A matter of evidence

“A wise man pro­por­tions his belief to the evidence.”

— David Hume

“A book­store is one of the only pieces of evi­dence we have that peo­ple are still thinking.”

— Jerry Seinfeld

Behind my bench in the juve­nile court is a row of books. In the old court build­ing, before the fire, there was an entire book­case, but so much mate­r­ial is now avail­able online that it’s more eco­nom­i­cal to access infor­ma­tion that way. The books that sit behind the bench con­tain the infor­ma­tion that I need to access most often.

One of those books is a trea­tise on juve­nile law. Another con­tains a col­lec­tion of all of the statutes in Ohio that deal with crim­i­nal mat­ters. A third is a sim­i­lar com­pi­la­tion relat­ing to fam­ily law. Four of those books deal with the same sub­ject, how­ever: evi­dence. Why so many? The answer is sim­ple: Every­thing we do in civil and crim­i­nal pro­ceed­ings revolves around evidence.

I’m a lover of books — par­tic­u­larly old books — so when I grad­u­ated from law school in 1999 my wife’s par­ents bought me a 1910 copy of Black’s Law Dic­tio­nary. Black’s is the stan­dard legal dic­tio­nary in the United States, hav­ing released it ninth edi­tion in 2009. The 1910 copy I have is a 2nd edi­tion (the first was in 1891) and it’s a trea­sure trove of his­tor­i­cal knowl­edge about the law.

As a com­plete aside, the book is also fas­ci­nat­ing for the bits and pieces of paper that came tucked into its pages. Among them are a pre­scrip­tion slip from Dr. H. R. Burd­sall of Hamil­ton (office hours 8 to 9 a.m., 1 to 3 p.m. and 7 to 8 p.m.), a half piece of paper show­ing that state tax col­lec­tions for the first four months of 1944 were $44,165,751, and a pro­gram from the 1931 Spring Reunion of a Masonic tem­ple in Day­ton that includes a per­for­mance by a “Boys Har­mon­ica Band.”

Get­ting back to the text of the dic­tio­nary, it defines evi­dence as, “Any species of proof, or pro­ba­tive mat­ter, legally pre­sented at the trial of an issue, by the act of the par­ties and through the medium of wit­nesses, records, doc­u­ments, con­crete objects, etc., for the pur­pose of induc­ing belief in the minds of the court or jury as to their con­tention.” That’s really what evi­dence is all about: Express­ing what you know and con­vinc­ing the trial court or jury that the truth is as you believe it is.

Black’s goes on to clas­sify dif­fer­ent kinds of evi­dence. After dif­fer­en­ti­at­ing pri­mary vs. sec­ondary evi­dence and extrin­sic vs. intrin­sic evi­dence, the dic­tio­nary moves to direct and indi­rect evi­dence. Direct evi­dence is “evi­dence directly prov­ing any mat­ter.” Indi­rect evi­dence has, over the past cen­tury, come to com­monly be referred to as “cir­cum­stan­tial evi­dence.” This is evi­dence of, “var­i­ous facts or cir­cum­stances which usu­ally attend the main fact in dis­pute, and there­fore tend to prove its exis­tence, or to sus­tain, by their con­sis­tency, the hypoth­e­sis claimed.” Both direct and cir­cum­stan­tial evi­dence are valid and admis­si­ble forms of evidence.

Whether evi­dence is admis­si­ble or not is gov­erned by 60 rules that courts apply on a daily basis and on a set of con­sti­tu­tional prin­ci­ples that deter­mine whether evi­dence should be sup­pressed. It is these rules and con­sti­tu­tional prin­ci­ples that are the basis of the law dictionary’s com­ment that evi­dence is proof that is “legally pre­sented” at the time of trial.

Any­one who has been called for jury duty and who has sat on a trial is famil­iar with the process by which evi­dence is pre­sented. More impor­tantly, expe­ri­enced jurors will recall that at the con­clu­sion of a trial the judge always pro­vides them with instruc­tions about what con­sti­tutes evi­dence and what weight they should give to it.

Those watch­ing tele­vi­sion cov­er­age of crim­i­nal inves­ti­ga­tions and tri­als should also be mind­ful of the dif­fer­ence between judi­cial evi­dence (that which is admis­si­ble in trial) and extra­ju­di­cial evi­dence (that which is admis­si­ble in the trial of pub­lic opin­ion, which would essen­tially be every­thing). A per­son may appear guilty based on extra­ju­di­cial evi­dence, but there are very good rea­sons why that evi­dence may not be admis­si­ble dur­ing the course of a crim­i­nal proceeding.

Ohio’s evi­dence rules can be found online in a vari­ety of sources, includ­ing the web­site of the Ohio Supreme Court at sconet.state.oh.us.

David Hej­manowski is a mag­is­trate and court admin­is­tra­tor of the Delaware County Juve­nile Court and a for­mer assis­tant pros­e­cut­ing attorney.

Posted by Dave Hejmanowski on Aug 18 2011. You can follow any responses to this entry through the RSS Feed. Comments can be made below.