Vail Law column: What types of evidence are used in legal matters? |

Vail Law column: What types of evidence are used in legal matters?

Rohn K. Robbins
Vail Law

Broadly, there are two kinds of evidence. No, I’m not thinking about convincing or unconvincing, damning or exculpatory. But more on that later.

First, exactly what is “evidence?”

Technically, “evidence” may be defined as “any matter of fact that a party to a lawsuit offers to prove or disprove an issue in the case.” It may also be considered to be “the system of rules and standards that is used to determine which facts may be admitted, and to what extent a judge or jury may consider those facts, as proof of a particular issue in a lawsuit.”

Simply, “evidence” is a fact that tends to prove or disprove an issue in a lawsuit or dispute.

If, say, I want to prove that your car bashed into mine and you are liable to me for the damages, then some tidy pieces of evidence to support my claim might be police photos of the dented cars, the sprinkle of shattered glass, the skid marks angling toward the point of impact and the statements of witnesses. Each of these would tend to prove — or disprove — that a collision had taken place and might point to whom may have been at fault.

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There are, however, various types of evidence and some may be more convincing than others.

Direct evidence

“Direct evidence” is evidence in the form of testimony from a witness who actually saw, heard or touched the subject of questioning. “I saw with my own eyes, the blue car cross the center line and smash into the silver car. I smelled the rubber burning as the blue car hit its brakes, then I heard the collision when he couldn’t stop, saw the people in both cars jolt forward and saw the glass spray all over when the two cars hit.”

Direct evidence is evidence that, if believed, proves the existence of the fact in issue without inference or presumption. As Bob Dylan once advised in “Subterranean Homesick Blues,” “You don’t need a weatherman to know which way the wind blows.”

Direct evidence is that means of proof which tends to show the existence of a fact in question, without the intervention of the proof of any other fact, and which is distinguished from the other biggie, circumstantial evidence, which is often called indirect (as compared to direct) evidence.

Direct evidence directly proves a fact, without an inference or presumption, and which in itself, if true, conclusively establishes that fact.

Circumstantial or indirect evidence is more attenuated.

“Circumstantial evidence” consists of information and testimony presented by a party to a legal action that permits conclusions that indirectly establish the existence or nonexistence of a fact or event that the party seeks to prove.

Circumstantial evidence is distinguished from direct evidence in that inference or presumption is required for the purported evidence to be believed. Circumstantial evidence requires an inference and relates to a series of facts other than the particular fact sought to be proved. The party offering circumstantial evidence argues that this series of facts, by reason and experience, is so closely associated with the fact to be proved that the fact to be proved may be inferred simply from the existence of the circumstantial evidence.

Not direct, but close

Attorney: “Mr. So-and-So, is your testimony that my client bit off Mr. Schnozz’s nose?”

Witness: “It is.”

Attorney, rising up on the toes of his Bruno Magli Oxfords: “You mean to tell this good jury …” a sweep of the arm here toward the jurors, “… that my client bit off Mr. Schnozz’s nose?”

Witness: “Well … yes. I do.”

Attorney: “But you didn’t see my client bite off Mr. Schnozz’s nose, now did you?”

Witness: “Well no. Not exactly.”

Attorney looking smug as the witness says: “But I saw Schnozz bleeding and that he had no nose. And then I saw your client spit his nose out.”

That, my friends, is circumstantial evidence.

While the witness did not see the crime committed, he did see the consequences of the crime and, as while he did not see the bite, he did see both noseless Mr. Schnozz and the defendant spit out his nose. The clear inference here is that it was extremely unlikely that Mr. Schnozz’s nose had gotten into the defendant’s mouth by any means other than the defendant biting off Schnozz’s nose.

From this, one might logically conclude that — although the witness did not see the actual bite — him seeing it spit out indirectly implicates that the defendant was the biter. Reason and experience have taught us that a severed nose rarely finds its way into another’s mouth except by some act of unusual aggression.

A less dramatic example might be this. You wake to see snow on the ground and, based on this “evidence,” you conclude that it has snowed. This is circumstantial evidence. Snow on the ground infers that it has snowed. Say, instead, you wake to see it snowing. This is direct evidence for you have witnessed it snowing with your own eyes.

Generally, direct evidence is more powerful than circumstantial as it is a straight line from what was witnessed to the fact to be proved while circumstantial takes a little shimmying around to make its point. Both, however, have their place and circumstantial evidence can pile up to leave little doubt about the fact to be proved.

When one has a mouthful of someone else’s nose, it takes little imagination to reverse engineer how that may have come to pass.

In any event, evidence is evidence, whatever its stripes or coloration and it’s always the job of the “decider” — whether judge or jury — to determine the persuasiveness and creditability of what is offered to prove one’s case.

Rohn K. Robbins is an attorney licensed before the bars of Colorado and California who practices in the Vail Valley with the law firm of Stevens, Littman, Biddison, Tharp & Weinberg LLC. His practice areas include business and commercial transactions, real estate and development, family law, custody and divorce and civil litigation. Robbins may be reached at 970-926-4461 or at his email address,

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