EVIDENCE

in law, any of the material items or assertions of fact that may be submitted to a competent tribunal as a means of ascertaining the truth of any alleged matter of fact under investigation before it. The prevailing methods of resolving disputed issues of fact generally involve persuading some human agency, such as a judge or jury, that a fact asserted is either true or not true. Historically, this has not always been the case. For instance, in pre-Norman England and in other places at certain times, issues were framed in such a way that they could be submitted to the decision of a supernatural agency. Methods for doing this included trial by ordeal, battle, or swearing an oath. Later, two basic systems of acquiring and presenting evidence emerged. One, the inquisitorial system, is characterized by the active role of the judge, who orders searches for evidence, examines documents, and questions witnesses. This system is generally used in continental European criminal proceedings and, in Russia and other former Soviet republics, in civil proceedings as well. The second system, the accusatorial or adversary system, is characterized by the relative passivity of the judge; it is the parties and attorneys who are responsible for finding and presenting evidence. This system is used in common-law countries in civil and criminal cases. In continental civil cases a mixed system is used. The jury system, which began to emerge in the 13th century, strongly affected the law of evidence; the law of evidence has been called the child of the jury. To protect due process and to prevent the jury that hears the evidence from being misled, an extensive body of rules has sprung up regarding the handling of evidence. The result has been to introduce a formalism into the Anglo-American law of evidence. The classic types of evidence in Anglo-American law are three: tangible physical objects (referred to as real, demonstrative, or objective evidence), documents, and the testimony of witnesses. Common forms of real evidence include the fatal weapon, articles of clothing worn by the accused, samples of related material, and the like. These may be employed as evidence only when properly identified and shown to be relevant and genuine. Objects may also be admitted into court that are less directly connected with the matter, such as blueprints, models, and photographs. Documentary evidence is substantially similar to real evidence in that it consists of tangible physical articles. Such evidence, considered more reliable than the evidence supplied by witnesses, is subject to special rules. The great bulk of evidence received at a trial, however, is in the form of verbal statements of witnesses. A substantial body of law has consequently developed to regulate this process. Unlike continental European practice, in which the term witness refers only to those with firsthand knowledge of the facts, Anglo-American usage applies it to anyone who gives testimony, including experts and those who identify real and documentary evidence. Almost anyone can be a witness in Anglo-American law, including children and convicted felons; in continental European proceedings, experts and interested parties are not generally considered competent witnesses. Witnesses who are within the jurisdiction of the court may be summoned by subpoena and compelled to attend and answer questions under threat of fine or imprisonment; attendance is excused only in certain extraordinary cases. Testimony is normally given in response to questions directed to the witness by the lawyers. Direct examination is the questioning by the party who called the witness. The direct examiner is usually prohibited from asking leading questions, those that suggest the answer and merely require confirmation. The witness's firsthand knowledge of the facts is to be given rather than an opinion or conclusion drawn from other than firsthand experience (hearsay). A category of witnesses not subject to this restriction is that of experts, who are called for two purposesto obtain firsthand knowledge of the sort that only specialists can perceive and to express opinions on matters so technical that the judge or jury would have difficulty understanding them without the aid of expert testimony. In cross-examination, questions are addressed to the witness by the lawyers of the other party. Under the English system, the witness may be cross-examined on any subject that properly pertains to the case being tried. In U.S. federal courts and in a majority of state courts, inquiry on cross-examination is restricted to subject matter that has been broached on direct examination of the witness. Impeachment is the process of discrediting testimony by showing facts that tend to reflect adversely upon the veracity of the witness's testimony. English and American law allow some privileges for excusing a witness from being compelled to testify. One of the most significant and fundamental is that against self-incrimination. This includes both the right of a witness to decline to answer questions that will expose him to punishment for the crime and the right of the accused to refuse to give any evidence at all. A confession obtained from an accused may not be used to prove guilt unless it was voluntarily given. Spouses are often excused from giving testimony. Other privileges are accorded for professional confidences; attorneys must refuse to testify about confidential communications with their clients (unless this right is waived by the client), and clergymen are accorded a similar privilege to revelations given in confession in the sacrament of penance. The extent of privileges accorded journalists, if any, is a matter not yet settled. in law, any of the material items or assertions of fact that may be submitted to a competent tribunal as a means of ascertaining the truth of any alleged matter of fact under investigation before it. To the end that court decisions are to be based on truth founded on evidence, a primary duty of courts is to conduct proper proceedings so as to hear and consider evidence. The so-called law of evidence is made up largely of procedural regulations concerning the proof and presentation of facts, whether involving the testimony of witnesses, the presentation of documents or physical objects, or the assertion of a foreign law. The many rules of evidence that have evolved under different legal systems have, in the main, been founded on experience and shaped by varying legal requirements of what constitutes admissible and sufficient proof. Although evidence, in this sense, has both legal and technical characteristics, judicial evidence has always been a human rather than a technical problem. During different periods and at different cultural stages, problems concerning evidence have been resolved by widely different methods. Since the means of acquiring evidence are clearly variable and delimited, they can result only in a degree of probability and not in an absolute truth in the philosophical sense. In common-law countries, civil cases require only preponderant probability and criminal cases, probability beyond reasonable doubt. In civil-law countries so much probability is required that reasonable doubts are excluded. Additional reading Texts outlining U.S. practice include C.T. McCormick, Law of Evidence (1954); and Graham C. Lilly, An Introduction to the Law of Evidence, 2nd ed. (1987). Works treating evidence law in England include G.D. Nokes, An Introduction to Evidence, 4th ed. (1967); and Rupert Cross, Evidence, 5th ed. (1979). For a comparative study of the laws of evidence in Germany, England, France, Italy, Spain, Sweden, and the former Soviet Union, see Heinrich Nagel, Die Grundzge des Beweisrechts im europischen Zivilprozess (1967).For information on the law of evidence in Argentina, see Lino Enrique Palacio, Manual de derecho procesal civil, 7th ed. updated (1987); in Austria, Hans W. Fasching, Lehrbuch des sterreichischen Zivilprozessrechts (1984); in Brazil, Arruda Alvim, Manual de Direito Processual Civil, vol. l, Parte Geral, 2nd ed. rev. (1986); in France, Peter E. Herzog and Martha Weser, Civil Procedure in France (1968); in Mexico, Niceto Alcal-Zamora Y Castillo, Estudios procesales (1975); in Spain, Vctor Fairn Guilln, Estudios de derecho procesal civil, penal y constitucional (1983); in Sweden, Per Olof Ekelf, Rttegng, 4th ed., 5 vol. (197480), with vol. 1 and 5 also available in a 6th ed. (1980, 1987); and in Germany, Leo Rosenberg and Karl Heinz Schwab, Zivilprozessrecht, 14th rev. ed. (1986). Heinrich Nagel