Rules of Evidence

Evidence is information or material offered to help determine facts in a judicial proceeding. Evidence may include testimony, documents, official records, messages, screenshots, photographs, audio, video, digital records, physical objects, and demonstrative material.

Evidence is different from argument. A message reading "I took the equipment" may be evidence if properly admitted. Counsel saying that the message proves theft is argument explaining what counsel believes the evidence means.

Admissibility asks whether the court may legally consider evidence. Weight asks how persuasive that evidence should be once admitted.

A witness may provide admissible testimony that ultimately receives little weight because the witness had poor visibility, weak memory, bias, or significant contradictions. Weak evidence is not automatically inadmissible evidence.

Evidence is relevant when it has some tendency to make a fact of consequence more or less probable. If the issue is whether Sergeant Hart entered a restricted room at 2100, video showing Hart entering the room around that time is relevant.

Hart's preferred pizza topping probably is not relevant unless this case has taken an unexpectedly culinary turn. Relevance is usually the beginning of the evidentiary analysis, not necessarily the end.

Authentication asks whether sufficient evidence exists to support a finding that an item is what the proponent claims it is. If Government counsel offers a screenshot and claims it came from the accused's account, the court may ask how that connection has been established.

Authentication may come from witness testimony, metadata, account information, surrounding communications, records, distinctive characteristics, or other supporting circumstances. A screenshot does not authenticate itself merely because someone successfully pressed the screenshot button.

Authenticating an item does not automatically establish that everything contained within it is true. Authentication establishes that the item is what the proponent claims it is.

A genuine message can still contain false information. This distinction becomes important when analyzing hearsay and the ultimate weight of evidence.

Hearsay generally involves an out-of-court statement offered to prove the truth of what the statement asserts. Suppose a witness testifies, "Alex told me yesterday that Brown stole the vehicle," and the statement is offered to prove that Brown actually stole the vehicle.

That presents a hearsay issue because Alex made the statement outside the current testimony and the statement is being offered for its truth. The concept sounds worse than it is once the student learns to ask why the statement is being offered.

Not every out-of-court statement is hearsay. Suppose a commander tells someone, "Leave the building immediately," and the issue is whether the person received an instruction to leave.

The statement may be offered to prove that the command was communicated, not to prove the truth of some factual proposition contained in the command. The purpose for which the statement is offered therefore matters. Students should resist the urge to shout "hearsay" every time a witness mentions something another person said.

Even when a statement meets the general definition of hearsay, another rule may permit its admission. A good evidentiary analysis therefore asks two questions.

First, is the statement hearsay? Second, if it is hearsay, does an exception, exclusion, or other rule permit it? Stopping after the first question is incomplete analysis.

Witnesses generally testify about matters they personally perceived. A witness may testify that the witness saw a door open if the witness actually observed the event.

A witness may have difficulty testifying that the accused opened the door because the accused intended to destroy evidence unless some factual basis supports knowledge of that intent. Credibility is a separate question concerning whether and how strongly the witness should be believed. Factors such as opportunity to observe, memory, consistency, bias, motive, and contradictions may affect credibility.

Privilege protects certain communications or information from compelled disclosure or evidentiary use when the applicable requirements are satisfied. Attorney-client privilege is an important example because legal representation depends upon protected communication between counsel and client.

Privilege and confidentiality are related but different concepts. Confidentiality governs the lawyer's professional duty concerning disclosure, while privilege concerns whether protected information may be compelled or used in a proceeding.

Modern legal practice relies heavily upon digital material. For electronically stored information, an accurate readable output may qualify as an original under the governing Rules.

Duplicates may also be acceptable when they accurately reproduce the original, subject to applicable objections. A genuine export of a digital record is very different from somebody manually retyping what they vaguely remember the record saying.