Law Rules of Evidence Vocab / Tips

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Relevance

Evidence must make a fact more or less likely to be true, and it must affect the case in some way—without the evidence, results may be different.

Fed.R.Evid.403

Deals with exclusions—allows for exclusions of evidence (even if it’s relevant) due to unfair prejudice, confusion, or waste of time. This will be invoked if the “probative value” (likelihood evidence will prove something) is outweighed by the dangers of the evidence.

Admissibility

This applies to testimonies, documents, and other forms of evidence that may appear before the judge or jury and are meant to prove a point. Admissible evidence should be relevant, reliable, and not affected by the exclusionary rules.

Weight of Evidence

How impactful or persuasive evidence is. Some relevant evidence may lack this due to credibility/believability.

Best Evidence Rule

A legal principle requiring that the original version of a document should be submitted as evidence in court, rather than a copy, to ensure accuracy and authenticity. This should be used, unless there are issues attaining the original version.

Burden of Proof

The necessity of the prosecution to prove guilt beyond a reasonable doubt. In civil cases, this is by preponderance of the evidence.

Character Evidence

Community testimony into a person’s reputation. This is used to persuade the jury of how likely a person may be to do something, based on previous behavior. This is further laid out in Fed.R.Evid.404.

Circumstantial Evidence

This includes objects and inferential evidence, and may also be referred to as indirect evidence. This evidence relies on people making a reasonable inference to connect it to a factual conclusion.

Demonstrative Evidence

This includes most explanatory objects, such as photos, x-rays, and weapons. This is the preferred form of evidence as it is more obvious to jurors.

Direct Evidence

Also called testimonial evidence, this supports the claim clearly. It creates a “truth” out of an assertion and does not require inference.

Exclusionary Rule

Excludes certain evidence gathered through unreasonable search and seizure from being admissible—this is a product of Mapp v. Ohio and 4th amendment rights.

Exculpatory Evidence

Evidence that supports the defendant. Prosecutors are required to disclose this to the defense.

Expert Evidence

Opinions from expert witnesses regarding certain evidence’s scientific, technical, or otherwise important relevance.

Extrinsic Evidence

Inadmissible evidence that was not properly mentioned in the case’s documents.

Hearsay

“So and so said”—statements that are hard to prove credible.

Business Records Exemption

An exception to hearsay in regards to regular business records. Applies to both for-profit and non-profit organizations.

Dying Declaration

An exception to hearsay for when someone announces something on their deathbed and is unable to testify in court.

Statement Against Interest

An exception to hearsay for when someone makes a statement that is disadvantageous to them and is therefore considered credible.

Present Sense Impression

An exception to hearsay for when someone says something while an event is occurring. Ex: “That person is holding up a match to that building! Oh no! It’s on fire!”

Impeachment of Witness

The process of lowering a witness’ credibility while on the stand by raising a question about their previous statements or bad acts.

Judicial Notice

Establishes something as a fact in the trial (ex: the time the sun rises) since it is so clear and can’t be reasonably doubted.

Lack of Personal Knowledge

This should not happen—a witness may only testify if they have knowledge of something relevant.

Lay Witness Opinion Testimony

Testifying in regards to observations, and not any scientifical or technical knowledge. These witnesses are unprofessional, so this is only allowed if their testimony is helpful and rational.

Leading Questions

These suggest an answer to the witness. They’re often thrown out / excluded, but are preferred for cross-examination as they don’t give the witness room to explain. Ex: “You saw Emily attack Alice, right?”

Objection to Evidence

This is an attorney’s protest to evidence being used due to violations that might apply.

Opinion on Ultimate Issue

An expert witness provides an opinion on the MAIN ISSUE of the case. Lay witnesses are almost never allowed to do this.

Parol Evidence Rule

Oral evidence of an agreement can not modify written contracts, so any oral discussions are not allowed.

Prima Facie Evidence

“On its face” or evidence that is obvious and creates reason for a case to continue.

Past Recollection Recorded

A written document where a witness wrote down their recollection of events immediately after they occurred. This can be used in court, should the witness not remember clearly.

Presumption

An assumption of facts from previous facts—can be rebutted depending on what it proves.

Prior Inconsistent Statements

Contradictions from a witness that impeach their credibility. Cannot be used to assert the truth of a matter.

Probative Value

Determines if evidence can be used in court—does its “probative” value outweigh its “probative” prejudicial effect?

Rebuttable Presumption

Evidence meant to disprove evidence provided by an opponent can rebut previous evidence.

Rebuttal Evidence

Evidence meant to disprove the opposing side’s evidence.

Scope of Cross-Examination

Cross-Examiners are limited to only touch on subjects that the direct examination mentioned.

Suppression of Evidence

Evidence may be excluded through a hearing on the motion to suppress due to unconstitutional attainment of the evidence.

Unresponsive Answer

A non-answer from a witness that evades telling the truth. Ex: “Did Bobby have an affair with Sue?” “Well… I don’t know Bobby very well…”

Direct Examination Tip 2: Keep it Simple

Avoiding the use of legalese / precise legal terms that may only confuse witnesses and the jury. Keep it brief and to the point to avoid confusion. Use the 5 W’s to keep it clear.

Direct Examination Tip 3: Use Topic Sentences or Headers

While direct examination sounds like a conversation, it should guide the witness along a certain route. This helps avoid rambling/wandering witnesses. Ex: “Mr. John, I’m going to ask you about Susie’s afterschool activities.”

Direct Examination Tip 4: Personalize the Witness

Let the jury get to know the witness and their credibility. First, make sure to ask the witness questions that talk about their relation to the case and any personal information. However, if a witness is not as important, keep this brief.

Ask them about their hometown, their family, their education, their charitable acts, and their awards/honors.

Direct Examination Tip 5: Direct the Focus to the Witness

Make sure the focus is on the witness, not the lawyer. The lawyer directs while the witness is the star of the show, so to speak. Do not use leading questions to steer the witness a certain way, but DO ask them to explain and tell you “why” and “how” certain things are.

Direct Examination Tip 7: Start Strong, End Strong, and Address Weaknesses

Don’t question for question’s sake, and make sure all questions are relevant and strong. Additionally, don’t wait for the other side to expose the weaknesses in your own argument, as that reflects poorly on you. That said, make sure your ending question is strong, and always have one as backup in case the last one is weak.

Direct Examination Tip 8: Highlight Strong Answers

Keep in mind the strong points that you want the jury to remember, and write them down and bring them back up during your closing argument. Having the witness teach the jury is also very helpful and will leave a strong impression.

Direct Examination Tip 10: Listen and Apologize

Make sure you are present in the conversation with the witness and aren’t busy thinking up the next question. This allows you to note any mistakes or issues and apologize if needed.

Cross Examination Tip 1: Prepare

Going into cross-examination, you should know what you will ask and what the answers should be. That said, listen closely to the witness, as things may go in a different direction.

Make sure to have copies of witness statements, deposition testimonies, deposition summaries, impeachment-related documents, outlines, and case law.

Cross Examination Tip 2: Know the Rules of Evidence

These tell you what you can cover in cross-examination. This includes prior inconsistent statements, bias and direct examination material.

Cross Examination Tip 4: Maintain Control of the Witness

The goal of cross-examination is to get the witness to agree to what you say is true. If they are being difficult, interrupt them politely and redirect them to the question at hand, which should allow for no room for explanation.

Cross Examination Tip 6: Start Strong, End Strong, and Don’t Act Surprised

Keep yourself calm, as a witness’ unexpected answer is less important than the attorney being caught off-guard.

Cross Examination Tip 8: Quit While You’re Ahead

Once you have all the information you need, end the cross-examination. Don’t make the jury lose interest and don’t become redundant. Be careful with your questions.

Cross Examination Tip 10: Don’t Ask a Question if You Don’t Know the Answer

A huge example of this is OJ Simpson, where they asked Simpson to try on the glove, not knowing whether it would fit or not. Asking an uncertain question puts your team at risk, and may ruin your credibility if you mess something up.