Evidently the Right Stuff

Q: How is evidence introduced at trial?

A: In our ongoing, and ever interrupted, series on the criminal trial, we have gone through arrest, grand jury, indictment, voire dire, and even opening statements. The trial has begun, but now what?

Much can be said about the topic of evidence. There is direct evidence, circumstantial evidence, hearsay evidence (not all of which is forbidden at trial), character evidence, etc. But we are concerned with the question of precisely how that evidence makes it into the trial process.

To answer the question, we need to back up a step. Recall from our discussion of the aptly named, “pre-trial period” that one of the things done during that time was the exchange of motions. Typically, the aim of these motions is to permit or exclude various pieces of evidence. One of my favorite motions is called, the Motion in Limine (prounounced, “lieh-mn-ee”). Literally, that is a motion “at the outset.”

I will probably catch it from some of my colleagues of the Bar for being so mundane with this explanation, but a Motion in Limine is essentially a catch-all, last minute, just-before-the-gavel-slams motion that does not fit any other category of motions. You see, during the pre-trial period, there are dates certain by which parties are to make various types of motions. Attorneys can file “Motions to Suppress Evidence” in order to prevent evidence from gaining admission at trial. A “Motion to Compel” asks the court to….well, compel one party to give the other a particular piece of information or evidence.

But, Motions in Limine are typically made late in the game, just before trial starts, and have a number of issues that need to be addressed before a jury starts hearing things that might corrupt their unprejudiced minds. A Motion in Limine can be made to press or guard against the admission of a particular piece of evidence.

Once the Motions in Limine are decided, evidence comes in from two main sources: testimony and “stuff.” Testimonial evidence is exactly what it sounds like. Someone is sworn to tell the truth, the whole truth, and nothing but the truth and asked a series of questions designed to elicit the evidence that the questioner wants relayed to the jury.

The highly technical term of art, “stuff” I have made up to describe evidence in the form of documents, materials, physical objects (bullets, axes, clothing, etc.), or photographs. Unfortunately, “stuff” evidence is not typically self-authenticating. Thus, the use of testimonial evidence to authenticate (i.e., vouch that the thing is what it purports to be) the “stuff” must be used.

To explain how this is done would be to reveal one of the tricks of the trade we lawyers learn in law school. Since I do not want to take business away from our nation’s law schools, suffice to say, an attorney asks a variety of questions about the “stuff,” moves for its admission, and, if within the parameters of the super secret Rules of Evidence (which are available for your review at your local public law library), the court will admit the “stuff” into evidence.

Once the evidence is introduced, the jury can consider it – both during the trial, as well as when deliberating. That is all that they can consider. Now you can probably see why attorneys work so diligently to ensure that just the right “stuff” is presented to the jury.

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Copyright Jeremiah G. Dys 2007. May not be used absent express, written permission. Please contact the author for permission to reprint.