Understanding Evidence Law
Evidence refers to anything that is presented in a court of law to support a case. In most jurisdictions, evidence must be relevant, material, and competent. These three terms can be confusing if you don’t practice in the area, though. This section will go into detail about these three terms and how they are applied.
Generally, the purpose of evidence is to support or prove something. Whether it’s a pre-litigation strategy or used in court, this process usually involves "proof of an alleged fact." Legal evidence laws are more specific, as they may include considerations about character, opinions or opinions based on personal knowledge , hearsay and more.
Evidence laws are designed to ensure that the evidence presented is authentic, reliable and trustworthy enough to be presented in court to determine the outcome of the case. Evidence can be "direct" such as the word of a witness or a gun that matches a bullet recovered from a crime scene. Or it may be "circumstantial," arguable but not necessarily direct proof of something. For instance, the fact that a defendant was found in the area at the time of a crime may not prove they committed the crime, but certainly isn’t good evidence for their case, either.
There are many types of evidence that may be used to help support a case.
Introduction to Evidence Law Flowcharts
The legal process can often appear as a tangle of complex rules and procedures, where the evaluation and admission of evidence seem to dance in a perplexing sequence of decisions and determinations. For both legal practitioners and students, this can be especially daunting. However, as with any discipline that requires multifaceted analysis, the application of flowcharts can help bring a sense of order to a complex process.
Evidence law is no exception. In mastering the nuances of evidentiary issues, it is crucial to have a clear understanding of how various rules impact one another, particularly when it comes to issues regarding relevance, hearsay and authentication objections. The contours of evidence law present a veritable labyrinth of exclusions and exceptions that must be navigated properly for maximum evidentiary effect. It is thus prudent to at least briefly review their basic structure and application in your mind as you read through the articles.
Legal flowcharts are a series of directed boxes and arrows that correlate various evidentiary rules and exceptions with logically sequenced steps. They are broadly organized by category, addressing topics such as relevance, hearsay and the Res Gestae doctrine. Each category will include a useful flowchart comprised of a series of directed boxes and question/conclusion pathways to guide the analysis of evidentiary issues. Flawlessly mapping out the occasionally tortuous maze of approval and rejection for an evidentiary proposed submission, they can greatly simplify the substantive task of issues spotting.
These flowcharts also can provide quick access to evidentiary principles, helping the advocate to quickly assess what objections should be made or whether there are proper grounds to challenge an adverse ruling. Their intuitive nature can assist in spotting evidentiary issues quickly and easily, as opposed to waiting until these evidentiary concepts arise in the heat of trial preparation or cross-examination. Properly applied, it can result in winning evidentiary arguments that otherwise might have been lost.
The Importance of Flowcharts in Evidence Law
Flowcharts are a remarkable tool that can break down the complexities of evidence rule inference into easy to digest pictures that members of the legal community (including jurors) can understand. The construction of these flow charts involves some laborious work of identifying the rules and sub-rules governing a particular type of evidence rule and then distilling them into symbols or arrows to reflect the law and how they fit together. For instance, relevancy rules can be drawn up with symbols which indicate whether or not 1) the evidence is being offered to prove a material fact, 2) the material fact is of consequence to the determination, and 3) the evidence makes the material fact more probable than it would be without the circumstantial evidence presented. The rules dictating either impeachment or rehabilitation of a witness is also reduced to a flow chart. This is particularly helpful in criminal trials, where the prosecutor is constantly looking to impeach the character of the defendant to show they have some sort of habit of violence, while at the same time it is impermissible to admit the character of the victim.
How to Make an Evidence Law Flowchart
Creating a useful flowchart of evidence law principles is an effective way to master a subject that often involves complex rules and exceptions. A well designed flowchart simplifies the law by providing a clear, visual representation of the evidence rules and their interrelationships, providing a useful learning or reference tool for study or trial preparation.
The first step to create a flowchart is to review the evidence rules and statutes in order to identify important legal principles that staple in every case. From there, break evidence topics down into smaller parts and sub-topics. Next, determine which information would be most useful to include in the flowchart—such as definitions and exceptions work in tandem with corresponding legal principles, while examples of how a particular principle applies are also often helpful. Using a relevant fact pattern or point of law to illustrate the general principle or rule works well. At that point, a useful flowchart can be created either by hand or using flowchart software, such as Microsoft Visio or lucidchart.com, many of which are free to use.
Once a draft of your flowchart is complete, use color coding or numbered steps to ensure visual clarity and logical flow. Change the font size to keep the flowchart readable. It is also important to ensure that the flowchart comprehensively covers all of the important legal principles, and is not missing any key legal principles.
While the process of creating a flowchart may seem time-consuming, they are invaluable study tools that clearly illustrate complex evidence law. A well-organized, easy-to-read flowchart is an excellent study aid or on-the-go reference guide that every attorney should have in their bag of tricks when preparing for trial.
Common Errors in Evidence Law Illustrated with Flowcharts
Understanding common pitfalls in evidence law can be especially challenging for new lawyers. Even experienced practitioners can struggle when the smallest of procedural nuances can lead to significant consequences. This section highlights some common pitfalls and hopes to provide you with some guidance on how to avoid them in your practice.
After establishing the foundation of the legal standard, the discussion of whether the witness’ testimony has the proper foundation to be admissible becomes a circular discussion that does not help the reader understand the legal standard. As such, most of the flowcharts start with the presumption that the witness’ testimony is currently admissible and then explores the ways that the testimony may later be found inadmissible (i.e., steps to establish inadmissibility).
The discussion in the flowcharts is not exhaustive. In addition to those pitfalls highlighted in the flowchart and those identified above, here are a few other commonly seen errors in evidence law:
The only error that is addressed in the flowcharts is the lack of authentication texas rules of evidence , rule 901.
Most flowcharts have a high focus on leading questions in direct examination because leading questions are often a foreign concept to beginning lawyers and judges, at least on direct examination. Even when doing a cross-examination, the lawyer should always be ready for the witness testing their leading question objection as some judges will be sensitive to such an issue. The Memorandum description is more instructive than the flowchart description, but the flowchart conveys the non-exhaustive nature of the Memorandum’s description of the issue.
Unlike most rule-matches, where objections are either sustained or overruled without a question of the sufficiency of the objection itself, the sufficiency of a legal objection to hearsay is always the issue. Therefore, the flowchart only addresses whether the statement is hearsay or whether it falls under an exception to the hearsay rule.
These five areas are not the only areas where common errors are made. The common challenges with objection and foundation are two topics that all articles and discussions of evidence law have because those are the areas that confuse lawyers the most.
Case Examples Utilizing Evidence Law in Flowchart Form
Consider some of the issues addressed in Recent Studies and Cases; how trial attorneys and judges alike value the importance of judicial discretion, and how attorneys view their success or failure in formalizing a matter, especially where the rules of evidence are concerned. Some capital case attorneys were so confused by the boss’ understanding of the rules of evidence that the capital punishment client is never formally charged. There is a lot of gray area of understanding for the average attorney, let alone a non-attorney, to comprehend evidence rules. Simply, we are not sure . . .The evidentiary flowcharts are a simple and easy way to take the confusion out of understanding the rules of evidence.
For example, in the study "Evidence Flow Charts in Legal Education and Practice, Part II: Civil and Criminal Case Studies" the authors note that their "findings reveal that the use of flow charts raised the learner’s awareness of the evidentiary issues and assisted in developing the reasoning necessary to analyze what the law means and how it applies to a real world situation. The use of the flow charts allowed learning through application of the process of reading and applying the rules and the need for detailed legal analysis in order to reach a defensible conclusion." They also conclude that "[t]he flow chart method was an effective tool for proving a useful device for diagnosing evidentiary problems and addressing them in an appropriate legal manner."
The authors also examined whether the flowchart would assist students in understanding and applying the hearsay rule. In addition to specific questions concerning the use of the flowchart, the authors also asked the students to "indicate how you feel about retaining or discarding the flow chart method," and in regard to each question, "please formulate a final response, with any comments you feel are needed. We will use final responses to determine if the method should be retained and used in the future." Based on the responses, which are reported in full in the article, they "feel that the method should be used to supplement our teaching and in the future." In regard to the effectiveness of the flowcharts, the students "have indicated that the flow charts were useful to them in their efforts to understand the rules and how the rules fit into the context of a situation. They said that they could see that the use of the flow charts made it easier to understand the hearsay rule," and "[s]tudents have stated consistently that the flow charts assisted them by making it obvious what the next decision is to be made in an analysis and by assisting in processing the information they read."
This evidence flowchart method was used in a criminal law course after the evidence course, highlighting the potential use of more than just the evidence course, and the authors note that "[t]his suggests the possibility of using this methodology in a broad range of classes as students prepared to interview clients in preparation for trial or sentencing or in preparing witnesses for trial or deposition."
In addition, the authors outline the additional issues raised and application of the evidence flowcharts, including hearsay issues, evidentiary foundation issues, general conversations with witnesses where certain information were reviewed with them, impeaching witnesses, using expert witnesses, use of confidential materials, and conflicting responses and sufficiency of available evidence.
They also note that "[s]ome students were analyzing a piece of evidence and realizing that it was a very different kind of evidence from what they had assumed in preparing their flow charts. From the last two classes we can conclude that the process of re-talking about one piece of evidence during class with the flow charts reassures students who are disturbed by their performance. It reinforces the positive feedback they received during the exercise which improves their attitude toward the next exercise," and "[i]t also reassures the students that studying the rules is worthwhile and positive reinforcement they need for their further work and learning."
They also noted that "it appeared that students were comfortable trying to use the flow charts in their tests. One student indicated at a review session that he planned to take in the chart for a final examination. Others used the chart to informally study while walking to class, while riding on the Metro and while waiting for doctors or other appointments."
In evaluating the results of the use of the flowcharts in the Civil Procedure course, the authors report that "[s]everal of the students indicated that they would continue to make their own flow charts for their exams and reviews for the bar examination." In addition, the flowcharts "helped students realize that Civil Procedure was more than a list of black letter rules. The recent quiz revealed that students have recognized aspects of Civil Procedure that might be surprising. For example, some recognized that state courts are not limited to the Remedies prescribed by statute, while others seem surprised that justiciability required bars to suit against government agencies."
Further Resources on Evidence Law
For those who wish to delve deeper into the intricacies of evidence law and utilize visual aids such as flowcharts and diagrams in their practice, the following resources are recommended:
Books
Damien Conover, "The Little Book on Real Evidence", (The Quality Assurance Institute). This book offers a practical approach to the exclusionary role of the judge in criminal proceedings. It also covers standards of probability, admissibility, and the potential for exclusionary effects of the exclusion of certain evidence.
Jim Dwyer, "The Wrong Man: A True Tale of Murder, Innocence, and Grit", (The Penguin Group). This is Dwyer’s account of his investigation into the wrongfully convicted Robert Khaleel. It is an exceptionally well-written piece based upon thousands of pages of documents and his interviews with Khaleel as well as his family and friends. The documentary corroborating this book can be found on PBS; it examines the inadequacies of the justice system in this and other jurisdictions.
Thomas Ahearn and Jean Ahearn, "The Law of Evidence in New Mexico", (The University of New Mexico Press). An extensive discussion of the law of evidence in New Mexico, including hundreds of reported cases highlighted in a broad and highly readable manner. An excellent source for students and practitioners alike that provides a comprehensive overview of the law in New Mexico.
Joseph L. Gastwirth, "Statistical Reasoning for Law and Public Policy", (Cambridge University Press). This book provides an overview of the law pertaining to statistics and the application of the law to public policy and legal decision making, including many examples from actual cases from around the world.
Kathy Stuart and Clint Albright, "The Book of Odds: From Milestones to Mistakes, How to Use Odds to Your Advantage" , (Plume Books). A highly readable presentation of statistical odds applied to many topics, including criminal cases. This book provides an overview of law enforcement from bail and witness sequestration to the limits of civil jury awards. Highly recommended.
Julia Angwin, "Traffic: Genius, Rivalry, and Delusion on the Road to Discovery", (The Penguin Press). A highly readable account of the history of technology, statistics and the law as they apply to presenting such issues on direct-examination and cross-examination. Excerpts and other writings by Angwin can be found online.
M. Hasan, "Basics of Statistical Reasoning in Law", (Availability expected soon after date of publication). This book is expected to be published by Halstead so that it will bring together all of the aspects of statistics and the application of probability to civil and criminal liability.
Internet References
Judicial Conference of the United States, Administrative Office of the U.S. Courts, "Federal Rules of Evidence", 28 U.S.C.A. § 2074, 2009. As noted above, this is an excellent online source for the major rules of evidence and one that should be bookmarked by practitioners in all areas of the law.
American Statistical Association, "Why Most Statistics Is Wrong! — Statistical Significance Test", (2009). A somewhat humorous overview of the why statistical tests of significance must be used with care. The quote about this article is "We (the authors) were only kidding about the why most statistics is wrong. Did you notice the name of our website? That’s because we really mean it!"
Marilyn J. Berger, "Canvas Flowcharts: Flowcharts for Deposition Examinations, Demonstrative Exhibits, and Trial", (2002). This is a short work discussing the various types of charts and illustrations which may be used depending upon the situation. A popular discussion about diagrams and flowcharts.