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.
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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