Northern Virginia Personal Injury Lawyer Blog : Northern Virginia Injury Lawyer & Attorney : Brien Roche Law Firm : Medical Malpractice, Product Liability, Car Accidents : Washington DC, North Virginia, Maryland

A more common objection, however, is hearsay. The hearsay objection may arise not only in regard to documentary evidence, but also in regard to testimonial evidence (the testimony of witnesses). Generally defined, hearsay is an out-of-court statement that is offered for its truth value.

Example: The plaintiff makes a statement at the scene of an accident saying “I am at fault.” If it were to be offered as truth in court, would it be considered hearsay? Looking at the definition of hearsay as being an out-of-court statement that is offered for its truth value, the statement would be hearsay. The statement was made out of court (it was made at the accident scene) and it is being offered for its truth value (to prove that the plaintiff was at fault at the time of the accident because he said so).

The general purpose of the hearsay rule is to exclude evidence that may not be reliable. Another reason for the exclusion of hearsay evidence is that its presentation denies the other party the right to cross examine the person who is making the statement. If, at the scene of an accident, a police officer makes a statement to the effect that the plaintiff was at fault for the accident, that statement is hearsay if offered as evidence in court because it was stated out of court and is offered for its truth value. If the police officer does not testify at trial, then obviously he or she cannot be cross examined about that statement. It would be unfair to allow either party to repeat that statement in court because the witness making the statement is not present to be cross examined about it. If, however, the police officer does testify at trial, then it is possible that, under certain circumstances, he or she may be confronted with that prior statement and asked to explain it.

As indicated above, hearsay evidence is not generally admissible, but there are a number of exceptions to the hearsay rule. For example, when the plaintiff stated that he was at fault, the statement was hearsay. However, the court may still admit it on the grounds of it being an exception to the hearsay rule because it is an admission of a party to this particular action. The exceptions to the hearsay rule are very extensive—so extensive that some people might say that the rule itself now has no meaning.
 

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Documents and physical objects are frequently offered as exhibits or as evidence at trial. The first inquiry in regard to any document or other physical object is whether it is authentic. A document or object is authentic if it has been proven to be what it appears to be. If a will is presented to the court as an exhibit and is offered as the will of John Jones, then before that document can be entered into as evidence (shown to the jury), a witness will need to confirm that it is the will of John Jones and that the document bears his signature. That type of testimony establishes the authenticity of the document—simply that it is what it appears to be.

From a common sense point of view, lay people looking at that may say that it has the name at the top indicating that it is the Last Will and Testament of John Jones, it bears the signature of John Jones, and the signature appears to be authentic. Based upon all of that, common sense would suggest that the document is what it appears to be—the Last Will and Testament of John Jones. The court, however, normally requires more than simply the appearance of validity. Typically, a witness will need to testify that the document is in fact the Last Will and Testament of John Jones and the witness may have to testify as to how he or she knows that is so.

Once the authenticity of a document has been established, there may be other objections that could be made regarding that document. Any objections as to relevance and privilege will have to be dealt with.
 

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Evidence, in general terms, can fall into two broad categories. There is direct evidence and circumstantial evidence. Direct evidence consists of witnesses testifying to things within their personal knowledge or may consist of documents, pictures, or other things that directly prove a particular thing. For instance, a person testifying that “I saw the wolf attack the chicken coop” would be direct evidence.

Circumstantial evidence may be thought of as indirect evidence, or evidence that leads to a particular conclusion although there is no direct testimony, document, or thing that proves that event. Going back to the example of the wolf attacking the chicken coop—if no one actually saw the attack happen, but you see the wolf’s footprints around the chicken coop and the dead chickens, then you may conclude that the wolf is the one who killed the chickens, even though no one actually saw it happen.
 

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The principle criteria of admissibility is that the evidence must be relevant. Relevance means that the evidence that is being offered tends to prove or disprove an issue in the case. If the issue in the case is whether you ran a red light, evidence that shows that the traffic light was not properly functioning at the time of the accident is relevant and typically would be admissible. Likewise, evidence of the cycle of nearby traffic lights and your speed as you traveled from a nearby intersection to the intersection in question may all be relevant to whether or not the light was red when you entered the intersection. All of those facts tend to prove or disprove whether you ran that red light and therefore are relevant.

Relevance means that the evidence that is being offered tends to prove or disprove an issue in the case.

Some evidence may be relevant but it is so highly prejudicial that the court determines that it should not be admitted. In tort claims, most courts have determined that evidence of insurance is not admissible because it is too prejudicial. If a jury knew that a defendant was insured, then jury verdicts may be higher simply because of that. Accordingly, most courts have determined that evidence of a defendant being insured is not admissible even though it may be relevant.
 

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Within the law of evidence, there are certain presumptions that may arise on occasion. A presumption is a recognition that if one particular fact is proven, then a second fact is inferred or assumed from the first.

Example: If I prove that a child is under the age of seven, then a presumption arises that the child is incapable of negligence. That is, having proved first that the child was under seven, the court then recognizes a presumption that the child cannot be guilty of negligence.

A presumption is a recognition that if one particular fact is proven, then a second fact is assumed.

This presumption may be unrebuttable. A different presumption may exist as to a child between the ages of 7 and 14. This presumption is considered to be a rebuttable presumption. If it can be shown that the child is of sufficient sophistication, intelligence, and experience that he or she can understand the nature of his or her acts and is capable of committing a negligent act, then the presumption may be rebutted.

There are a number of other presumptions that exist in the law. A person accused of a crime is presumed to be innocent. That presumption must be overcome by the government by presenting evidence of criminal behavior. If a person holds the power of attorney for another individual and profits from that relationship, then there is a presumption that his or her profiting from that relationship is fraudulent. The basis for that presumption is that, as the attorney in fact or holder of a power of attorney for an individual, a person has a great deal of power over that individual and can manipulate the assets or activities of that individual.

A presumption of death from an absence of seven years may also arise. If a person disappears and is not seen or heard from for a period of seven years, then he or she is presumed dead.

Another presumption that is frequently referred to is the presumption of knowledge of the law. As a citizen of this country, you are presumed to know the law. Obviously, no one can know all of the laws. However, common sense should tell you that if you are about to engage in behavior that is questionable, then you may need to check to see whether that behavior is illegal. If you then engage in that behavior, you cannot raise a defense that you did not know the law, because you are presumed to know the law.
 

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As previously stated, the plaintiff has the burden of proof in a civil case. There are different burdens that apply in different types of cases. Generally, in a civil case, the burden of proof is what is referred to as the preponderance of the evidence—the greater weight of the evidence. Recall the example of tipping the scales by a featherweight. If the plaintiff tips those scales by so much as a featherweight, then his or her burden of proof based upon a preponderance of the evidence has been met.

In some civil claims, however, the burden of proof may be somewhat higher. In particular, regarding fraud claims, the burden of proof is generally considered to be what is called clear and convincing evidence. That burden of proof or standard of proof is higher than simply a preponderance of the evidence. If you were to think of a preponderance of the evidence as being something more than fifty percent, then clear and convincing evidence would be a level of proof in the range of seventy-five to perhaps as high as ninety percent.

Another term that is used in criminal cases is that of proof beyond a reasonable doubt. That is a level of proof that even goes beyond clear and convincing evidence, and probably is more in the range of ninety percent.

It is probably misleading to try to ascribe numerical figures to any of these standards of proof, since they really are not susceptible to numerical classification. These numerical classifications are merely designed to provide some illustration of the different levels of burden of proof.

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In the course of litigation, it is not uncommon for one party to raise an objection based upon privilege. There are several different privileges that exist within the law. The husband/wife privilege precludes either spouse from testifying against the other based upon what they learned from the other spouse during the course of the marriage. If a husband tells his wife that he has just murdered the next door neighbor, then the wife may be precluded from repeating that statement in a court of law.

One of the privileges that is at the foundation of our legal system is the attorney/client privilege. When a client retains an attorney, anything that client says to the attorney is deemed to be privileged and cannot be repeated by the attorney without the consent of the client, unless the communication involves proposed criminal activity. For instance, if a client tells his attorney that he is about to blow up a building, the attorney—under the law of most states—must advise him of the possible legal consequences, urge him not to commit the crime, and advise him that the attorney must reveal his intention to the authorities unless he abandons the proposed criminal activity. If the client confesses to his attorney that he blew up a building, the attorney is bound by the attorney/client privilege not to disclose that information.

In the case of the attorney/client privilege, the privilege belongs to the client, not to the attorney. If the client wishes to divulge those communications, then he or she may do so. The attorney, however, may not divulge those communications without the consent of the client, unless the client has already divulged them on his or her own. Some states also recognize other types of privileges, wherein communications made by one person to another may not be divulged without the consent of the person to whom the privilege belongs. (Such privilege exists in regard to the physician/patient relationship and the priest/penitent relationship.)
 

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The competency of a witness to testify may frequently become an issue. Generally, any witness within the age of reason is considered to be competent, provided that witness has not been declared incompetent by a court. The age of reason varies depending upon the maturity and intelligence of the witness, with age 7 generally being a cutoff point. Between ages 7 and 14, it is a matter for the trial judge to determine whether the child is of sufficient sophistication to testify. A person is declared incompetent by a court if there has been a judicial determination that he or she is deficient in mental capacities to the point where he or she cannot conduct his or her own affairs and needs to have someone else appointed as a guardian. If a person has been declared incompetent, then he or she may not be able to testify.

Other issues of competency may arise in terms of taking of an oath. Some people maintain that they cannot take an oath because of their religious beliefs. Normally, that is resolved by having the person affirm that they will tell the truth rather than having them state that they will tell the truth so help me God.
 

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Once a witness has been put on the witness stand, he or she may be impeached. To impeach a witness means to contradict him or her in some manner or form, or to otherwise undermine his or her credibility. A witness may be impeached by presenting contrary statements that he or she has made on prior occasions about the issue in controversy; by showing that he or she has some particular bias or prejudice against the other party; or, by attacking the witness’ character by showing that he or she has been previously convicted of a criminal offense constituting a felony or a crime of moral turpitude. (A felony is a crime for which a person may be imprisoned for more than a year. A crime of moral turpitude is a crime that involves lying, cheating, or stealing.)

Normally, in a civil case, general character evidence is not admissible. The court in a civil action does not want to hear evidence about how good a person the plaintiff or the defendant may be. However, that type of testimony may be allowed in a criminal action to show the character and reputation of the defendant who has been accused of the crime.
 

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The purpose of cross-examination, on the other hand, is to allow the adverse party (the party who has not called the witness) to try to pin that witness down. The witness is not typically allowed to explain his or her answers on cross-examination.

A skillful cross examiner will ask only questions in the form of Isn’t it true that…. That type of questioning is intended to elicit a simple yes or no answer and to not allow the witness to explain answers in any detail. This form of questioning is called leading. If the witness wishes to explain the answer or if the attorney who initially called the witness wishes to have the witness explain the answer, then that attorney will have the opportunity on redirect examination (the examination that takes place after the cross-examination).

The general format by which questioning of witnesses is conducted is:

* first, by direct examination, in which nonleading questions are asked by the attorney calling the witness;

* second, by cross-examination by opposing counsel, frequently through the use of leading questions; and,

* third, by redirect examination, in which the party that originally called the witness may ask more nonleading questions, allowing the witness to explain any answers that may have been given on cross-examination.

Cross-examination is generally limited by the scope of the direct examination. If, on direct examination, the witness was only asked a limited number of questions about limited issues, then the cross-examination must be limited to those issues. The cross-examination may not go beyond the general scope of the direct examination.

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The party that calls a witness to testify is required to ask that witness nonleading questions. That form of examination, called direct examination, is intended to allow the witness to testify rather than to have the attorney testify. If the attorney were allowed to ask leading questions (questions that suggest the answer within the content of the question) then in essence the attorney is testifying and not the witness. An example of a leading question would be “Isn’t it true that you beat your wife?” That question, by its very content, suggests that the answer is yes—that the witness does beat his wife. That type of questioning is not allowed on direct examination. A nonleading form of that same question would be “What do you know about your wife having been beaten?”

The general purpose of direct examination of witnesses is to allow the witness to explain what he or she knows. If that witness provides testimony that needs further explanation, then the attorney can ask the witness to simply explain the answer.

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If you have ever been in a courtroom in which multiple witnesses are potentially going to testify, you may recall the judge asking whether there is a request for a rule on witnesses. The rule on witnesses means that witnesses who have not testified should not be in the courtroom. That rule does not apply to the parties to the litigation. This means the plaintiff and the defendant in a civil case both have a right to be present, even though they may testify as witnesses. However, witnesses who have not yet testified may be excluded from the courtroom until they testify. In addition, this rule on witnesses may be extended to prohibit anyone from talking to witnesses about what is going on in the courtroom until that witness gives his or her testimony. A violation of that rule on witnesses may result in a witness being excluded from testifying. The purpose of this rule is to prevent one witness’ testimony from being influenced by what another witness has said in the courtroom.

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As previously defined, evidence is the presentation of testimony from witnesses and the presentation of documents or physical things for the jury to review. The rules of evidence govern how those things may be admitted into evidence. For something to be admitted into evidence technically means that the jury is allowed to hear it or see it. If it is not admitted into evidence, then the jury should not see or hear it. If, by chance, they have heard or seen evidence that was not properly admitted, they will be instructed to disregard that evidence. The rules of evidence are designed to provide some degree of reliability to the evidence that is presented in the courtroom. These rules can become very complex.

The rules of evidence are designed to provide some degree of reliability to the evidence that is presented in the courtroom.

The principal form in which evidence is presented is by putting a witness on the witness stand and having him or her respond to questions from the attorney who has called that witness. The testimony rendered by that witness is considered to be evidence. The jury may rely upon that evidence to decide the case. The testimony presented by one witness may be sufficient to convince a jury to rule in favor of the party that called that witness, even though the other party may have called ten witnesses who presented contrary testimony.
 

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Most courts have adopted rules of procedure and rules of evidence. Those rules of procedure may be contained, to some extent, in the state code (in which case the procedural rules in essence become statutory law), or they may be in a formal set of rules referred to as the rules of procedure. In the federal court system, there is a set of rules referred to as the Federal Rules of Civil Procedure. Many state courts have adopted similar sets of rules of civil procedure.

In addition, there may be a set of rules referred to as the rules of evidence. In the federal court system, there is a formal set of rules referred to as the Federal Rules of Evidence that have been written by the Judicial Conference. Those Federal Rules of Evidence apply in federal court. At the state court level, many states have adopted their own state rules of evidence. Those rules are designed to govern the admissibility of evidence in that state court system.
 

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