DOCUMENTARY EVIDENCE

Documentary evidence is usually a writing that is offered into evidence. For example, an accused is charged with making a false report. The government, to prove its case, would want to introduce the report in evidence. Another example could be when a servicemember is absent from his or her command. To prove that he or she was absent, the government would introduce an entry from the accused's service record as proof of this fact.

Documentary evidence includes letters, telegrams, printed matter, photographs, charts, and the like. It must be both material and relevant, and its use is governed by certain rules, as pointed out in the next three topics.

General Requirements for Documentary Evidence

The following is a listing of general requirements for documentory evidence:

1. The genuineness of every document must be proven. Authentication of a writing maybe provided by having its author appear as a witness, calling a witness who was present when it was signed, or calling one who can identify the handwriting.

2. In proving the contents of a writing, the original of the writing is the best evidence of its contents and must, therefore, be introduced (except in certain situations). When an admissible writing has been lost or destroyed or cannot be produced, the contents may be proven by an authenticated copy or by the testimony of a witness who has seen and can remember the writing.

3. When documentary evidence is lengthy, the court (to save time) may permit a witness who has studied the papers to attest to their meaning. The opposing party, of course, has the right to examine the documentary evidence and to cross-examine the witness.

4. Unofficial charts, sketches, diagrams, plans, notes, or drawings representing items that cannot be described clearly and easily by a witness are admissible when proven to be authentic. Proof that such a piece of evidence is a true and accurate representation is sufficient.

5. The terms of a written document cannot _be altered by oral testimony. Oral testimony intended _to explain the meaning of a document, however, is admissible.

6. Documentary evidence must be introduced by presenting it to the court and identifying it.

7. Official documents of the Department of Defense are assumed to be genuine.

8. A document must be offered in full. Even though only a part of it is read to the court, the entire document must be received in evidence.

9. A desired document that is not in the possession of the party wishing to introduce it may be produced in court by serving a subpoena on the holder.

Records and Registers

The following rules apply to the admissibility of records and registers:

1. Properly authenticated copies of government records are admissible in lieu of the originals.

2. An official chart is admissible as an official record.

3. Entries and records of an organization (such as attendance reports, muster sheets, and hotel registers) are admissible, provided it is the practice of such organization to keep such records in the regular course of business.

Letters, Telegrams, and Photographs

The following rules apply to the admissibility of letters, telegrams and photographs:

1. A letter or telegram written, dictated, or signed by the accused may be submitted as evidence.

2. A letter or telegram sent to the accused is admissible only if it can be shown that he or she answered or acted upon it.

3. The original telegram filed with the sending office should be offered to the court. If the original is lost or destroyed, the received copy can be submitted.

4. Photographs and X-rays that are proven to be true pictures are admissible.

REAL EVIDENCE

Real evidence is any physical object that is offered into evidence. Real evidence includes all objects that are relevant and material to the issue, in addition to the testimony of witnesses and written documents. For example, a murder weapon, such as a pistol, would be real evidence. Now let's look at one more form of evidence, called demonstrative evidence.

DEMONSTRATIVE EVIDENCE

Demonstrative evidence is a hybrid or combination form of evidence. The old "personal view" principle has not been scrapped. This principle permits the jurors to view the scene of the act or happening, and thus obtain firsthand evidence to assist them in reaching a decision. Because of the complexity of the machinery of justice, however, the personal view becomes less and less practical. But if the court considers personal view desirable, it may adjourn to the scene of the offense.

As a means of presenting to the jury factual evidence concerning the issues, the courts today find it expedient to permit a witness to explain his or her testimony by introducing photographs, maps, models, or diagrams. The courts look upon such evidence as being more helpful in some respects than the testimony of human witnesses.

Evidence in this form, partly documentary and partly real, is called demonstrative evidence and is frequently categorized separately from the three basic forms of evidence.

TYPES OF EVIDENCE

LEARNING OBJECTIVES: List and explain the two types of evidence. Determine when circumstantial evidence is admissible and when it is inadmissible.

At trial, any form of evidence may be introduced to prove or disprove a fact either directly or circumstantially. We will now consider evidence known as direct evidence and circumstantial evidence. These two types of evidence may take any of the forms already discussed.

DIRECT EVIDENCE

Direct evidence is evidence that applies directly, without referring to other inferences, to prove or disprove a fact in issue. For example, a confession from the accused that he or she perpetrated the alleged offense is direct evidence that he or she did it.

CIRCUMSTANTIAL EVIDENCE

Circumstantial evidence, on the other hand, is evidence that tends to establish a fact from which a fact in issue may be inferred. For example, a pistol found at the scene of the crime and inscribed with the name "Able B. Seaman" is only circumstantial evidence that he was ever at the scene or that the pistol is his. The pistol may not belong to Able B. Seaman; or if the pistol is his, it may have been lost or stolen.

Circumstantial evidence is NOT inherently inferior to direct evidence. If the trier of fact is convinced of the accused's guilt beyond a reasonable doubt, the fact that all evidence was circumstantial will not dictate an acquittal.

Admissible Circumstantial Evidence

The following case illustrates competent circumstantial evidence that would be acceptable by a court. SN Jack R. Frost is charged with stealing clothes from the locker of QM3 Pistol.

1. The clothes were taken while Pistol was at drill. No one was seen near his locker.

2. Because Frost was detailed as a foodhandler, he was not at drill. For a short while, however, he was absent from his duty as foodhandler, during which period the clothes disappeared.

3. Frost was known to be without money the day before the theft occurred. That evening he left the barracks with a bundle under his arm, and later was seen to enter a certain house. Later the same night, he had money in his possession.

4. When the house was searched the next day, most of the missing clothes were found.

Inadmissible Circumstantial Evidence

The courts would not allow the following types of circumstantial character evidence to be admitted for the purpose of proving the conduct of the accused. These examples of circumstantial evidence are inadmissible because they are unreliable. In general, this is true whether the case is civil or criminal.

l The accused is disliked by his shipmates.

l A number of thefts have occurred aboard the ship, and the general belief is that the accused was connected with them.

l He was tried before for the theft of clothes, and convicted.

l He is suspected of being a deserter from a foreign navy.

. He comes from a poor district where petty thievery is common.