August 5, 2012
“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.