Common Misconceptions About Evidence In Court

Legal drama has fascinated the general public for pretty much as long as codified legal systems have existed. The earliest courtroom drama was The Eumenides, the third in a trilogy of plays written by Greek playwright Aeschylus in the fifth century BC. And for those who wanted something more grounded in reality than a fictional trial involving gods, public trials were also common in ancient times. These trials were a great form of entertainment, often involving the kind of theatrics and monologues one might expect from a modern day legal drama.

However, as popular a form of entertainment as trials have been, modern day movies and TV shows get a lot wrong, particularly when it comes to the rules and importance of various types of evidence. Taking creative liberties for the sake of entertainment isn’t necessarily a bad thing, especially since anyone who has ever sat for jury duty can tell you just how boring a real trial is, but it has led to some rather pervasive misconceptions and myths regarding evidence in court that may impact a juror’s interpretations of evidence in an actual trial.

Circumstantial Evidence Is Weak

One of the most common things you might hear a TV defense lawyer say is that the case against their client is entirely circumstantial. The obvious implication in that statement is that circumstantial evidence is weak, far weaker than direct evidence. In reality, however, the law draws no distinction between direct and circumstantial evidence in terms of importance. Either type is sufficient for a conviction, and for the majority of cases there won’t be any direct evidence.

When TV dramas play up the circumstantial nature of evidence, they neglect to mention just how narrow the definition for direct evidence actually is. Direct evidence is evidence that directly links to material facts of a crime, which is limited to eyewitness accounts, recordings of the crime taking place, and confessions from the defendant. Evidence that requires some sort of inference to link it to the crime is circumstantial evidence, and this encompasses basically everything you would ever see at a trial.

To illustrate the difference, imagine a person who was mugged in an alley. If a police officer happened to be sitting in their cruiser and saw the crime take place, their testimony about witnessing the crime would be direct evidence.

Now instead of actually seeing the mugging, imagine that same officer was notified about a crime in progress and rolled up on the location in question. The officer saw a suspicious person running out of the alley, and upon stopping that person they were found to have the victim’s wallet in their pocket.

Even though that would still look really bad, the officer’s testimony in this case would only be circumstantial, as it requires some sort of inference to link it to the crime of robbery. It’s a very obvious inference to make under the circumstances, one that most people would automatically make without even thinking about it, but it is still an inference.

Given that most criminals try not to commit crimes while in direct view of witnesses, it’s no wonder that the majority of cases would be built entirely on circumstantial evidence. But again, there is no legal distinction claiming that direct evidence is better or more important. In fact, in modern times it’s closer to being the opposite.

While a jury may find eyewitness testimony and confessions to be understandably compelling, it has become increasingly clear that eyewitnesses are frequently unreliable and that accused individuals may give up false confessions after marathon interrogation sessions, sometimes of questionable legality. That leaves these types of direct evidence open to be challenged by the defense, offering up reasonable doubt as to the veracity of a confession or a witness’s claims.

On the other hand, DNA has often been regarded as the gold standard when it comes to evidence, with DNA evidence being used to convict or exonerate countless people since its introduction as evidence in the 1980s. But DNA is always circumstantial evidence.

Finding a person’s DNA proves only that a person was in a specific location. It doesn’t prove when they were there, for how long, or what they were doing. Understanding DNA as evidence always requires some kind of inference to be made, yet it remains extremely strong evidence. Of course, this does vary quite a bit depending on the type of DNA and exactly where it’s found.

For example, if the DNA is found in the form of semen inside a victim, there’s very little that needs to be inferred, and not much room for establishing reasonable doubt. However, if the DNA is merely touch DNA on a person’s pants, well that requires a lot more inference, as it’s easy for touch DNA to be transferred to another person or surface in a number of innocuous ways.

But regardless of the intricacies of DNA evidence, in general it is still considered among the strongest evidence there is, despite being circumstantial. And unless a person commits a crime in Times Square in the middle of the day, it’s unlikely there will even be direct evidence in most cases.

Hearsay is Never Admissible in Court

On the surface, hearsay should be straightforward. It is defined as an out-of-court statement offered to prove the truth of the matter asserted. This most commonly refers to a witness testifying as to what another person said, because there are few reasons why you would ask a witness to quote their own previous out of court statements. And it makes sense that this sort of hearsay would be inadmissible, as the person who made the statement is not there to be cross-examined.

Quoting other people is generally how hearsay is depicted in media, as it is the most straightforward version of hearsay for lay audiences to understand. A witness might say something like, “Mr. Strickland told me he saw Hank at the propane store”, which would immediately be followed by an objection for being hearsay.

However, hearsay covers a lot more than just witnesses quoting other people, and often times it actually is admissible in court. In fact, there are so many exceptions to the hearsay rule that legal scholars often say “the exceptions swallow the rule”, meaning that the majority of hearsay is allowed at trial.

In a lot of cases, this is both sensible and necessary. For example, a statement someone made under oath at something like a previous trial or deposition meets the definition of hearsay, as the statements were made out of court, but these statements are typically permitted. These sorts of past statements would come up if a witness was either unavailable to testify again or was saying something in court that directly contradicted their previous sworn statements.

An audio recording of a witness or the defendant would also be defined as hearsay, as these were out of court statements, but such evidence usually falls under an exception, assuming it can be proven the recording was authentic and not tampered with or edited. It certainly makes sense that such an exception would exist, but this is just the tip of the iceberg.

There’s also the matter of the specific wording of the definition, particularly the part where the statement is being offered to prove the truth of the matter asserted. This means that the exact same statement may or may not be disallowed as hearsay depending on the specific context in which it came up.

For example, let’s say a witness at trial said, “Billy told me at recess that he knows there’s a secret code to unlock Sonic the Hedgehog in Super Mario Bros. because his dad works at Nintendo.” If this statement was being made in court to try to prove that Sonic was indeed an unlockable character in Mario Bros, it would be considered inadmissible hearsay. However, if the statement was being made to demonstrate that Billy was a lying, delusional little shit, that would be totally fine.

The list of exceptions to the hearsay rule is seemingly endless, with dozens of broad categories of exceptions. There are far too many to cover all of them, so we’ll just look at one more. Much like audio recordings, records and documents are also considered hearsay. There are many, many exceptions to this, most notably an exception for statements made in ancient documents. Under this exception, any document that is over 20 years old is considered “ancient” and thus is exempt from hearsay status.

So while media has led most people to believe that hearsay is inadmissible in courts, and in theory it is, in practice there are so many exceptions to the rule that hearsay almost always is admissible.

The Prosecution Needs to Share All Evidence Before Trial

If there’s one trope that writers love to use in courtroom dramas, it’s the introduction of a surprise witness or surprise piece of evidence. This tactic takes opposing counsel completely by surprise, leaving them totally unprepared for what is about to unfold in the courtroom. But unless you’re Alex Jones, these types of “Perry Mason moments” don’t happen in real courtrooms thanks to the rules of discovery, the Brady doctrine, and the rules surrounding evidence in general.

Evidence doesn’t show up at trial as a surprise, it has to be shared beforehand during all the pretrial stuff so that both sides have the opportunity to examine it. Not only does everything the lawyers intend to use at trial need to be presented as evidence beforehand, but the Brady rule also requires the prosecution to turn over any evidence that would help the defense, even if they wouldn’t use it at trial themselves.

That’s not just limited to things that could help prove the defendant’s innocence, either. The prosecution also has to turn over any evidence that might justify the defendant receiving a less severe sentence, even if that evidence isn’t exculpatory.

That much is all true, and it’s the part that most people are aware of. And while that’s better than people believing trials are like a carnival funhouse with surprises around every corner, it has led to a different misconception: that the prosecution can never use evidence that wasn’t shared with the defense before trial. Because they absolutely can, given the right circumstances.

The rules say that any evidence intended to be used during the trial needs to be shared during discovery, but what about evidence that the prosecution doesn’t intend to use at trial? Or at least doesn’t necessarily intend to use. This is where rebuttal evidence comes in.

Let’s say that the prosecution has evidence or a witness that they don’t plan to introduce as part of their strategy, but that would be helpful in refuting a specific argument that might be presented by the defense. In the event that the defense does open that door, the prosecution could then offer rebuttal evidence without it having been disclosed as part of discovery.

Of course, this evidence can only be admitted at the discretion of the judge, which is not a guarantee. Some judges are more amenable to the admission of rebuttal evidence than others, and even if the prosecution has a favourable judge, that judge may still reject the evidence if they feel the prosecution should have reasonably assumed they would be making this rebuttal during the trial. If that’s the case, the evidence still should have been presented during discovery; the prosecution can’t just hold back evidence for a rebuttal that they fully intended to make when they walked into the courtroom.

So while it isn’t common, it is possible for the prosecution to present evidence that wasn’t offered up during discovery. But it usually requires the defense to make an argument that the prosecution genuinely wasn’t expecting.

Pseudoscience Is Not Allowed In Court

We all know that the best way to tell if someone is a witch is to bind their arms and legs and toss them into a pond or lake. If the person floats, then they are a witch and should be executed. If they sink and drown, well they were an innocent soul so they’re with God now.

Obviously that’s the sort of ridiculous nonsense that people assume would never fly in a court of law today. In most cases polygraph tests are no longer admissible in court, and the increasing public awareness that polygraphs are just inadmissible junk science has led to a common misconception that pseudoscience masquerading as evidence is no longer allowed in courts at all. Unfortunately, this is far from the case.

There are actually a lot of things that are admissible in court despite being regarded by experts as pseudoscience. A common one is forensic handwriting analysis. This is used to determine whether a signature or other piece of writing can be definitively linked to a specific individual by careful analysis of the handwriting.

While this has long been used in courts, even in the best of times it was considered by many experts to be subjective and unscientific. And thanks to the proliferation of computers, we are no longer in the best of times. People’s handwriting has gotten worse and less consistent thanks to the increased amount of time we all spend typing, so forensic handwriting analysis has become less useful than ever. Fortunately it has also started to be disallowed as evidence as a result.

Another alleged forensic science that frequently appears in courtrooms is bite mark analysis. The idea is pretty straightforward: if a victim suffered a bite from another person, the resulting bite mark can be used to identify their attacker. This has been used in court for over 100 years, and people have even received the death penalty based on no evidence beyond the testimony of bite mark analysis experts.

But as it turns out, there is almost no scientific basis for this at all. To start, the analysis operates on the assumption that bite marks are a unique identifier, like fingerprints or DNA. Is that actually the case? Well we don’t really know. There’s not a lot of research into that, and much of the research used mediums like plaster of Paris rather than human skin, so the results wouldn’t accurately translate.

Of course, even if we assume that everyone’s bite mark pattern is unique, there are still a lot of problems with bite mark analysis. Most notably, biting a person doesn’t result in a perfect cast of the biter’s teeth. Our bodies aren’t designed to allow people to easily leave physical impressions like that, so whatever bite marks are present typically represent an incomplete picture.

Two people could have distinctly different teeth with a number of identifiable attributes, but from a shallow bite it may be impossible to tell which set of teeth left the mark. And that’s all before taking into account how skin might start to heal or reshape after a bite is initially left in the skin, further muddying the results.

If that wasn’t problematic enough, the process of analyzing bite marks is once again completely subjective, rather than scientific. There are different methods for trying to match teeth to bite marks, with no agreed upon standard. Not only does this result in inconsistent results, but studies have shown that supposed experts of bite mark analysis can’t even tell if a bite was made by a human or animal with any meaningful degree of accuracy. Assuming it’s an animal with a roughly human size mouth, that is; nobody has confused a shark bite with something that was done by a human.

That just brings us to bloodstain pattern analysis, better known as blood-spatter analysis. Blood-spatter analysis has been used in courts since the 1950s, when it was first used in a trial in California to argue that the victim’s killer had to have been left-handed, unlike the defendant. But the study goes back much further than that, all the way back to the 1880s.

Courts historically held that blood-spatter experts weren’t admissible in court because they provided no information the jury couldn’t see with their own eyes, but the admission of an expert witness in the aforementioned trial changed that, and the use of blood-spatter experts spread through courts like wildfire. It even became so popular that blood-spatter analysis was the entire premise of the hit series Dexter. Well, that and all the people Dexter killed.

However, while the analysis looks incredibly intricate and scientific, and indeed the collection of data is, the interpretation of that data is not. Like the other forensic sciences we mentioned, blood-spatter analysis is extremely subjective, and many of the core tenets of the discipline remain untested.

Over the past few decades there have been multiple research papers published, including one funded by the Department of Justice, and these studies universally found that the conclusions drawn by experts regarding the same evidence were inconsistent and contradictory.

The credentials of many of these supposed experts were called into question as well. While many may have degrees in forensics, biology, or related fields, those already involved in law enforcement are often able to become considered blood-spatter experts by taking a single 40 hour course. So it would take a person over twice as long to watch all eight seasons of Dexter as it would for them to become qualified for his job as a scientific expert.

Key Takeaways

• Circumstantial evidence is not inherently weak; it is often crucial in criminal cases.
• Hearsay evidence is often admissible in court due to numerous exceptions to the rule.
• The prosecution must share most evidence with the defense before trial, but rebuttal evidence can be introduced under specific conditions.
• Pseudoscience, such as forensic handwriting analysis and bite mark analysis, is still sometimes used in court despite its questionable reliability.
• Direct evidence, like eyewitness testimony, can be unreliable and is often challenged in court.

Sources

• Original Side Projects video: Common Misconceptions About Evidence In Court

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