An Overview of the Types of Evidence in Law
These Kinds of Evidence Serve as Proof at Trial
Only one thing is sure for plaintiffs in civil litigation, including car accident cases, employment law actions, and workers comp claims: You must produce and present evidence to get monetary damages.
The presentation of evidence is the core of your case. Judges and juries deciding factual disagreements in cases will rely on the words, documents, photographs, videos, demonstrations, and things presented at trial. Collectively these items are evidence.
There are four types of evidence used in litigation: Testimonial Evidence, Documentary Evidence, Demonstrative Evidence, and Real Evidence.
This article’s purpose is to explain the evidence types and how to lay the foundation for their admissibility at a workers comp hearing, a Social Security Disability hearing before an Administrative Law Judge (ALJ), or a bench or jury trial. The stronger your evidence, the more likely it is that you will meet your burden of proof or negotiate a top-dollar personal injury settlement.
Keep reading to learn more about evidence law, with a focus on proof in tort claims.
If you have questions about your workers compensation, auto accident, back injury, or traumatic brain injury (concussion or post-concussive syndrome) case and would like a free consultation with a top-rated personal injury attorney, call me: (804) 251-1620 or (757) 810-5614. See why other attorneys, injured workers, and accident victims have voted me one of the best lawyers in Virginia – and what I can do for you and your family.
What is Evidence?
You file a legal complaint (“lawsuit”) when someone else’s actions or inaction cause you harm. The complaint alleges facts that allow you to recover monetary damages under available causes of action, such as negligence, intentional torts (assault and battery), defamation, or breach of contract.
It’s rare for the person filing a lawsuit and the defendant named in the complaint to agree on the facts. When there is a factual disagreement, judges and juries must decide who is telling the truth.
A lawyer’s role is to prove that their client’s factual allegations are true. In most negligence and tort claims, you only need to show that your position is more likely than not the truth.
Evidence is something that helps prove or disprove an alleged fact in litigation – what happened in the past and what is likely to happen in the future because of the past event. It is your lawyer’s tool for winning your case.
Who Investigates and Collects Evidence?
The person asking the court for relief and damages has the burden of proof and must produce evidence.
In criminal cases, the prosecutor has the burden of proof.
In civil cases, the plaintiff (accident victim) must produce evidence.
And in workers comp, the claimant (injured worker) bears the burden.
There are exceptions to these general rules. For example, the employer has the burden of producing evidence to stop workers comp benefits.
And a defendant has a better chance of winning the case if they collect evidence – even if they do not have the burden of proof.
What is Admissible Evidence?
Strict rules govern the kinds of evidence the court may admit at trial, and how that evidence is presented.
The court will admit evidence if it is relevant, material, and competent, and not excluded by the evidence rules. Irrelevant evidence is never admissible.
Relevant Evidence
Relevancy is the idea that a piece of evidence is admissible only if connected to the case. It’s the easiest admissibility test to meet.
Evidence is relevant if it tends to prove or persuade the judge or jury that some fact is true or untrue. Federal Rule of Evidence 401 defines relevant evidence as evidence that “has any tendency to make a fact more or less probable than it would be without the evidence.”
Relevant evidence may include minor issues of the case, such as background information for the parties and witnesses (address, age, marital status, etc.), and core issues such as what party ran a red light in an auto accident.
Material Evidence
Federal Rule of Evidence 401 also includes a materiality standard for admissible evidence. It states that “the fact” must be “of consequence in determining the action.”
The concepts of relevancy and materiality are similar and often confused, but there is a distinction.
Evidence is material only if it relates to a specific fact or question in dispute.
For example, an auto insurance company may accept liability but dispute the damages amount claimed. At trial, the insurer may object that evidence addressing liability is immaterial.
Competent Evidence
The court may refuse to admit relevant and material evidence if a specific rule, regulation, or statute excludes the evidence.
This article doesn’t address each of these exclusionary rules for evidence. But you should know that they exist and can impact what evidence you offer at trial.
Who Decides What Evidence is Admissible: The Judge or the Jury?
The judge decides the admissibility of evidence if the opposing party objects. This includes whether an expert witness is qualified or a privilege exists.
The fact finder, which may be the judge, jury, or deputy commissioner depending on the case and the type of trial, determines witnesses’ credibility and how much weight to give to each witnesses’ observations or opinions.
Direct vs. Circumstantial Evidence
Courtroom evidence is either direct or circumstantial.
Direct evidence comes from a witness who experienced it directly (eyewitness testimony) or a document or item that speaks for itself (damaged car, medical record, etc.).
Circumstantial evidence, also called indirect evidence, is the testimony, documents, or videos that allow the fact finder to conclude that some other fact or event happened.
What are the Four Types of Evidence?
You can use four types of evidence when communicating information to the judge or jury at trial: Testimonial Proof, Documentary Evidence, Demonstrative Evidence, and Real Evidence.
Let’s examine each type.
Testimonial Evidence from the Parties and Lay and Expert Witnesses
Testimony is the most common form of evidence offered in the legal system. It involves a person taking an oath or affirmation under penalty of perjury before answering questions about matters they observed or know.
Testimony’s purpose is to prove the truth of the matter asserted.
The parties to a lawsuit and lay and expert witnesses can give testimony.
An expert witness is a person with specialized knowledge, skill, and experience in scientific, technical, or professional issues relevant to the case. Usually an expert witness does not testify about facts. Instead, an expert witness gives opinions and draws conclusions based on other witnesses’ observations, documentary evidence, and physical evidence. Expert witnesses are necessary for almost all medical malpractice lawsuits.
A lay witness is any person who testifies at trial but not as an expert witness. They must have personal knowledge of the matter to give fact testimony.
Testimony may be oral or written. At trial, testimony is given when a person takes the witness stand and answers questions from the attorneys and judge. But sometimes testimony is admitted into evidence by reading a person’s deposition transcript into the trial record or allowing the judge or jury to view a video deposition.
Witnesses in workers comp and motor vehicle crash cases often include:
- You (the injured worker or accident victim)
- The defendant
- Co-workers
- Friends and family members
- Medical providers (primary care physician, orthopedic surgeon, therapist, pain management doctor, chiropractor, etc.)
- Accident reconstruction experts
- Engineers
- Safety consultants
- Vocational experts
- Eyewitnesses to the accident
- Human Resources representatives, if your wages or the reason for termination are in question.
- Economists
Two of your lawyer’s most important jobs are: (1) to present your case in a way that boosts your witnesses’ credibility and (2) to diminish or neutralize the opposing party’s witnesses through cross-examination. Efforts to discredit a witness’s credibility are called “impeachment.”
Your lawyer achieves these goals through carefully-crafted questions, though the questions are not admissible evidence.
You can use a witness’s trial testimony to authenticate and lay the foundation for other types of evidence.
Documentary Evidence
You can offer documents and paper to prove your case at trial.
Standard documents used in civil litigation and workers comp include:
- Bills
- Business records
- Claim adjuster notes
- Commercial paper
- Contracts
- Diary pages
- Emails
- Hard copies of electronic documents and files
- Journal pages, especially those referencing symptoms
- Letters
- Medical bills
- Medical records and reports
- Newspapers
- Printouts of text messages
- Public records
- Treating physician reports and questionnaire answers
- Treatises
- Website printouts
Some documents are self-authenticating, meaning the court will admit them into evidence if offered.
But you must authenticate most other documents before the court finds them admissible. Authentication requires that you establish that the record is what you say it is. Often this is done through witness testimony establishing knowledge of the document or the creation of it.
Real Evidence (Physical Evidence)
Real evidence is a physical object that is part of the legal dispute. This type of evidence is also called physical evidence or material evidence.
It is the actual object, not a photograph, model, or replica of the item. A photo or replication would be demonstrative evidence.
The judge or jury can inspect physical evidence themselves.
In criminal law, examples of real evidence include knives or guns used in crimes or clothing recovered from the crime scene.
In personal injury, product liability, and workers compensation law, examples of real evidence include the defective product or the safety device alleged to have failed.
I recommend asking the other party to stipulate the authenticity and admissibility of the real evidence you want to use at the trial. You can do this through interrogatories and requests for admissions.
Suppose the other party in your case will not stipulate to the authenticity and admissibility of the real evidence you want to use. For example, a defendant product manufacturer may allege that you or your expert modified the object in question. In that case, you will need to establish the chain of custody for the item.
Demonstrative Evidence
Demonstrative evidence is the name for non-verbal presentations that appeal to the fact finder’s senses and illustrate a witness’s oral testimony.
The following items are forms of Demonstrative Evidence:
- Accident reconstruction animation
- Audio and tape recordings
- Charts
- Computer animations
- Day-in-the-life videos
- Diagrams
- Graphs
- In-court demonstrations. For example, showing the problems you have with limping or standing on your own.
- In-court exhibitions. For example, showing a scar in burn injury cases or a missing limb in amputation injury claims.
- Maps
- Models
- Photographs that are a fair and accurate representation
- Trips to the accident scene
Demonstrative evidence is limited only by your creativity.
More Questions About the Types of Evidence? Talk to a Top-Rated Attorney
Gathering, developing, and presenting evidence so that the court admits it is challenging. But with a good injury lawyer to identify the testimony, documents, and real and demonstrative evidence you need and lay the proper foundation at trial, you increase your likelihood of success.
Call now for a free consultation: (804) 251-1620 or (757) 810-5614. My firm is ready to help you recover.
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