evidence(redirected from Cross examination)
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The Role of Evidence in a Trial; Burdens of Proof
In criminal trials, the prosecution has to prove each element necessary to its case beyond a reasonable doubt. In civil trials, on the other hand, a party has the burden only of proving affirmative contentions by a preponderance of the evidence. Thus the plaintiff must offer some proof of each of the elements that combine to constitute the defendant's alleged wrong (see procedure), while the defendant must prove his or her affirmative defenses, e.g., in a suit for negligence, that the plaintiff's own negligence contributed to the injury.
Satisfying the burden of proof requires the prosecutor or the plaintiff to present evidence first. At the close of this presentation the criminal or civil defendant may move for acquittal or a nonsuit if admissible evidence supporting necessary contentions has not been offered. Proof may be dispensed with when an adversary formally admits a fact either in the pleadings or in court, or when the court may take judicial notice of the fact, i.e., when the fact is universally known or is easily ascertainable by the judge beyond reasonable dispute.
In recent years the problems of procuring evidence have been eased somewhat by the introduction of broader discovery (i.e., disclosure) rules. In civil cases, these rules compel each party to a suit to allow the other to have access to its witnesses and to certain types of evidence before the trial. In criminal cases, the judge has the discretionary power to order discovery; in any event, the prosecutor must release all exculpatory evidence on request.
Allegedly damaging errors in the admission of evidence are reviewable on appeal if an objection was made during the trial. In their final summing up, the attorneys may make any assertion that is supported to some degree by evidence. British judges and U.S. federal and, in some jurisdictions, state judges are permitted to comment on the credibility of the witnesses and the weight of the evidence. However, the judge must tell the jury that they are not bound by his or her remarks.
See also verdict.
Evidence is often presented in a tense, emotional atmosphere in a courtroom long after the event in question took place. The object of the law of evidence is to assure a high probability that questions of fact are resolved correctly. To that end, material introduced at the trial is ordinarily restricted to items of great probative value; that which may arouse unreasoning passion is ordinarily excluded. The nature of the legal controversy and the written pleadings determine what assertions of fact each party must prove or disprove to win the case, and an item of evidence that at best has a remote bearing on the factual issues must be excluded as irrelevant or immaterial. A judge prefers direct evidence (such as an official document or a witness's assertion of immediate knowledge of the question at issue) to indirect or circumstantial evidence, which merely tends to establish the issue by proving surrounding circumstances from which the principal fact may be inferred.
In addition to being relevant, evidence must be competent, i.e., it must not fall under an exclusionary rule. Obviously if the evidence is documentary (e.g., a birth certificate introduced to prove a person's age) or if it is “real” (e.g., a bloody garment exhibited to prove that the victim suffered injury), there can be a question only whether the proffered evidence is itself incompetent. The courtroom presentation of documentary evidence has been complicated by new computer technologies and the digitalization of information, which make the successful forging of texts and photographs far easier than previously.
Most evidence is offered by witnesses who testify before the court. Here, the question of the witness's personal competency must be resolved; it must be shown that the witness was able to know, understand, and remember the matters on which he or she is to be examined. Thus, a witness must possess the sensory faculties needed to apprehend the facts reported and must not be considered mentally ill or incompetent. Children offered as witnesses are examined by the judge to determine their intelligence and understanding.
The witness is first directly examined by the party who offers him or her, then is cross-examined by the adversary. No witness may express an opinion on any matter when the jury can draw its own conclusions from the facts; but on technical questions an expert witness (e.g., a physician) may state an opinion. Hearsay declarations (e.g., testimony concerning a statement made out of court by a person not now before the court) usually are excluded on the grounds that the person who made the statement is not available for cross-examination or for evaluation by the judge or jury. Only when the circumstances of the statement afford a high probability of its truth may it be admitted.
A witness may be excused from testifying about certain matters if he or she pleads personal privilege. In general, information confided in the course of the relations of attorney and client, priest and penitent, physician and patient, and husband and wife is subject to this privilege. In some jurisdictions such witnesses are incompetent to testify (cannot testify). Witnesses are further protected by the Fifth Amendment privilege of withholding evidence that might be self-incriminating. Criminal defendants have the privilege of refusing to take the witness stand (in which case the jury may make no negative assumptions concerning the reasons for such a refusal) and, in most situations, evidence of previous criminal convictions is inadmissible. Under the common law, parties to a civil suit and the defendant in a criminal action were not permitted to testify, but these rules have been abandoned.
Among the many modern treatises on the law of evidence those of J. H. Wigmore are often accorded the highest authority. See also studies by M. J. Saks and R. Van Duizend (1983); P. Achinstein (1984); I. Younger and M. Goldsmith (1984); J. H. Friedenthal and M. Singer (1985).
in a criminal or civil trial, the factual data (information) on circumstances that are of significance for the correct resolution of a criminal or civil case. In a criminal trial, on the basis of the evidence, the following are established: whether a crime was committed, the guilt or innocence of the accused, the degree of responsibility of the guilty parties, and the character and extent of loss, as well as the causes and conditions that have facilitated the commission of the crime. In a civil trial, evidence is used to establish the presence or absence of circumstances that support the claims and objections of the parties and third parties and the presence or absence of other circumstances that are essential for the case.
Information that is of evidentiary significance is found in the testimony of witnesses, material evidence, conclusions of experts, records of investigative and judicial actions, and other documents. In a criminal trial, this information is also obtained from the testimony of the accused, suspects, and victims, and in a civil trial, from the pleadings of the parties and third parties. Information obtained by any other means (for example, rumors and anonymous letters) cannot be used as evidence. The necessity of using evidence in judicial proceedings is due to the fact that the circumstances which must be ascertained for correctly ruling on the case relate chiefly to past events. In order to establish these circumstances, it is essential to collect all the remaining information about the events, to confirm the information in the materials of the case, and to record the information to eliminate possible gaps, distortions, and inaccuracies.
In the USSR, for each type of evidence, the law establishes rules for its collection, recording, and verification, and these rules take into account to the greatest extent possible the particular features of the formation of the evidence and help to obtain complete and reliable information. The entire body of evidence is evaluated interdependently and on the basis of a complete, thorough, and objective examination. No evidence has a previously established force, and no evidence can be interpreted in advance as “better” or “poorer.” The confession of the accused is also ordinary evidence which should be fully verified and evaluated. Factual data (information) cannot be used as evidence if substantial violations of the legally established procedure have occurred. (For example, an object has been secured as material evidence and it is not known where this object has been acquired or by whom; in presenting the accused for identification, he was not shown to the witness in a group of other persons; or threats were used in the interrogation.) The artificial creation of accusatorial evidence, compelling the giving of testimony, and other criminal actions involving the falsification of evidence entail criminal punishment (Criminal Code of the RSFSR, arts. 176, 179-183, and others).
In a criminal trial, a distinction is made between accusatorial evidence (evidence establishing the fact that a crime has been committed, guilt, or aggravating circumstances) and evidence of justification (evidence refuting the designated events and circumstances and at the same time establishing extenuating circumstances). In a civil trial, correspondingly, there is evidence which establishes or repudiates the ground for the action, and so forth.
In terms of the circumstances being established in the case, the evidence is divided into direct evidence and circumstantial evidence. The direct evidence directly points to these circumstances, while the circumstantial evidence establishes intermediate or ancillary facts, the body of which makes it possible to reach a conclusion about the looked-for circumstance. (For example, the testimony of an eyewitness that the accused stabbed the victim with a knife is direct evidence of the fact that a crime has been committed and of guilt. The testimony of witnesses, one of whom was present during the altercation between the accused and the victim, a second of whom saw the accused with the knife that was used to murder the victim, while a third witness observed the accused fleeing from the site of the crime—this is circumstantial evidence, the totality of which establishes the same circumstances.) If there is a sufficient body of circumstantial evidence, it can be used to substantiate the fact that a crime was committed. Thus, although the use of circumstantial evidence is more complicated, it can produce reliable results.
A distinction is also made between primary and secondary evidence, depending on whether the corresponding factual data were established from a source which directly perceived the circumstance being proven or from a source removed from this circumstance by intermediate stages. For example, the information contained in the testimony of an eyewitness or the features fixed in a footprint discovered at the site of a crime are primary evidence. The testimony given by a person based on the words of an eyewitness or the features reflected in a copy of the footprint (for example, in a plaster cast made from the footprint) are secondary evidence.
For the purposes of collecting and verifying the evidence, the investigator, person conducting the inquiry, procurator, or court has the right to summon any person for the giving of testimony, to appoint experts, and to carry out examinations, searches, seizures, and other actions provided by the law, as well as the right to demand audits and the submission of required documents. An accused, a suspect, a victim, an advocate, and other participants in the trial, as well as any citizen, representative of the community, or institution, have the right to indicate the location of evidence known to them, as well as to directly submit such evidence—objects or documents (Code of Criminal Procedure of the RSFSR, art. 70). In a civil trial, evidence is presented by the parties and by other persons participating in the case and is collected by the court at its initiative or upon petition by the parties in the trial. Before the trial, certain evidence can be collected by the judge through the procedure of perpetuating testimony, if there is a danger that the evidence may be lost (Code of Civil Procedure of the RSFSR, art. 49).
REFERENCETeoriia dokazatel’stv v sovetskom ugolovnom protsesse: Chast’ obshchaia. Moscow, 1966.
G. M. MIN’KOVSKII