Evidence Frequently Asked Questions


What is proof beyond a "reasonable doubt"?

The courts have defined it as proof so compelling or convincing that you would rely on it to make the most important of life's decisions.

Sidebar: If you are on a criminal jury, you may or may not be given a definition of "reasonable doubt." The court is not under an obligation to give the definition and may refuse to do so even if the jury requests one.

If my son is a gang member, will that be admissible in his trial for theft?

Maybe. If the gang is known in the area, its members have been arrested in the past for theft, thefts are part of the gang's pattern and initiation practices, then your son's affiliation with a gang will likely be admitted. However, to convince the judge to allow the evidence, the prosecution must argue that the motive for his theft was "gang-related."

A defendant made numerous violent threats against city officials and police officers prior to his arrest for drug possession. Why will the jury not hear about the threats during his trial?

Because the threats are not relevant to a trial for drug possession. If this person were also charged with threatening government officials, the threats would be admissible. Evidence of the defendant's past acts not related to criminal drug activity would only tend to prejudice the jury against him.

Why are the actions that my husband took after he allegedly committed a crime allowed into evidence?

The defendant's actions after a criminal act may tend to show a "consciousness of guilt" or a guilty mental state. The most infamous examples are murder-suicide crimes where the killer commits suicide after murdering his victim. This type of evidence is circumstantial, but courts have found it has a direct bearing on determining whether the defendant committed the crime. If your husband's actions tend to show a guilty mind, the court will admit the evidence.

Sidebar: Acts that show a guilty conscience include:

  • fleeing the scene;
  • cleaning up or throwing away evidence;
  • changing your appearance;
  • refusing to cooperate with a police investigation; and
  • threatening possible witnesses.

My son was arrested and offered the officer money to let him out of the squad car. Why is this evidence allowed in his criminal trial for assaulting his roommate?

Attempts to bribe or "cut a deal" with an arresting officer tend to show a guilty mind or conscience on the part of the defendant.

A defendant's conduct and statements at the time of an arrest are admissible in a trial. The jury is allowed to hear testimony concerning all the circumstances surrounding an arrest. For example, resisting arrest, yelling obscenities at the arresting officer and trying to get rid of items from pockets is evidence that will be weighed by the jury in a purse-snatching trial.

Are my prior criminal acts admissible in a subsequent unrelated trial?

No. The Federal Rules of Criminal Procedure require the exclusion of evidence that unfairly prejudices the jury against you or confuses and misleads them, even if that evidence is relevant to the case. Evidence of prior crimes is highly prejudicial. When evidence is described as "prejudicial," it means that it causes great disadvantage or harm, such as confusing or misleading the jury.

Courts have held that evidence of prior bad acts may lead to an improper jury verdict. That type of evidence could convince a jury that the odds are higher that the defendant committed the present crime, since he committed the prior crimes. Furthermore, the jury might decide that a conviction for the present crime will stop a defendant from committing other bad acts.

I am a victim of a crime for which the defendant is on trial. Can the prosecution present evidence to the jury that the defendant has victimized other people?

No. The prosecution is not permitted to present evidence that shows a defendant is a "bad person" or has a propensity for committing crime.

However, this rule has exceptions. Evidence of prior bad acts is admissible to show a pattern or course of conduct if the acts are not too remote in time. For example, evidence showing the existence of prior victims is commonly admitted in sexual molestation cases where the defendant may have had several victims over the course of years. The judge must decide if the evidence shows the:

  • defendant's motive;
  • defendant's intent;
  • absence of a mistake or accident;
  • pattern of conduct; or
  • identity of the defendant.

Can evidence of a defendant's good character be introduced at his criminal trial?

Yes. Character evidence is admissible since it tends to strengthen the defendant's constitutional right to a presumption of innocence.

Sidebar: The defendant's failure to offer character evidence of his good traits cannot be brought to the jury's attention by the prosecution. The omission of character evidence does not tend to prove the defendant committed the crime.

Can the defendant's church activities, community organization memberships and regular volunteering be introduced as evidence at her trial?

Yes, if it is relevant to a pertinent character trait concerning the crime she committed. Pertinent character traits include a nonviolent nature and a propensity to tell the truth.

Can the defense offer evidence that the defendant's fingerprints were not found at the scene of the crime?

Yes. Evidence that shows the absence of an element of the crime, such as the defendant not being present at the scene, is admissible. However, the prosecution can explain "negative evidence" away; for example, perhaps the defendant was wearing gloves when he committed the crime.

Are gruesome and shocking photographs so prejudicial to a defendant that they will be inadmissible?

Not necessarily. Courts are lenient with crime scene photographs since they aid the jury in understanding the victim's injuries and the location of the criminal act. Additionally, photographs of the victim during hospitalization may be admitted to show the extent of his injuries.

Courts are much more cautious in admitting autopsy photographs since those photos depict more than the injuries inflicted as a result of the crime.

My attorney objected to some inflammatory statements that a prosecution witness made on the stand as "prejudicial and inadmissible." The judge sustained the objection, but the jury heard the remarks. Do I get a mistrial?

No. When the jury hears evidence that is inadmissible, the court can correct or cure the error by "admonishing" or instructing the jurors to disregard that evidence and "striking" the testimony. There is a presumption that the admonishment almost always cures the error, making mistrials extremely uncommon.

Sidebar: In some cases, an admonishment from the court is not enough. In cases where there is a strong likelihood that the jury cannot ignore the evidence and such evidence is devastating to the defendant, a mistrial may be declared.

I want to call several character witnesses during my trial to aid in my defense. Is there a limit to the number of witnesses that can testify on my behalf?

Yes. Courts do not admit evidence that is "cumulative." "Cumulative" in this instance means evidence from several sources that is identical. If your good character has been adequately established, a parade of individuals will not be allowed to continue testifying to the same thing.

Evidence of a medical condition, of past physical abuse or of drug addiction that tends to excuse a defendant's acts, is also limited once it becomes cumulative. For instance, if a doctor testifies about drug addiction, records are put into evidence showing past hospitalization and a relative testifies about the defendant's past addiction, the defendant will not be allowed to add her own testimony regarding her drug addiction since it has already been well established. Her testimony would be cumulative and only cause a delay in going forward with the trial.

In a sexual assault case, is the victim's prior sexual history admissible as evidence?

No. Most states have "rape shield" laws limiting evidence concerning the victim's past sexual conduct or reputation. Not only is the victim's past sexual history protected, evidence of past drug use, sexual abuse or prostitution is not admissible. The theory behind the inadmissibility of this type of evidence is that it is so prejudicial to the victim that the jury will be confused and misled in deciding its verdict.

Federal Rule of Evidence 412 specifically makes the evidence of the victim's sexual behavior and predisposition entirely inadmissible. However, exceptions exist where the evidence is being offered to show that:

  • a person other than the defendant committed the sexual offense; or
  • the victim consented to sexual activity.

The court will conduct a hearing before determining if an exception applies.

Is all evidence in a criminal case available to the public?

Generally, yes. Trials are public in the United States, and the evidence introduced can be examined by the public to the extent that the evidence is not compromised. In sexual offense trials, however, evidence is often "under seal" and available only to the parties, their attorneys and the judge, in order to protect the victim.

I attempted to plea bargain with the prosecutor before going to trial. Are my attempts to avoid a trial going to be evidence against me?

No. The existence of plea bargaining or other offers to settle or dispose of the case are not admissible into evidence at a trial. Additionally, any statements that you may have made to the prosecutor during the plea bargain negotiations, including a guilty plea that you later withdrew, are protected.

I have refused and continue to refuse to submit to a lie detector test. Is my refusal admissible at my criminal trial?

No. Courts have held that your refusal to take a polygraph examination does not imply guilt (nor does your taking a polygraph test tend to show your innocence) and is not admissible.

I took a lie detector test that showed I am innocent. Are the results admissible?

Polygraph tests are admissible where both sides agree or stipulate that the test will be used as evidence at trial. In the absence of a stipulation, state courts vary tremendously in their opinion of polygraph tests. Most hold that the tests are unreliable and inadmissible so that any mention of the test during trial warrants a mistrial. Courts in other states have found that under the proper scientific conditions, the tests are reliable and can be used as evidence in a trial where both sides have the opportunity to question the examiner.

Federal courts have allowed results into evidence for the limited purpose of impeaching or corroborating the testimony of a defendant. If you claim you that are innocent of a crime and the lie detector test backs you up, it may be admissible in federal court.

I refused to submit to a Breathalyzer test when I was arrested for drunk driving. Will my refusal be used as evidence against me at trial?

It depends on the state. Some states have laws that permit the suspension of your driver's license if you refuse, and thereafter allow your refusal to be used as evidence at trial when the issue of your suspended license comes up. Other state laws specifically prohibit your refusal to take the test to be used as evidence as your guilt or innocence.

My home was searched using a warrant that has now been determined to be defective. Is the evidence that the officers recovered admissible?

Probably. Although the warrant was defective and the search was arguably illegal, the good faith exception to the exclusionary rule applies. Under this exception, where officers, in good faith, believed that the warrant conformed to the law, their search is valid and the evidence they seized will be admissible.

The good faith exception does not apply where the warrant is obviously defective. For example, if the warrant fails to describe the items to be seized during the search, its invalidity is apparent to the police officers, and they could not proceed in good faith.

If the police bug my office, can tapes of my conversations be used as evidence against me in a criminal trial?

Yes. Federal wiretapping statutes provide for a business extension exception to the prohibition against secret wiretaps or eavesdropping devices. Furthermore, the tapes of your conversations would be admissible under the law enforcement exception to the prohibition if a court authorized the wiretap in the first place.

Sidebar: In some states, taped phone conversations are admissible as evidence if one of the parties has consented to the taping or is actually making the tape herself. Thus, juries may hear a phone conversation that one party recorded while attempting to get the other person to admit to a crime.

The prosecution wants to read the testimony of a witness in my first trial, which ended in a mistrial, to the jury in my current trial, because she is now unavailable. Can the prosecution do this?

Yes. If a witness is unavailable, that witness's prior testimony can be used at your current trial. Unavailability includes everything from the witness's death, illness, disappearance, refusal to appear or incarceration.

While I was being held in the county jail, I made some statements to a cellmate. Is his testimony at my trial as to what I told him inadmissible hearsay?

No. Although his testimony is hearsay and no exception applies, your former cellmate's testimony will be admitted under the residual exception to the hearsay rule. In this case, courts have found that there is a guarantee of trustworthiness to "jailhouse informant" hearsay testimony. The testimony is considered to be trustworthy because you made the statements voluntarily, your cellmate did not ask you about the crime, he had no motive to lie and was unaware of the charges against you.

Can a police officer testify to a victim's statements made to her at the time the crime was committed?

Yes. When an officer arrives on the scene close to the time of the crime, the victim's statements often fall within the "excited utterance" exception to the hearsay rule. Similarly, a victim's statements to medical personal would be admitted as a statement given for the purpose of receiving timely treatment.

Example: Emergency 911 calls are typically admitted under the excited utterance exception if the caller is unavailable to testify.

Can parents testify as to their child's statements made concerning a defendant's criminal acts toward that child?

Yes. Courts have held that a child's statements to a parent are not testimonial in nature, i.e., the statements were not made in a legal setting or to a law enforcement agent or employee.

With children, the primary question in deciding whether the jury can hear what the child has said is: are the statements testimonial? This scenario commonly arises in sexual offense cases involving young victims who make statements to child advocates, social workers, psychologists or law enforcement agents but will not or cannot testify at trial. In those cases, where state or government employees received the child's statement and are witnesses, some courts have held that the child was "testifying" to the employee and the defendant's right to confront the speaker is violated by admitting the testimony.

A child's statement to her doctor will be allowed under the medical treatment exception to hearsay. However, if the doctor has consulted with the police prior to her examination, the statements become testimonial and inadmissible.

Is my confession to a police officer admissible at trial?

Yes. Testimony showing a defendant's voluntary confession made after proper Miranda warnings, if the warnings were necessary, is admissible. Although the officer's testimony is hearsay-an out-of-court statement proving guilt-confessions operate as a broad exception to the hearsay rule based on the theory that no rational person would confess to a crime he did not commit.

A confession or admission during plea bargaining is not admissible.

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