Evidence 101

My summer classes ended with finals on Thursday and Friday. These finals were much more relaxed than exams during the regular semester. My Evidence final was actually very enjoyable. (That might have had something to do with it being 80% multiple choice instead of a long essay…)

I enjoyed my Evidence class as a whole much more than I expected. Evidence has a puzzle piece sort of feel to it which I like; if one way doesn’t work, you try another until you find a way to make it fit. That is especially true of the hearsay rule, which can be rather fun.

One of the topics we discussed in Evidence was eyewitness testimony. My professor told us of an experiment he did with one of his classes. He arranged with one of his students to allow a “thief” to come in and steal the student’s purse. The woman came into class, made a big scene, took the purse, and left – doing everything slowly and deliberately. After she left, the class discussed the characteristics they had noticed, such as height, weight, hair color, clothing, etc. There was a lot of variation in what the students claimed about the thief.

About a week later, the students were asked to identify the thief. They could choose one of five women: four who came into class  for a line-up or a fifth who was absent (not in the line-up).

The result? Each of the five woman was identified as the thief by 20% of the class. In other words, 80% of the class was wrong. And the real clincher was that the student who had her purse “stolen” and was practically face to face with the thief chose the wrong woman.

So eyewitness evidence is a little scary.

We also discussed the topic of presumption. Presumption is one of those words that’s easy to define outside of law, but can be messy inside the law. My professor gave us four different definitions.

• First, there is the typical non-legal definition: X usually causes Y, so when there is evidence of X, we can presume Y happened too.

• Second, there is a so-called irrebuttable presumption: this isn’t really a presumption, it’s a legal rule that if there is evidence of X, the jury must find that Y happened, even if there is evidence to the contrary.

• Third and fourth are the presumptions that actually affect how the law works: if there is evidence of X, the jury must find that Y happened. But if someone claims Y didn’t happen, someone has to try to prove either that it did or did not. (The difference between the third and forth types of presumption is which party has the burden of proof.)

In law, the word presumption gets complicated because people (e.g., legislatures) use it without defining which type of presumption they mean. Thus, the lawyers end up arguing about it or the court has to make up the best answer it can.

Another evidence topic we discussed is an efficiency tactic called judicial notice. This is actually shortcut to avoid having to prove something. Rather than presenting evidence of the fact, the lawyer will ask the judge to say, in effect, “this is so well-known or obvious that we are going to call it true for the purposes of this case.”

Judicial notice saves time and money. For example, asking the judge to take notice that NaCl is the chemical formula for table salt is much easier and cheaper than bringing in a chemist to testify about it. Judges can take notice of all sorts of things; for example, that a certain date was a Tuesday, that diamonds are hard, that DOG Street means Duke of Gloucester Street, that a city is located in a certain county, that mules are occasionally dangerous, that a given ice cream flavor is usually a certain color, or that snowmen usually have sticks for arms and a carrot for a nose. (Some of these examples are taken from A Modern Approach to Evidence, by Lempert, et. al., West Academic Publishing p. 1400.)

So that’s Evidence. It’s fun.

The weekend after finals was nice and relaxing. Friday afternoon I took a nap (I slept hard for two or three hours). Saturday I attended a baptism for our most recent convert, after which two other recent converts treated me to dinner at the country club. They are so kind and good and friendly. I felt very spoiled.