ADMISSIBILITY OF EVIDENCE

LEARNING OBJECTIVES: Describe three major factors that determine the admissibility of evidence. Define prima facie evidence. Explain the concept of reasonable doubt. Determine when similar facts and other offenses are admissible at trial. Define hearsay evidence and explain two exceptions to the hearsay evidence rule.

Apart from the forms and types of evidence, certain matters will be admitted into evidence and others will not.

Admissibility depends upon several factors: (1) authenticity, (2) relevancy, and (3) competency. For evidence to be admissible, it must meet each qualification or test discussed in the following paragraphs.

AUTHENTICITY

The term authenticity refers to the genuine character of the evidence. Authenticity simply means that a piece of evidence is what it purports to be. Let's consider the three forms of evidence.

First, with regard to oral evidence, consider the testimony of a witness. We know that his or her testimony is what it purports to be by virtue of the fact that he or she has taken an oath to tell the truth, the whole truth, and nothing but the truth. He identifies himself as John Boate, and therefore, this is John Boate's testimony.

Next, consider apiece of documentary evidence- a service record entry, for example. How do we know that the service record entry is what it purports to be? Sometimes the custodian of the record, the personnel officer, will be called to "identify" the service record entry. The personnel officer will testify under oath that he or she is the custodian of the record, that he or she has withdrawn a particular entry or page from the service record, and that the evidence is, in fact, that entry or page. Again, it is established that the service record entry is what it purports to be.

Last of all, with regard to real evidence, take, for example, a weapon that was recovered from the person of the accused as the result of a search by an MA. The MA is called and sworn as a witness. He or she gives testimony with regard to the circumstances of the search. Finally, the MA is presented with the weapon, and identifies it, perhaps from an identifying mark on the weapon or perhaps from a tag he or she attached to the weapon at the time it was seized. His or her testimony establishes that the weapon is what it purports to be.

Testimony is not the only way to authenticate certain types of evidence. For example, in the case of documentary evidence, a certificate from the custodian may be attached to a particular piece of documentary evidence. This attesting certificate establishes that the document is what it purports to be, An attesting certificate is a certificate or statement signed by the custodian of the record. It indicates that the writing to which the certificate or statement refers is a true copy of the record. The attesting certificate also indicates that the signer of the certificate or statement is the official custodian of the record. Once it is admitted in evidence, the certificate takes the place of a witness. In effect, the certificate speaks for itself. Of course, another way to achieve authentication is to have the trial counsel and the defense counsel agree that a certain item sought to be introduced into evidence is what it purports to be. The accused must consent to the agreement. This type of agreement is ^{called a "stipulation,"} which must be accepted by the court in order for it to be effective in the case.

RELEVANCY

The term relevancy means that the information must reasonably tend to prove or disprove any matter in issue. The question or test involved is, "Does the evidence aid the court in answering the question before it?"

To understand the meaning of relevancy, consider a situation in which an accused is charged with theft of property of the United States. In most cases, the fact that the accused beat his wife regularly would probably have nothing to do with his theft of property of the United States. Therefore, any testimony to that effect would be objectionable as being irrelevant.

COMPETENCY

Competent as used to describe evidence means that the evidence is relevant and not barred by any exclusionary rule. Competent evidence is admissible as fit and appropriate proof in a particular case.

Several other considerations also determine competency. They are as follows:

Public policy. First, the evidence sought to be introduced must not be obtained contrary to public policy. The exclusionary rule is a recognition by the courts that in certain instances there is a public policy that requires the exclusion of certain evidence because of a counterbalancing need to encourage or prevent certain other activity or types of conduct. Additionally, this concept acts to further certain relationships at the expense of excluding certain evidence; for example, the husband-wife privilege precludes under certain circumstances the calling of one spouse to testify against the other. Similar privileges protect the relationships of attorney-client and clergyman-penitent. There is no such protection afforded in military law to a doctor and patient.

Reliability. A second exclusionary factor that relates to competence is reliability. Evidence that is hearsay (an out-of-court statement offered in court for the proof of its contents) is inadmissible. Hearsay evidence will be discussed later in this chapter. Exceptions to the hearsay rule are allowed only where the circumstances independently establish the reliability of the evidence. With respect to documentary evidence, the rules have been previously discussed. These rules exist with one purpose in mind: evidence that is offered must be reliable.

Undue prejudice. The third consideration with regard to competence rests in the area of undue prejudice. Here, such matters as prior convictions and inflammatory matters may not be received in evidence in order to prove or disprove an issue at trial.

Therefore, competency is a test of whether or not something is admissible; but, more than that, it is a matter of whether or not the evidence can meet the three tests outlined above-public policy, reliability, and undue prejudice.

PRIMA FACIE EVIDENCE

Prima facie evidence may be defined as "evidence that is good and sufficient, on its face, to meet the issue if no other testimony is offered." The prosecution establishes a prima facie case by introducing enough evidence to outweigh the general presumption that the accused is innocent. A prima facie case can be overthrown only when the accused introduces sufficient evidence in rebuttal; that is, evidence that contradicts or meets the evidence of the prosecution.

You must keep in mind that a prima facie case has no effect on the burden of proof, though it satisfies that burden for the time being. In addition, it calls upon the adverse party to introduce sufficient evidence to counteract or meet the prima facie case made against an accused.

The question of the court at the end of the trial is always: "Has the prosecution proven the guilt of the accused beyond a reasonable doubt?" Notice that it is not: "Has the accused been proven innocent?"

REASONABLE DOUBT

Reasonable doubt means an honest and real doubt caused by insufficient proof. It is not a doubt caused by a fault-finding attitude. Nor is it brought on by sympathy for the accused or for the accused's family. Proof beyond reasonable doubt is not proof beyond the possibility of mistake. The doubt must be based on reason, and it must be reasonable in view of all the evidence. If, after considering all the evidence

impartially, the court feels it is dissatisfied or has an honest misgiving that the defendant is guilty, then reasonable doubt exists. To find the accused guilty, the court must be morally certain that the accused is guilty.

SIMILAR FACTS

Evidence of similar facts maybe introduced where the similarity between the facts is so close that there is practically no difference. For example, if a man is apprehended for speeding, the fact that he had been speeding on the same day a mile away would be inadmissible evidence. But evidence that he was driving at 60 miles per hour a moment before at a point very close to where he was apprehended would be admissible, because there is reasonable probability that his speed was maintained. Similarly, in a case involving drunkenness, it may be shown that the accused had been drinking shortly before the time specified, but a statement that the accused often was drunk in the past would not be admissible.

OTHER OFFENSES

Evidence of other offenses or acts of misconduct of the accused may be introduced when it tends to (1) identify the person as the perpetrator of the offense charged, (2) prove a plan or design of the accused, and (3) prove guilty knowledge or intent, if guilty knowledge or intent is an element of the offense.

For example, a man was being tried for claiming as real an imitation diamond he was pawning. Evidence that he shortly before had tried to pawn other imitation gems was admitted. This evidence is an exception to the rule that a different crime, not connected with the one alleged in the specification, cannot be brought out in evidence. Another example: A male defendant is charged with obtaining money from a female by marrying her. He obtained her money on a representation that he would invest it for her, and then he absconded. Evidence that he had pursued the same course with three other female acquaintances is admissible.