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When I was a young, inexperienced attorney, I wanted nothing more than to go trial, but I really lacked a sound understanding of the rules of evidence. I urgently sought to cure the gap in my knowledge, but to my dismay I found the rules of evidence to be excessively complicated and almost incomprehensible \u2013 a great, unruly mass of tortuous rules and procedures that governed the showing of evidence at trial. In vain did I read hornbooks, treatises, the evidence statutes themselves, and the case law on point. Some books on evidence even proved counter-productive, leaving me more confused afterwards than I had been before! In time, I discovered three very good books on evidence, which I highly recommend when you need to delve deeply into the matter:<\/p>\n
Unlike these three books, which offer lengthy and superb explanations, I have tried in this article simply to set forth\u00a0<\/span>a list of simple rules to explain the key points<\/em>. I have also set forth several pointers on organizing your evidence in order to present it competently at trial. For all the rest, refer to the above guides, and read the statutes themselves, as well as the case law on point. Even more important, try cases yourself and watch others do so in your spare time. The only way to understand the law of evidence is to\u00a0<\/span>try cases, watch others try cases, and read about the law of evidence<\/em>\u00a0<\/span>in treatises, practice guides, the statutes themselves, and the case law. You must do all of these things, and nothing else can take their place. Over time, the rules and uses of evidence will sink in and become second nature to you, but it takes\u00a0<\/span>time, practice, observation, and reading<\/em>!<\/p>\n Evidence is used to prove and disprove facts that remain in dispute at trial, including whether or not a given witness is trustworthy. By evidence, I mean live testimony, video testimony, documents, photos, onsite inspections, and other objects that can be displayed or shown. The basic idea is to show your evidence to the finder of fact (judge or jury) in order to make your case and discredit your adversary\u2019s case. When appropriate, you might also seek to exclude evidence that is helpful to your adversary.<\/p>\n Broadly speaking, you use the rules of evidence in order to have your evidence admitted and your adversary\u2019s evidence excluded, but you should seek to exclude evidence only if (1) the evidence is potentially harmful to your case, and<\/em> (2) you have a colorable, serious argument for having it excluded. Even if you are certain that you can have the evidence excluded, allow it to come in without objection if its admission does nothing to hurt your case. In the same vein, do nothing even if the evidence is horrible for your client\u2019s case, if in fact you have no reasonable basis for objecting to its admission. Excluding evidence is not a game that should bring joy to your face every time you deprive the jury of information that you have just made it all the more curious to hear, but rather is the somber, necessary task of acting as a responsible steward of what the jury should be allowed to hear when deciding your case. Proceed accordingly.<\/p>\n Now it is time to consider the following points, which are the key rules of evidence in a nutshell<\/em>:<\/p>\n Evidence is admitted only if it is relevant \u2013 a proposition that seems self-evident, but that requires a little clarification. Relevant evidence is any evidence that tends to confirm or disprove a disputed fact<\/em>, including (1) any fact that concerns any element of a cause of action or defense that remains at issue; (2) any fact that must be established before a proffered item of evidence becomes admissible (foundation); and (3) any fact that concerns the trustworthiness of a witness, but subject to various restrictions and exclusions. Broadly speaking, relevant evidence is evidence that concerns disputed claims, disputed defenses, foundational facts, or facts that improve or diminish a witness’s credibility.<\/p>\n It is therefore always helpful to keep in mind the facts that you seek to prove or disprove at trial. That is why you must carefully prepare an evidence grid and trial notebook (see below). They are indispensable and help you to organize and analyze your case, make a good impression, and stay focused during the thick of battle and high tension at trial, when you must stick to your knitting no matter what your adversary tries to do, save on very rare occasion. As a general rule, at trial you should follow your evidence grid and never allow your adversary to embroil you in pointless, confusing controversies over irrelevant non sequiturs<\/em>. Sometimes litigants engage in unending tit-for-tats over minor facts that have little bearing on the key issues. The better approach is to make a thorough, unanswerable showing of the key points so far as you can, support them with your other necessary points, discredit rebuttal points so far as you can, and return again and again to your key and necessary points without belaboring them unduly. All of the rest is noise. You must never try to disprove a point that your adversary has made merely because he has made it.<\/p>\n My comments on relevance might seem overly formulaic. If you have taken care to prepare a very good evidence grid (see below), and if you care about your case, you will know which facts are relevant by the time you reach trial.<\/p>\n Even if evidence is unquestionably relevant, it cannot be admitted unless a proper foundation is laid for it. \u00a0\u201cFoundation\u201d is merely shorthand for establishing certain predicate facts whose existence must be proven before the evidence in question becomes admissible<\/em>. It is the bane of every junior litigator, and a more experienced trial lawyer can sometimes fluster a novice by successfully objecting to his lack of \u201cfoundation\u201d for evidence that he seeks to have admitted. But even an attorney who is in his first trial can quickly grasp the essentials of laying a foundation for evidence by performing the following simple exercise in logic. What evidence will I attempt to have admitted at trial? For each item of evidence that I will attempt to have admitted, what additional evidence must I provide to ensure that the item is admissible? This additional evidence is the necessary \u201cfoundation\u201d for the item in question. It is as simple as that.<\/p>\n In practice, \u201clack of foundation\u201d refers to a proponent\u2019s proffer of evidence that to all appearances can be excluded on any of the following grounds: irrelevance; lack of authentication; hearsay; a recognized privilege or immunity; or the witness\u2019 apparent inability to have observed or remembered an event.<\/p>\n For example, \u201clack of foundation\u201d might be interposed when the proffered evidence at first glance seems irrelevant to the case, although the better objection is \u201cirrelevant\u201d (see above). But the proponent of the evidence can lay a foundation for its admission by offering other admissible evidence to establish its relevance: \u201cCounselor, why do you want to show photos of the Prime Minister naked in bed in this case, which concerns a commercial contract dispute over warranties for jet fighter aircraft?\u201d \u201cYour Honor, because the prime minister was having an affair with Olga Maximillion, a Russian spy who persuaded him to have England buy the jets from Aeroflot, a ruinous company.\u201d)<\/p>\n Or \u201clack of foundation\u201d can mean that the proponent of a document or photo has failed to establish its authenticity, which can be established by stipulation, or by having a witness confirm that he remembers having prepared or received the document, or having taken the photo. Or perhaps the attorney has begun to examine a witness about why he wrote a document, or how he responded to it, before having the document admitted in evidence; and unless it is admitted by stipulation, it can be admitted only after it has been authenticated:<\/p>\n Plaintiff\u2019s Attorney: \u201cDo you recognize this document?\u201d<\/p>\n Witness: \u201cYes.\u201d<\/p>\n \u201cHow is it that you recognize this document?<\/p>\n \u201cI wrote it.\u201d<\/p>\n \u201cDo you remember when you wrote it?\u201d<\/p>\n \u201cAt around the time of the date that appears on the document, around November 17, 2005.\u201d<\/p>\n You have just authenticated the document, but it can be admitted only if it is relevant, falls within an exception to the hearsay rule, is not privileged, and cannot be excluded for prejudicial effect \u2014 all of which can be treated as foundational matters, and all of which you will therefore anticipate when preparing your trial notebook and evidence grid:<\/p>\n Plaintiff\u2019s Attorney: \u201cI move to have this document admitted.\u201d<\/p>\n Defendant\u2019s Attorney: \u201cObjection. It is hearsay, irrelevant, and a privileged communication, and its prejudicial effect greatly outweighs its probative value!\u201d<\/p>\n The Court: \u201cSidebar!\u201d<\/p>\n The Court (to Plaintiff\u2019s Attorney): “Please tell me why the document is admissible despite all of these objections.”<\/p>\n Plaintiff\u2019s Attorney: “It is not hearsay because it memorializes the contract negotiations between the parties and includes my client\u2019s contemporaneous confirmation of representations that Defendants made to him. These are \u201cverbal acts\u201d \u2014 which we seek to admit to prove not that they are true, but only that they were stated to my client to induce him to enter into the contract in dispute in this case. Accordingly, this evidence is not hearsay. Since it concerns this contract, it is relevant. It is not a privileged communication, but rather an exchange between the parties in this case, with mere copies sent to their respective lawyers. Lastly, there is no undue prejudicial effect, but only probative value about the precise issues in dispute in this case. The Court has already received evidence that establishes each of these points, so that there is foundation on all grounds. Lastly, these objections are spurious.”<\/p>\n The Court: “You are right on all counts! Document admitted. End of sidebar.”<\/p>\n The Court (to the jury): “Ladies and gentlemen, I have ruled that this document is admitted in evidence as Exhibit 1.” (To Plaintiff\u2019s attorney): “You may publish the document to the jury.” (Plaintiff\u2019s attorney now has the document displayed on a full-screen display that the jurors can easily see. Now the jury will seize upon the document with greedy relish and joy, as though it really will help them to decipher the entire case. The Defendant\u2019s objections, which never stood a chance, merely called attention to the document and made the jury wonder why the defendant didn\u2019t want them ever to see it.)<\/p>\n Alternatively, \u201clack of foundation\u201d might mean that the proponent of testimony has failed to establish that his witness has a present memory of having said, done or \u201csensed\u201d something. Such a witness must establish that he remembers at present what he said, did, or \u201csensed\u201d at a specific time in the past. This point often turns on whether he remembers having been at a location from which he could have said, done, or \u201csensed\u201d whatever it is that he wishes now to say, and in some instances he must provide a plausible explanation as to how he could remember having \u201csensed\u201d something at a specific time. By \u201csensed,\u201d I mean “having seen, heard, touched, smelled, or tasted something.”<\/p>\n Here is an example of laying this kind of foundation during trial. You should use this foundation to develop interest in the substantive testimony that will follow.<\/p>\n Question: \u201cMr. Roberts, do you remember where you were last year on December 22 at approximately 10:00 a.m.?\u201d<\/p>\n Answer: \u201cYes.\u201d<\/p>\n Q: \u201cHow is it possible that you can remember where you were at this time.?\u201d<\/p>\n A: \u201cI will never forget that day as long as I live.\u201d<\/p>\n Q: \u201cAnd why is that?\u201d<\/p>\n A: \u201cBecause what I saw was enough to turn my head of hair all white in one stroke. A man cannot forget such a scene, and I have not.\u201d<\/p>\n Q: \u201cAnd where were you at this time, Mr. Roberts?\u201d<\/p>\n A: \u201cI was at the intersection of Main and Smith.\u201d<\/p>\n Q: \u201cAnd what where you doing there?\u201d<\/p>\n A: \u201cI was seated in my car, stopped at a red-light.\u201d<\/p>\n Q: \u201cDo you remember what you observed?\u201d<\/p>\n A: \u201cYes.\u201d<\/p>\n Q: \u201cWhat did you observe?\u201d<\/p>\n A: \u201cI observed a truck come barreling through the intersection at a very high rate of speed, smashing into two cars, which both exploded into fireballs.\u201d<\/p>\n On other occasions, lack of foundation might mean that the proponent of hearsay evidence has failed to establish that the hearsay evidence falls within an allowed exception to the rule against hearsay, or that the proponent of apparently privileged evidence has failed to make a showing that the privilege has been waived or is otherwise inapplicable.<\/p>\n \u201cFoundation\u201d thus refers to predicate facts that lay a basis for admitting another item of evidence<\/em>, usually evidence that tends to prove or disprove an element of a claim or defense. To lay a foundation, the proponent must provide admissible evidence that proves the existence of the foundation. Then the proponent can move to have the evidence admitted, its foundation having been established. If the other side does not concede that the foundation has been established, the judge or jury must decide whether the proffered evidence establishes the necessary foundation (the question is reserved for the judge or jury depending on which kind of foundation in dispute).\u00a0<\/em><\/p>\n Foundation, then, is an exercise in logic. For each item of evidence that a proponent seeks to introduce (to support a claim or defense, or to discredit the other side\u2019s evidence), what preliminary evidence must it first show? That preliminary evidence is the necessary foundation that must laid to have the item in question admitted. For each item of evidence that you seek to have admitted, ask yourself what objections might your adversary make and what evidence you can proffer to overcome the objections.\u00a0<\/em>Relevance? hearsay? A legal privilege or immunity? Apparent prejudicial effect, whose importance arguably exceeds the probative value of the evidence?<\/p>\n For complicated issues, address the matter by bringing a motion in limine<\/em> before trial. Simpler and obvious matters can be resolved during trial.<\/p>\n If during trial your adversary keeps objecting on the ground of “foundation,” and in response the judge keeps sustaining this objection, ask for a sidebar and request an explanation of what foundation is lacking. The trial judge should oblige you unless the deficiency is patently obvious. You can always point out (very respectfully) that the deficiency is not obvious to you, or else you would have tried to cure it!<\/p>\n It sometimes happens that evidence lacks the necessary foundation and will be not be admitted no matter what its proponent attempts to show. The objection should usually be raised only on such occasions, unless your adversary seems to be taking too many liberties with the rules of evidence, and you wish to introduce more discipline and propriety in his presentation. An experienced practitioner will always take care to prepare his foundational evidence carefully and to anticipate all objections made on the ground that the evidence lacks foundation. Never assume that your adversary will decline to raise the objection and always arrive prepared to answer it.<\/p>\n Even if evidence is relevant and otherwise supported by a proper foundation, it remains presumptively inadmissible if it is hearsay. Hearsay refers to any statement or proposition that is: (1) offered to prove the truth of the statement or proposition; and<\/em> (2) either appears in a document or is recounted second-hand by the witness on the stand, who merely attributes the statement or proposition to someone else.<\/p>\n Here is an example of testimony that might be hearsay: \u201cJohn Rollins told me that he never liked Mrs. Bluefish.\u201d This statement is not hearsay if it is offered to prove that the witness remembers hearing this matter, but is hearsay if its purpose is to prove that John Rollins disliked Mrs. Bluefish.<\/p>\n Hearsay therefore encompasses an enormous range of information<\/em>. It is half a miracle that we can conduct trials at all despite the rule against hearsay.<\/p>\n It is easier usually to keep in mind what is not hearsay. Non-hearsay evidence is limited to testimony given by a witness while on the stand, by which he recounts what he remembers having said, done, or \u201csensed\u201d (seen, heard, smelled, tasted or touched). If the witness testifies to what he remembers hearing, it is hearsay\u00a0only if the testimony is offered to prove that what he heard was true. <\/em>Otherwise, the testimony is not hearsay, but rather is offered to prove only that the witness actually heard what he says he heard (e.g., \u201cI heard the sound of a shotgun,\u201d \u2013 which might be useful in a murder case; or \u201cHe told me that the car could fly in orbit and so it would cost me $64 million to purchase it\u201d\u2013 which might be admitted as \u201cverbal acts\u201d in a fraud case.)<\/p>\n Anything else is hearsay \u2013 all other statements and all documents of any kind.\u00a0Fortunately, there are two major \u201cexemptions\u201d and so many exceptions that the rule against hearsay might be more usefully termed the \u201chearsay exception\u201d to admissible second-hand evidence!<\/p>\n The two exemptions from the hearsay rule are (1) testimony given by a party during his deposition; and (2) evidence introduced to prove a party admission.<\/p>\n Deposition testimony given by a party may be treated as direct, live testimony for all purposes. A deponent\u2019s answer might be excluded on the grounds of relevance, lack of foundation, privilege, or overly prejudicial effect, or because the question was improperly phrased (so long as the objection to its phrasing was raised during the deposition), but it cannot be excluded on the ground that the deponent is not giving the testimony from the stand.<\/p>\n Moreover, any witness can testify to what he remembers hearing a party say to him, if the statement constitutes an admission of fact that is relevant to the case (e.g., \u201cThe defendant, Mr. Smithers, told me that he buried the weapon in order to avoid getting caught” \u2013 which is admissible to prove that Mr. Smithers buried the weapon in order to avoid getting caught).<\/p>\n In addition to the two major \u201cexemptions,\u201d there are innumerable \u201cexceptions\u201d to the rule against hearsay.<\/p>\n If, as is often true, your case depends on hearsay testimony, figure out which exemptions and\/or exceptions might allow your evidence to be admitted. If the law on point is complicated, or if you are concerned that the judge might be unfamiliar with the hearsay exception that you plan to invoke, brief the matter before trial either in a motion in limine<\/em> or in your trial brief, or have a bench memorandum ready at hand, so that when you proffer the evidence and the other side objects, you can request a sidebar and instantly provide citations and argument that address the matter.<\/p>\n Remember, evidence that can be admitted despite the rule against hearsay comes in only if it has a sufficient foundation to overcome objections on the ground of relevance, prejudicial effect, or privilege.<\/p>\n Evidence can be excluded even if it is otherwise admissible, if its probative value is \u201csubstantially outweighed\u201d by its prejudicial effect. The trial court has broad discretion to make the determination. Any attorney who wishes to exclude on evidence on this ground should make the attempt by bringing a motion in limine<\/em> before the trial begins. This kind of evidence is limited to matters that have only marginal relevance to the issues in dispute, but endanger, embarrass, or humiliate the opposing party or someone else, subjecting him or her to peril, disrepute, mortification, or disdain.<\/p>\n Evidence might be absolutely admissible, save that it is deemed privileged and therefore inadmissible in order to further a judicial policy that is regarded as more important than establishing the truth in your case. Some privileges are absolute unless waived (e.g., the attorney-client privilege, which covers communications between a client and his attorney, and which can be waived only by the client). Other privileges, such as the right to privacy, require the court to conduct a balancing test to determine whether the information in question is fully or partly protected by the privilege.<\/p>\n Sometimes a litigant will elect to waive a privilege because doing so will help him to prove his case (e.g., a litigant might allow his trial attorney to call him and his transactional attorneys to the stand to answer questions about their past conversations during contract negotiations in a case that concerns a breach of the contract in question). Waiving a privilege should be done only when the privileged information is vitally important to proving a claim. There are a few key privileges and several lesser known ones. \u00a0Look them up and keep them in mind when considering evidentiary questions.<\/p>\n Before you can present your evidence, you must figure out which evidence you wish to present, and which evidence is potentially harmful to your case.<\/p>\n Your Evidence Grid.<\/em>\u00a0To this end, you must\u00a0first prepare an\u00a0evidence grid. <\/em>Doing so is not an option, but a requirement, just as is putting on shoes before you enter a courtroom. You should no more enter a trial courtroom barefoot than without an evidence grid. The concept is simple. For each cause of action at issue, list each element of the cause of action, and then next to each element list all items of evidence that you have or know about that tend to prove or disprove the element. Do the same for each defense and affirmative defense. This information is best organized in a table. Once you have performed this task for every cause of action and defense in the case, you will have listed all of the evidence that is relevant in the case.<\/p>\n The exercise of preparing the evidence grid will help to keep you grounded in the case and determine the following. What \u201choles\u201d exist in your case? What evidence must you obtain during discovery? What evidence must you gather by discovery or other means before you are ready to try the case?<\/p>\n Preparing an evidence grid also offers other invaluable benefits. It makes you far less inclined to refute every point that your adversary tries to prove merely because he has made the effort to prove it: just because your adversary is off on a wild goose chase does not mean that you should join him.[1]<\/span><\/a>Sometimes an opposing party will embark on the goose chase in the hope that you will join him, distracting or boring the jury with a closely contested dispute over marginally relevant facts.<\/span><\/span>What Is Evidence?<\/h2>\n
What the Rules of Evidence Are Used to Accomplish<\/h2>\n
Relevance<\/h2>\n
Foundation<\/h2>\n
The Rule Against Hearsay<\/h2>\n
Probative Value vs. Prejudicial Effect<\/h2>\n
Privileges and Immunities<\/h2>\n
Organizing and Presenting Your Evidence at Trial:\u00a0 Your Trial Notebook and Evidence Grid<\/h2>\n