Category: Evidence

What is hearsay? What is the hearsay rule?

 A witness cannot always testify about things he heard or read.  Hearsay is a type of testimony that is generally inadmissible in court – – meaning it is a category of testimony that courts generally prohibit. The standard definition of hearsay is an out of court statement offered for the truth of the matter asserted.  What does that mean?  Whenever a witness at a trial tries to testify about what someone else told him, and a lawyer wants the jury to believe that what the witness heard was true, we might have a hearsay problem. Let’s say Debbie is on trial for robbing a store.  David saw Debbie go to the store at 1:00, ten minutes before the robbery.  David told Wally that he saw Debbie go to the store at 1:00.   Can the prosecutor ask Wally to testify that David told him that he saw Debbie go to the store?  Maybe not – – this looks like hearsay.  Wally is testifying about David’s out of court statement.  And the prosecutor wants the jury to believe that what David said was true.   Please keep in mind that there are a number of important exceptions to the hearsay rule – –  we’ll talk about them in other posts. Also, just because a witness testifies about what another person said does not always make it hearsay.  Let’s say a...

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What is a subpoena?

Subpoenas are legal orders to provide evidence.  There are two major types of subpoenas: (i) subpoenas that require someone to testify; and (ii) subpoenas that require someone to disclose evidence in their possession, such as documents.  These two types of subpoenas are often referred to as subpoenas (i) ad testificandum; and (ii) duces tecum.    In the United States, judges and other court officers, including lawyers, may issue a subpoena.  If a lawyer issues a subpoena and the person subject to the subpoena fails to comply, the lawyer can ask a court to force the person to comply. Subpoenas are especially useful for gathering evidence from third parties.  For example, let’s say Patty sues David.  David is a party to the case and subject to the jurisdiction of the court so obtaining evidence from David should not be a problem for Patty.  But let’s say Terry, a third-party who is not in the case, has critical evidence that Patty needs.  To obtain the evidence Patty’s lawyer might rely on a subpoena, to try and compel Terry to turn over the evidence that Patty wants.   I uploaded a video on subpoenas to...

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What is spoliation?

Spoliation is when a party destroys or alters evidence that he was obligated to preserve.  In the United States, a party is usually obligated to preserve evidence if he can reasonably anticipate that there will be a civil litigation.  If a party spoliates evidence, even accidentally, a judge might impose sanctions  – – and the sanctions can be serious.  It is especially important for companies to have an appropriate policy regarding the preservation and destruction of documents to avoid getting into trouble.  In some instances there might be a relevant statute regarding the preservation of documents.  Lawyers in the US will work with corporate clients to prevent spoliation both before and after a litigation arises.   For example, companies usually keep their emails on their computer servers for a certain period of time.  But for how long?  The company should consult with its attorney regarding how long emails will be preserved and whether certain emails should be retained for a longer period of time.  If there is a civil litigation and the company destroyed emails that the company should have preserved, a judge might impose penalties. Below is a video on...

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