(In honor of the annual shit show known as the bar exam, I’m posting some legal basics for the lay person in each of the major areas tested on the bar. This is all just what we call “black letter law,” as in simplified and pretty set concepts, and, as always, is not to be taken as legal advice.)
EVIDENCE LAW: (I apologize to you normal people, you’re about to be insulted)
I loved Evidence because, unlike every other area of law known to America (except for Louisiana, but we’re not getting into those weirdos ;), Evidence has set out rules that we just follow. There’s always grey areas, because this is America and that’s just how we roll. But mostly, Evidence is a ‘if you have this scenario then you are in this rule and the piece of evidence is either in or it’s out’ type of thing.
Where do we start with evidence? Well, sorry normal person who is my target audience and therefore I should be nicer to you, we start with the premise that normal people are stupid! (See, there’s a reason I apologized twice in advance.) The whole point of Evidence Law is to make sure the jury (that’s you guys) doesn’t see anything that’s going to “unfairly prejudice” them against one side or the other. Basically, we don’t trust you anymore than you trust us. The only difference is, we don’t trust you not to be stupid and you don’t trust us not to be evil.
You ever been in jury duty and wondered what the lawyers weren’t telling you?
Wellllll, here’s a few things:
1. Evidence isn’t allowed if it’s irrelevant. Period. That doesn’t take a lot out though, because a piece of evidence is relevant if it has any tendency to make a material fact (of consequence to determination of the case) more or less probable than without that piece of evidence. Something that is usually considered irrelevant? If you’ve done this thing they said you did before! Like you’ve gotten in a car accident before and the lawyer on the other side for this one is trying to use that to show this one was your fault. Unless they can slither their way (see, I knew I could work in a snake reference when I wrote the title) through a loophole, that evidence is staying out.
2. Evidence of “subsequent remedial measures” is not allowed to show liability. Meaning, if you burn your hand through a coffee cup after the barista (wearing gloves) gives it to you and you sue, and the coffee shop starts using sleeves to protect people’s hands, you can’t use the fact that they started using those sleeves as evidence to show they were negligent in not using them in the first place.
3. Evidence of “bad or good character” is usually not allowed (I say usually so often because it’s law and there are a ton of little nuances, loopholes, and bass ackward rulings that make exceptions). You can’t say this person did this, this and this, so therefore he must’ve caused the car accident because he’s just generally a bad person. Not legal.
The HUGE exception under this rule is in criminal cases. The Defendant can call someone to the stand to say he couldn’t have done this crime because he’s a good person. The good news on this bullshit is then the Prosecution can counter with their own character witnesses and by cross examining the Defendant’s witness.
4. Usually you can’t use the person’s past crimes against them to prove they committed this crime. (There are again exceptions, like if you claim you’re trying to show it was him because it fit his MO.) We don’t want the jury thinking, once a thief always a thief. We want the jury to decide if he did this crime, not punish him for past ones he’s already been punished for.
Again, one HUGE exception.
Any guesses?
Sexual assaults and child molestation. That’s right, that one we will say, once a rapist always a rapist, and the poor little critters just have to deal with it.
You playing your tiny violin? I know I am.
5. And here’s the big one that anyone who has a TV has heard of at some point. Hearsay! Hearsay is not (here’s that word again) usually admissible. Hearsay is when you’re trying to prove that what was said was true by having someone, who heard somebody else say it, tell it to the jury on the stand.
Basically, we don’t want gossip on the stand.
Like Susie heard John say that he saw Tiffany cheating on Michael. We’re not going to have Susie on the stand to say this. We’re going to have John.
And that’s it for Evidence 101. Like I tell my foreign friends who can’t figure out our crazy evidence laws, “Just remember, in the US, we have juries, and we don’t trust juries to not be stupid. So just start out with the presumption that all the Rules of Evidence are there to keep things out of the jury’s hands if it’s likely to make them think something stupid, and go from there.” 😉
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