the great escape
Law of Evidence
Chapter 1 Evidence in Context
Two concerns are central to all phases of litigation: first a concern with establishing fact.
This academic preference obscures a basic reality. The outcome of most cases is determined by counsel’s success in establishing facts favorable to his or her client.
1.2
For present purposes, we may define evidence as any matter verbal or physical, that can be used to support the existence of a factual proposition.
Lawyers must anticipate the impact the rules of evidence will have upon the admissibility of these materials should a judicial trial be necessary.
1.3
The evidence is presented by adversaries, each one offering evidence favorable to his or her client and each demanding a fair chance to challenge the reliability of the other ‘s proof.
Also the factfinders in a trial are lay persons (the jury), not trained experts. This suggests a need to exclude evidentiary materials that pose a substantial risk of jury misuse. Finally, trials are public affairs; the evidence often reveals to the community and media confidential information.
1.4
A party can exert another influence upon the evidentiary record: by making a timely objection.
The Anglo-American judicial system places primary reliance upon the partisan interest of the opposing parties.
1.5
The trier of fact (factfinder). In cases where there is no right to a jury, the judge is the factfinder. In other cases the jury acts as the trier of fact. After the presentation of all of the evidence in the case, each party has an opportunity to make a closing argument. Counsel for each litigant attempts to convince the trier to accept certain evidence as reliable and to draw inferences favorable to his or her client. Thus, the parties can influence the factfinder’s conclusions. The judge is to give certain instructions that guide the jury in its use of the evidence. These instructions are of three general kinds: a cautionary instruction, advising that
Chapter 1 Evidence in Context
Two concerns are central to all phases of litigation: first a concern with establishing fact.
This academic preference obscures a basic reality. The outcome of most cases is determined by counsel’s success in establishing facts favorable to his or her client.
1.2
For present purposes, we may define evidence as any matter verbal or physical, that can be used to support the existence of a factual proposition.
Lawyers must anticipate the impact the rules of evidence will have upon the admissibility of these materials should a judicial trial be necessary.
1.3
The evidence is presented by adversaries, each one offering evidence favorable to his or her client and each demanding a fair chance to challenge the reliability of the other ‘s proof.
Also the factfinders in a trial are lay persons (the jury), not trained experts. This suggests a need to exclude evidentiary materials that pose a substantial risk of jury misuse. Finally, trials are public affairs; the evidence often reveals to the community and media confidential information.
1.4
A party can exert another influence upon the evidentiary record: by making a timely objection.
The Anglo-American judicial system places primary reliance upon the partisan interest of the opposing parties.
1.5
The trier of fact (factfinder). In cases where there is no right to a jury, the judge is the factfinder. In other cases the jury acts as the trier of fact. After the presentation of all of the evidence in the case, each party has an opportunity to make a closing argument. Counsel for each litigant attempts to convince the trier to accept certain evidence as reliable and to draw inferences favorable to his or her client. Thus, the parties can influence the factfinder’s conclusions. The judge is to give certain instructions that guide the jury in its use of the evidence. These instructions are of three general kinds: a cautionary instruction, advising that