not access an attorney and more than half of the people most vulnerable to interrogation did not get prompt access to a phone. Inspections by Clinic students inside Chicago police stations revealed that legible signs required by the Consent Decree that inform people in custody of their rights under the Decree and the Public Defender’s free 24-hour hotline number for legal assistance were routinely missing in the places where CPD detains people who may be subject to interrogation. Clinic students also documented that contrary to the Decree, many of the visiting rooms that CPD is required to maintain in every police station did not allow for private and confidential meetings between people in custody and their attorneys. The Clinic presented the Report and our findings to the court. In response, the Honorable Judge Neil H. Cohen directed CPD to work with the Clinic to ensure the installation of appropriate signs and remedy the documented deficiencies with respect to privacy. We are administering a survey to people at their first court appearance to provide the court with additional information about the reasons why people in CPD custody have not promptly accessed phones and counsel. Our preliminary findings indicate that CPD has failed to offer phones or provided the Public Defender’s 24-hour number to people subject to police interrogation. A quarter of the people surveyed report that CPD interrogated them without access to counsel. In addition, Clinic students have engaged in targeted outreach to people at risk of arrest and criminal defense attorneys in Chicago, created fantastic flyers, social media, and written material to educate people about their rights under the Decree, and developed a long-form interview tool to gain additional insight about barriers to access to counsel and phones.

Individual Cases

While we fight for systemic change, the Clinic has continued its tradition of excellence in serving individuals and families in need.

Clinic students won a stage three post-conviction hearing with our client Christopher Ellis before the Honorable Carol Howard in Cook County Circuit Court that can result in vacating Mr. Ellis’s conviction. Two Chicago police officers pulled Mr. Ellis out of his car, beat and tased him, and then falsely accused Mr. Ellis of aggravated battery against the police officers to cover up their abuse. Mr. Ellis was convicted and sentenced to six years in prison. Based on a phenomenal set of briefs written by Clinic students Hannah V.L. George, ’24, and Becky Marvin, ’24, and Professor Herschella Conyers ’ students Amara Shaikh, ’24 , and Liam Grah, ’25, in the Criminal and Juvenile Justice Clinic and Becky Marvin ’s outstanding oral argument, Judge Howard found that the Clinic has made a substantial showing of Mr. Ellis’s innocence and the ineffective assistance of his trial counsel. Judge Howard offered the highest praise to the students’ work. We expect Mr. Ellis’s case to go to trial in the fall.

 Erin Yonchak,’24, presented Clifton Young’s case before the Illinois Torture and Inquiry Relief Commission. Erin’s presentation and supporting written memorandum were nothing short of superb. As a result of Erin’s scrupulous investigation, factual and legal determinations, and recommendations, the Torture Commission found credible evidence that Mr. Young was tortured by Chicago police and ordered a full evidentiary hearing in Cook County Circuit Court that may result in his freedom after having served more than twenty years in prison.

Amrita Krishnan, ’25, is investigating a novel claim of police torture before the Illinois Torture Commission that is based on Chicago police detectives’ exploitation of a person’s withdrawal symptoms from heroin and denial of medical treatment to obtain a confession. This is the first of a series of claims of torture before the Commission based on deliberate indifference to a person in custody’s severe physical and psychological pain associated with drug withdrawal to leverage an incriminating statement. Amrita’s legal and medical research into whether and under what circumstances drug withdrawal can form a basis for a torture claim is precedential. It has the power to establish the governing legal standards in Illinois for assessing torture claims involving withdrawal.

Gabbie Zook, ’24 , Hannah V.L. George, ’24 , and Becky Marvin, ’24, led an investigation with a client who was repeatedly sexually assaulted by a Chicago police officer in public housing when she was a mere teenager. The Clinic helped to connect our client with the Chicago Torture Justice Center to provide her with critical support as she continues to work through her trauma from the repeated assaults. We face a myriad of legal challenges because of the years that have passed since the assaults and Illinois law that protects municipalities from liability when police officers abuse their state power to sexually assault people, but we remain committed to supporting our client in her fight for a measure of justice and healing. Our students’ work has shined a light on a path forward.

Policy Projects

Chicago police transparency.

Natalie Cohn-Aronoff, ’24 , and Amber Hunter, ’25, have led a critical project to prevent the return to a state of police impunity in Chicago. The Clinic is responding to the Fraternal Order of Police’s (FOP’s) efforts to shroud in secrecy the adjudication of cases in which Chicago police officers have been found to have committed the most serious forms of misconduct to warrant firing or suspension of more than a year. After the FOP won an arbitration award that sought to end a sixty-year history of public hearings before a neutral body to be replaced by secret hearings behind closed doors by a handful of handpicked arbitrators who have a long track record of protecting Chicago police officers from accountability, the Clinic began work with a coalition of community, civil rights, and good government groups organized to stop the FOP from turning back the clock on our progress. We drafted press releases and an op-ed that lifted the threat of Chicago police impunity to visibility. We drafted policy and legal material for City Council to provide the basis for challenging the arbitrator’s award. We provided testimony in public hearings that was widely cited in the media. Our work supporting the organization of community members persuaded the Mayor and City Council to reject the Arbitrator’s award by a 3/5 vote in City Council and challenge the award in court. The Cook County Circuit Court then ruled that the Arbitrator’s award violated fundamental state policy in Chicago police transparency and accountability and ordered that the Chicago police disciplinary cases must remain open to the public. The FOP has filed a notice of appeal. A team of Clinic students led by Ben Postone, ’24, is drafting an amicus brief before the Illinois Court of Appeals on behalf of the broad community-based coalition that will explain the nature and strength of the public interest at stake.

At the same time, Clinic students have conducted extensive research and consulted experts in labor law to draft proposed state legislation that requires the public adjudication of Chicago police misconduct cases. The Clinic is collaborating with stakeholders to devise a path to establish law that will guarantee public transparency on CPD misconduct now and in the future. The Clinic has also drafted potential municipal legislation that would enhance Chicago’s Civilian Office of Police Accountability’s (COPA’s) efforts to promote greater transparency and accountability by enabling COPA to promptly publicly release summaries of completed misconduct investigations, prosecute disciplinary proceedings that result from COPA investigations, and restrict the Police Department’s power to overturn misconduct findings only for clear error and disciplinary recommendations only for abuse of discretion.

Sam Hallam, ’25, and Katherine Stanton, ’25, are leading efforts to remedy other aspects of FOP’s new collective bargaining contract that thwart police accountability and transparency in Chicago, including a provision that prohibits the videotaping of conversations between officers and supervisors after a police officer shoots a community member. The recording and use of such conversations are critical tools to remedy the longstanding code of silence in the CPD—a code that has encouraged officers to manufacture a common narrative when an officer shoots or kills a person or is otherwise accused of misconduct.

Medical-Legal Partnership with University of Chicago Trauma Center

Rosie Gruen, ’25 , and Sam Hallam, ’25, have led a medical-legal project that we launched last year with the Trauma Center at the University of Chicago Medical Center (UCMC) and pro bono attorneys from the Akerman law firm to prevent police from to violating patient civil rights and medical privacy and interfering with critical medical care. We formed this partnership to address reports from the doctors and staff at the Medical Center of police abuse of patients who have suffered gunshot injuries; coercive interrogations of people who are being treated for serious injuries; interference with medical care and patient autonomy over medical decisions; searches and seizures of patients’ personal property; invasions of patient privacy and personal health information; shackling and physical abuse of patients; and forcing medical personal to perform invasive tests on patients. The Clinic team has been conducting and working to publish empirical research on interactions between police and professionals and staff at the Medical Center and patients and their family members. In addition to the conducting approximately fifty long-form interviews, the Clinic has researched the intersection of property law, criminal law and procedure, privacy law, constitutional law, and administrative regulations and practices in medical settings around the United States. Students have also consulted with national medical and legal experts. Based upon our research, the Clinic developed a first draft of recommended UCMC policies for internal feedback to prevent ongoing civil rights violations and interference with patient care. Our research has also taught us that despite similar civil rights violations in hospital settings and interference by law enforcement with medical treatment, there is a lack of model policies or established best practices on the subject. We are hopeful that the publication of our research and the policies that we develop at UCMC will serve as a model for hospitals throughout the country and prevent civil and human rights violations and improve health outcomes in the Trauma Center and beyond.

Partnership with the Cook County Public Defender and Zealous

We also built on our partnership with the Cook County Public Defender’s Office and Zealous, a national non-profit dedicated to supporting public defender offices, to identify and address systemic issues in the criminal legal system that deprive clients of the Public Defender and Clinic access to justice. Darius Diamond, ’24 , Gabbie Zook, ’24 , and Katherine Stanton, ’25, have led our efforts on this project. This year, our focus has been to support the Public Defender’s work to create two holistic community defender offices in Chicago—the first is scheduled to open this fall in the Roseland community on Chicago’s South Side. The second will be in the Austin community on the West Side. Clinic students have been on the ground floor in designing the offices and services with community members, public defenders, and people in jail. We are developing plans for Clinic students to maintain a regular presence in the Community Defender Offices to work with public defenders and their clients in addressing police accountability and other systemic barriers to justice.

In addition, students are working with public defenders in Cook County to achieve greater independence from county prosecutors and judges when advocating with their clients to change and enjoin laws, policies and practices that impair the ability of public defenders to represent their clients and to improve the criminal legal system. For example, Clinic students are currently working with the Public Defender to explore ways to change the law to give the Public Defender the power to retain counsel to bring affirmative civil rights litigation.