Preparation/Interpretation and Practical Application

I am not sure about anyone else, but clients are always sending or bringing me things they think a. will help their case, b. want our office to be aware of, or c. are unsure what it is and think, "I think I will just give this to my attorney's office".

In many circumstances, clients provide "stuff" whether that be relevant to the trajectory of the outcome we're trying to accomplish in their case or not. It is important to consult with the following information when you too find yourself in the aforementioned scenario.

What is Evidence?
Or rather I say the purpose - the underlying purpose of evidence would be to prove or disprove facts that remain in dispute. I would add the nature of the dispute is somewhat irrelevant, because this could include: Litigation, or even some form of Alternative Dispute Resolution (Mediation, Arbitration or even Depositions), and arguably negations surrounding global settlement.

Types of Evidence:

• Testimony
• Real
• Demonstrative
• Documentary

Common Subcategories:

• Live Testimony
• Video Testimony
• Original Documents
• Copies of Documents
• Certified Copies
• Business Records
• Photos
• On-site/in-person inspections of locations
• Miscellaneous objects that can be shown or displayed.

Relevance: Evidence must be relevant to the issue being "tried"/in question: Any evidence which tends to prove or disprove a disputed fact, satisfies this requirement. Some helpful Rules of Evidence regarding Relevance include:

• Rule 401 - the definition of "relevant evidence".
• Rule 402 - relevant evidence is generally admissible; irrelevant evidence inadmissible.
• Rule 403 - Exclusion of Evidence that may be otherwise admissible:
  • Prejudicial
  • Confusion of issues
  • Misleading jury
  • Undue delay
  • Waste of time
    • Examples of Rule 403 would include: Guilty pleas that were later withdrawn, are not admissible. Also, settlement negotiations are not admissible.

Material to Controversy: The quickest most effective way to identify this is to look for materiality. Ask yourself: What is in the complaint/answer? Do you see a correlation between the evidence in question and the original pleading? Any issues raised in the pleadings will create a direct link to the evidence which is material to controversy.

Reliability: Evidence must always be able to be tested in many ways.

Authentication: Any Evidence which tends to prove/disprove a disputed fact.

Evidence Rule 901
Common Examples of this:

• Affidavit of Records Custodian - legitimizing Medical Records, Mental Health Evaluations and Business Records.
• Subpoenas-Some entities require court orders for release of records, or a subpoena signed by a Judge. -> Sometimes you may run into time constraints where an original is not available, it may not have made its way back to your office and you have a deadline - a good rule of thumb is to always make sure you're aware of the deadlines associated with the Subpoenas you're sending out so you don't get stuck in a jam and not have the subpoenaed material for trial.

Evidence Rule 1002

• Photos - Witness needs to have been present or either have taken the photo itself; further, allowing for them to have prior personal knowledge to get around the hearsay rule which we will discuss later. A General Consideration would be to get photos EARLY in criminal or civil trials! If you're using pictures you should ask:
  • If it is clear and identifiable who is in the pictures.
  • Where was the photo taken?
  • Are there any other identifying factors associated with the photo itself? - This can aid in tying a 3rd party to the photo and can really help out when determining if a photo can be authenticated and further admitted into evidence.
• Social Media - Facebook/Text Messages, etc. - There must be an identifier to associate with other parties/information.
  • Example: Screenshot the social media profile and/or any messages in question. Most importantly take a picture of the number and contact information for messages. Also, time and date stamps are very important to remember to keep an eye out for as well.
  • Granted, with social media there is ALWAYS a way to find out what parties are posting online; however, it may be a good idea to advise your clients to be mindful of what they're posting and consider who all they're reaching - making their settings on their respective social media platforms, to private could be quite the "hail Mary". 

Foundation: Evidence must have a proper foundation before it is admissible. It may be wise to look back at the original complaint and even the answer and identify where this would fit. If there is not a foundation supported by proven facts, then your evidence has a hard time solidifying a foundation. If you find yourself in a situation where you're uncertain, the best Evidence Rule to consult is 1002 - Requirement of an original.

Admissibility: Admissibility is arguably the most important factor when dealing with evidence.

Witnesses: Generally, all competent individuals can testify in a court of law. Testimonies from Witnesses whom are either an infant or mentally disabled would not be admissible.

Rule 602 - Lack of personal knowledge
Substantiates the personal knowledge factor previously mentioned, otherwise a witness cannot testify.

Hearsay: Out-of-court statement by someone not testifying in the trial.
Rule 802 states as follows, hearsay is not admissible as provided by statute or by specific rule.
Also, if a party is not testifying at trial - one of the hearsay exceptions must apply for the testimony to be admissible (if issued). Rule 803 &Rule 804

Expert Witnesses: In order to allow for admissibility in a trial, the following things would be needed:

• Curriculum Vitae/Resume
• Official Report

Also, if you're using an expert - you would need to disclose this in Discovery, via interrogatories. If you're using an expert witness for a trial, it's good to keep in mind that they most always have a fee that needs to be satisfied for their services/report - be mindful of this prior to the scheduled court date.

Lastly, issue a subpoena to the expert witness to be in trial, if they're needed there. This is a good way to cover your bases and have them there to further legitimize their findings in the report.

Creating Demonstrative Evidence
Now that, we have covered the factors associated with having something admitted into Evidence, we're now going to discuss how to organize things clients bring to you for trial.

• Blowing Up Photos for Effect - Enlarging photos can be a good display of evidence at a trial. The use of easels and posters could also benefit your case, especially if you have a jury trial.
• Timelines - A brief display of the beginning of the lawsuit to now. Examples: actual visual aids (if the case calls for it) meaning posters. Also, spreadsheets and excel spreadsheets serve to display information in an organized and cohesive way that allows for accurate interpretation of evidence.
• Color Coding Systems - If you have a voluminous set of information and need to organize by type, no better way to do that than by color coding something. Most commonly I find myself using different highlighter colors to demarcate custodial visitation a client may have, its super helpful.
• Using Technology to Display Evidence at Trial - The use of a video deposition may be necessary at a trial, or even a slide show to display photos for a jury or let's say you need to skype with a party not permitted to enter the country. Again, depending on the nature of the case in question, this could be a good use of demonstrative evidence. If using technology is something that would be of good use in your situation, make sure to have an idea of what the court room looks like prior to the date of trial. Where are the outlets? Coordination of technology supplies/TV, making it to the courtroom and having a plan just in case that does not work. Always have a backup plan if you're relying on technology.

Preservation of Evidence/Spoliation

• What is spoliation?
• Disposing of evidence that is/or could be relevant.
• Always send a spoliation letter at the beginning of a case to opposing counsel, advising them not to dispose of evidence.
• Piggybacking off the social media discussion-
• When dealing with potentially incriminating social media posts advise clients that they should:
  • Be mindful of what they're posting and take note of their security settings.
  • Be Smart - Don't Delete= Could result in spoliation!

If you find yourself in a situation where spoliation has occurred, then they're punishable via sanctions imposed by the Court.

Samantha R. Thornton works at Spidell Family Law in Greensboro, North Carolina. She graduated from the University of Kentucky with a bachelor's degree in Political Science and from Wake Forest University School of Law.