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Thinking Through the Structure of Evidence

June 1, 2011

Thinking is the key to success at law in general, and evidence in particular.  Structure is the foundation of the law of evidence.  We will spend a lot of time in this class talking about thinking through this structure.  We’ll focus on thinking in terms of understanding the structure, and also thinking in terms of navigating it, with “think” as an action verb describing the advocate’s mental movements through the structure.  A trial lawyer who commits the structure of evidence to instinct is freed to use his or her creative thinking to formulate arguments that win evidentiary struggles, and thus win cases.  “Thinking Through the Structure of Evidence” will be the topic of the first hour of class on Thursday, June 2.  For now, here are a few thoughts to get you started.

We will focus on four key concepts:

(1)   Relevance, or what is the structure of evidence?

(2)   Authentication;

(3)   Foundation;

(4)   Discretion.

This class is designed to give you a practical, working understanding of the law of evidence so that you can use it in trials, not so you can write law review articles.  With that as our goal, I am going to introduce you to a structure of thinking you will not find in academic textbooks, but which you will find outstanding trial lawyers and trial judges using every day in courtrooms all over the country.  The object is to win!  Listen up!

The first three key concepts represent the levels of the structure of evidence, while Discretion is the overriding idea that makes an evidence struggle the most fun encounter in all of the practice of law.


This is not an explanation of what evidence is relevant and what is not, as defined in Rule 401.  As you will see in a few days (when we spend ten minutes covering relevance), you already know “relevance” in this respect.  Rather, this key concept of the structure of evidence, which forms the philosophical and the practical starting point for all evidence analysis, is found in Rule 402, which starts with these critical words:

“All relevant evidence is admissible, . . . .”

This is the starting point to the structure of evidence.  If evidence is relevant, it’s admissible.  With some minor exceptions, this is the only rule of evidence which “admits” evidence.  The rest of the rules serve to “exclude” relevant evidence.  That’s why the next words in Rule 402 are

“except as otherwise provided . . . by these rules . . . .” 

Remember this: if evidence is relevant—it’s admissible—unless some other rule excludes it!

So, this gets us to “authentication.”


We normally think of authentication in terms of compliance with Rule 901(a): introducing evidence to prove that “the matter in question is what its proponent claims.”  This means that when a lawyer seeks to introduce a certain piece of evidence, the lawyer must prove what it is.  For example, if the lawyer wishes to introduce a letter, he must prove it is the letter that is the subject of the case, often by testimony identifying the signature of the author.  If a prosecutor wishes to introduce drugs sold by a criminal defendant, the prosecutor must prove the drugs she seeks to introduce are the same ones the police seized from the scene of the sale.  This is done by proving the chain of custody. 

In order to fully understand an evidence question, however, the lawyer must also ask: “what is it?” on a different level.  This is very much like a “second level” of authentication.  Asking this question is critical to the admissibility of evidence, because depending on the answer, there may be some rule that excludes it.  For example, although proving a letter was written by a key witness in a case may satisfy “[t]he requirement of authentication or identification as a condition precedent to admissibility” as set forth in Rule 901(a), the question “what is it?” may lead us to other issues regarding its admissibility.  If the letter is an offer to settle a legal claim, its admissibility is affected by Rule 408; if it’s a letter written to express religious beliefs, Rule 610 forbids its use to show credibility; if it’s a letter offered as a prior inconsistent statement, the party offering it must take the steps set forth in Rule 613; and if the letter contains a statement offered to prove the truth of the statement, then it’s hearsay, meaning almost no one will know what to do with it.  Whether any of these rules, or others, affect the admissibility of the letter depends on the answer to the question “what is it?”

Here’s another example of how the question “what is it?” affects admissibility.  Andre Tufts was working in a hospital as an orthopedic technician when he was accused of committing a sexual assault on a young patient.  Shortly after the alleged crime, a hospital security guard interviewed Andre.  The guard testified at trial as follows:

Well, Mr. Tufts put his hands into his pockets.  He was standing up, and I was standing near my desk.  He put both hands into his pockets and started to sway from side to side, and hung his head down.  At that time, he said, that he knew he had a problem with his sexual desires, but that he wanted to go home and talk with his girlfriend that night, and after he talked to his girlfriend, he would come back to see me on the next day, which would have been Friday, and tell me what really happened to the victim in the emergency room.

The lawyers aggressively argued their different answers to the question “what is it?”  The defense lawyer made the case that the statement “I know I have a problem with my sexual desires” was evidence of a trait of character offered to prove Andre had a propensity to commit the alleged crime.  She argued, therefore, that it was character evidence and should be excluded under Rule 404(a).  The State, on the other hand, argued it was a confession, and thus it was admissible because it was relevant and no rule excluded it.  Although there was no issue related to Rule 901, the question of “what is it?” was critical to its admissibility.  If you want to know how it came out, read State v. Tufts, 355 S.C. 493, 585 S.E.2d 523 (Ct. App. 2003).

Much of the difficulty of the law of evidence is answering the question “what is it?!”  We will spend the bulk of this class studying how to get the answer right.  Now we come to the concept of “foundation.”


When a judge answers the question “what is it?” in such a way that another rule of evidence might exclude it, there is almost always a way to try to get it into evidence anyway.  For example, evidence determined to be hearsay may fit into any one of at least twenty-nine exceptions.  If it fits, it’s admissible.  The party who wants the hearsay admitted makes it “fit” by laying the foundation.  As to each hearsay exception, there is a list of elements to the foundation which if established will lead to the admission of the statement despite the fact that it is hearsay.  Similarly, when any other rule excludes relevant evidence, there still is a way of getting it in.  An expert opinion, although relevant, it is not admissible unless the foundation is laid: (1) the expert must be qualified, (2) the opinion must assist the trier of fact, and (3) the science the expert used in reaching the opinion must be reliable.  For character evidence, it is still possible to get the evidence in if the proper foundation is laid.  Under Rule 404(b), which addresses the use of a defendant’s other acts as evidence of his character, the foundation will vary from jurisdiction to jurisdiction, but always contains the basic elements that the defendant clearly committed the act, there is some logical connection between the act and the crime with which the defendant is charged other than a propensity to commit similar crimes, and the probative value of the other act must not be substantially outweighed by the danger of unfair prejudice. 


Evidence struggles are won or lost on the spot, in the courtroom, in front of a trial judge.  In the vast majority of cases, there is no effective right of appeal.  Playing to the trial judge’s discretion is what makes evidence an Art!  It’s what makes the ability to use this structure of evidence as the basis for the creative thinking of a great trial lawyer . . . the key to being a great trial lawyer!  I wrote about this in my first post on “The Art of Evidence.”  Go read it again.  See you Thursday!

4 Comments leave one →
  1. Andy Moorman, Assistant U.S. Attorney permalink
    June 6, 2011 12:50 am

    Hello Students,

    I was Judge Few’s second law clerk, working for him in 2001-02. During this time, the Judge introduce me to the structure of evidence he has shared with you on this blog. I have drawn on this structure in each of the 30+ cases I have tried as a state and federal prosecutor and as a defense attorney. I promise you that if you learn this structure it will serve you well for the rest of your legal careers!

    Just a thought about answering the essential “what is it?” question. Under F.R.E. 901, the party seeking to introduce a piece of evidence has the burden of answering the “what is it?” question for the judge. As a prosecutor, someone required to prove a defendant guilty, I am constantly having to answer the “what is it?” question for the judge. I strive to answer the question as succinctly and as simply as possible because the more simple my answer the easier it is for me to meet this burden. On the other hand, defense attorneys try to convince the judge that my answer to the question is too simple; that what the piece of evidence I seek to introduce is is far more complex to make my burden under Rule 901 more difficult to meet.

    A short example to illustrate the point. I prosecuted 6 defendants who transported thousands of pounds of marijuana from Mexico to Greenville, SC over a 6 month period. The DEA was able to locate two stash houses in Greenville where the group stored its marijuana, and ultimately searched both houses. While searching one of the houses, the DEA found a DirecTV bill for the house in one of the defendant’s names.

    At trial, I sought to introduce the bill, and I claimed that the bill was merely an item with that defendant’s name on it that was found in the house, much like a lunch box or any other item on which one would commonly put a name. I was prepared to have the officer who found the bill testify that he found it and where he found it.

    Defense counsel argued that my answer to the “what is it?” question was far too simple. Counsel argued that the item was a genuine bill for service sent to the defendant by DirecTV for service at the house. Counsel argued that I was required to call a witness from DirecTV (who was located in California) to testify that the bill was a genuine bill issued by DirecTV on an active account that was created at the request of the defendant. Ultimately, defense counsel and I came to an agreement on the admissibility of the bill.

    Bottom line, if you’re the lawyer seeking to introduce the piece of evidence, answer the “what is it?” question as simply as possible. If you’re the lawyer trying to prevent the piece of evidence from being introduced, give a complex answer to the question.

  2. July 1, 2011 2:07 am

    Couldn’t help but comment on the “lunchbox theory” of the bill. My esteemed colleague and good friend left out the “relevant” part. He wants the bill in to prove guilty knowledge of the Defendant whose name appears therein. As a Defense lawyer, put him in a box. If the bill is just a piece of paper, redact the name. Ahhh, then you would see the real reason come out. Why shouldn’t it come in? Why isn’t it hearsay? He’s offering it for the truth of the matter asserted: i.e. It is in fact the Defendants bill, it is a bill for the alleged stash house. Why is it’s introduction unfair to the defendant? Who can I cross examine about how this bill came about. What paperwork was signed? Does the signature match the Defendant’s? How can we validate this piece of potentially damning evidence without a witness from Direct TV? Plus, it’s a good appealable issue and everyone knows that “not guilty” verdicts in Federal Court are as rare as hen’s teeth. Of course, so are reversals in the Fourth Circuit, but who’s counting?

  3. Andy Moorman permalink
    July 6, 2011 4:51 pm

    For a good discussion of what my good friend has coined the “lunchbox theory,” see Bernadyn v. State, 887 A.2d 602 (Md. 2005).

  4. June 4, 2012 2:18 pm

    It is great to have another summer of the Honorable Judge Few down at the Charleston School of Law. Maybe even an old professor can learn a new thing or two. “As hope really does spring eternal.”
    Steve Spitz

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