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Frequently Asked Questions
What Is Evidence?
Overview
Evidence is defined
as anything offered to prove the existence or nonexistence of a
fact, including testimony, writings, material objects or other
things presented to the senses. It can be testimony about what
someone saw or heard or smelled. It can be an exhibit admitted into
evidence. Evidence can also be someone's opinion.
Types of Evidence
When a witness
testifies at trial on direct or cross-examination, the witness is
giving evidence. A deposition that is read to the jury is testimony
and therefore is evidence. To learn more, go to
What
is A Deposition?
Writings, documents
and material objects are also evidence. In order for non-testimonial
evidence to be considered by the jury, the evidence must be
identified and then received as evidence by the judge. Certain
exhibits are called "demonstrative evidence" which is evidence that
illustrates a witnesses testimony or the attorney's theory of the
case. Demonstrative evidence can be timelines, graphs, diagrams,
enlargements and models. To learn more go to
What is Demonstrative Evidence?
Is Circumstantial Evidence
Allowed?
There are two types
of evidence. One is "direct evidence," which is defined by the
Evidence Code as "evidence that directly proves a fact, without an
inference or presumption, and which in itself, if true, conclusively
establishes that fact." Circumstantial evidence would require an
inference which is defined as a "deduction of fact that may
logically and reasonably be drawn from another fact or group of
facts found or otherwise established in the action."
Fortunately, the jury
instructions the judge will read to the jury explains the difference
between direct and circumstantial evidence more clearly.
"Some evidence
proves a fact directly, such as testimony of a witness who saw a
jet plane flying across the sky. Some evidence proves a fact
indirectly, such as testimony of a witness who saw only the
white trail that jet planes often leave. This indirect evidence
is sometimes referred to as 'circumstantial evidence.' In either
instance, the witness's testimony is evidence that a jet plane
flew across the sky.
"As far as the
law is concerned, it makes no difference whether evidence is
direct or indirect. You may choose to believe or disbelieve
either kind. Whether it is direct or indirect, you should give
every piece of evidence whatever weight you think it deserves."
CACI 202
(CACI
are the approved jury instructions from the Judicial Council
of California. Jury instructions are read to the jury by the
judge and it establishes the law the jury must follow in
deciding the case. A partner of Cheong, Denove, Rowell & Bennett
has been formally recognized as one of the attorneys who
assisted the task force in the preparation of these jury
instructions.)
Who Decides What Evidence Will
Be Received?
An attorney produces
evidence by asking witnesses questions and having the witnesses give
answers under oath. The attorney also presents evidence using
exhibits that are shown to the jury and received in evidence by the
court. The opposing attorney may allow the questions to be asked or
the exhibits to be received into evidence and shown to the jury. Or,
the opposing attorney may instead raise a trial objection to prevent
the witness from responding to the question or to prevent the
introduction of an exhibit. It is the duty of the trial judge to
rule on the objections. To learn more go to
What Are Trial Objections?
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At Cheong,
Denove, Rowell & Bennett we believe the more you know,
the better choice you will make.
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