Vail Daily column: The rules of evidence |

Vail Daily column: The rules of evidence

In 1971, the 5 Man Electrical Band came out with the song “Signs.”

The refrain went like this;

“Sign, sign, everywhere a sign;

Blockin’ out the scenery, breakin’ my mind;

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Do this, don’t do that, can’t you see the signs?”

It made Kayne seem like Puccini.

It was also several hundred years behind the law. Substitute the word “rule” for “sign” and “evidence” for “scenery,” and, developed throughout the last half millennium or so, you’ve got the rules of evidence.

As I have noted in these columns before, law is a very stylized affair; there are rules for this and rules for that and rules for other things you never even thought of. There are ways that you address the court (“Your Honor,” most times, works nicely). There are rules of civil and criminal procedure, rules for pleading, rules for where and when you sit and for where and when you stand and rules for what you can pitch to the court for its consideration. It is a comfortable formality honed against the whetstone of precedent. The last of these — pitching to the court — comprises the rules of evidence. What may or will the court consider in coming to resolution of the controversy left by the mouser of the law at its learned feet?

The do’s and don’ts

Simply, what may or will be admitted at trial and what must be excluded? What can be presented to the judge or jury in support of the plaintiff’s claims or in derogation of them by the defendant? What will fairly be brought to bear against one party or the other but will not unfairly prejudice him?

In ordinary practice, the rules of evidence are firmly established. In this state, the Colorado Rules of Evidence dictate the means, breadth, reach and methods pertaining to the presentation of evidence at trial.

Broadly stated, evidence may be said to be any species of proof presented at the trial of an issue. The general categories of proof are: the testimony of witnesses, expert evidence and/or opinion, records of various sorts, documents germane to the issue under consideration, exhibits of various stripes and assorted objects — all of which are intended to induce in the minds of the judge or jury that a certain assertion is, in fact, the truth.

Witness testimony is a hallmark of almost any trial. This is the “Boston Legal” stuff. The witness is sworn to tell the truth, the whole truth and nothing but the truth, takes the stand and, guided by a rat-a-tat of questions from legal counsel, tells his story. After he is done, he is subject to cross-examination by the other side. Cross-examination serves the purpose of testing the truth of what the witness said and/or “impeaching” (or, casting doubt upon) the witness’ credibility or believability. It is impossible to conceive of trial without the meat and potatoes of witness testimony.

Expert testimony is what an expert in a particular field offers to assist the trier of fact in elucidating the truth. One of potentially limitless examples might be an engineer testifying as to the design of an allegedly defective product. Competing experts may be — and usually are — used on both sides of a dispute. Both the plaintiff and defendant will likely employ respective experts and each will provide evidence for the court to consider in advancing or defending a claim.

Documentary evidence may take many forms. A simple example might be the books or accounts of record of a business. Another example might be the contracts and assorted correspondence exchanged between the parties. Tangible evidence are things themselves, i.e. the gun or casings with which an accused is said to have committed a certain crime. Another example might be the seat belt in an injury claim where the belt is alleged to have malfunctioned.

All of these forms of evidence are intended to plant in the mind of the judge or jury a repository of information which makes or refutes the allegations making up the dispute or of an alleged crime. Evidence is the means by which the trier of fact, be it judge or jury, gets to the truth.

Relevant evidence?

Overarching all of this is the concept of relevance; does the evidence presented tend to shed light on the issue in dispute? To be relevant, the proffered evidence must speak directly to the issue being contended. It must tend to prove or disprove an essential element that is in dispute.

The rules of evidence codify what testimony and other potential evidence should be admitted or rejected and what weight it should be given. Certain kinds of evidence gathered before trial are inadmissible. Evidence gathered by improper police procedure or conduct, in a criminal proceeding, for example, may not be used in court. Similarly, evidence improperly obtained in a civil action, will be excluded.

Certain other evidence may be severely constrained, having been determined over molting of generations, time to be inherently unreliable. As but one example, hearsay evidence is generally excluded. Hearsay is a statement made by a person other than the person testifying at trial offered by the testifying party as proof of the matter being asserted. The witness offers that so-and-so said such-and-such to prove what the initial speaker said is true. Like much in law, there are exceptions and the rules of evidence will sometimes find a way to let a hearsay statement sneak into play.

The whole scheme of admissible evidence — and the rules which bolster it — is based upon the accumulated wisdom of the ages and keeps in keen focus the delicate balance between ferreting out the truth and protecting those involved parties from undue and prejudice. Law, as I have noted before, is a very structured and often elegant affair.

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, Biddision, Tharp and Weinberg LLC. His practice areas include business and commercial transactions, real estate and development, family law, custody, divorce and civil litigation. Robbins may be reached at 970-926-4461 or at either of his email addresses, or

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