Forms of Evidence

 

(i)                 I pick up a thing-- this-- and I look at it. I think and decide, "It’s grey and rectangular. And it's an eraser." 

(ii)              I hand you the eraser. You put it away. You say to me, "It's grey and rectangular."

 

The first type of evidence -- type (i) -- is "real evidence," or "original real evidence."

 

Some people call such evidence "direct evidence."

Other people just call it tangible evidence. 

Some people call it original real evidence.

Wigmore called such evidence an instance of "autoptic proference." No one uses this terminology today except to mock it. (autoptic proference = "the thing speaks for itself or shows itself; see for yourself").

The second kind of evidence -- type (ii) -- is testimonial evidence. But, as you can see from the example of testimonial evidence given above, much testimonial evidence is based on "real evidence" or on perceptions of real evidence. Cf. FRE 602.

 

Some people call such testimonial evidence – a testimonial report of some thing or matter –,  some people call such testimonial evidence "direct evidence." (As you can see, the terminology used to classify evidence can get rather confusing; the classifications are often used in rather inconsistent ways.) 

In any event, the testimony of an eyewitness or a percipient witness is often called "direct evidence."

This usage has been particularly common in employment discrimination litigation; until recently, federal case law clearly attempted to make a distinction between direct evidence of discrimination and indirect or circumstantial evidence of discrimination. An example of so-called direct evidence would be the testimony of Wanda Witness that she heard Elder Employer say, "I hate women. I would never make a woman a manager." But cf. Desert Palace, Inc., dba Caesars Palace Hotel & Casino v. Costa, 539 U.S. 90, 99-100 (2003) (employment discrimination; question was whether alleged victim was required to produce "direct evidence" of discriminatory motive; "We have often acknowledged the utility of circumstantial evidence in discrimination cases. For instance, in Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 147 L. Ed. 2d 105, 120 S. Ct. 2097 (2000), we recognized that evidence that a defendant's explanation for an employment practice is 'unworthy of credence' is 'one form of circumstantial evidence that is probative of intentional discrimination.' Id., at 147, 147 L Ed 2d 105, 120 S Ct 2097 (emphasis added). The reason for treating circumstantial and direct evidence alike is both clear and deep-rooted: 'Circumstantial evidence is not only sufficient, but may also be more certain, satisfying and persuasive than direct evidence.' Rogers v. Missouri Pacific R. Co., 352 U.S. 500, 508, n. 17, 1 L. Ed. 2d 493, 77 S. Ct. 443 (1957). The adequacy of circumstantial evidence also extends beyond civil cases; we have never questioned the sufficiency of circumstantial evidence in support of a criminal conviction, even though proof beyond a reasonable doubt is required. See Holland v. United States, 348 U.S. 121, 140, 99 L. Ed. 150, 75 S. Ct. 127, 1954-2 C.B. 215 (1954) (observing that, in criminal cases, circumstantial evidence is 'intrinsically no different from testimonial evidence'). And juries are routinely instructed that 'the law makes no distinction between the weight or value to be given to either direct or circumstantial evidence.' 1A K. O'Malley, J. Grenig, & W. Lee, Federal Jury Practice and In-structions, Criminal § 12.04 (5th ed. 2000); see also 4 L. Sand, J. Siffert, W. Loughlin, S. Reiss, & N. Batterman, Modern Federal Jury Instructions P 74.01 (2002) (model instruction 74-2). It is not surprising, therefore, that neither petitioner nor its amici curiae can point to any other circumstance in which we have restricted a litigant to the presentation of direct evidence absent some affirmative directive in a statute.")

 

(iii) I look at the ground. I see the shape of a footprint. I conclude, "Some person was here." 

The footprint that I see is an example of circumstantial evidence – because the evidence (about the shape that looks like a footprint), if it is to serve any purpose, requires the drawing of an inference, the drawing of a conclusion from some human perception of a thing or phenomenon; the relevance of the evidence requires the drawing of an inference. 

Question: Does evidence of type (i) above -- does the relevance of this evidence also depend on one or more further possible inferences? (Sure.) Is it -- evidence type (i) -- therefore also circumstantial evidence?  

Answer: There is a strong argument that all evidence is circumstantial -- because, contrary to Wigmore and to some other authority, no evidence establishes anything in the absence of an inference. A fair number of courts embrace this proposition -- a few of them may do so in part because I said they should. "There is no such thing as direct evidence," I once wrote.

 

(iv) You look at the ground. Later you say to me, "Someone had been there. I know this because I saw a footprint in the ground." 

This is testimonial evidence, but it is also circumstantial evidence. Both you and I may draw an inference from the footprint that you say you think you saw in the ground. So this is a testimonial report of (tangible) circumstantial evidence.

 

(v)  You look at the ground. I ask, "What did you see?" You say, "This is what I saw" and you hand me a photograph that shows what appears to be a footprint in the ground.

The photograph is your testimony.

 

(vi) You look at the ground. I ask you, "What did you see?" You then draw a picture and you say, "That’s what I saw."

The drawing is your testimony. Your drawing is much like the photograph in Scenario (v). The diagram is your testimony. (If you go to film school or if you are a computer geek, you might say, "I’ll use my computer to draw you a picture.")

 

(vii) I ask you, "Did you see anyone there? What did you see?" You reply, "I saw no one and I noticed nothing unusual about the ground; it was dark. But I took a picture with my flash camera. I developed the film and this is what I got." You show me a photograph that shows what appear to be footprints in the ground. 

This is circumstantial (physical) evidence (photograph) -- CE-1 -- of circumstantial (physical) evidence (footprints) -- CE-2. The basis for my belief in CE-1 is your testimony about the taking of the picture. (If I am to believe that I am looking at evidence of a footprint, I have to believe that your camera is not quirky and that your flash does not produce false images.)

 

(viii) I ask you, "Was anyone there?" You say, "Well, I think so. This is what I saw." And you hand me a three dimensional object. It is made out of clay. But in the top there is a depression in the shape of a footprint. 

This type of evidence is sometimes called demonstrative evidence. But perhaps this evidence is simply much like the photograph that you earlier gave me when you said, "This is what I saw." So perhaps it’s really a special form of pictorial evidence: perhaps it’s three-dimensional pictorial testimony. But since the thing in question is three-dimensional, judges and your opponents will generally call your three-dimensional model "demonstrative evidence." (You might try to point out the error of their ways.) 

Alternative: (viii-A) You say, "I’ll show you what’s there. My words often fail me. You can look at what’s there yourself."

This is another example of the use of real evidence. If I am a juror and there are other jurors, we the jurors will take a jury view. (Whether a jury view can be done is entirely within the discretion of the trial court. Why?)

  

(ix) I ask you, "Was anyone there?" You say, "Well, I think so. There was a depression in the soil about 2" deep. Look at this. I brought some soil from that location. It’s in this box. I’m stepping in it. Look! My shoe has left a depression 2" deep. Look for yourself!" 

So what are we dealing with here? 

Practically everyone will call it demonstrative evidence. 

It is not a depiction of what I saw. It is, rather, a device or demonstration that suggests or teaches the inference that is to be drawn from evidence. 

This kind of demonstrative evidence is also called, appropriately enough, a courtroom experiment. 

Most such experiments are conducted prior to trial -- for example, by an expert who conducts an experiment before trial and testifies at trial about the experiment that (s)he conducted. The general purpose of that sort of pretrial experiment is often much the same as the general purpose of a courtroom experiment.

The general rule is that the admissibility or permissibility of experiments -- particularly courtroom experiments -- is within the discretion of the trial court. 

A bit of a redundancy: It is also often said that  that experiments -- whether in the courtroom or outside of the courtroom -- are within the discretion of the trial court.

The admissibility or permissibility of such experiments, it is said, depends on the existence of substantial similarity of conditions.

What does this mean? Consider the courtroom stepping experiment. The outcome of the experiment might depend on the kind of soil used, the wetness of the soil, the weight of the stepper, and so on.

 

(x) The trial is a personal injury action. The testifying doctor uses a human skeleton to show where the bone fracture that the doctor personally saw occurred.

This is also demonstrative evidence. But this use of a skeleton is not really part of an experiment. The skeleton performs much the function that the slides of the dead bodies performed in Lopinson. The skeleton is a visual aid for the witness. Lawsuits today are rife with this sort of demonstrative evidence, with these kinds of visual aids. 

Whether such three-dimensional exhibits or models are used in experiments or as visual aids, the law is formally the same: their permissibility is within the discretion of the trial court. (But should the standards be the same? Would you guess that they are, in reality, different? Why?)