meaning of the presentation of evidence

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Murphy on Evidence (15th edn)

• New to this Edition
• Preface to the Fifteenth Edition
• Extract from Preface to the First Edition
• Guide to the Online Resource Centre
• Table of Cases
• Table of Legislation
• 1. Introduction to the law of evidence
• 2. The language of the law of evidence
• 3. The judicial function in the law of evidence
• 4. The burden and standard of proof
• 5. Proof without evidence
• 6. Witnesses: Competence and compellability; oaths and affirmations
• 7. Examination in chief
• 8. Cross-examination and beyond
• 9. Corroboration and suspect witness warnings
• 10. The rule against hearsay I: Scope and working of the rule
• 11. The rule against hearsay II: Common law and statutory exceptions
• 12. The rule against hearsay III: Admissions and confessions
• 13. The rule against hearsay IV: The accused’s denials and silence
• 14. Character evidence I: Character evidence generally; in civil cases; evidence of good character
• 15. Character evidence II: Evidence of bad character
• 16. Previous judgments as evidence
• 17. Opinion evidence
• 18. Public interest immunity and privilege I: Public interest immunity
• 19. Public interest immunity and privilege II: Privilege

p. 1 1. Introduction to the law of evidence

• Richard Glover Richard Glover Senior Lecturer, School of Law, University of Wolverhampton
• https://doi.org/10.1093/he/9780198788737.003.0001
• Published in print: 25 May 2017
• Published online: September 2017

This chapter provides an overview of the law of evidence. It discusses the definition of evidence and how the law of evidence differs from the science or philosophy of evidence; the characteristics of the judicial trial that demand a particular legal approach to the presentation and use of evidence including, on occasion, its exclusion; the development of the rules of evidence in the common law system and the factors that influenced this; the classification of the rules of evidence; and the impact of the European Convention on Human Rights, in particular the provisions relating to the right to a fair trial.

• English law
• judicial trial
• rules of evidence
• European Convention
• Human Rights

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6.2: Defining Evidence

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• Page ID 152119

• Jim Marteney
• Los Angeles Valley College via ASCCC Open Educational Resources Initiative (OERI)

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What is evidence? According to Reike and Sillars (1993), ”[e]vidence refers to specific instances, statistics, and testimony, when they support a claim in such a way as to cause the decision maker(s) to grant adherence to that claim” (p. 10).

Evidence is information that answers the question “ How do you know ? ” of a contention you have made. Please take that question very literally. It is often hard to tell the difference at first between telling someone what you know and telling them how you know it. To become an effective speaker in almost any context, you need to be able to ask this question repeatedly and test the answers you hear to determine the strength of the evidence.

Only experts can use phrases like "I think" or "I feel" or "I believe" as they have the qualifications needed that allow you to accept their observations. As for everyone else, we need to use evidence to support our arguments. As a critical thinker, you should rely much more on what a person can prove to a reasonable degree instead of what a person feels.

Evidence is a term commonly used to describe the supporting material utilized when informing or persuading others. Evidence gives support to your statements and arguments. It also makes your arguments more than a mere collection of personal opinions or prejudices. No longer are you saying, “ I believe ” or “ I think ” or “ In my opinion .” Now you can support your assertions with evidence. Because you are asking your audience to take a risk when you attempt to inform or persuade them, audiences will demand support for your assertions. Evidence needs to be carefully chosen to serve the needs of the claim and to reach the target audience.

An argument is designed to persuade a resistant audience to accept a claim via the presentation of evidence for the contentions being argued. The evidence establishes the amount of accuracy your arguments have. Evidence is one element of proof (the second is reasoning), that is used as a means of moving your audience toward the threshold necessary for them to grant adherence to your arguments.

The speaker should expect audiences to not be persuaded by limited evidence or by a lack of variety/scope, evidence drawn from only one source as opposed to diverse sources. On the other hand, too much evidence, particularly when not carefully crafted, may leave the audience overwhelmed and without focus. Evidence in support of the different contentions in the argument needs to make the argument reasonable enough to be accepted by the target audience.

Challenge of Too Much Evidence

I attended a lecture years ago where the guest speaker told us that we have access to more information in one edition of the New York Times than a man in the middle ages had in his entire lifetime. The challenge is not finding information, the challenge is sorting through information to find quality evidence to use in our speeches . Shenk (1997) expresses his concern in the first chapter:

Information has also become a lot cheaper--to produce, to manipulate, to disseminate. All of this has made us information-rich, empowering Americans with the blessings of applied knowledge. It has also, though, unleashed the potential of information-gluttony...How much of the information in our midst is useful, and how much of it gets in the way? ... As we have accrued more and more of it, information has emerged not only as a currency, but also as a pollutant (p. 23).

• In 1971 the average American was targeted by at least 560 daily advertising messages. Twenty years later, that number had risen six-fold to 3,000 messages per day.
• In the office, an average of 60 percent of each person's time is now spent processing documents.
• Paper consumption per capita in the United States tripled from 1940 to 1980 (from 200 to 600 pounds) and tripled again from 1980 to 1990 (to 1,800 pounds).
• In the 1980s, third-class mail (used to send publications) grew thirteen times faster than population growth.
• Two-thirds of business managers surveyed report tension with colleagues, loss of job satisfaction, and strained personal relationships as a result of information overload.
• More than 1,000 telemarketing companies employ four million Americans, and generate $650 billion in annual sales.

"Let us call this unexpected, unwelcome part of our atmosphere "data smog," an expression for the noxious muck and druck of the information age. Data smog gets in the way; it crowds out quiet moments and obstructs much-needed contemplation. It spoils conversation, literature, and even entertainment. It thwarts skepticism, rendering us less sophisticated as consumers and citizens. It stresses us out” (Shenk, 1997, p. 24).

We need ways of sorting through this information and the first method is understanding the different types of evidence that we encounter.

Sources of Evidence

The first aspect of evidence we need to explore is the actual source of evidence or where we find evidence. There are two primary sources of evidence; primary sources and secondary sources.

Primary Sources

A primary source provides direct or firsthand evidence about an event, object, person, or work of art. Primary sources include historical and legal documents, eyewitness accounts, results of experiments, statistical data, pieces of creative writing, audio and video recordings, speeches, and art objects. Interviews, surveys, fieldwork, and Internet communications via email, blogs, tweets, and newsgroups are also primary sources. In the natural and social sciences, primary sources are often empirical studies—research where an experiment was performed or a direct observation was made. The results of empirical studies are typically found in scholarly articles that are peer-reviewed (Ithica College, 2019)

Included in primary sources are:

• Original, first-hand accounts of events, activities, or time periods;
• Factual accounts instead of interpretations of accounts or experiments;
• Results of an experiment;
• Reports of scientific discoveries;
• Results of scientifically based polls.

Secondary Sources

Secondary sources describe, discuss, interpret, comment upon, analyze, evaluate, summarize, and process primary sources. Secondary source materials can be articles in newspapers or popular magazines, book, movie reviews, or articles found in scholarly journals that discuss or evaluate someone else's original research (Ithica, 2019).

Included in secondary sources are:

• Analyzation and interpretation of the accounts of primary sources;
• Secondhand account of an activity or historical event;
• Analyzation and interpretation of scientific or social research results.

The key difference between the two sources is how far the author of the evidence is removed from the original event. You want to ask, " Is the author giving you a firsthand account, or a secondhand account? "

Types of Evidence

There are five types of evidence critical thinkers can use to support their arguments: precedent evidence, statistical evidence, testimonial evidence, hearsay evidence, and common knowledge evidence .

Precedent evidence is an act or event which establishes expectations for future conduct. There are two forms of precedent evidence: legal and personal.

Legal precedent is one of the most powerful and most difficult types of evidence to challenge. Courts establish legal precedent. Once a court makes a ruling, that ruling becomes the legal principle upon which other courts base their actions. Legislatures can also establish precedent through the laws they pass and the laws they choose not to pass. Once a principle of law has been established by a legislative body, it is very difficult to reverse.

Personal precedents are the habits and traditions you maintain. They occur as a result of watching the personal actions of others in order to understand the expectations for future behaviors. Younger children in a family watch how the older children are treated in order to see what precedents are being established. Newly employed on a job watch to see what older workers do in terms of breaks and lunchtime in order that their actions may be consistent. The first months of a marriage is essentially a time to establish precedent. Who does the cooking, who takes out the garbage, who cleans, which side of the bed does each person get, are precedents established early in a marriage. Once these precedents are displayed, an expectation of the other’s behavior is established. Such precedent is very difficult to alter.

To use either type of precedent as evidence, the arguer refers to how the past event relates to the current situation. In a legal situation, the argument is that the ruling in the current case should be the same as it was in the past, because they represent similar situations. In a personal situation, if you were allowed to stay out all night by your parents "just once," you can use that "just once" as precedent evidence when asking that your curfew be abolished.

Statistical evidence consists primarily of polls, surveys, and experimental results from the laboratory. This type of evidence is the numerical reporting of specific instances. Statistical evidence provides a means for communicating a large number of specific instances without citing each one. Statistics can be manipulated and misused to make the point of the particular advocate.

Don’t accept statistics just because they are numbers. People often fall into the trap of believing whatever a number says, because numbers seem accurate. Statistics are the product of a process subject to human prejudice, bias, and error. Questions on a survey can be biased, the people surveyed can be selectively chosen, comparisons may be made of non-comparable items, and reports of findings can be slanted. Take a look at all the polls that predict an election outcome. You will find variances and differences in the results.

Statistics have to be interpreted. In a debate over the use of lie detector tests to determine guilt or innocence in court, the pro-side cited a study which found that 98% of lie detector tests were accurate. The pro-side interpreted this to mean that lie detector tests were an effective means for determining guilt or innocence. However, the con-side interpreted the statistic to mean that two out of every 100 defendants in this country would be found guilty and punished for a crime they did not commit.

The great baseball announcer Vin Scully once described the misuse of statistics by a journalist by saying that “ He uses statistics like a drunk uses a lamppost, not for illumination but for support

Statistics are often no more reliable than other forms of evidence, although people often think they are. Advocates need to carefully analyze how they use statistics when attempting to persuade others. Likewise, the audience needs to question statistics that don't make sense to them.

Testimonial evidence is used for the purpose of assigning motives, assessing responsibilities, and verifying actions for past, present and future events. Testimony is an opinion of reality as stated by another person. There are three forms of testimonial evidence: eyewitness, expert-witness, and historiography.

Eyewitness testimony is a personal declaration as to the accuracy of an event. That is, the person actually saw an event take place and is willing to bear witness to that event. Studies have confirmed that eyewitness testimony, even with all of its problems, is a powerful form of evidence. There seems to be almost something "magical" about a person swearing to "tell the whole truth and nothing but the truth."

Expert-witness evidence calls upon someone qualified to make a personal declaration about the nature of the fact in question. Courts of law make use of experts in such fields as forensics, ballistics, and psychology. The critical thinker uses the credibility of another person to support an argument through statements about the facts or opinions of the situation.

What or who qualifies as an expert witness? Does being a former military officer make them an expert in military tactics? Often an advocate will merely pick someone who they know the audience will accept. But as an audience we should demand that advocates justify the expertise of their witness. As we acquire more knowledge, our standards of what constitutes an expert should rise. We need to make a distinction between sources that are simply credible like well-known athletes and entertainers that urge you to buy a particular product, and those who really have the qualities that allow them to make a judgment about a subject in the argumentative environment.

Although expert witness testimony is an important source of evidence, such experts can disagree. In a recent House Energy and Commerce subcommittee, two experts gave opposite testimony, on the same day, on a bill calling for a label on all aspirin containers warning of the drug's often fatal link to Reye's Syndrome. The head of the American Academy of Pediatrics gave testimony supporting the link, but Dr. Joseph White, President of The Aspirin Foundation of America, said there was insufficient evidence linking aspirin to Reye’s syndrome.

Historiography is the third form of testimonial evidence. In their book, ARGUMENTATION AND ADVOCACY, Windes and Hastings write, "Historiographers are concerned in large part with the discovery, use, and verification of evidence. The historian traces influences, assigns motives, evaluates roles, allocates responsibilities, and juxtaposes events in an attempt to reconstruct the past. That reconstruction is no wiser, no more accurate or dependable than the dependability of the evidence the historian uses for his reconstruction." 5

Keep in mind that there are many different ways of determining how history happens. Remember, historians may disagree over why almost any event happened. In the search for how things happen, we get ideas about how to understand our present world's events and what to do about them, if anything.

Primary sources are essential to the study of history. They are the basis for what we know about the distant past and the recent past. Historians must depend on other evidence from the era to determine who said what, who did what, and why.

How successful is the historian in recreating “objective reality?" As noted historian Arthur Schlesinger, Jr. says,

“The sad fact is that, in many cases, the basic evidence for the historian’s reconstruction of the really hard cases does not exist, and the evidence that does exist is often incomplete, misleading, or erroneous. Yet, it is the character of the evidence which establishes the framework within which he writes. He cannot imagine scenes for which he has no citation, invent dialogue for which he has no text, assume relationships for which he has no warrant.”

Historical reconstruction must be done by a qualified individual to be classified as historical evidence. Critical thinkers will find it useful to consider the following three criteria for evaluating historical evidence.

Around 1,000 books are published internationally every day and the total of all printed knowledge doubles every 5 years.

More information is estimated to have been produced in the last 30 years than in the previous 5,000.

----The Reuters Guide to Good Information Strategy 2000

Was the author an eyewitness to what is being described, or is the author considered an authority on the subject? Eyewitness accounts can be the most objective and valuable but they may also be tainted with bias. If the author professes to be an authority, he/she should present his/her qualifications.

Does the author have a hidden agenda? The author may purposely or unwittingly tell only part of the story. The excerpt may seem to be a straight-forward account of the situation, yet the author has selected certain facts, details, and language, which advance professional, personal or political goals or beliefs. They may be factual, but the hidden agenda of these books was to make money for the author, or get even with those in the administration they didn't like.

Does the author have a bias? The author's views may be based on personal prejudice rather than a reasoned conclusion based on facts. Critical thinkers need to notice when the author uses exaggerated language, fails to acknowledge, or dismisses his or her opponents' arguments. Historians may have biases based on their political allegiance. Conservative historians would view events differently than a liberal historian. It is important to know the political persuasion of the historian in order to determine the extent of bias he or she might have on the specific topic they are writing about.

Sometimes we think we might know our history, but Historian Daniel Boorstin puts a perspective on the ultimate validity and accuracy of historical testimony when he writes, "Education is learning what you didn't even know you didn't know." Modern techniques of preserving data should make the task of recreating the past easier and adding to our education.

Hearsay evidence (also called rumor or gossip evidence) can be defined as an assertion or set of assertions widely repeated from person to person, though its accuracy is unconfirmed by firsthand observation. "Rumor is not always wrong , " wrote Tacitus, the Roman historian. A given rumor may be spontaneous or premeditated in origin. It may consist of opinion represented as fact, a nugget of accuracy garbled or misrepresented to the point of falsehood, exaggerations, or outright, intentional lies. Yet, hearsay may well be the "best available evidence" in certain situations where the original source of the information cannot be produced.

Rumor, gossip or hearsay evidence carries proportionately higher risks of distortion and error than other types of evidence. However, outside the courtroom, it can be as effective as any other form of evidence in proving your point. Large companies often rely on this type of evidence, because they lack the capability to deliver other types of evidence.

A recent rumor was started that actor Morgan Freeman had died. A page on “Facebook” was created and soon gained more that 60,000 followers, after it was announced that the actor had passed away. Many left their condolences and messages of tribute. Only one problem, Morgan Freeman was very much alive, actually that is not so much a problem, especially to Morgan Freeman. The Internet is a very effective tool when it comes to spreading rumors.

Common knowledge evidence is also a way to support one’s arguments. This type of evidence is most useful in providing support for arguments which lack any real controversy. Many claims are supported by evidence that comes as no particular surprise to anyone.

Basing an argument on common knowledge is the easiest method of securing belief in an idea, because an audience will accept it without further challenge. Patterson and Zarefsky (1983) explain:

Many argumentative claims we make are based on knowledge generally accepted by most people as true. For example, if you claimed that millions of Americans watch television each day, the claim would probably be accepted without evidence. Nor would you need to cite opinions or survey results to get most people to accept the statement that millions of people smoke cigarettes 6 (Pat.

Credibility of Evidence or How Good Is It?

In order to tell us how you know something, you need to tell us where the information came from. If you personally observed the case you are telling us about, you need to tell us that you observed it, and when and where. If you read about it, you need to tell us where you read about it. If you are accepting the testimony of an expert, you need to tell us who the expert is and why she is an expert in this field. The specific identity, name or position and qualifications of your sources are part of the answer to the question “How do you know?” You need to give your audience that information.

Keep in mind that it is the person, the individual human being, who wrote an article or expressed an idea who brings authority to the claim. Sometimes that authority may be reinforced by the publication in which the claim appeared, sometimes not. But when you quote or paraphrase a source you are quoting or paraphrasing the author, not the magazine or journal. The credibility of the evidence you use can be enhanced by:

Specific Reference to Source : Does the advocate indicate the particular individual or group making the statements used for evidence? Does the advocate tell you enough about the source that you could easily find it yourself?

Qualifications of the Source: Does the advocate give you reason to believe that the source is competent and well-informed in the area in question?

Bias of the Source : Even if an expert, is the source likely to be biased on the topic? Could we easily predict the source’s position merely from knowledge of his job, her political party, or organizations he or she works for?

Factual Support: Does the source offer factual support for the position taken or simply state personal opinions as fact?

Evaluating Internet Sources of Evidence

We currently obtain a significant amount of the evidence we use in an argument from the Internet. Some people are still under the influence that if they read it on the Internet, it must be accurate. But we all know that some Internet sources are better than others. We need to be able to evaluate websites to obtain the best information possible. Here are two approaches to evaluating websites

Who, What, When, Where, and Why

This first test is based on the traditional 5 “W’s.” These questions, like critical thinking, go back to Greek and Roman times. The notable Roman, Cicero, who was in office in 63 BC, is credited with asking these questions

Journalists are taught to answer these five questions when writing an article for publication. To provide an accurate interpretation of events to their viewers or readers, they ask these five questions and we can ask the same questions to begin discovering the level of quality of an online source.

Who wrote the post? What are their qualifications?

What is actually being said in the website. How accurate is the content?

When was the website’s latest post?

Where is the source of the post? Does the URL suggest it is from an academic source or an individual?

Why is the website published? Is the website there to inform or entertain?

There is a second method of evaluating websites that is more popular and includes a more in depth analysis. This method is known as the CRAAP test.

The C.R.A.A.P. Test

C.R.A.A.P. is an acronym standing for Currency, Relevance, Authority, Accuracy, and Purpose. Developed by the Meriam Library at the California State University at Chico, each of these five areas is used to evaluate websites.

Currency How recent is this website. If you are conducting research on some historical subject a web site that has no recent additions could be useful. If, however you are researching some current news story, or technology, or scientific topic, you will want a site that has been recently updated.

Questions to Ask:

• When was the content of the website published or posted?
• Has the information been revised or updated recently?
• Have more recent articles on your subject been published?
• Does your topic require the most current information possible, or will older posts and sources be acceptable?
• Are the web links included in the website functional?
• Relevance This test of a website asks you how important is the information to the specific topic you are researching. You will want to determine if you are the intended audience and if the information provided fits your research needs.
• Does the content relate to your research topic or the question you are answering?
• Who is the intended audience?
• Is the information at an appropriate level for the purpose of your work? In other words, is it college level or targeted to a younger or less educated audience?
• Have you compared this site to a variety of other resources?
• Would you be comfortable citing this source in your research project?

Authority Here we determine if the source of the website has the credentials to write on the subject which makes you feel comfortable in using the content. If you are looking for an accurate interpretation of news events, you will want to know if the author of the website is a qualified journalist or a random individual reposting content.

• Who is the author/ publisher/ source/ sponsor of the website?
• What are the author’s credentials or organizational affiliations?
• Does the author have the qualifications to write on this particular topic?
• Can you find information about the author from reference sources or the Internet?
• Is the author quoted or referred to on other respected sources or websites?
• Is there contact information, such as a publisher or email address?
• Does the URL reveal anything about the author or source?

Accuracy In this test we attempt to determine the reliability and accuracy of the content of the website. You need to determine if you can trust the information presented in the website or is it just slanted, personal beliefs.

• Where does the information in the website come from?
• Is the information supported by Evidence, or is it just opinion?
• Has the information presented been reviewed by qualified sources?
• Can you verify any of the content in another source or personal knowledge?
• Are there statements in the website you know to be false?
• Does the language or tone used in the website appear unbiased or free of emotion or loaded language?
• Are there spelling, grammar or typographical errors in the content of the website?

Purpose Finally we examine the purpose of the website. We need to determine if the website was created to inform, entertain or even sell a product or service. If we want accurate, high quality evidence, we would want to avoid a site that is trying to sell us something. Although a company selling solar power may have some factual information about solar energy on their site, the site is geared to sell you their product. The information they provide is not there to educate you with all aspects of solar power.

• What is the purpose of the content of this website? Is the purpose to inform, teach, sell, entertain or persuade?
• Do the authors/sponsors of the website make their intentions or purpose clear?
• Is the content in the website considered facts, opinion, or even propaganda?
• Does the point of view appear objective and impartial?
• Does the author omit important facts or data that might disprove the claim being made in the post?
• Are alternative points of view presented?
• Does the content of the website contain political, ideological, cultural, religious, institutional or personal biases?

Questions used here are inspired from questions from the Meriam Library at California State University Chico, the University of Maryland University College Library and Creighton University Library

• Rieke, Richard D. and Malcolm Sillars. Argumentation and Critical Decision Making. (New York: HaperCollins Rhetoric and Society Series, 1993)
• Shenk, David. Data Smog, Surviving the Information Glut. 1. San Fransisco: HarperEdge, 1997
• Ithica College, "Primary and Secondary Sources," libguides.ithaca.edu/research101/primary (accessed October 31, 2019)
• ARGUMENTATION AND ADVOCACY. By Russel R. Windes and Arthur Hastings. New York: Random House, 1965
• Patterson, J. W. and David Zarefsky. Contemporary Debate. Boston: Houghton Mifflin, 1983

10 Steps for Presenting Evidence in Court

When you go to court, you will give information (called “evidence”) to a judge who will decide your case. This evidence may include information you or someone else tells to the judge (“testimony”) as well as items like email and text messages, documents, photos, and objects (“exhibits”). If you don’t have an attorney, you will need to gather and present your evidence in the proper way. Courts have rules about evidence so that judges will make decisions based on good information, not gossip and guesswork.

Although the rules can be confusing, they are designed to protect your rights, and you can use them to help you plan for your court appearance. Even though courts work differently, this publication will introduce you to the nuts and bolts of presenting evidence at a hearing. As you read it, please consider the kind of help you might want as you prepare and present your case.

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The Legal Concept of Evidence

The legal concept of evidence is neither static nor universal. Medieval understandings of evidence in the age of trial by ordeal would be quite alien to modern sensibilities (Ho 2003–2004) and there is no approach to evidence and proof that is shared by all legal systems of the world today. Even within Western legal traditions, there are significant differences between Anglo-American law and Continental European law (see Damaška 1973, 1975, 1992, 1994, 1997). This entry focuses on the modern concept of evidence that operates in the legal tradition to which Anglo-American law belongs. [ 1 ] It concentrates on evidence in relation to the proof of factual claims in law. [ 2 ]

It may seem obvious that there must be a legal concept of evidence that is distinguishable from the ordinary concept of evidence. After all, there are in law many special rules on what can or cannot be introduced as evidence in court, on how evidence is to be presented and the uses to which it may be put, on the strength or sufficiency of evidence needed to establish proof and so forth. But the law remains silent on some crucial matters. In resolving the factual disputes before the court, the jury or, at a bench trial, the judge has to rely on extra-legal principles. There have been academic attempts at systematic analysis of the operation of these principles in legal fact-finding (Wigmore 1937; Anderson, Schum, and Twining 2009). These principles, so it is claimed, are of a general nature. On the basis that the logic in “drawing inferences from evidence to test hypotheses and justify conclusions” is governed by the same principles across different disciplines (Twining and Hampsher-Monk 2003: 4), ambitious projects have been undertaken to develop a cross-disciplinary framework for the analysis of evidence (Schum 1994) and to construct an interdisciplinary “integrated science of evidence” (Dawid, Twining, and Vasilaki 2011; cf. Tillers 2008).

While evidential reasoning in law and in other contexts may share certain characteristics, there nevertheless remain aspects of the approach to evidence and proof that are distinctive to law (Rescher and Joynt 1959). Section 1 (“conceptions of evidence”) identifies different meanings of evidence in legal discourse. When lawyers talk about evidence, what is it that they are referring to? What is it that they have in mind? Section 2 (“conditions for receiving evidence”) approaches the concept of legal evidence from the angle of what counts as evidence in law. What are the conditions that the law imposes and must be met for something to be received by the court as evidence? Section 3 (“strength of evidence”) shifts the attention to the stage where the evidence has already been received by the court. Here the focus is on how the court weighs the evidence in reaching the verdict. In this connection, three properties of evidence will be discussed: probative value, sufficiency, and degree of completeness.

1. Conceptions of Evidence: What does Evidence Refer to in Law?

2.1.1 legal significance of relevance, 2.1.2 conceptions of logical relevance, 2.1.3 logical relevance versus legal relevance, 2.2 materiality and facts-in-issue, 2.3.1 admissibility and relevance, 2.3.2 admissibility or exclusionary rules, 3.1 probative value of specific items of evidence, 3.2.1 mathematical probability and the standards of proof, 3.2.2 objections to using mathematical probability to interpret standards of proof, 3.3 the weight of evidence as the degree of evidential completeness, other internet resources, related entries.

Stephen (1872: 3–4, 6–7) long ago noted that legal usage of the term “evidence” is ambiguous. It sometimes refers to that which is adduced by a party at the trial as a means of establishing factual claims. (“Adducing evidence” is the legal term for presenting or producing evidence in court for the purpose of establishing proof.) This meaning of evidence is reflected in the definitional section of the Indian Evidence Act (Stephen 1872: 149). [ 3 ] When lawyers use the term “evidence” in this way, they have in mind what epistemologists would think of as “objects of sensory evidence” (Haack 2004: 48). Evidence, in this sense, is divided conventionally into three main categories: [ 4 ] oral evidence (the testimony given in court by witnesses), documentary evidence (documents produced for inspection by the court), and “real evidence”; the first two are self-explanatory and the third captures things other than documents such as a knife allegedly used in committing a crime.

The term “evidence” can, secondly, refer to a proposition of fact that is established by evidence in the first sense. [ 5 ] This is sometimes called an “evidential fact”. That the accused was at or about the scene of the crime at the relevant time is evidence in the second sense of his possible involvement in the crime. But the accused’s presence must be proved by producing evidence in the first sense. For instance, the prosecution may call a witness to appear before the court and get him to testify that he saw the accused in the vicinity of the crime at the relevant time. Success in proving the presence of the accused (the evidential fact) will depend on the fact-finder’s assessment of the veracity of the witness and the reliability of his testimony. (The fact-finder is the person or body responsible for ascertaining where the truth lies on disputed questions of fact and in whom the power to decide on the verdict vests. The fact-finder is also called “trier of fact” or “judge of fact”. Fact-finding is the task of the jury or, for certain types of cases and in countries without a jury system, the judge.) Sometimes the evidential fact is directly accessible to the fact-finder. If the alleged knife used in committing the crime in question (a form of “real evidence”) is produced in court, the fact-finder can see for himself the shape of the knife; he does not need to learn of it through the testimony of an intermediary.

A third conception of evidence is an elaboration or extension of the second. On this conception, evidence is relational. A factual proposition (in Latin, factum probans ) is evidence in the third sense only if it can serve as a premise for drawing an inference (directly or indirectly) to a matter that is material to the case ( factum probandum ) (see section 2.2 below for the concept of materiality). The fact that the accused’s fingerprints were found in a room where something was stolen is evidence in the present sense because one can infer from this that he was in the room, and his presence in the room is evidence of his possible involvement in the theft. On the other hand, the fact that the accused’s favorite color is blue would, in the absence of highly unusual circumstances, be rejected as evidence of his guilt: ordinarily, what a person’s favorite color happens to be cannot serve as a premise for any reasonable inference towards his commission of a crime and, as such, it is irrelevant (see discussion of relevance in section 2.1 below). In the third sense of “evidence”, which conceives of evidence as a premise for a material inference, “irrelevant evidence” is an oxymoron: it is simply not evidence. Hence, this statement of Bentham (1825: 230): [ 6 ]

To say that testimony is not pertinent, is to say that it is foreign to the case, has no connection with it, and does not serve to prove the fact in question; in a word, it is to say, that it is not evidence.

There can be evidence in the first sense without evidence in the second or third sense. To pursue our illustration, suppose it emerges during cross-examination of the expert that his testimony of having found a finger-print match was a lie. Lawyers would describe this situation as one where the “evidence” (the testimony of the expert) fails to prove the fact that it was originally produced to prove and not that no “evidence” was adduced on the matter. Here “evidence” is used in the first sense—evidence as testimony—and the testimony remains in the court’s record whether it is believed or not. But lawyers would also say that, in the circumstances, there is no “evidence” that the accused was in the room, assuming that there was nothing apart from the discredited expert testimony of a fingerprint match to establish his presence there. Here, the expert’s testimony is shown to be false and fails to establish that the accused’s fingerprints were found in the room, and there is no (other) factual basis for believing that he was in the room. The factual premise from which an inference is sought to be drawn towards the accused’s guilt is not established.

Fourthly, the conditions for something to be received (or, in technical term “admitted”) as evidence at the trial are sometimes included in the legal concept of evidence. (These conditions are discussed in section 2 below.) On this conception, legal evidence is that which counts as evidence in law. Something may ordinarily be treated as evidence and yet be rejected by the court. Hearsay is often cited as an example. It is pointed out that reliance on hearsay is a commonplace in ordinary life. We frequently rely on hearsay in forming our factual beliefs. In contrast, “hearsay is not evidence” in legal proceedings (Stephen 1872: 4–5). As a general rule, the court will not rely on hearsay as a premise for an inference towards the truth of what is asserted. It will not allow a witness to testify in court that another person X (who is not brought before the court) said that p on a certain occasion (an out-of-court statement) for the purpose of proving that p .

In summary, at least four possible conceptions of legal evidence are in currency: as an object of sensory evidence, as a proposition of fact, as an inferential premise and as that which counts as evidence in law. The sense in which the term “evidence” is being used is seldom made explicit in legal discourse although the intended meaning will often be clear from the context.

2. Conditions for Receiving Evidence: What Counts as Evidence in Law?

This section picks up on the fourth conception of evidence. To recall, something will be accepted by the court as evidence—it is, to use Montrose’s term, receivable as evidence in legal proceedings—only if three basic conditions are satisfied: relevance , materiality, and admissibility (Montrose 1954). These three conditions of receivability are discussed in turn below.

2.1 Relevance

The concept of relevance plays a pivotal role in legal fact-finding. Thayer (1898: 266, 530) articulates its significance in terms of two foundational principles of the law of evidence: first, without exception, nothing which is not relevant may be received as evidence by the court and secondly, subject to many exceptions and qualifications, whatever is relevant is receivable as evidence by the court. Thayer’s view has been influential and finds expression in sources of law, for example, in Rule 402 of the Federal Rules of Evidence in the United States. [ 7 ] Thayer claims, and it is now widely accepted, that relevance is a “logical” and not a legal concept; in section 2.1.3 , we will examine this claim and the dissent expressed by Wigmore. Leaving aside the dissenting view for the moment, we will turn first to consider possible conceptions of relevance in the conventional sense of logical relevance.

Evidence may be adduced in legal proceedings to prove a fact only if the fact is relevant. Relevance is a relational concept. No fact is relevant in itself; it is relevant only in relation to another fact. The term “probable” is often used to describe this relation. We see two instances of this in the following well-known definitions. According to Stephen (1886: 2, emphasis added):

The word “relevant” means that any two facts to which it is applied are so related to each other that according to the common course of events one either taken by itself or in connection with other facts proves or renders probable the past, present, or future existence or non-existence of the other.

The second definition is contained in the United States’ Federal Rule of Evidence 401 which (in its restyled version) states that evidence is relevant if “it has a tendency to make a fact more or less probable than it would be without the evidence” (emphasis added). The word “probable” in these and other standard definitions is sometimes construed as carrying the mathematical meaning of probability. [ 8 ] In a leading article, Lempert gave this example to show how relevance turns on the likelihood ratio. The prosecution produces evidence that the perpetrator’s blood found at the scene of the crime is type A. The accused has the same blood type. Suppose fifty percent of the suspect population has type A blood. If the accused is in fact guilty, the probability that the blood found at the scene will be type A is 1.0. But if he is in fact innocent, the probability of finding type A blood at the scene is 0.5—that is, it matches the background probability of type A blood from the suspect population. The likelihood ratio is the ratio of the first probability to the second—1.0:0.5 or, more simply, 2:1. Evidence is considered relevant so long as the likelihood ratio is other than 1:1 (Lempert 1977). If the ratio is 1:1, that means that the probability of the evidence is the same whether the accused is guilty or innocent.

The conventional view is that relevance in law is a binary concept: evidence is either relevant or it is not. So long as the likelihood ratio is other than 1:1, the evidence is considered relevant. [ 9 ] However, the greater the likelihood ratio deviates from 1:1, the higher the so-called probative value of the evidence (that is, on one interpretation of probative value). We will take a closer look at probative value in section 3.1 below.

While the likelihood ratio may be useful as a heuristic device in analysing evidential reasoning, it is controversial as to whether it captures correctly the concept of relevance. In the first place, it is unclear that the term “probable” in the standard definitions of relevance was ever intended as a reference to mathematical probability. Some have argued that relevance should be understood broadly such that any evidence would count as relevant so long as it provides some reason in support of the conclusion that a proposition of fact material to the case is true or false (Pardo 2013: 576–577).

The mathematical conception of relevance has been disputed. At a trial, it is very common for the opposing sides to present competing accounts of events that share certain features. To use Allen’s example, the fact that the accused drove to a particular town on a particular day and time is consistent with the prosecution’s case that he was driving there to commit a murder and also with the defence’s case that he was driving there to visit his mother. This fact, being a common feature of both sides’ explanations of the material events, is as consistent with the hypothesis of guilt as with the hypothesis of innocence. On the likelihood ratio conception of relevance, this fact should be irrelevant and hence evidence of it should not be allowed to be adduced. But in such cases, the court will let the evidence in (Park et al. 2010: 10). The mathematical theory of relevance cannot account for this. (For critical discussion of this claim, see section 4.2 of the entry on legal probabilism .) It is argued that an alternative theory of relevance better fits legal practice and is thus to be preferred. On an explanatory conception of relevance, evidence is relevant if it is explained by or provides a reason for believing the particular explanation of the material events offered by the side adducing the evidence, and it remains relevant even where, as in our example, the evidence also supports or forms part of the explanation offered by the opponent (Pardo and Allen 2008: 241–2; Pardo 2013: 600).

One possible response to the above challenge to the likelihood ratio theory of relevance is to deny that it was ever meant to be the exclusive test of relevance. Evidence is relevant if the likelihood ratio is other than 1:1. But evidence may also be relevant on other grounds, such as when it provides for a richer narrative or helps the court in understanding other evidence. It is for these reasons that witnesses are routinely allowed to give their names and parties may present diagrams, charts and floor plans (so-called “demonstrative evidence”) at the trial (McCormick 2013: 995). The admission of evidence in the scenario painted by Allen above has been explained along a similar line (Park et al. 2010: 16).

The concept of relevance examined in the preceding section is commonly known as “logical relevance”. This is somewhat of a misnomer: “Relevance is not a matter of logic, but depends on matters of fact” (Haack 2004: 46). In our earlier example, the relevance of the fact that the accused has type A blood depends obviously on the state of the world. On the understanding that relevance is a probabilistic relation, it is tempting to think that in describing relevance as “logical”, one is subscribing to a logical theory of probability (cf. Franklin 2011). However, the term “logical relevance” was not originally coined with this connotation in mind. In the forensic context, “logic” is used loosely and refers to the stock of background beliefs or generalisations and the type of reasoning that judges and lawyers are fond of labelling as “commonsense” (MacCrimmon 2001–2002; Twining 2006: 334–335).

A key purpose of using the adjective “logical” is to flag the non-legal character of relevance. As Thayer (1898: 269) famously claimed, relevance “is an affair of logic and not of law.” This is not to say that relevance has no legal dimension. The law distinguishes between questions of law and questions of fact. An issue of relevance poses a question of law that is for the judge to decide and not the jury, and so far as relevance is defined in legal sources (for example, in Federal Rule of Evidence 401 mentioned above), the judge must pay heed to the legal definition. But legal definitions of relevance are invariably very broad. Relevance is said to be a logical, and non-legal, concept in the sense that in answering a question of relevance and in applying the definition of relevance, the judge has necessarily to rely on extra-legal resources and is not bound by legal precedents. Returning to Federal Rule of Evidence 401, it states generally that evidence is relevant if “it has a tendency to make a fact more or less probable than it would be without the evidence”. In deciding whether the evidence sought to be adduced does have this tendency, the judge has to look outside the law. Thayer was most insistent on this. As he put it, “[t]he law furnishes no test of relevancy. For this, it tacitly refers to logic and general experience” (Thayer 1898: 265). That the accused’s favorite color is blue is, barring extraordinary circumstances, irrelevant to the question of his intention to commit theft. It is not the law that tells us so but “logic and general experience”. On Thayer’s view, the law does not control or regulate the assessment of relevance; it assumes that judges are already in possession of the (commonsense) resources to undertake this assessment.

Wigmore adopts a different position. He argues, against Thayer, that relevance is a legal concept. There are two strands to his contention. The first is that for evidence to be relevant in law, “a generally higher degree of probative value” is required “than would be asked in ordinary reasoning”:

legal relevance denotes…something more than a minimum of probative value. Each single piece of evidence must have a plus value. (cf. Pattenden 1996–7: 373)

As Wigmore sees it, the requirement of “plus value” guards against the jury “being satisfied by matters of slight value, capable to being exaggerated by prejudice and hasty reasoning” (Wigmore 1983b: 969, cf. 1030–1031). Opponents of Wigmore acknowledge that there may be sound policy reasons for excluding evidence of low probative value. Receiving the evidence at the trial might raise a multiplicity of issues, incur too much time and expense, confuse the jurors or produce undue prejudice in their mind. When the judge excludes evidence for any of these reasons, and the judge has the discretion to do so in many countries, the evidence is excluded despite it being relevant (e.g., United States’ Federal Rule of Evidence 403). Relevance is a relation between facts and the aforesaid reasons for exclusion are extrinsic to that relation; they are grounded in considerations such as limitation of judicial resources and jury psychology. The notion of “plus value” confuses relevance with extraneous considerations (James 1941; Trautman 1952).

There is a second strand to Wigmore’s contention that relevance is a legal concept. Relevance is legal in the sense that the judge is bound by previously decided cases (“judicial precedents”) when he has to make a ruling on the relevance of a proposed item of evidence.

So long as Courts continue to declare…what their notions of logic are, just so long will there be rules of law which must be observed. (Wigmore 1983a: 691)

Wigmore cites in support the judgment of Cushing C.J. in State v LaPage where it was remarked:

[T]here are many instances in which the evidence of particular facts as bearing on particular issues has been so often the subject of discussion in courts of law, and so often ruled upon, that the united logic of a great many judges and lawyers may be said to furnish…the best evidence of what may be properly called common -sense, and thus to acquire the authority of law. (1876 57 N.H. 245 at 288 [Supreme Court, New Hampshire])

Wigmore’s position on relevance is strangely at odds with his strong stand against the judge being bound by judicial precedents in assessing the weight or credibility of evidence (Wigmore 1913). More importantly, the second strand of his argument also does not sit well with the first strand. If, as Wigmore contends, evidence must have a plus value to make it legally relevant, the court has to consider the probative value of the evidence and to weigh it against the amount of time and expense likely to be incurred in receiving the evidence, the availability of other evidence, the risk of the evidence misleading or confusing the trier of fact and so forth. Given that the assessment of plus value and, hence, legal relevance is so heavily contextual, it is difficult to see how a judicial precedent can be of much value in another case in determining a point of legal relevance (James 1941: 702).

We have just considered the first condition of receivability, namely, relevance. That fact A is relevant to fact B is not sufficient to make evidence of fact A receivable in court. In addition, B must be a “material” fact. The materiality of facts in a particular case is determined by the law applicable to that case. In a criminal prosecution, it depends on the law which defines the offence with which the accused is charged and at a civil trial, the law which sets out the elements of the legal claim that is being brought against the defendant (Wigmore 1983a, 15–19; Montrose 1954: 536–537).

Imagine that the accused is prosecuted for the crime of rape and the alleged victim’s behaviour (fact A ) increases the probability that she had consented to have sexual intercourse with the accused (fact B ). On the probabilistic theory of relevance that we have considered, A is relevant to B . Now suppose that the alleged victim is a minor. Under criminal law, it does not matter whether she had consented to the sexual intercourse. If B is of no legal consequence, the court will not allow evidence of A to be adduced for the purpose of proving B : the most obvious reason is that it is a waste of time to receive the evidence.

Not all material facts are necessarily in dispute. Suppose the plaintiff sues the defendant for breach of contract. Under the law of contract, to succeed in this action, the plaintiff must prove the following three elements: that there was a contract between the parties, that the defendant was in breach of the contract, and that the plaintiff had suffered loss as a result of that breach. The defendant may concede that there was a contract and that he was in breach of it but deny that the plaintiff had suffered any loss as a result of that breach. In such a situation, only the last of the material facts is disputed. Following Stephen’s terminology, a disputed material fact is called a “fact in issue” (Stephen 1872: 9).

The law does not allow evidence to be adduced to prove facts that are immaterial. Whether evidence may be adduced to prove a material fact may depend on whether the material fact is disputed; for instance, the requirement that it must be disputed exists under Rule 210 of the Evidence Code of California but not Rule 401 of the Federal Rules of Evidence in the United States. “Relevance” is often used in the broader sense that encompasses the concepts under discussion. Evidence is sometimes described as “irrelevant” not for the reason that no logical inference can be drawn to the proposition that is sought to be proved (in our example, A is strictly speaking relevant to B ) but because that proposition is not material or not disputed (in our example, B is not material). [ 10 ] This broader usage of the term “relevance”, though otherwise quite harmless, does not promote conceptual clarity because it runs together different concepts (see James 1941: 690–691; Trautman 1952: 386; Montrose 1954: 537).

2.3 Admissibility

A further condition must be satisfied for evidence to be received in legal proceedings. There are legal rules that prohibit evidence from being presented at a trial even though it is relevant to a factual proposition that is material and in issue. These rules render the evidence to which they apply “inadmissible” and require the judge to “exclude” it. Two prominent examples of such rules of admissibility or rules of exclusion are the rule against hearsay evidence and the rule against character evidence. This section considers the relation between the concept of relevance and the concept of admissibility. The next section ( section 2.3.2 ) discusses general arguments for and against exclusionary or admissibility rules.

Here, again, the terminology is imprecise. Admissibility and receivability are not clearly distinguished. It is common for irrelevant evidence, or evidence of an immaterial fact to be described as “inadmissible”. What this means is that the court will refuse to receive evidence if it is irrelevant or immaterial. But, importantly, the court also excludes evidence for reasons other than irrelevance and immateriality. For Montrose, there is merit in restricting the concept of “inadmissibility” to the exclusion of evidence based on those other reasons (Montrose 1954: 541–543). If evidence is rejected on the ground of irrelevance, it is, as Thayer (1898: 515) puts it, “the rule of reason that rejects it”; if evidence is rejected under an admissibility or exclusionary rule, the rejection is by force of law. The concepts of admissibility and materiality should also be kept apart. This is because admissibility or exclusionary rules serve purposes and rationales that are distinct from the law defining the crime or civil claim that is before the court and it is this law that determines the materiality of facts in the dispute.

Thayer (1898: 266, 530) was influential in his view that the law of evidence has no say on logical relevance and that its main business is in dealing with admissibility. If the evidence is logically irrelevant, it must for that reason be excluded. If the evidence is logically relevant, it will be received by the court unless the law—in the form of an exclusionary or admissibility rule—requires its exclusion. In this scheme, the concept of relevance and the concept of admissibility are distinct: indeed, admissibility rules presuppose the relevance of the evidence to which they apply.

Stephen appears to hold a different view, one in which the concept of admissibility is apparently absorbed by the concept of relevance. Take, for example, Stephen’s analysis of the rule that in general no evidence may be adduced to prove “statements as to facts made by persons not called as witnesses”, in short, hearsay (Stephen 1872: 122). As a general rule, no evidence may be given of hearsay because the law prohibits it. The question then arises as to the rationale for this prohibition. Stephen’s answer to this question is often taken to be that hearsay is not “relevant” and he is criticised for failing to see the difference between relevance and admissibility (Whitworth 1881: 3; Thayer 1898: 266–268; Pollock 1876, 1899; Wigmore 1983a: §12). His critics point out that hearsay has or can have probative value and evidence of hearsay is excluded despite or regardless of its relevance. On the generalisation that there is no smoke without fire, the fact that a person claimed that p in a statement made out-of-court does or can have a bearing on the probability that p , and p may be (logically relevant to) a material fact in the dispute.

Interestingly, Stephen seemed to have conceded as much. He acknowledged that a policeman or a lawyer engaged in preparing a case would be negligent if he were to shut his ears to hearsay. Hearsay is one of those facts that are “apparently relevant but not really so” (Stephen 1872: 122; see also Stephen 1886: xi). In claiming that hearsay is irrelevant, Stephen appears to be merely stating the effect of the law: the law requires that hearsay be treated as irrelevant. He offered a variety of justifications for excluding hearsay evidence: its admissibility would “present a great temptation to indolent judges to be satisfied with second-hand reports” and “open a wide door to fraud”, with the result that “[e]veryone would be at the mercy of people who might tell a lie, and whose evidence could neither be tested nor contradicted” (Stephen 1872: 124–125). For his detractors, these are reasons of policy and fairness and it disserves clarity to sneak such considerations into the concept of relevance.

Although there is force to the criticism that Stephen had unhelpfully conflated admissibility and relevance (understood as logical relevance), something can perhaps be said in his defence. Exclusionary rules or rules of admissibility—at any rate, many of them—are more accurately seen as excluding forms of reasoning rather than prohibiting proof of certain types of facts (McNamara 1986). This is certainly true of the hearsay rule. On one authoritative definition of the rule (decision of the Privy Council in Subramaniam v PP , (1956) 1 Weekly Law Reports 965), what it prohibits is the use of a hearsay statement to prove the truth of the facts asserted therein. [ 11 ] The objection is to the drawing of the inference that p from X ’s out-of-court statement that p where X is not available to be examined in court. But the court will allow the evidence of X ’s hearsay statement to be admitted—it will allow proof of the statement— where the purpose of adducing the evidence is to persuade the court that X did make the statement and this fact is relevant for some other purpose. For instance, it may be relevant as to the state of mind of the person hearing the statement, and his state of mind may be material to his defence of having acted under duress. Hence, two writers have commented that “there is no such thing as hearsay evidence , only hearsay uses ” (Roberts and Zuckerman 2010: 385).

Other admissibility rules are also more accurately seen as targeted at forms of reasoning and not types of facts. In the United States, Federal Rule of Evidence 404(a)(1) bars the use of evidence of a person’s character “to prove that on a particular occasion the person acted in accordance with the character” and Federal Rule of Evidence 404(b)(1) provides that evidence of a crime or wrong

is not admissible to prove a person’s character in order to show that on a particular occasion the person acted in accordance with the character.

It is doubtful that evidence of a person’s character and past behaviour can have no probabilistic bearing on his behaviour on a particular occasion; on a probabilistic conception of relevance, it is difficult to see why the evidence is not relevant. Even so, there may be policy, moral or other reasons for the law to prohibit certain uses of character evidence. In declaring a fact as irrelevant for a particular purpose, we are not necessarily saying or implying anything about probability. We may be expressing a normative judgment. For policy, moral or other reasons, the law takes the position that hearsay or the accused’s character or previous misconduct must not be used as the premise for a particular line of reasoning. The line of reasoning might be morally objectionable (“give a dog a bad name and hang him for it”) or it might be unfair to permit the drawing of the inference when the opponent was not given a fair opportunity to challenge it (as in the hearsay situation) (Ho 2008: chs. 5, 6). If we take a normative conception of relevance instead of a logical or probabilistic one, it is not an abuse of language to describe inadmissible evidence as irrelevant if what is meant is that the evidence ought not to be taken into account in a certain way.

On one historical account, admissibility or exclusionary rules are the product of the jury system where citizens untrained in assessing evidence sit as judges of fact. These rules came about because it was thought necessary to keep away from inexperienced jurors certain types of evidence that may mislead or be mishandled by them—for instance, evidence to which they are likely to give too much weight or that carries the risk of creating unfair prejudice in their minds (Thayer 1898; Wigmore 1935: 4–5). Epistemic paternalism is supposedly at play (Leiter 1997: 814–5; Allen and Leiter 2001: 1502). Subscription to this theory has generated pressure for the abolition of exclusionary rules with the decline of the jury system and the replacement of lay persons with professional judges as triers of fact. There is doubt as to the historical accuracy of this account; at any rate, it does not appear capable of explaining the growth of all exclusionary rules (Morgan 1936–37; Nance 1988: 278–294).

Even if the theory is right, it does not necessarily follow that exclusionary rules should be abolished once the jury system is removed. Judges may be as susceptible to the same cognitive and other failings as the jury and there may be the additional risk that judges may over-estimate their own cognitive and intellectual abilities in their professional domain. Hence, there remains a need for the constraints of legal rules (Schauer 2006: 185–193). But the efficacy of these rules in a non-jury system is questionable. The procedural reality is that judges will have to be exposed to the evidence in order to decide on its admissibility. Since a judge cannot realistically be expected to erase the evidence from his mind once he has decided to exclude it, there seems little point in excluding the evidence; we might as well let the evidence in and allow judge to give the evidence the probative value that it deserves (Mnookin 2006; Damaška 2006; cf. Ho 2008: 44–46).

Bentham was a strong critic of exclusionary rules. He was much in favour of “freedom of proof” understood as free access to information and the absence of formal rules that restrict such access (Twining 2006: 232, n 65). The direct object of legal procedure is the “rectitude of decision”, by which he means the correct application of substantive law to true findings of facts. The exclusion of relevant evidence—evidence capable of casting light on the truth—is detrimental to this end. Hence, no relevant evidence should be excluded; the only exceptions he would allow are where the evidence is superfluous or its production would involve preponderant delay, expense or vexation (Bentham 1827: Book IX; Bentham 1825: Book VII; Twining 1985: ch. 2). Bentham’s argument has been challenged on various fronts. It is said that he overvalued the pursuit of truth, undervalued procedural fairness and procedural rights, and placed too much faith in officials, underestimating the risk of abuse when they are given discretion unfettered by rules (Twining 1985: 70–71).

Even if we agree with Bentham that rectitude of decision is the aim of legal procedure and that achieving accuracy in fact-finding is necessary to attain this aim, it is not obvious that a rule-based approach to admissibility will undermine this aim in the long run. Schauer has defended exclusionary rules of evidence along a rule-consequentialist line. Having the triers of fact follow rules on certain matters instead of allowing them the discretion to exercise judgment on a case-by-case basis may produce the greatest number of favourable outcomes in the aggregate. It is in the nature of a formal rule that it has to be followed even when doing so might not serve the background reason for the rule. If hearsay evidence is thought to be generally unreliable, the interest of accuracy may be better served overall to require such evidence to be excluded without regard to its reliability in individual cases. Given the imperfection of human reason and our suspicion about the reasoning ability of the fact-finder, allowing decisions to be taken individually on the reliability and admissibility of hearsay evidence might over time produce a larger proportion of misjudgements than on the rule-based approach (Schauer 2006: 180–185; Schauer 2008). However, this argument is based on a large assumption about the likely effects of having exclusionary rules and not having them, and there is no strong empirical basis for thinking that the consequences are or will be as alleged (Goldman 1999: 292–295; Laudan 2006: 121–122).

Other supporters of exclusionary rules build their arguments on a wide range of different considerations. The literature is too vast to enter into details. Here is a brief mention of some arguments. On one theory, some exclusionary rules are devices that serve as incentives for lawyers to produce the epistemically best evidence that is reasonably available (Nance 1988, 2016: 195–201). For example, if lawyers are not allowed to rely on second-hand (hearsay) evidence, they will be forced to seek out better (first-hand) evidence. On another theory, exclusionary rules allocate the risks of error. Again, consider hearsay. The problem with allowing a party to rely on hearsay evidence is that the opponent has no opportunity to cross-examine the original maker of the statement and is thus deprived of an important means of attacking the reliability of the evidence. Exclusionary rules in general insulate the party against whom the evidence is sought to be adduced from the risks of error that the evidence, if admitted, would have introduced. The distribution of such risks is said to be a political decision that should not be left to the discretion of individual fact-finders (Stein 2005; cf. Redmayne 2006 and Nance 2007a: 154–164). It has also been argued that the hearsay rule and the accompanying right to confront witnesses promote the public acceptance and stability of legal verdicts. If the court relies on direct evidence, it can claim superior access to the facts (having heard from the horse’s mouth, so to speak) and this also reduces the risk of new information emerging after the trial to discredit the inference that was drawn from the hearsay evidence (the original maker of the statement might turn up after the trial to deny the truth of the statement that was attributed to him) (Nesson 1985: 1372–1375; cf. Park 1986; Goldman 1999: 282; Goldman 2005: 166–167).

3. Strength of Evidence

The decision whether to allow a party to adduce a particular item of evidence is one that the judge has to make and arises in the course of a trial. Section 2 above dealt with the conditions that must be satisfied for a witness’s testimony, a document or an object to be received as evidence. At the end of the trial, the fact-finder must consider all the evidence that has been presented and reach a verdict. Although verdict deliberation is sometimes subjected to various forms of control through legal devices such as presumptions and corroboration rules, such control is limited and the fact-finder is expected to exercise personal judgment in the evaluation of evidence (Damaška 2019). Having heard or seen the evidence, the fact-finder now has to evaluate or ‘weigh’ it in reaching the verdict. Weight can refer to any of the following three properties of evidence: (a) the probative value of individual items of evidence, (b) the sufficiency of the whole body of evidence adduced at the trial in meeting the standard of proof, or (c) the relative completeness of this body of evidence. The first two aspects of weight are familiar to legal practitioners but the third has been confined to academic discussions. These three ideas are discussed in the same order below.

In reaching the verdict, the trier of fact has to assess the probative value of the individual items of evidence which have been received at the trial. The concept of probative value can also play a role at the prior stage (which was the focus in section 2 ) where the judge has to make a ruling on whether to receive the evidence in the first place. In many legal systems, if the judge finds the probative value of a proposed item of evidence to be low and substantially outweighed by countervailing considerations, such as the risk of causing unfair prejudice or confusion, the judge can refuse to let the jury hear or see the evidence (see, e.g., Rule 403 of the United States’ Federal Rules of Evidence).

The concept of probative value (or, as it is also called, probative force) is related to the concept of relevance. Section 2.1.2 above introduced and examined the claim that the likelihood ratio is the measure of relevance. To recapitulate, the likelihood of an item of evidence, E (in our previous example, the likelihood of a blood type match) given a hypothesis H (that the accused is in fact guilty) is compared with the likelihood of E given the negation of H (that the accused is in fact innocent). Prior to the introduction of E , one may have formed some belief about H based on other evidence that one already has. This prior belief does not affect the likelihood ratio since its computation is based on the alternative assumptions that H is true and that H is false (Kaye 1986a; Kaye and Koehler 2003; cf. Davis and Follette 2002 and 2003). Rulings on relevance are made by the judge when objections of irrelevance are raised in the course of the trial. The relevance of an item of evidence is supposedly assessed on its own, without consideration of other evidence, and, indeed, much of the other evidence may have yet to presented at the point when the judge rules on the relevance of a particular item of evidence (Mnookin 2013: 1544–5). [ 12 ]

Probative value, as with relevance, has been explained in terms of the likelihood ratio (for detailed examples, see Nance and Morris 2002; Finkelstein and Levin 2003). It was noted earlier that evidence is either relevant or not, and, on the prevailing understanding, it is relevant so long as the likelihood ratio deviates from 1:1. But evidence can be more or less probative depending on the value of the likelihood ratio. In our earlier example, the probative value of a blood type match was 1.0:0.5 (or 2:1) as 50% of the suspect population had the same blood type as the accused. But suppose the blood type is less common and only 25% of the suspect population has it. The probative value of the evidence is now 1.0:0.25 (or 4:1). In both cases, the evidence is relevant; but the probative value is greater in the latter than in the former scenario. It is tempting to describe probative value as the degree of relevance but this would be misleading as relevance in law is a binary concept.

There is a second way of thinking about probative value. On the second view, but not on the first, the probative value of an item of evidence is assessed contextually. The probative value of E may be low given one state of the other evidence and substantial given a different body of other evidence (Friedman 1986; Friedman and Park 2003; cf. Davis and Follette 2002, 2003). Where the other evidence shows that a woman had died from falling down an escalator at a mall while she was out shopping, her husband’s history of spousal battery is unlikely to have any probative value in proving that he was responsible for her death. But where the other evidence shows that the wife had died of injuries in the matrimonial home, and the question is whether the injuries were sustained from an accidental fall from the stairs or inflicted by the husband, the same evidence of spousal battery will now have significant probative value.

On the second view, the probative value of an item of evidence ( E ) is not measured simply by the likelihood ratio as it is on the first view. Probative value is understood as the degree to which E increases (or decreases) the probability of the proposition or hypothesis ( H ) in support of (or against) which E is led. The probative value of E is measured by the difference between the probability of H given E (the posterior probability) and the probability of H absent E (the prior probability) (Friedman 1986; James 1941: 699).

Probative value of \(E = P(H | E) - P(H)\)

\(P(H | E)\) (the posterior probability) is derived by applying Bayes’ theorem—that is, by multiplying the prior probability by the likelihood ratio (see discussion in section 3.2.2 below). On the present view, while the likelihood ratio does not itself measure the probative value of E , it is nevertheless a crucial component in the assessment.

A major difficulty with both of the mathematical conceptions of probative value that we have just examined is that for most evidence, obtaining the figures necessary for computing the likelihood ratio is problematic (Allen 1991: 380). Exceptionally, quantitative base rates data exist, as in our blood type example. Where objective data is unavailable, the fact-finder has to draw on background experience and knowledge to come up with subjective values. In our blood type example, a critical factor in computing the likelihood ratio was the percentage of the “suspect population” who had the same blood type as the accused. “Reference class” is the general statistical term for the role that the suspect population plays in this analysis. How should the reference class of “suspect population” be defined? Should we look at the population of the country as a whole or of the town or the street where the alleged murder occurred? What if it occurred at an international airport where most the people around are foreign visitors? Or what if it is shown that both the accused and the victim were at the time of the alleged murder inmates of the same prison? Should we then take the prison population as the reference class? The distribution of blood types may differ according to which reference class is selected. Sceptics of mathematical modelling of probative value emphasize that data from different reference classes will have different explanatory power and the choice of the reference class is open to—and should be subjected to—contextual argument and requires the exercise of judgment; there is no a priori way of determining the correct reference class. (On the reference class problem in legal factfinding, see, in addition to references cited in the rest of this section, Colyvan, Regan, and Ferson 2001; Tillers 2005; Allen and Roberts 2007.)

Some writers have proposed quantifiable ways of selecting, or assisting in the selection, of the appropriate reference class. On one suggestion, the court does not have to search for the optimal reference class. A general characteristic of an adversarial system of trial is that the judge plays a passive role; it is up to the parties to come up with the arguments on which they want to rely and to produce evidence in support of their respective arguments. This adversarial setting makes the reference class problem more manageable as the court need only to decide which of the reference classes relied upon by the parties is to be preferred. And this can be done by applying one of a variety of technical criteria that statisticians have developed for comparing and selecting statistical models (Cheng 2009). Another suggestion is to use the statistical method of “feature selection” instead. The ideal reference class is defined by the intersection of all relevant features of the case, and a feature is relevant if it is correlated to the matter under enquiry (Franklin 2010, 2011: 559–561). For instance, if the amount of drug likely to be smuggled is reasonably believed to co-vary with the airport through which it is smuggled, the country of origin and the time period, and there is no evidence that any other feature is relevant on which data is available, the ideal reference class is the class of drug smugglers passing through that airport originating from that country and during that time period. Both suggestions have self-acknowledged limitations: not least, they depend on the availability of suitable data. Also, as Franklin stresses, while statistical methods “have advice to offer on how courts should judge quantitative evidence”, they do so “in a way that supplements normal intuitive legal argument rather than replacing it by a formula” (Franklin 2010: 22).

The reference class problem is not confined to the probabilistic assessment of the probative value of individual items of evidence. It is a general difficulty with a mathematical approach to legal proof. In particular, the same problem arises on a probabilistic interpretation of the standard of proof when the court has to determine whether the standard is met based on all the evidence adduced in the case. This topic is explored in section 3.2 below but it is convenient at this juncture to illustrate how the reference class problem can also arise in this connection. Let it be that the plaintiff sues Blue Bus Company to recover compensation for injuries sustained in an accident. The plaintiff testifies, and the court believes on the basis of his testimony, that he was run down by a recklessly driven bus. Unfortunately, it was dark at the time and he cannot tell whether the bus belonged to Blue Bus Company. Assume further that there is also evidence which establishes that Blue Bus Company owns 75% of the buses in the town where the accident occurred and the remaining 25% is owned by Red Bus Company. No other evidence is presented. To use the data as the basis for inferring that there is 0.75 probability that the bus involved in the accident was owned by Blue Bus Company would seem to privilege the reference class of “buses operating in the town” over other possible reference classes such as “buses plying the street where the accident occurred” or “buses operating at the time in question” (Allen and Pardo 2007a: 109). Different reference classes may produce very different likelihood ratios. It is crucial how the reference class is chosen and this is ultimately a matter of argument and judgment. Any choice of reference class (other than the class that shares every feature of the particular incident, which is, in effect, the unique incident itself) is in principle contestable.

Critics of the mathematization of legal proof raise this point as an example of inherent limitations to the mathematical modelling of probative value (Allen and Pardo 2007a). [ 13 ] Allen and Pardo propose an alternative, the explanatory theory of legal proof. They claim that this theory has the advantage of avoiding the reference class problem because it does not attempt to quantify probative value (Pardo 2005: 374–383; Pardo and Allen 2008: 261, 263; Pardo 2013: 600–601). Suppose a man is accused of killing his wife. Evidence is produced of his extra-marital affair. The unique probative value of the accused’s infidelity cannot be mathematically computed from statistical base rates of infidelity and uxoricides (husbands murdering wives). In assessing its probative value, the court should look instead at how strongly the evidence of infidelity supports the explanation of the material events put forward by the side adducing the evidence and how strongly it challenges the explanation offered by the opponent. For instance, the prosecution may be producing the evidence to buttress its case that the accused wanted to get rid of his wife so that he could marry his mistress, and the defence may be advancing the alternative theory that the couple was unusual in that they condoned extra-marital affairs and had never let it affect their loving relationship. How much probative value the evidence of infidelity has depends on the strength of the explanatory connections between it and the competing hypotheses, and this is not something that can be quantified.

But the disagreement in this debate is not as wide as it might appear. The critics concede that formal models for evaluating evidence in law may be useful. What they object to is

scholarship arguing … that such models establish the correct or accurate probative value of evidence, and thus implying that any deviations from such models lead to inaccurate or irrational outcomes. (Allen and Pardo 2007b: 308)

On the other side, it is acknowledged that there are limits to mathematical formalisation of evidential reasoning in law (Franklin 2012: 238–9) and that context, argument and judgment do play a role in identifying the reference class (Nance 2007b).

3.2 Sufficiency of Evidence and the Standards of Proof

In the section 3.1 above, we concentrated on the weight of evidence in the sense of probative value of individual items of evidence. The concept of weight can also apply to the total body of evidence presented at the trial; here “weight” is commonly referred to as the “sufficiency of evidence”. [ 14 ] The law assigns the legal burden of proof between parties to a dispute. For instance, at a criminal trial, the accused is presumed innocent and the burden is on the prosecution to prove that he is guilty as charged. To secure a conviction, the body of evidence presented at the trial must be sufficient to meet the standard of proof. Putting this generally, a verdict will be given in favour of the side bearing the legal burden of proof only if, having considered all of the evidence, the fact-finder is satisfied that the applicable standard of proof is met. The standard of proof has been given different interpretations.

On one interpretation, the standard of proof is a probabilistic threshold. In civil cases, the standard is the “balance of probabilities” or, as it is more popularly called in the United States, the “preponderance of evidence”. The plaintiff will satisfy this standard and succeed in his claim only if there is, on all the evidence adduced in the case, more than 0.5 probability of his claim being true. At criminal trials, the standard for a guilty verdict is “proof beyond a reasonable doubt”. Here the probabilistic threshold is thought to be much higher than 0.5 but courts have eschewed any attempt at authoritative quantification. Typically, a notional value, such as 0.9 or 0.95, is assumed by writers for the sake of discussion. For the prosecution to secure a guilty verdict, the evidence adduced at the trial must establish the criminal charge to a degree of probability that crosses this threshold. Where, as in the United States, there is an intermediate standard of “clear and convincing evidence” which is reserved for special cases, the probabilistic threshold is said to lie somewhere between 0.5 and the threshold for proof beyond reasonable doubt.

Kaplan was among the first to employ decision theory to develop a framework for setting the probabilistic threshold that represents the standard of proof. Since the attention in this area of the law tends to be on the avoidance of errors and their undesirable consequences, he finds it convenient to focus on disutility rather than utility. The expected disutility of an outcome is the product of the disutility (broadly, the social costs) of that outcome and the probability of that outcome. Only two options are generally available to the court: in criminal cases, it must either convict or acquit the accused and in civil cases, it has to give judgment either for the plaintiff or for the defendant. At a criminal trial, the decision should be made to convict where the expected disutility of a decision to acquit is greater than the expected disutility of a decision to convict. This is so as to minimize the expected disutilities. To put this in the form of an equation:

P is the probability that the accused is guilty on the basis of all the evidence adduced in the case, Dag is the disutility of acquitting a guilty person and Dci is the disutility of convicting an innocent person. A similar analysis applies to civil cases: the defendant should be found liable where the expected disutility of finding him not liable when he is in fact liable exceeds the expected disutility of finding him liable when he is in fact not liable.

On this approach, a person should be convicted of a crime only where P is greater than:

The same formula applies in civil cases except that the two disutilities ( Dag and Dci ) will have to be replaced by their civil equivalents (framed in terms of the disutility of awarding the judgment to a plaintiff who in fact does not deserve it and disutility of awarding the judgment to a defendant who in fact does not deserve it). On this formula, the crucial determinant of the standard of proof is the ratio of the two disutilities. In the civil context, the disutility of an error in one direction is deemed equal to the disutility of an error in the other direction. Hence, a probability of liability of greater than 0.5 would suffice for a decision to enter judgment against the defendant (see Redmayne 1996: 171). The situation is different at a criminal trial. Dci , the disutility of convicting an innocent person is considered far greater than Dag , the disutility of acquitting a guilty person. [ 15 ] Hence, the probability threshold for a conviction should be much higher than 0.5 (Kaplan 1968: 1071–1073; see also Cullison 1969).

An objection to this analysis is that it is incomplete. It is not enough to compare the costs of erroneous verdicts. The utility of an accurate conviction and the utility of an accurate acquittal should also be considered and factored into the equation (Lillquist 2002: 108). [ 16 ] This results in the following modification of the formula for setting the standard of proof:

Ucg is the utility of convicting the guilty, Uag is the utility of acquitting the guilty, Uai is the utility of acquitting the innocent and Uci the utility of convicting the innocent.

Since the relevant utilities depend on the individual circumstances, such as the seriousness of the crime and the severity of the punishment, the decision-theoretic account of the standard of proof would seem, on both the simple and the modified version, to lead to the conclusion that the probabilistic threshold should vary from case to case (Lillquist 2002; Bartels 1981; Laudan and Saunders 2009; Ribeiro 2019). In other words, the standard of proof should be a flexible or floating one. This view is perceived to be problematic.

First, it falls short descriptively. The law requires the court to apply a fixed standard of proof for all cases within the relevant category. In theory, all criminal cases are governed by the same high standard and all civil cases are governed by the same lower standard. That said, it is unclear whether factfinders in reality adhere strictly to a fixed standard of proof (see Kaplow 2012: 805–809).

The argument is better interpreted as a normative argument—as advancing the claim about what the law ought to be and not what it is. The standard of proof ought to vary from case to case. But this proposal faces a second objection. For convenience, the objection will be elaborated in the criminal setting; in principle, civil litigants have the same two rights that we shall identify. According to Dworkin (1981), moral harm arises as an objective moral fact when a person is erroneously convicted of a crime. Moral harm is distinguished from the bare harm (in the form of pain, frustration, deprivation of liberty and so forth) that is suffered by a wrongfully convicted and punished person. While accused persons have the right not to be convicted if innocent, they do not have the right to the most accurate procedure possible for ascertaining their guilt or innocence. However, they do have the right that a certain weight or importance be attached to the risk of moral harm in the design of procedural and evidential rules that affect the level of accuracy. Accused persons have the further right to a consistent weighting of the importance of moral harm and this further right stems from their right to equal concern and respect. Dworkin’s theory carries an implication bearing on the present debate. It is arguable that to adopt a floating standard of proof would offend the second right insofar as it means treating accused persons differently with respect to the evaluation of the importance of avoiding moral harm. This difference in treatment is reflected in the different level of the risk of moral harm to which they are exposed.

There is a third objection to a floating standard of proof. Picinali (2013) sees fact-finding as a theoretical exercise that engages the question of what to believe about the disputed facts. What counts as “reasonable” for the purposes of applying the standard of proof beyond reasonable doubt is accordingly a matter for theoretical as opposed to practical reasoning. Briefly, theoretical reasoning is concerned with what to believe whereas practical reasoning is about what to do. Only reasons for belief are germane in theoretical reasoning. While considerations that bear on the assessment of utility and disutility provide reasons for action, they are not reasons for believing in the accused’s guilt. Decision theory cannot therefore be used to support a variable application of the standard of proof beyond reasonable doubt.

The third criticism of a flexible standard of proof does not directly challenge the decision-theoretic analysis of the standard of proof. On that analysis, it would seem that the maximisation of expected utility is the criterion for selecting the appropriate probabilistic threshold to apply and it plays no further role in deciding whether that threshold, once selected, is met on the evidence adduced in the particular case. It is not incompatible with the decision-theoretic analysis to insist that the question of whether the selected threshold is met should be governed wholly by epistemic considerations. However, it is arguable that what counts as good or strong enough theoretical reason for judging, and hence believing, that something is true is dependent on the context, such as what is at stake in believing that it is true. More is at stake at a trial involving the death penalty than in a case of petty shop-lifting; accordingly, there should be stronger epistemic justification for a finding of guilt in the first than in the second case. Philosophical literature on epistemic contextualism and on interest-relative accounts of knowledge and justified belief has been drawn upon to support a variant standard of proof (Ho 2008: ch. 4; see also Amaya 2015: 525–531). [ 17 ]

The premise of the third criticism is that the trier of fact has to make a finding on a disputed factual proposition based on his belief in the proposition. This is contentious. Beliefs are involuntary; we cannot believe something by simply deciding to believe it. The dominant view is that beliefs are context-independent; at any given moment, we cannot believe something in one context and not believe it in another. On the other hand, legal fact-finding involves choice and decision making and it is dependent on the context; for example, evidence that is strong enough to justify a finding of fact in a civil case may not be strong enough to justify the same finding in a criminal case where the standard of proof is higher. It has been argued that the fact-finder has to base his findings not on what he believes but what he accepts (Cohen 1991, 1992: 117–125, Beltrán 2006; cf. Picinali 2013: 868–869). Belief and acceptance are propositional attitudes: they are different attitudes that one can have in relation to a proposition. As Cohen (1992: 4) explains:

to accept that p is to have or adopt a policy of deeming, positing or postulating that p —i.e. of including that proposition or rule among one’s premises for deciding what to do or think in a particular context.

Understanding standards of proof in terms of mathematical probabilities is controversial. It is said to raise a number of paradoxes (Cohen 1977; Allen 1986, 1991; Allen and Leiter 2001; Redmayne 2008). Let us return to our previous example. The defendant, Blue Bus Company, owns 75% of the buses in the town where the plaintiff was injured by a recklessly driven bus and the remaining 25% is owned by Red Bus Company. No other evidence is presented. Leaving aside the reference class problem discussed above, there is a 0.75 probability that the accident was caused by a bus owned by the defendant. On the probabilistic interpretation of the applicable standard of proof (that is, the balance of probabilities), the evidence should be sufficient to justify a verdict in the plaintiff’s favour. But most lawyers would agree that the evidence is insufficient. Another familiar hypothetical scenario is set in the criminal context (Nesson 1979: 1192–1193). Twenty five prisoners are exercising in a prison yard. Twenty four of them suddenly set upon a guard and kill him. The remaining prisoner refuses to participate. We cannot in the ensuing confusion identify the prisoner who refrained from the attack. Subsequently, one prisoner is selected randomly and prosecuted for the murder of the guard. Those are the only facts presented at the trial. The applicable standard is proof beyond a reasonable doubt. Assume that the probabilistic threshold of this standard is 0.95. On the statistical evidence, there is a probability of 0.96 that the defendant is criminally liable. [ 18 ] Despite the statistical probability of liability exceeding the threshold, it is widely agreed that the defendant must be acquitted. In both of the examples just described, why is the evidence insufficient and what does this say about legal standards of proof?

Various attempts have been made to find the answers (for surveys of these attempts, see Enoch and Fisher 2015: 565–571; Redmayne 2008, Ho 2008: 135–143, 168–170; Gardiner 2019b; section 6 of the entry on legal probabilism ). It has been argued that meeting a legal standard of proof is not merely or fundamentally a matter of adducing evidence to establish a mathematical probability of liability beyond a certain level. Standards of proof should be interpreted in epistemic rather than probabilistic terms. According to one interpretation, the evidence is sufficient to satisfy a standard of proof only if it is capable of justifying full or outright belief in the material facts that constitute legal liability and bare statistical evidence, as in our examples, cannot justify such a belief. (Nelkin 2021; Smith 2018; Buchak 2014; Ho 2008: 89–99.) On Smith’s account, the statistical evidence in our two examples fails to justify belief in the proposition that the defendant is liable because the evidence does not normically support that proposition. Evidence normically supports a proposition just in case the situation in which the evidence is true and the proposition is false is less normal, in the sense of requiring more explanation, than the situation in which the evidence and the proposition are both true. Where all that we have is statistical evidence, it could just so happen that the material proposition is false (it could just so happen that the accident-causing bus was red or that the accused was the one who refused to join in the murder), so no further explanation is needed where the proposition is false than where it is true (Smith 2018).

On a different epistemic interpretation, the evidence is sufficient to meet a legal standard of proof, and a finding of legal liability is permissible, only if the factfinder can gain knowledge of the defendant’s liability—to be precise, of the material facts establishing such liability—from the evidence (Duff et al. 2007: 87–91; Pardo 2010; for a critical overview of knowledge-centered accounts, see Gardiner forthcoming). High probability of liability alone will not suffice. On more subtle knowledge-centered theories, the standards of proof are met only if, on the available evidence, there is a sufficiently high probability that the fact finder knows that the defendant is liable (Littlejohn 2020 and 2021; Blome-Tillmann 2017), or only if the fact finder’s credence in the defendant’s liability exceeds the relevant legal threshold and the credence constitutes knowledge (Moss 2018). It is further claimed that the relevant knowledge necessary for a finding of liability cannot be obtained from statistical evidence alone (Littlejohn 2020 and 2021; Blome-Tillmann 2017; Moss 2018 and forthcoming). According to Thomson, this is because the statistical evidence (to take our first example, the 75% ownership of blue buses) is not causally connected with the fact sought to be proved and cannot guarantee the truth of the relevant belief (that the bus which caused the accident was blue) (Thomson 1986). An alternative argument is that knowledge requires the ruling out of all relevant alternatives and, to take our prison scenario, there is no evidence that addresses the possibility that the defendant was the one who refrained from joining in the attack or the possibility that the defendant is less likely to be guilty than an arbitrary prisoner in the yard. (See Moss forthcoming; Moss 2018: 213. Gardiner 2019a adapts the relevant alternatives framework to model legal standards of proof in a non-mathematical way while eschewing a knowledge account of those standards.) Another possible explanation for the failure to know relies on the notion of sensitivity. The belief that the defendant is liable is not sensitive to the truth where it is based on bare statistical evidence; in the bus example, evidence of the market share of buses remain the same whether it is true or not that a blue bus caused the accident (cf. Enoch, Spectre, and Fisher 2012; Enoch and Fisher 2015; Enoch and Spectre 2019 – while suggesting that the lack of knowledge has generally to do with the insensitivity of the belief, the authors deny that knowledge should matter to the imposition of legal liability). Yet another explanation is that it is unsafe to find a person liable on bare statistical evidence. Though safety is sometimes treated as a condition of knowledge (in that knowledge requires a true belief that is safe), one can treat safety as a condition for finding the defendant liable without also taking the position that the finding must be based on knowledge of liability. Safety is commonly understood in terms of whether a belief formed on the same basis would be true in close possible worlds. Roughly, a finding of liability is unsafe where it can easily be wrong in the sense that little in the actual world needs to change for it to be wrong. Whether the requirement of safety can explain why judgment should not entered against the defendant in our two hypothetical cases would depend on whether it can easily happen that the accident-causing bus was red or that the accused is innocent. (See Pritchard 2015 and 2018; Pardo 2018; cf. Gardiner 2020.) While theorizing of standards of proof in epistemic terms has gathered pace in recent years, it is criticised for relying on unrealistic hypotheticals that fail to attend to the actual operation of legal systems and for making impossible epistemological demands (Allen 2020).

There is another paradox in the mathematical interpretation of the standard of proof. This is the “conjunction paradox”. To succeed in a civil claim (or a criminal prosecution), the plaintiff (or the prosecution) will have to prove the material facts—or “elements”—that constitute the civil claim (or criminal charge) that is before the court (see discussion of “materiality” in section 2.2 above). Imagine a claim under the law of negligence that rests on two elements: a breach of duty of care by the defendant (element A ) and causation of harm to the plaintiff (element B ). To win the case, the plaintiff is legally required to prove A and B . For the sake of simplicity, let A and B be mutually independent events. Suppose the evidence establishes A to a probability of 0.6 and B to a probability of 0.7. On the mathematical interpretation of the civil standard of proof, the plaintiff should succeed in his claim since the probability with respect to each of the elements exceeds 0.5. However, according to the multiplication rule of conventional probability calculus, the probability that A and B are both true is the product of their respective probabilities; in this example, it is only 0.42 (obtained by multiplying 0.6 with 0.7). Thus, the overall probability is greater that the defendant deserves to win than that the plaintiff deserves to win, and yet the verdict is awarded in favour of the plaintiff.

One way of avoiding the conjunction paradox is to take the position that it should not be enough for each element to cross the probabilistic threshold; the plaintiff (or the prosecution) should win only if the probability of the plaintiff’s (or prosecution’s) case as a whole exceeds the applicable probabilistic threshold. So, in our example, the plaintiff should lose since the overall probability is below 0.5. But this suggested solution is unsatisfactory. The required level of overall probability would then turn on how many elements the civil claim or criminal charge happens to have. The greater the number of elements, the higher the level of probability to which, on average, each of them must be proved. This is thought to be arbitrary and hence objectionable. As two commentators noted, the legal definition of theft contains more elements than that for murder. Criminal law is not the same in all countries. We may take the following as a convenient approximation of what the law is in some countries: murder is (1) an act that caused the death of a person (2) that was done with the intention of causing the death, and to constitute theft, there must be (1) an intention to take property, (2) dishonesty in taking the property, (3) removal of the property from the possession of another person, and (4) lack of consent by that person. Since the offence of theft contains twice the number of elements as compared to murder, the individual elements for theft would have to be proved to a much higher level of probability (in order for the probability of their conjunction to cross the overall threshold) than the individual elements for the much more serious crime of murder (Allen and Leiter 2001: 1504–5). This is intuitively unacceptable.

Another proposal for resolving the conjunction paradox is move away from thinking of the standard of proof as a quantified threshold of absolute probability and to construe it, instead, as a probability ratio. The fact-finder has to compare the probability of the evidence adduced at the trial under the plaintiff’s theory of the case with the probability of the evidence under the defendant’s theory of the case (the two need not add to 1), and award the verdict to the side with a higher probability (Cheng 2013). One criticism of this interpretation of the standard of proof is that it ignores, and does not provide a basis for ignoring, the margin by which one probability exceeds the other, and the difference in probability may vary significantly for different elements of the case (Allen and Stein 2013: 598).

There is a deeper problem with the probabilistic conception of the standard of proof. There does not seem to be a satisfactory interpretation of probability that suits the forensic context. The only plausible candidate is the subjective meaning of probability according to which probability is construed as the strength of belief. The evidence is sufficient to satisfy the legal standard of proof on a disputed question of fact—for example, it is sufficient to justify the positive finding of fact that the accused killed the victim—only if the fact-finder, having considered the evidence, forms a sufficiently strong belief that the accused killed the victim. Guidance on how to process evidence and form beliefs can be found in a mathematical theorem known as Bayes’ theorem; it is the method by which an ideal rational fact-finder would revise or update his beliefs in the light of new evidence. [ 19 ] To return to our earlier hypothetical scenario, suppose the fact-finder initially believes the odds of the accused being guilty is 1:1 (“prior odds”) or, putting this differently, that there is a 0.5 probability of guilt. The fact-finder then receives evidence that blood of type A was found at the scene of the crime and that the accused has type A blood. Fifty percent of the population has this blood type. On the Bayesian approach, the posterior odds are calculated by multiplying the prior odds (1:1) by the likelihood ratio (which, as we saw in section 2.1.2 above, is 2:1). The fact-finder’s belief in the odds of guilt should now be revised to 2:1; the probability of guilt is now increased to 0.67 (Lempert 1977).

The subjectivist Bayesian theory of legal fact-finding has come under attack (see generally Amaya 2015: 82–93; Pardo 2013: 591). First, as we already saw in section 3.1 , ascertainment of the likelihood ratios is highly problematic. Secondly, the Bayesian theory is not sensitive to the weight of evidence which, roughly put, is the amount of evidence that is available. This criticism and the concept of weight are further explored in section 3.3 .

Thirdly, while the Bayesian theorem offers a method for updating probabilities in the light of new evidence, it is silent on what the initial probability should be. In a trial setting, the initial probability cannot be set at zero since this means certainty in the innocence of the accused. No new evidence can then make any difference; whatever the likelihood ratio of the evidence, multiplying it by zero (the prior probability) will still end up with a posterior probability of zero. On the other hand, starting with an initial probability is also problematic. This is especially so in a criminal case. To start a trial with some probability of guilt is to have the fact-finder harbouring some initial belief that the accused is guilty and this is not easy to reconcile with the presumption of innocence. (Tribe 1971: 1368–1372; cf. Posner 1999: 1514, suggesting starting the trial with prior odds of 50:50, criticized by Friedman 2000. The problem of fixing the prior probability is said to disappear if we base fact-finding simply on likelihood ratios: Sullivan, 2019: 45–59.)

Fourthly, we have thus far relied for ease of illustration on highly simplified—and therefore unrealistic—examples. In real cases, there are normally multiple and dependent items of evidence and the probabilities of all possible conjunctions of these items, which are numerous, will have to be computed. These computations are far too complex to be undertaken by human beings (Callen 1982: 10–15). The impossibility of complying with the Bayesian model undermines its prescriptive value.

Fifthly, according to Haack, the Bayesian theory has it the wrong way round. What matters is not the strength of the fact-finder’s belief itself. The standard of proof should be understood instead in terms of what it is reasonable for the fact-finder to believe in the light of the evidence presented, and this is a matter of the degree to which the belief is warranted by the evidence. Evidence is legally sufficient where it warrants the contested factual claim to the degree required by law. Whether a factual claim is warranted by the evidence turns on how strongly the evidence supports the claim, on how independently secure the evidence is, and on how much of the relevant evidence is available to the fact-finder (that is, the comprehensiveness of the evidence—see further discussion in section 3.3 below). Haack is against identifying degrees of warrant with mathematical probabilities. Degrees of warrant do not conform to the axioms of the standard probability calculus. For instance, where the evidence is weak, neither p nor not- p may be warranted; in contrast, the probability of p and the probability of not- p must add up to 1. Further, where the probability of p and the probability of q are both less than 1, the probability of p and q , being the product of the probability of p and the probability of q , is less than the probability of either. On the other hand, the degree of warrant for the conjunction of p and q may be higher than the warrant for either. [ 20 ] (See Haack 2004, 2008a,b, 2012, 2014 for the legal application of her general theory of epistemology. For her general theory of epistemology, see Haack 1993: ch. 4; Haack 2009: ch. 4; Haack 2003: ch. 3.)

Sixthly, research in experimental psychology suggests that fact-finders do not evaluate pieces of evidence one-by-one and in the unidirectional manner required under the mathematical model (Amaya 2015: 114–5). A holistic approach is taken instead where the discrete items of evidence are integrated into large cognitive structures (variously labelled as “mental models”, “stories”, “narratives” and “theories of the case”), and they are assessed globally against the legal definition of the crime or civil claim that is in dispute (Pennington and Hastie 1991, 1993; Pardo 2000). The reasoning does not progress linearly from evidence to a conclusion; it is bi-directional, going forward and backward: as the fact-finder’s consideration of the evidence inclines him towards a particular verdict, his leaning towards that conclusion will often produce a revision of his original perception and his assessment of the evidence (Simon 2004, 2011).

The holistic nature of evidential reasoning as revealed by these studies has inspired alternative theories that are of a non-mathematical nature. One alternative, already mentioned, is the “explanatory” or “relative plausibility” theory advanced by Allen together with Pardo and other collaborators (Allen 1986, 1991, 1994; Pardo 2000; Allen and Leiter 2001; Allen and Jehl 2003; Pardo and Allen 2008; Allen and Pardo 2019; cf. Nance 2001, Friedman 2001). [ 21 ] They contend that fact-finders do not reason in the fashion portrayed by the Bayesian model. Instead, they engage in generating explanations or hypotheses on the available evidence by a process of abductive reasoning or drawing “inferences to the best explanation”, and these competing explanations or hypotheses are compared in the light of the evidence. [ 22 ] The comparison is not of a hypothesis with the negation of that hypothesis, where the probability of a hypothesis is compared with the probability of its negation. Instead, the comparison is of one hypothesis with one or more particular alternative hypotheses as advocated by a party or as constructed by the fact-finder himself. On this approach, the plausibility of X, the factual account of the case that establishes the accused’s guilt or defendant’s liability, is compared with the plausibility of a hypothesis Y, a specific alternative account that points to the accused’s innocence or the defendant’s non-liability, and there may be more than one such specific alternative account.

On this theory, the evidence is sufficient to satisfy the preponderance of proof standard when the best-available hypothesis that explains the evidence and the underlying events include all of the elements of the claim. Thus, in a negligence case, the best-available hypothesis would have to include a breach of duty of care by the plaintiff and causation of harm to the defendant as these are the elements that must be proved to succeed in the legal claim. For the intermediate “clear-and-convincing” standard of proof, the best-available explanation must be substantially better than the alternatives. To establish the standard of proof beyond reasonable doubt, there must be a plausible explanation of the evidence that includes all of the elements of the crime and, in addition, there must be no plausible explanation that is consistent with innocence (Pardo and Allen 2008: 238–240; Pardo 2013: 603–604).

The relative plausibility theory itself is perceived to have a number of shortcomings. [ 23 ] First, the theory portrays the assessment of plausibility as an exercise of judgment that involves employment of various criteria such as coherence, consistency, simplicity, consilience, and more. However, the theory is sketchy on the meaning of plausibility and the criteria for evaluating plausibility are left largely unanalyzed. [ 24 ]

A second criticism of the relative plausibility theory is that, despite the purported utilisation of “inference to the best explanation” reasoning, the verdict is not controlled by the best explanation. For instance, even if the prosecution’s hypothesis is better than the defence’s hypothesis, neither may be very good. In these circumstances, the court must reject the prosecution’s hypothesis even though it is the best of alternatives (Laudan 2007). One suggested mitigation of this criticism is to place some demand on the epistemic effort that the trier of fact must take (for example, by being sufficiently diligent and thorough) in constructing the set of hypotheses from which the best is to be chosen (Amaya 2009: 155).

The third criticism is targeted at holistic theories of evidential reasoning in general and not specifically at the relative plausibility theory. While it may be descriptively true that fact-finders decide verdicts by holistic evaluation of the plausibility of competing explanations, hypotheses, narratives or factual theories that are generated from the evidence, such forms of reasoning may conceal bias and prejudice that stand greater chances of exposure under a systematic approach such as Bayesian analysis (Twining 2006: 319; Simon 2004, 2011; Griffin 2013). A hypothesis constructed by the fact-finder may be shaped subconsciously by a prejudicial generalisation or background belief about the accused based on a certain feature, say, his race or sexual history. Individuating this feature and subjecting it to Bayesian scrutiny has the desirable effect of putting the generalisation or background belief under the spotlight and forcing the fact-finder to confront the problem of prejudice.

A third idea of evidential weight is prompted by this insight from Keynes (1921: 71):

As the relevant evidence at our disposal increases, the magnitude of the probability of the argument may either decrease or increase, according as the new knowledge strengthens the unfavourable or the favourable evidence; but something seems to have increased in either case,—we have a more substantial basis upon which to rest our conclusion. I express this by saying that an accession of new evidence increases the weight of an argument. New evidence will sometimes decrease the probability of an argument, but it will always increase its “weight”.

This idea of evidential weight has been applied by some legal scholars in assessing the sufficiency of evidence in satisfying legal standards of proof. [ 25 ] At its simplest, we may think of weight in the context of legal fact-finding as the amount of evidence before the court. Weight is distinguishable from probability. The weight of evidence may be high and the mathematical probability low, as in the situation where the prosecution adduces a great deal of evidence tending to incriminate the accused but the defence has an unshakeable alibi (Cohen 1986: 641). Conversely, the state of evidence adduced in a case might establish a sufficient degree of probability—high enough to cross the supposed threshold of proof on the mathematical conception of the standard of proof—and yet lack adequate weight. In the much-discussed gate-crasher’s paradox, the only available evidence shows that the defendant was one of a thousand spectators at a rodeo show and that only four hundred and ninety nine tickets were issued. The defendant is sued by the show organiser for gate-crashing. The mathematical probability that the defendant was a gate-crasher is 0.501 and this meets the probabilistic threshold for civil liability. But, according to the negation principle of mathematical probability, there is probability of 0.499 that the defendant did pay for his entrance. In these circumstances, it is intuitively unjust to find him liable (Cohen 1977: 75). A possible explanation for not finding him liable is that the evidence is too flimsy or of insufficient weight.

Proponents of the mathematical conception of the standard of proof have stood their ground even while acknowledging that weight has a role to play in the Bayesian analysis of probative value and the sufficiency of evidence. If a party does not produce relevant evidence that is in his possession, resulting in the court facing an evidential deficiency, it may draw an adverse inference against him when computing the posterior probability (Kaye 1986b: 667; Friedman 1997). One criticism of this approach is that, in the absence of information about the missing evidence, the drawing of the adverse inference is open to the objection of arbitrariness (Nance 2008: 274). A further objection is that the management of parties’ conduct relating to evidence preservation and presentation should be left to judges and not to the jury. What a judge may do to optimize evidential weight is to impose a burden of producing evidence on a party and to make the party suffer an adverse finding of fact if he fails to produce the evidence. This will serve as an incentive for the party to act in a manner that promotes the interest in evidential completeness (Nance 2008, 2010, 2016).

Cohen suggests that the standard of proof should be conceived entirely as a matter of evidential weight which, on his theory, is a matter of the number of tests or challenges to which a factual hypothesis is subjected to in court. He offers an account of legal fact-finding in terms of an account of inductive probability that was inspired by the work of writers such as Francis Bacon and J.S. Mill. Inductive probability operates differently from the classical calculus of probability. It is based on inductive support for the common-sense generalisation that licences the drawing of the relevant inference. Inductive support for a generalisation is graded according to the number of tests that it has passed, or, putting this in another way, by the degree of its resistance to falsification by relevant variables. The inductive probability of an argument is equal to the reliability grade of the inductive support for the generalisation which covers the argument.

Proof beyond reasonable doubt represents the maximum level of inductive probability. The prosecution may try to persuade the court to infer that the accused was guilty of burglary by producing evidence to establish that he was found in the vicinity of the victim’s house late at night with the stolen object on him. This inference is licensed by the generalisation that normally if a stranger is found immediately after a burglary in possession of the stolen object, he intentionally removed it himself. The defence may try to defeat the inference by showing that the generalization does not apply in the particular case, for example, by presenting evidence to show that the accused had found the object on the street. The prosecution’s hypothesis is now challenged or put to the test. As a counter-move, it may produce evidence to establish that the object could not have been lying in the street as alleged. If the generalisations on which the prosecution’s case rest survive challenges by the defence at every possible point, then guilt is proved beyond reasonable doubt. [ 26 ] The same reasoning structure applies in the civil context except that in a civil case, the plaintiff succeeds in proof on the preponderance of evidence so long as the conclusion to be proved by him is more inductively probable than its negation. (Cohen 1977, 1986; cf. Schum 1979.) [ 27 ]

Cohen’s theory seems to require that each test to which a hypothesis is put can be unequivocally and objectively resolved. But usually this is not the case. In our example, we may not be entirely convinced that the accused found or did not find the object on the street, and our evaluation would involve the exercise of judgment that is no less subjective as the sort of judgments required when applying the standard probabilistic conception of proof (Nance 2008: 275–6; Schum 1994: 261).

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How to cite this entry . Preview the PDF version of this entry at the Friends of the SEP Society . Look up topics and thinkers related to this entry at the Internet Philosophy Ontology Project (InPhO). Enhanced bibliography for this entry at PhilPapers , with links to its database.

• Legal Information Institute , at Cornell Law School. This site makes available the full text of the Federal Rules of Evidence with commentaries by the Advisory Committee on Rules.
• Statistics and the Law , page at the Royal Statistical Society.

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What is a Trial Presentation? Everything You Need to Know

by Carolina Barbalace | Jul 31, 2023 | Present in Court | 0 comments

Attorneys go to court ready with a trial presentation. So should you. 

You may be asking yourself, what is a trial presentation?

A trial presentation is a visual and legal aid designed to present your evidence, argument, and legal analysis in a way that is easy for the judge to follow and understand. 

Why is it important to use a Trial Presentation?

Make your case stronger: .

You want to be as persuasive as possible when you’re in court. A trial presentation helps you present your evidence in a way that’s easy for the judge to understand and see the strength of your case.

Preparing a Trial Presentation not only helps you present your evidence effectively but also assists you in organizing your thoughts and arguments. With a well-structured outline and identified key points, you can ensure that you cover all the important information in a logical and easy-to-follow way.

Show the Judge You’re Credible:  

When you’re in court, it’s important to come across as credible and prepared. With a trial presentation, you can showcase your evidence professionally and organized. The judge will see that you’ve made the effort to build a strong case and deserve their serious attention. It also demonstrates that you value the judge’s time and are conscientious.

Also, a trial presentation can make the judge more engaged and focused. By using visual aids, such as graphs, charts, and photographs, you can capture the judge’s attention and help them to better understand your argument. These visuals bring your case to life and make it easier for the judge to follow along.

What should be included in a Trial Presentation?

Opening statement:.

The beginning of your trial presentation is crucial. It all starts with an opening statement that sets the stage for your case. This statement introduces the judge to the important facts, aligning them with the specific legal elements involved. It’s your chance to clearly state what you seek from the judge.

When crafting your opening statement, remember that it shapes the impression of your entire case. You want to convey confidence, organization, and preparedness. Keep it concise, focusing on the key facts that support your argument. Avoid overwhelming the judge with unnecessary details.

Include a chronological timeline of the events and evidence in your case. This timeline is a valuable asset that helps the judge follow the events leading up to your case. By visually organizing your evidence on a timeline, you can demonstrate when crucial facts occurred and how they connect. Doing this gives the judge a deeper understanding of your case’s context and empowers them to make an informed decision.

To make the most of your timeline, ensure that each piece of evidence on the timeline is assigned a page number corresponding to its location in your trial presentation. This way, the judge can easily navigate to the relevant evidence, facilitating a smooth and efficient review of your case.

Damages Table:

A damages table is a vital component that showcases all the damages you claim in a neat and structured format, complete with accurate calculations. This table plays a crucial role when presenting your case to the judge, allowing you to show the exact amount of money you deserve

Think of the damages table as a handy list that outlines the money you seek. By having a damaged table, you can ensure that you cover all the different types of money you need to ask for, leaving no important details behind. This organized approach presents a compelling case and helps the judge understand your arguments easily, making a favorable decision more likely.

Finally, include copies of all the evidence supporting your case in your trial presentation. From documents and text messages to emails, photographs, and videos, leave no stone unturned in presenting the full picture.

Also, ensure that each piece of evidence is clearly labeled. Moreover, organize your evidence logically and chronologically so the judge can easily navigate each piece.  

In conclusion, a trial presentation can help strengthen your case and be more persuasive. It allows you to organize your thoughts, gain the judge’s trust, and keep everyone engaged in the courtroom. By following the steps and including these important sections in your presentation, you can clearly present your case and increase your chances of winning. Take advantage of this opportunity to confidently share your side of the story, leave a lasting impression, and achieve a favorable outcome in your legal journey.

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Legal Dictionary

The Law Dictionary for Everyone

In its broadest definition, the term evidence refers to anything that is presented to prove something else is true or exists. In the legal system, evidence is any type of proof presented at trial , for the purpose of convincing the judge and/or jury that alleged facts of the case are true. This may include anything from witness testimony to documents, and objects, to photographs. The law provides specific rules of evidence which govern what may and may not be presented at trial. To explore this concept, consider the following evidence definition.

Definition of Evidence

• Something legally submitted to a court or other tribunal to prove or ascertain the truth of a matter.
• Something that tends to prove or disprove another thing.

1250-1300        Middle English

Gathering and Submitting Evidence

During investigation of a criminal matter, evidence is often gathered for use at trial later. The purpose of gathering various types of evidence is to determine who might be responsible for the crime. This is done by connecting evidence collected with witness statements and other information. There are certain, strict procedures by which evidence must be collected, handled, and transferred, in order for it to be considered valid at trial. The presentation of evidence at trial is governed and regulated by the jurisdiction ’s rules of evidence.

Types of Evidence

Evidence comes in many forms, as by its very definition, evidence is any thing presented to prove that something is true.

Scientific Evidence

Scientific evidence used in legal cases is evidence that is determined by scientific testing and/or observation. Because this type of evidence on its own is often indecipherable by judges and jurors, expert witnesses, experienced in the specific field in which the evidence was examined or tested, introduce and explain scientific evidence. Scientific evidence is generally accepted as a neutral source of information, and quite reliable. Scientific evidence commonly used in the modern legal system includes:

• Fingerprints
• Hair and fiber comparison
• DNA analysis
• Voice identification

Trace Evidence

Trace evidence is a form of forensic or scientific evidence, as it is evidence created when two objects come into contact with one another, or when portions of one object are left behind on another. Very specific methods are used to collect and process trace evidence, in order to maintain its integrity. These methods often involve vacuuming, brushing, taping, swabbing, shaking, and hand picking. Trace evidence may take many forms, including:

• Plant, mineral, or synthetic fibers
• Glove prints
• Paint chips
• Botanical materials
• Gunshot residue
• Explosives residue
• Volatile hydrocarbons

In order for trace evidence to be useful, investigators must have sample items from the suspect by which to compare it. For example, footprints are most useful if the suspect owns a pair of boots with tread to match the prints.

About DNA Evidence

Deoxyribonucleic acid (“DNA”) is the basic building block of life, and exists in every cell of all living organisms. Modern technology has led to the ability to examine an individual’s DNA, which has a very specific and unique pattern. DNA evidence can be used to identify or exclude individuals as suspects in a crime, as forensic investigators can examine DNA left at a crime scene, and compare it to DNA samples collected directly from a suspect to determine whether the crime scene sample belongs to the suspect or not.

DNA evidence is used as a highly accurate method of proving the guilt or innocence of suspects in some cases. In order to challenge or disprove DNA evidence, the opposing party must usually bring into question the procedures used to collect and test the evidence.

Physical Evidence

Physical evidence, sometimes referred to as “material evidence,” or “real evidence,” is any tangible object that is used to prove a fact of the case. Physical evidence includes objects, as well as documentation. Many items of physical evidence serve a joint purpose, as both physical and scientific evidence. For example, examination of a knife used in an assault (physical evidence) may yield scientific DNA evidence as well.

Testimonial Evidence

Testimonial evidence is that given by a witness under oath. Such testimony may be given verbally or in writing, under penalty of perjury . Any witness who is not testifying as an expert witness is generally limited to providing testimony only of those things of which he has personal knowledge, and may not interject opinion . Testimonial evidence is an important part of the legal process, though the opposing party may introduce additional testimony, or other evidence, to disprove or discredit a witness’ testimony.

Circumstantial Evidence

Circumstantial evidence is evidence that does not directly prove a fact, but requires some amount of reasoning, or inference , to make a point. While some people view circumstantial evidence as weak, or ineffective, it is possible to submit one or more circumstances for which the most probable conclusion leaves little doubt as to a fact of the case.

For example:

Roger is accused of breaking into a woman’s home and raping her. Although the woman cannot identify the man, as it was dark, and he wore a mask, the prosecution shows that Roger had previously made threats to the victim, his footprints were found outside the victim’s back door, fibers found caught in the broken window match those of Roger’s jacket, and Roger had been seen by neighbors in the neighborhood earlier that day. While all of these are circumstantial evidence, they add up to a logical conclusion that Roger committed the crime.

Hearsay Evidence

Hearsay evidence is a statement made out of court, whether verbally or in writing, that is introduced to prove the truth of whatever the statement asserts. In most cases, hearsay evidence is testimony by one person of what another person said. Hearsay evidence is not considered reliable, since the person who actually made the statement is not available to be questioned. Because of this, hearsay evidence is not usually accepted at trial. There are exceptions, however. For example, if a robbery victim stumbled up to Allison and said, “Victor robbed me!” before falling down unconscious, Allison’s testimony of what the victim said cannot be used to prove that Victor committed the robbery. Her testimony could, however, be used to prove that the victim was still alive and able to speak at that time.

Exculpatory Evidence

Exculpatory evidence is any evidence that is favorable to, or tends to exonerate, the defendant in a criminal proceeding. In the 1963 landmark U.S. Supreme Court case Brady v. Maryland , the Court determined that the prosecution is required to provide a defendant with any exculpatory evidence it has in its possession , custody, or control, before the defendant enters a plea , or as soon as the evidence comes into its possession, custody, or control. This includes any exculpatory evidence held by the investigatory team, such as police officers, investigators, and crime labs.

Bob is found murdered outside his home, and police find Malcom passed out in his car some miles away, a bloody knife on the ground near the vehicle. While Bob has been arrested and charged with the murder , the investigation turned up testimony of a witness who saw someone who was not Malcom fighting with Bob at the scene of the crime, but was too afraid to come forward.

Although police investigators doubt the validity of the witness’ statement, his testimony is exculpatory evidence that places doubt on Malcom’s guilt. The prosecutor is required to provide Malcom, or his attorney, this witness’ testimony.

Rules of Evidence

Federal and state rules of evidence govern how facts are proven, as well as how inferences may be made from facts and evidence introduced at trial. Laws governing rules of evidence stem from a concern over the validity of certain types of evidence, and whether the presentation of certain evidence might lead a judge or jury to jump to conclusions that are not necessarily valid. Rules of evidence typically revolve around the issues of reliability, relevance, efficiency, unfair surprise, and overall fairness to the proceedings.

To this end, the judge in a criminal proceeding has the power to exclude any evidence that poses a great risk of creating unfair prejudice due to a confusing, repetitive, or inflammatory nature. This is done to help ensure the jury receives a broad range of evidence that is not unnecessarily confusing.

Scott Peterson and the Circumstantial Evidence

On Christmas Eve, 2002, 27-year old Laci Peterson was reported missing by her husband of 5 years. Husband Scott Peterson told police that his wife, who was 8 months pregnant at the time of her disappearance, was nowhere to be found when he returned from a fishing trip 80 miles from home. While no indication of where the young woman might have gone existed, certain facts arose leading investigators to suspect Scott Peterson may have been involved in her disappearance.

Four months after she vanished, the badly decomposed remains of Lacy and her unborn child washed ashore in Richmond, California, near the marina at which Scott Peterson claimed he spent the day fishing the day Laci vanished.

Although prosecutors strongly suspected Scott Peterson was guilty of murdering his wife, there was little direct evidence connecting him to the crime. What the prosecution did have was a whole string of circumstantial evidence, including inconsistencies in Peterson’s story, his admitted affair, and a 6-inch long dark hair found on a pair of pliers in Peterson’s boat. Although the defense attempted to explain away each item of circumstantial evidence, in an effort to create reasonable doubt in the minds of the jury members, Peterson was convicted of first degree murder of his wife and unborn child.

Scott Peterson was sentenced to death, and transferred to death row in California’s San Quentin prison , where inmates spend an average of 25 years before execution.

Related Legal Terms and Issues

• Expert Witness – A witness possessing training, education, skill, or experience in a specific subject, which is beyond that of the average person, who is allowed to give an opinion at trial.
• Perjury – The willful telling of an untruth, or the giving of false testimony, after having taken an oath.
• Death Row – A prison housing unit reserved for inmates sentenced to be put to death.

What this handout is about

This handout will provide a broad overview of gathering and using evidence. It will help you decide what counts as evidence, put evidence to work in your writing, and determine whether you have enough evidence. It will also offer links to additional resources.

Introduction

Many papers that you write in college will require you to make an argument ; this means that you must take a position on the subject you are discussing and support that position with evidence. It’s important that you use the right kind of evidence, that you use it effectively, and that you have an appropriate amount of it. If, for example, your philosophy professor didn’t like it that you used a survey of public opinion as your primary evidence in your ethics paper, you need to find out more about what philosophers count as good evidence. If your instructor has told you that you need more analysis, suggested that you’re “just listing” points or giving a “laundry list,” or asked you how certain points are related to your argument, it may mean that you can do more to fully incorporate your evidence into your argument. Comments like “for example?,” “proof?,” “go deeper,” or “expand” in the margins of your graded paper suggest that you may need more evidence. Let’s take a look at each of these issues—understanding what counts as evidence, using evidence in your argument, and deciding whether you need more evidence.

What counts as evidence?

Before you begin gathering information for possible use as evidence in your argument, you need to be sure that you understand the purpose of your assignment. If you are working on a project for a class, look carefully at the assignment prompt. It may give you clues about what sorts of evidence you will need. Does the instructor mention any particular books you should use in writing your paper or the names of any authors who have written about your topic? How long should your paper be (longer works may require more, or more varied, evidence)? What themes or topics come up in the text of the prompt? Our handout on understanding writing assignments can help you interpret your assignment. It’s also a good idea to think over what has been said about the assignment in class and to talk with your instructor if you need clarification or guidance.

What matters to instructors?

Instructors in different academic fields expect different kinds of arguments and evidence—your chemistry paper might include graphs, charts, statistics, and other quantitative data as evidence, whereas your English paper might include passages from a novel, examples of recurring symbols, or discussions of characterization in the novel. Consider what kinds of sources and evidence you have seen in course readings and lectures. You may wish to see whether the Writing Center has a handout regarding the specific academic field you’re working in—for example, literature , sociology , or history .

What are primary and secondary sources?

A note on terminology: many researchers distinguish between primary and secondary sources of evidence (in this case, “primary” means “first” or “original,” not “most important”). Primary sources include original documents, photographs, interviews, and so forth. Secondary sources present information that has already been processed or interpreted by someone else. For example, if you are writing a paper about the movie “The Matrix,” the movie itself, an interview with the director, and production photos could serve as primary sources of evidence. A movie review from a magazine or a collection of essays about the film would be secondary sources. Depending on the context, the same item could be either a primary or a secondary source: if I am writing about people’s relationships with animals, a collection of stories about animals might be a secondary source; if I am writing about how editors gather diverse stories into collections, the same book might now function as a primary source.

Where can I find evidence?

Here are some examples of sources of information and tips about how to use them in gathering evidence. Ask your instructor if you aren’t sure whether a certain source would be appropriate for your paper.

Print and electronic sources

Books, journals, websites, newspapers, magazines, and documentary films are some of the most common sources of evidence for academic writing. Our handout on evaluating print sources will help you choose your print sources wisely, and the library has a tutorial on evaluating both print sources and websites. A librarian can help you find sources that are appropriate for the type of assignment you are completing. Just visit the reference desk at Davis or the Undergraduate Library or chat with a librarian online (the library’s IM screen name is undergradref).

Observation

Sometimes you can directly observe the thing you are interested in, by watching, listening to, touching, tasting, or smelling it. For example, if you were asked to write about Mozart’s music, you could listen to it; if your topic was how businesses attract traffic, you might go and look at window displays at the mall.

An interview is a good way to collect information that you can’t find through any other type of research. An interview can provide an expert’s opinion, biographical or first-hand experiences, and suggestions for further research.

Surveys allow you to find out some of what a group of people thinks about a topic. Designing an effective survey and interpreting the data you get can be challenging, so it’s a good idea to check with your instructor before creating or administering a survey.

Experiments

Experimental data serve as the primary form of scientific evidence. For scientific experiments, you should follow the specific guidelines of the discipline you are studying. For writing in other fields, more informal experiments might be acceptable as evidence. For example, if you want to prove that food choices in a cafeteria are affected by gender norms, you might ask classmates to undermine those norms on purpose and observe how others react. What would happen if a football player were eating dinner with his teammates and he brought a small salad and diet drink to the table, all the while murmuring about his waistline and wondering how many fat grams the salad dressing contained?

Personal experience

Using your own experiences can be a powerful way to appeal to your readers. You should, however, use personal experience only when it is appropriate to your topic, your writing goals, and your audience. Personal experience should not be your only form of evidence in most papers, and some disciplines frown on using personal experience at all. For example, a story about the microscope you received as a Christmas gift when you were nine years old is probably not applicable to your biology lab report.

Using evidence in an argument

Does evidence speak for itself.

Absolutely not. After you introduce evidence into your writing, you must say why and how this evidence supports your argument. In other words, you have to explain the significance of the evidence and its function in your paper. What turns a fact or piece of information into evidence is the connection it has with a larger claim or argument: evidence is always evidence for or against something, and you have to make that link clear.

As writers, we sometimes assume that our readers already know what we are talking about; we may be wary of elaborating too much because we think the point is obvious. But readers can’t read our minds: although they may be familiar with many of the ideas we are discussing, they don’t know what we are trying to do with those ideas unless we indicate it through explanations, organization, transitions, and so forth. Try to spell out the connections that you were making in your mind when you chose your evidence, decided where to place it in your paper, and drew conclusions based on it. Remember, you can always cut prose from your paper later if you decide that you are stating the obvious.

Here are some questions you can ask yourself about a particular bit of evidence:

• OK, I’ve just stated this point, but so what? Why is it interesting? Why should anyone care?
• What does this information imply?
• What are the consequences of thinking this way or looking at a problem this way?
• I’ve just described what something is like or how I see it, but why is it like that?
• I’ve just said that something happens—so how does it happen? How does it come to be the way it is?
• Why is this information important? Why does it matter?
• How is this idea related to my thesis? What connections exist between them? Does it support my thesis? If so, how does it do that?
• Can I give an example to illustrate this point?

Answering these questions may help you explain how your evidence is related to your overall argument.

How can I incorporate evidence into my paper?

There are many ways to present your evidence. Often, your evidence will be included as text in the body of your paper, as a quotation, paraphrase, or summary. Sometimes you might include graphs, charts, or tables; excerpts from an interview; or photographs or illustrations with accompanying captions.

When you quote, you are reproducing another writer’s words exactly as they appear on the page. Here are some tips to help you decide when to use quotations:

• Quote if you can’t say it any better and the author’s words are particularly brilliant, witty, edgy, distinctive, a good illustration of a point you’re making, or otherwise interesting.
• Quote if you are using a particularly authoritative source and you need the author’s expertise to back up your point.
• Quote if you are analyzing diction, tone, or a writer’s use of a specific word or phrase.
• Quote if you are taking a position that relies on the reader’s understanding exactly what another writer says about the topic.

Be sure to introduce each quotation you use, and always cite your sources. See our handout on quotations for more details on when to quote and how to format quotations.

Like all pieces of evidence, a quotation can’t speak for itself. If you end a paragraph with a quotation, that may be a sign that you have neglected to discuss the importance of the quotation in terms of your argument. It’s important to avoid “plop quotations,” that is, quotations that are just dropped into your paper without any introduction, discussion, or follow-up.

Paraphrasing

When you paraphrase, you take a specific section of a text and put it into your own words. Putting it into your own words doesn’t mean just changing or rearranging a few of the author’s words: to paraphrase well and avoid plagiarism, try setting your source aside and restating the sentence or paragraph you have just read, as though you were describing it to another person. Paraphrasing is different than summary because a paraphrase focuses on a particular, fairly short bit of text (like a phrase, sentence, or paragraph). You’ll need to indicate when you are paraphrasing someone else’s text by citing your source correctly, just as you would with a quotation.

When might you want to paraphrase?

• Paraphrase when you want to introduce a writer’s position, but their original words aren’t special enough to quote.
• Paraphrase when you are supporting a particular point and need to draw on a certain place in a text that supports your point—for example, when one paragraph in a source is especially relevant.
• Paraphrase when you want to present a writer’s view on a topic that differs from your position or that of another writer; you can then refute writer’s specific points in your own words after you paraphrase.
• Paraphrase when you want to comment on a particular example that another writer uses.
• Paraphrase when you need to present information that’s unlikely to be questioned.

When you summarize, you are offering an overview of an entire text, or at least a lengthy section of a text. Summary is useful when you are providing background information, grounding your own argument, or mentioning a source as a counter-argument. A summary is less nuanced than paraphrased material. It can be the most effective way to incorporate a large number of sources when you don’t have a lot of space. When you are summarizing someone else’s argument or ideas, be sure this is clear to the reader and cite your source appropriately.

Statistics, data, charts, graphs, photographs, illustrations

Sometimes the best evidence for your argument is a hard fact or visual representation of a fact. This type of evidence can be a solid backbone for your argument, but you still need to create context for your reader and draw the connections you want them to make. Remember that statistics, data, charts, graph, photographs, and illustrations are all open to interpretation. Guide the reader through the interpretation process. Again, always, cite the origin of your evidence if you didn’t produce the material you are using yourself.

Do I need more evidence?

Let’s say that you’ve identified some appropriate sources, found some evidence, explained to the reader how it fits into your overall argument, incorporated it into your draft effectively, and cited your sources. How do you tell whether you’ve got enough evidence and whether it’s working well in the service of a strong argument or analysis? Here are some techniques you can use to review your draft and assess your use of evidence.

Make a reverse outline

A reverse outline is a great technique for helping you see how each paragraph contributes to proving your thesis. When you make a reverse outline, you record the main ideas in each paragraph in a shorter (outline-like) form so that you can see at a glance what is in your paper. The reverse outline is helpful in at least three ways. First, it lets you see where you have dealt with too many topics in one paragraph (in general, you should have one main idea per paragraph). Second, the reverse outline can help you see where you need more evidence to prove your point or more analysis of that evidence. Third, the reverse outline can help you write your topic sentences: once you have decided what you want each paragraph to be about, you can write topic sentences that explain the topics of the paragraphs and state the relationship of each topic to the overall thesis of the paper.

For tips on making a reverse outline, see our handout on organization .

Color code your paper

You will need three highlighters or colored pencils for this exercise. Use one color to highlight general assertions. These will typically be the topic sentences in your paper. Next, use another color to highlight the specific evidence you provide for each assertion (including quotations, paraphrased or summarized material, statistics, examples, and your own ideas). Lastly, use another color to highlight analysis of your evidence. Which assertions are key to your overall argument? Which ones are especially contestable? How much evidence do you have for each assertion? How much analysis? In general, you should have at least as much analysis as you do evidence, or your paper runs the risk of being more summary than argument. The more controversial an assertion is, the more evidence you may need to provide in order to persuade your reader.

Play devil’s advocate, act like a child, or doubt everything

This technique may be easiest to use with a partner. Ask your friend to take on one of the roles above, then read your paper aloud to them. After each section, pause and let your friend interrogate you. If your friend is playing devil’s advocate, they will always take the opposing viewpoint and force you to keep defending yourself. If your friend is acting like a child, they will question every sentence, even seemingly self-explanatory ones. If your friend is a doubter, they won’t believe anything you say. Justifying your position verbally or explaining yourself will force you to strengthen the evidence in your paper. If you already have enough evidence but haven’t connected it clearly enough to your main argument, explaining to your friend how the evidence is relevant or what it proves may help you to do so.

Common questions and additional resources

• I have a general topic in mind; how can I develop it so I’ll know what evidence I need? And how can I get ideas for more evidence? See our handout on brainstorming .
• Who can help me find evidence on my topic? Check out UNC Libraries .
• I’m writing for a specific purpose; how can I tell what kind of evidence my audience wants? See our handouts on audience , writing for specific disciplines , and particular writing assignments .
• How should I read materials to gather evidence? See our handout on reading to write .
• How can I make a good argument? Check out our handouts on argument and thesis statements .
• How do I tell if my paragraphs and my paper are well-organized? Review our handouts on paragraph development , transitions , and reorganizing drafts .
• How do I quote my sources and incorporate those quotes into my text? Our handouts on quotations and avoiding plagiarism offer useful tips.
• How do I cite my evidence? See the UNC Libraries citation tutorial .
• I think that I’m giving evidence, but my instructor says I’m using too much summary. How can I tell? Check out our handout on using summary wisely.
• I want to use personal experience as evidence, but can I say “I”? We have a handout on when to use “I.”

Works consulted

We consulted these works while writing this handout. This is not a comprehensive list of resources on the handout’s topic, and we encourage you to do your own research to find additional publications. Please do not use this list as a model for the format of your own reference list, as it may not match the citation style you are using. For guidance on formatting citations, please see the UNC Libraries citation tutorial . We revise these tips periodically and welcome feedback.

Lunsford, Andrea A., and John J. Ruszkiewicz. 2016. Everything’s an Argument , 7th ed. Boston: Bedford/St Martin’s.

Miller, Richard E., and Kurt Spellmeyer. 2016. The New Humanities Reader , 5th ed. Boston: Cengage.

University of Maryland. 2019. “Research Using Primary Sources.” Research Guides. Last updated October 28, 2019. https://lib.guides.umd.edu/researchusingprimarysources .

You may reproduce it for non-commercial use if you use the entire handout and attribute the source: The Writing Center, University of North Carolina at Chapel Hill

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presentation of evidence

Meanings of presentation and evidence.

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(Definition of presentation and evidence from the Cambridge English Dictionary © Cambridge University Press)

• Examples of presentation of evidence

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a large office in which a company's employees provide information to its customers, or sell or advertise its goods or services, by phone

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• Definition of presentation
• Definition of evidence
• Other collocations with presentation
• Other collocations with evidence

46 CFR § 201.131 - Presentation of evidence.

(a) Testimony. Where appropriate, the Presiding officer may direct that the testimony of witnesses be prepared in written exhibit form and shall be served at designated dates in advance of the hearing. Evidence as to events occurring after the exhibit-exchange dates shall be presented by a revision of exhibits. Witnesses sponsoring exhibits shall be made available for cross-examination. However, unless authorized by the presiding officer, witnesses will not be permitted to read prepared testimony into the record. The evidentiary record shall be limited to factual and expert opinion testimony. Argument will not be received in evidence but rather should be presented in opening and/or closing statements of counsel and in briefs to the presiding officer subsequently filed.

(b) Exhibits. All exhibits and responses to requests for evidence shall be numbered consecutively by the party submitting same and appropriately indexed as to number and title and shall be exchanged on dates prior to the hearing prescribed in the prehearing rulings. Written testimony should be identified alphabetically. Two copies shall be sent to each party and two to the presiding officer. No response to a request for evidence will be received into the record unless offered and received as an exhibit at the hearing. The exhibits, other than the written testimony, shall include appropriate footnotes or narrative material explaining the source of the information used and the methods employed in statistical compilations and estimates and shall contain a short commentary explaining the conclusions which the offeror draws from the data. Rebuttal exhibits should refer specifically to the exhibits being rebutted. Where one part of a multipage exhibit is based upon another part, appropriate cross-reference should be made. The principal title of each exhibit should state precisely what it contains and may also contain a statement of the purpose for which the exhibit is offered. However, such explanatory statement, if phrased in an argumentative fashion, will not be considered as a part of the evidentiary record. Additional exhibits pertinent to the issues may be submitted in a proceeding with the approval of the presiding officer.

(c) Cooperation on basic data. Parties having like interests are specifically encouraged to cooperate with each other in joint presentations particularly in such items as basic passenger, cargo, and scheduling data compiled from official or semiofficial sources, and any other evidence susceptible to joint presentation. Duplicate presentation of the same evidence should be avoided wherever possible.

(d) Authenticity. The authenticity of all documents submitted as proposed exhibits in advance of the hearing shall be deemed admitted unless written objection thereto is filed prior to the hearing, except that a party will be permitted to challenge such authenticity at a later time upon a clear showing of good cause for failure to have filed such written objection.

(e) Statement of position and trial briefs. A written statement of position should be exchanged by all counsel with copies to all other parties prior to the beginning of the hearing: Provided, however, That Public Counsel or counsel for a public body which has intervened as its interests may appear, may offer his statement of position at the conclusion of the evidentiary hearing, unless such is impracticable. This statement should include a showing of the theory of the case of the party submitting the statement and will not be subject to cross-examination. Trial briefs are acceptable but will not be required.

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Definition of evidence

 (Entry 1 of 2)

Definition of evidence  (Entry 2 of 2)

transitive verb

• attestation
• confirmation
• corroboration
• documentation
• substantiation
• testimonial

show , manifest , evidence , evince , demonstrate mean to reveal outwardly or make apparent.

show is the general term but sometimes implies that what is revealed must be gained by inference from acts, looks, or words.

manifest implies a plainer, more immediate revelation.

evidence suggests serving as proof of the actuality or existence of something.

evince implies a showing by outward marks or signs.

demonstrate implies showing by action or by display of feeling.

Examples of evidence in a Sentence

These examples are programmatically compiled from various online sources to illustrate current usage of the word 'evidence.' Any opinions expressed in the examples do not represent those of Merriam-Webster or its editors. Send us feedback about these examples.

Word History

14th century, in the meaning defined at sense 1a

circa 1610, in the meaning defined above

Phrases Containing evidence

• anecdotal evidence
• circumstantial evidence
• counter - evidence
• give evidence
• hearsay evidence
• indirect evidence
• in evidence
• self - evidence
• state's evidence
• turn king's evidence
• turn Queen's evidence
• turn state's evidence

Dictionary Entries Near evidence

Cite this entry.

“Evidence.” Merriam-Webster.com Dictionary , Merriam-Webster, https://www.merriam-webster.com/dictionary/evidence. Accessed 13 May. 2024.

Kids Definition

Kids definition of evidence.

Kids Definition of evidence  (Entry 2 of 2)

Legal Definition

Legal definition of evidence.

Note: Under the Federal Rules of Evidence, character evidence generally may not be used to prove that a person acted in accordance with that character. It is admissible for that purpose, however, if a criminal defendant offers it about himself or herself or about the victim, or if the prosecution offers evidence to rebut the defendant's evidence in either of those circumstances. The prosecution may also rebut a claim of self-defense by presenting evidence of the peaceful character of the victim. Additionally, the character of a witness with regard to truthfulness may be attacked or supported by opinion or by evidence of reputation.

called also corroborative evidence

called also illustrative evidence

called also indirect evidence , secondary evidence

Note: The prosecution in a criminal case is obligated to disclose to the defense any exculpatory evidence in its possession.

Note: A court may use extrinsic evidence to make sense of an ambiguity in a writing subject to some limitations.

Note: A witness may not be impeached by the use of extrinsic evidence.

called also real evidence

Note: Only testimonial evidence is protected by the Fifth Amendment's privilege against self-incrimination.

Legal Definition of evidence  (Entry 2 of 2)

Medieval Latin evidentia , from Latin, that which is obvious, from evident -, evidens clear, obvious, from e - out of, from + videns , present participle of videre to see

More from Merriam-Webster on evidence

Nglish: Translation of evidence for Spanish Speakers

Britannica English: Translation of evidence for Arabic Speakers

Britannica.com: Encyclopedia article about evidence

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evidence in chief

• It's the main set of facts or proof presented by one side to establish their argument or claim
• The lawyer prepared thoroughly for the presentation of the evidence in chief.
• The judge reminded the party that any omission in the evidence in chief could be detrimental to their case.
• It's common for the plurality of a trial to be taken up by the presentation of evidence in chief.
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Definition of presentation noun from the Oxford Advanced Learner's Dictionary

presentation

• presentation on/about somebody/something The sales manager will give a presentation on the new products.
• Several speakers will be making short presentations .
• The conference will begin with a keynote presentation by a leading industry figure.
• a slide/video/multimedia presentation
• presentation on

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The Oxford Learner’s Thesaurus explains the difference between groups of similar words. Try it for free as part of the Oxford Advanced Learner’s Dictionary app