When a person is charged with a crime, there is certain information that is gathered and presented in court to either convict or acquit the person charged – it’s called evidence. 

Evidence is gathered during an investigation which usually comes after a crime is committed. That evidence is what makes it possible to arrest and it can be the basis for search warrants that give investigators the right to search your property.

Evidence is also what is used in a court case to convict a person of a crime.

If you have been charged with a crime, then there is some type of evidence that has been gathered against you. The prosecution will build a case so that when you go to court, they can convict you of that crime.

Your defense attorney will be reviewing the prosecution’s evidence and they will respond to it in court. Before that though, they may file pretrial motions to get certain evidence excluded from trial, or thrown out. They will use the Rules of Evidence to accomplish this.

The Federal government has the Rules of Evidence statute, and New York has its own, although many states adhere to the Federal rules. These rules or laws will determine what is kept as part of the case against you and what must be thrown out. They also determine what evidence the defense can and cannot use during the trial.

What is Evidence?

Evidence is information that is presented in a court case to strengthen the arguments in that case. For instance, the defense gathers evidence to show that the defendant is not guilty or did not participate in the crime to the extent that they are being accused. The prosecution uses evidence to strengthen their case against the defendant to show them guilty. This information is presented to the judge and if the case goes to trial, it is presented to the jury to help them reach a verdict.

There are two types of evidence: 

  • Physical Evidence
    • Photos
    • Texts
    • Medical reports
    • Business records
    • Phone records
    • Letters
    • Emails 
    • DNA or other biological evidence
  • Verbal evidence
    • Things seen or heard that a witness can testify about
    • Testimony from a witness
    • Testimony from the defendant
    • Testimony from a doctor or other professional

Not all evidence is admissible in court. Rules of Evidence outline what can be used and what cannot be used.

Overview of Rules of Evidence

Rules of Evidence is an official listing of rules regarding how evidence is handled in criminal or civil court. It determines what evidence is admissible and how it is to be handled by a jury when using it to reach a verdict in a criminal or civil trial. The Federal Rules of Evidence is the standard for many criminal and civil courts in the United States, but some states have created their own.

There are 68 rules in the Federal Rules of Evidence, each numbered individually. These rules are categorized under 11 articles:

  1. General Provisions
  2. Judicial Notice
  3. Presumptions in Civil Actions and Proceedings
  4. Relevancy and its Limits
  5. Privileges
  6. Witnesses
  7. Opinions and Expert Testimony
  8. Hearsay
  9. Authentication and Identification
  10. Contents of Writings, Recordings, and Photographs
  11. Miscellaneous Rules

Often, when lawyers are in court, they will refer to a rule by its number.

Why are the Rules of Evidence Important?

The Rules ensure that the jury in a case has plenty of evidence but not so much that it is redundant or inflammatory or that it muddles the case with unnecessary confusion. They are designed to provide fairness to the process and focus on relevance, reliability, and efficiency as well as avoiding unfair surprise. The spectrum is broad for what evidence a judge may allow and does leave a great deal up to the interpretation and discretion of the judge.

When each party is submitting competing evidence, the judge is able to determine which evidence to admit and which to exclude so that the spectrum of evidence presented to the jury is wide, but can provide a clearer, more reliable picture so they are better equipped to reach an accurate verdict. 

The Rules also grant power to the judge to make determinations regarding admitting evidence that could be prejudicial because of its inflammatory nature, lacks relevance, is confusing, or is repetitive.

The Rules also help to prevent prejudice as a determining factor in a case. Some information regarding a testimony may be withheld because it does not add to the evidence of the case and could cause prejudice. For instance, if a defendant’s alibi is that they were at a Neo Nazi rally at the time the crime was committed, that could cause prejudice because Neo Nazis are largely considered to be an immoral group. While the prosecution can ask details of the rally during cross-examination to make sure the defendant is being truthful, they would be required to refrain from asking any questions about the type of rally the defendant attended.

In short, The Rules of Evidence are designed to avoid wasting the court’s time, streamlining the judicial process, and most importantly ensure that the evidence that is presented during a jury trial is reliable. 

Federal Rules of Evidence

Under the Federal Rules of Evidence all the evidentiary rules are important, but some are used more often or may be better known.

Rule 403 – Excluding relevant evidence for prejudice, confusion, waste of time, or other reasons

The court may exclude relevant evidence if its probative value is substantially outweighed by a danger of one or more of the following: unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence.

Rule 401 – Test for Relevant Evidence

Evidence is relevant if:

(a) it has any tendency to make a fact more or less probable than it would be without the evidence; and

(b) the fact is of consequence in determining the action.

Rule 804 – Exceptions to the Rule Against Hearsay–When the Declarant Is Unavailable as a Witness

(a) Criteria for Being Unavailable. A declarant is considered to be unavailable as a witness if the declarant:

(1) is exempted from testifying about the subject matter of the declarant’s statement because the court rules that a privilege applies.

(2) refuses to testify about the subject matter despite a court order to do so;

(3) testifies to not remembering the subject matter;

(4) cannot be present or testify at the trial or hearing because of death or a then-existing infirmity, physical illness, or mental illness; or

(5) is absent from the trial or hearing and the statement’s proponent has not been able, by process or other reasonable means, to procure:

(A) the declarant’s attendance, in the case of a hearsay exception under Rule 804(b)(1) or (6); or

(B) the declarant’s attendance or testimony, in the case of a hearsay exception under Rule 804(b)(2), (3), or (4).

But this subdivision (a) does not apply if the statement’s proponent procured or wrongfully caused the declarant’s unavailability as a witness in order to prevent the declarant from attending or testifying.

(b) The Exceptions. The following are not excluded by the rule against hearsay if the declarant is unavailable as a witness:

(1) Former Testimony. Testimony that:

(A) was given as a witness at a trial, hearing, or lawful deposition, whether given during the current proceeding or a different one; and

(B) is now offered against a party who had — or, in a civil case, whose predecessor in interest had — an opportunity and similar motive to develop it by direct, cross-, or redirect examination.

(2) Statement Under the Belief of Imminent Death. In a prosecution for homicide or in a civil case, a statement that the declarant, while believing the declarant’s death to be imminent, made about its cause or circumstances.

(3) Statement Against Interest. A statement that:

(A) a reasonable person in the declarant’s position would have made only if the person believed it to be true because, when made, it was so contrary to the declarant’s proprietary or pecuniary interest or had so great a tendency to invalidate the declarant’s claim against someone else or to expose the declarant to civil or criminal liability; and

(B) is supported by corroborating circumstances that clearly indicate its trustworthiness, if it is offered in a criminal case as one that tends to expose the declarant to criminal liability.

(4) Statement of Personal or Family History. A statement about:

(A) the declarant’s own birth, adoption, legitimacy, ancestry, marriage, divorce, relationship by blood, adoption, or marriage, or similar facts of personal or family history, even though the declarant had no way of acquiring personal knowledge about that fact; or

(B) another person concerning any of these facts, as well as death, if the declarant was related to the person by blood, adoption, or marriage or was so intimately associated with the person’s family that the declarant’s information is likely to be accurate.

(5) [Other Exceptions .] [Transferred to Rule 807.]

(6) Statement Offered Against a Party That Wrongfully Caused the Declarant’s Unavailability. A statement offered against a party that wrongfully caused — or acquiesced in wrongfully causing — the declarant’s unavailability as a witness, and did so intending that result.

Rule 902 – Evidence That Is Self-Authenticating

The following items of evidence are self-authenticating; they require no extrinsic evidence of authenticity in order to be admitted:

(1) Domestic Public Documents That Are Sealed and Signed. A document that bears:

(A) a seal purporting to be that of the United States; any state, district, commonwealth, territory, or insular possession of the United States; the former Panama Canal Zone; the Trust Territory of the Pacific Islands; a political subdivision of any of these entities; or a department, agency, or officer of any entity named above; and

(B) a signature purporting to be an execution or attestation.

(2) Domestic Public Documents That Are Not Sealed but Are Signed and Certified. A document that bears no seal if:

(A) it bears the signature of an officer or employee of an entity named in Rule 902(1)(A); and

(B) another public officer who has a seal and official duties within that same entity certifies under seal — or its equivalent — that the signer has the official capacity and that the signature is genuine.

(3) Foreign Public Documents. A document that purports to be signed or attested by a person who is authorized by a foreign country’s law to do so. The document must be accompanied by a final certification that certifies the genuineness of the signature and official position of the signer or attester — or of any foreign official whose certificate of genuineness relates to the signature or attestation or is in a chain of certificates of genuineness relating to the signature or attestation. The certification may be made by a secretary of a United States embassy or legation; by a consul general, vice consul, or consular agent of the United States; or by a diplomatic or consular official of the foreign country assigned or accredited to the United States. If all parties have been given a reasonable opportunity to investigate the document’s authenticity and accuracy, the court may, for good cause, either:

(A) order that it be treated as presumptively authentic without final certification; or

(B) allow it to be evidenced by an attested summary with or without final certification.

(4) Certified Copies of Public Records. A copy of an official record — or a copy of a document that was recorded or filed in a public office as authorized by law — if the copy is certified as correct by:

(A) the custodian or another person authorized to make the certification; or

(B) a certificate that complies with Rule 902(1), (2), or (3), a federal statute, or a rule prescribed by the Supreme Court.

(5) Official Publications. A book, pamphlet, or other publication purporting to be issued by a public authority.

(6) Newspapers and Periodicals. Printed material purporting to be a newspaper or periodical.

(7) Trade Inscriptions and the Like. An inscription, sign, tag, or label purporting to have been affixed in the course of business and indicating origin, ownership, or control.

(8) Acknowledged Documents. A document accompanied by a certificate of acknowledgment that is lawfully executed by a notary public or another officer who is authorized to take acknowledgments.

(9) Commercial Paper and Related Documents. Commercial paper, a signature on it, and related documents, to the extent allowed by general commercial law.

(10) Presumptions Under a Federal Statute. A signature, document, or anything else that a federal statute declares to be presumptively or prima facie genuine or authentic.

(11) Certified Domestic Records of a Regularly Conducted Activity. The original or a copy of a domestic record that meets the requirements of Rule 803(6)(A)-(C), as shown by a certification of the custodian or another qualified person that complies with a federal statute or a rule prescribed by the Supreme Court. Before the trial or hearing, the proponent must give an adverse party reasonable written notice of the intent to offer the record — and must make the record and certification available for inspection — so that the party has a fair opportunity to challenge them.

(12) Certified Foreign Records of a Regularly Conducted Activity. In a civil case, the original or a copy of a foreign record that meets the requirements of Rule 902(11), modified as follows: the certification, rather than complying with a federal statute or Supreme Court rule, must be signed in a manner that, if falsely made, would subject the maker to a criminal penalty in the country where the certification is signed. The proponent must also meet the notice requirements of Rule 902(11).

(13) Certified Records Generated by an Electronic Process or System. A record generated by an electronic process or system that produces an accurate result, as shown by a certification of a qualified person that complies with the certification requirements of Rule 902(11) or (12). The proponent must also meet the notice requirements of Rule 902(11).

(14) Certified Data Copied from an Electronic Device, Storage Medium, or File. Data copied from an electronic device, storage medium, or file, if authenticated by a process of digital identification, as shown by a certification of a qualified person that complies with the certification requirements of Rule 902(11) or (12). The proponent also must meet the notice requirements of Rule 902(11).

New York Rules of Evidence

Traditionally, New York was one of the few states that did not have a statutory code of evidence. There were rules regarding evidence in other statutes, court rules, and judicial decisions. But there was nothing organized that provided guidance on how evidence was to be handled in the New York court system.

In July 2020, New York’s Unified Court System published the Guide to New York Evidence, outlining all of the state’s rules of evidence. 

The guide is categorized under 12 articles:

  1. General Rules & Court’s Role
  2. Judicial Notice
  3. Presumptions & Prima Facie Evidence
  4. Relevance & Its Limits
  5. Privileges
  6. Witnesses & impeachment
  7. Opinion Evidence
  8. Hearsay
  9. Authenticity & Identification
  10. Best Evidence Rules
  11. Real & Demonstrative Evidence
  12. Appellate Review

The purpose of the rules is defined in 1.01. Purpose and Construction

In recognition of the absence of a New York statutory code of evidence, the objective of this Guide is to bring together in one document, for the benefit of the bench and bar, New York’s existing rules of evidence, setting forth each rule with a note on the sources for that rule.

Given that most of New York’s evidentiary rules are not codified and that the New York Court of Appeals

provides the controlling interpretation of the New York State constitution, statutes and common law, this Guide places particular emphasis on and adheres to the controlling precedents of the New York Court of Appeals.

The rules of evidence set forth in this Guide are not intended to alter the existing law of New York evidence and shall not be construed as doing so or as precluding change in the law when appropriate.

Another commonly used rule is 8.02 Admissibility Limited by Confrontation Clause regarding hearsay. It provides some stringent requirements for allowing hearsay testimony in court. The guide also has an alphabetical list that allows for a search by evidence type at issue.

If you have been charged with a crime and it seems that the evidence is stacked against you, don’t wait to see what happens or just hope for the best. Hire an attorney who will fight for you and ensure that your rights are protected. Get a lawyer who will wade through the evidence and determine what does and does not comply with the Rules of Evidence.

You need The Litvak Law Firm. Mr. Litvak has the experience and knowledge of both federal and New York state evidence rules to effectively fight for you and ensure that you have the best possible outcome for your case or a jury trial.

Call today at (718) 989-2508 for your free consultation and get the representation that you deserve.