Robbins: Inculpatory and exculpatory evidence |

Robbins: Inculpatory and exculpatory evidence

In law, for every yin, there is a yang.

For every right hand, there is a, “But on the other hand, your honor…”

For every synonym, there is an antonym.

High. Low.

Up. Down.

Yes. No.

For every guy in a white hat, there the guy who stole the hat … or, at the least, is charged with doing so.

Evidence is like that. There is the yin of “yes” and the yang of “no.”

The proof is in the …

So, first off, what is evidence? But, before we get there, what is “proof?”

Although seemingly intuitive, “proof” may be as slippery as a trout plucked from a roiling mountain stream. It may be thought of as confirmation of a fact by evidence. In a trial, proof is what the trier of fact (the judge or jury) needs to become satisfied that there is “sufficient” evidence to find one way or another. In a civil trial (one where money or other “damages” are sought), a “preponderance of the evidence” is what is required for the evidence to prove. In a criminal trial, the bar is higher, requiring proof “beyond a reasonable doubt.”

But if you think about this hard enough, “proof” may be a bit of a shape-shifter. As “proof” is what is required to come down one way or another at a trial and the proof relies upon the evidence, one of two things can go wrong: What if the evidence is unreliable or if it leads to the wrong conclusion?

The rules of evidence

What then of the building block of “evidence,” the bricks and mortar upon which “proof” is founded?

Every type of proof legally presented at trial that the judge allows which is intended to convince the judge and/or jury of alleged facts material to the case is evidence. It can include the oral testimony of witnesses, including experts on technical matters, documents, public records, objects, photographs and depositions (testimony under oath taken before trial). It may include “circumstantial evidence” which is intended to create belief by showing surrounding circumstances that logically lead to a conclusion of fact.

An example of direct evidence is a witness testifying that she saw it snow on the morning in question. Circumstantial evidence may be that while the witness did not actually see it snow that morning, she woke to new snow on the ground, logically inferring that, “Hey, it must have snowed.”

Comments and arguments by the attorneys, statements by the judge and answers to questions which the judge has ruled objectionable are not evidence. Charts, maps and models which are used to demonstrate or explain matters are not evidence themselves, but testimony based upon such items and marks on such material may be evidence.

You may have noticed that I slipped in a qualifier three paragraphs ago. In the middle of the first sentence, I included the words “which the judge allows.” That’s because not everything a party or her lawyer wishes to present is necessarily admissible at trial.

As I have mentioned in prior columns, the law is a very structured affair.  There are rules for this and rules for that and then rules for another thing, some of which are byzantine, labyrinthine or archaic. Among the rules with which attorneys wrestle are the rules of evidence, which spell out the when, how, and why some stuff can be cast before a jury and other stuff cannot.   

Coming to understand the rules is the sort of thing over which law students pull their hair out. For example, as part of a potentially long list, in order to be “admissible,” evidence must be relevant, material, and not comprised of hearsay.

In or out?

What then of the tongue-twisters in the title of this column?  What are … gulp! … inculpatory and exculpatory evidence?

Easy peasy.

“Inculpatory” evidence is that which shows, or tends to show, a person’s involvement in an act, or evidence that can establish guilt. Evidence that tends to show a person’s innocence is considered “exculpatory” evidence.   Inculpatory evidence may put you IN jail. Exculpatory may EXclude you from time behind a grid of iron bars.

Among the class of exculpatory evidence may be “physical” evidence (that is any material thing or object that points towards innocence), testimonial or witness testimony, circumstantial evidence, and even the person on the hot seat’s “alibi” (the defense by an accused person that he or she could not have committed the offense).  “I was in Poughkeepsie, not Hockett Gulch, when the crime — whatever it was, I don’t even know! — was apparently committed.”

An alibi is just a small piece of the potential exculpatory puzzle and it is the trier of fact’s job to be the puzzle master. Some things may implicate. Others may exonerate. And when you place them each upon the scales of justice most times — hopefully — the scales balance with the weight of evidence in the direction that they should.

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,

Support Local Journalism

Start a dialogue, stay on topic and be civil.
If you don't follow the rules, your comment may be deleted.

User Legend: iconModerator iconTrusted User