Types of Evidence
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Testimonial evidence
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from eyewitnesses having personal knowledge
Documentary evidence
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This includes anything not directly testified to, such as:
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Real evidence
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The physical object involved in the cause of action; e.g.,
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Police reports, contracts, stock certificates, etc.
Weapons, scars, etc.
Demonstrative evidence
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Photographs
Demonstrations
Computer models
Advanced Civil Litigation Class 3
Slide 1
Direct vs. Circumstantial Evidence
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Direct evidence shows the event to have happened
directly. Examples:
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Circumstantial evidence provides evidence of facts that
could lead to an inference that something happened;
examples:
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Eyewitness testimony
Video tape of incident
Audio tape of incident
Blood and fingerprints
Weapon registration records
Both are admissible and both can be incriminating. There
is no difference in the rules of evidence between these!
Advanced Civil Litigation Class 3
Slide 2
Planning the Investigation and
The Rules of Evidence
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In conducting an investigation, the first thing that must
be asked is whether a piece of evidence will be
admissible. If not:
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It may not pay to seek out the evidence; and
You need to continue the search for something that can
prove the same thing that is admissible
Keep in mind though, that sometimes finding information
is still useful even if it won’t be admissible, as it can
often be used:
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To lead to other admissible evidence
As negotiating leverage
Advanced Civil Litigation Class 3
Slide 3
Rules of Evidence: What to Watch out for
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Character Evidence
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Generally inadmissible; with exceptions for
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Illegal searches and seizures
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Character of the accused
Character of the victim in a self-defense case
To prove motive, opportunity, identity, etc.
Habit
Certain sexual abuse cases
Anything to which the other side has “opened the door”
This is not usually relevant in civil cases
Privileges; inadmissible communications include:
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Attorney-client
Doctor Patient
Priest-Penitent
Advanced Civil Litigation Class 3
Slide 4
Rules of Evidence: Hearsay
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Keep in mind that hearsay is generally not admissible.
So if a witness tells you what some other person said, go
track down that person and get a first hand statement
There are many exceptions to the hearsay rule,
including:
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Statements of your opponent
Former testimony, in some cases
The “res gestate” category exceptions
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Excited utterance
Present sense impression
Present state of mind
Dying declarations
Statements made for purpose of a medical diagnosis
Advanced Civil Litigation Class 3
Slide 5
Rules of Evidence: Opinions
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During investigation, it’s important to know the opinion
rule because in most cases, a witness can’t speculate on
the stand.
Exceptions:
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Where a reasonable person could draw the conclusion
from the circumstances
Expert testimony
Experts can be expensive and most people can’t qualify;
so before you conclude that you need an expert,
determine:
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Whether you can get the same information in from
another source
If the expert will testify how you want him/her to
Advanced Civil Litigation Class 3
Slide 6
Rules of Evidence:
Authentication of Documents
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Establish a chain of custody for all physical evidence!
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It’s tedious work, but to introduce physical evidence, you
may have to show who held it for how long from the
moment of the incident until is appears in court. This may
require many witnesses to confirm one piece of evidence
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In civil cases, chain of custody if often stipulated to, so as to
save both parties the trouble
Original Documents Rule (“Best Evidence”)
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The original is generally required of any relevant
document, as opposed to a handwritten copy or a
summary or chart prepared by another person that
indicates what the document says
However, photocopies are allowed unless there’s some
reason to doubt its authenticity
Advanced Civil Litigation Class 3
Slide 7
Planning the Investigation
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First, you need to calculate:
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Second, review the file you already have to:
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1) what elements you need to prove to win your case
2) what facts will be needed to establish those elements
3) What sources will or may provide those facts
See what facts you already can prove with that you have
See if you can find leads to the other information
Next, make a list of likely sources of information this
case; e.g.,
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Your client and witnesses
Police and hospital, in an accident case
Government agencies
Public library and similar sourses
Advanced Civil Litigation Class 3
Slide 8
Internet Research
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Necessary information can often be gotten online,
including:
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Weather reports for relevant dates
Location of people or businesses
Public records, deeds, etc.
Information about medicines and drugs
Real estate and vehicle appraisals
However, if you are going to use any of this information
in court, think about how you’re going to introduce it.
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You’ll need to introduce it through a witness or reliable
documents
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A court is not going to allow you to introduce a Wikipedia
article as evidence…
Advanced Civil Litigation Class 3
Slide 9
Specific Methods of Investigating
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Viewing and combing the scene of the incident
Calling or mailing all people that may have information
Internet searches for information
Personal interview with key witnesses
Professional research services
Private investigators, if necessary and can be afforded
Searches of legal databases, like Lexis
Photographing and/or videotaping key scenes and pieces
of evidence
Run scientific tests
Consult experts
Freedom of Information Act requests
Advanced Civil Litigation Class 3
Slide 10
Investigations – Ethical Concerns
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A legal professional must not approach another party
represented by counsel without the consent of the other
party’s lawyer
One must not misrepresent his interests in the case or
whom he works for
Paralegals must be careful not to give legal advice
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And attorneys should not give legal advice to non-clients
Disclose all conflicts of interests when interviewing
anyone
One may not threaten, harass, intimidate or bribe a
potential witness
Complete your own work product- don’t rely on
opponent’s investigations!
Advanced Civil Litigation Class 3
Slide 11
Gathering Evidence
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Medical records
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Employment records
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HIPAA prevents providers from releasing information
without authorization. In almost all cases, you will need
authorization or a subpoena to get medical records
Also, because of confidentiality rules and
authorization or subpoena may be necessary
policies,
Investigating the scene of an accident
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Try diagramming the scene
Photograph the scene from every angle you can think of
Try to reenact the incident on your own with information
you have to get a clearer picture of what happened
Advanced Civil Litigation Class 3
Slide 12
Locating Witnesses
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Ways to get information on who might be a witness:
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Asking the client for ideas
Review other evidence for names of witnesses
Ask people who work or live nearby if anyone saw
anything
Use media or ads to get the word out that you are looking
for witnesses
Locating candidates for expert witnesses
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Ask colleagues who have had similar issues and cases
Put ads in professional journals
Look at applicable departments in universities for experts
Look at legal publications or online for ads placed by
experts advertising their availability
Advanced Civil Litigation Class 3
Slide 13
Interviewing Witnesses
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Know beforehand exactly what information you want from the
witnesses
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Have a checklist for all information you want from the witness
Be friendly and courteous to the witness
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Try not to have to go on a “fishing expedition” which will waste
time and annoy the witness.
A person who doesn’t like you is less cooperative
Don’t threaten a witness with a subpoena unless you have to.
If you threaten to get a subpoena, be prepared to follow
through
Emphasize that you and your client are looking for the
witness’ help.
Draft a witness statement after the interview and ask the
witness to review it for accuracy
Advanced Civil Litigation Class 3
Slide 14
Preserving Evidence for Trial
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Backup safely all electronically stored evidence
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Make sure it’s clearly identified and won’t confuse
someone in the firm looking at the evidence
Keep a log for people who check evidence out to sign
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Make sure it’s password protected and can’t be tampered
with
Make sure you can establish the chain of custody!!
Before evidence is tested in a manner that could damage
it, back it up if possible and give the opponent a chance
to examine it
Back up and copy (and scan) all photos, sketches,
documents, etc.
Back up all video and audio taped evidence
Advanced Civil Litigation Class 3
Slide 15