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Thinking Through the Structure of Evidence

June 4, 2012

On Thursday I discussed with you my general approach to evidence problems.  This approach is the foundation for your evidence course, is based on the structure of the Federal Rules of Evidence, and focuses on the fundamental skill of a great lawyer: Thinking.  Thinking is one of the keys to success at the practice of law in general, and the practice of evidence in particular.  Structure is at the heart of a sound approach to 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” was the topic of the second hour of class on Thursday, May 31.  Here is a review of that class.

In this class, we will focus on four key concepts of evidence:

  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 constantly focus you on 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:

“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, Rule 402 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:

“… unless any of the following provides otherwise:”

Remember this: if evidence is relevant—it’s admissible—unless some other rule excludes it!  If it’s not relevant, as Rule 402 also succinctly states:

“Irrelevant evidence is not admissible.”

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?”

On Thursday I discussed another example of how the question “what is it?” affects admissibility.  Remember Andre Tufts?  He 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.

Andre’s lawyer objected to the admissibility of this testimony.  His lawyer and the prosecutor aggressively argued their different answers to the question “what is it?”  Andre’s 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 prosecutor, 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.  I told you how the case came out, but if you want to read it you can: 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 make the arguments you need to make to get the judge to rule in favor of your client.  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!

Why do I call this “The Art of Evidence.”  Isn’t evidence a field of law based on rules?  Well, yes, that’s always the starting point, but evidence is really about people.  Evidence is the art of writing and talking to judges and other lawyers in order to accomplish the goal of a client.  The law of evidence has little meaning until it is applied by lawyers and judges to facts in a trial dealing with real issues in the lives of real people.  Evidence is about thinking, and strategizing, and thinking about strategizing!  In the end, a lawyer stands in a courtroom in front of a trial judge and makes an argument—for or against the admissibility of the evidence—and the judge makes a ruling.  Evidence is all about that moment—when the trial judge exercises his or her discretion—and rules.  The lawyer has either won or lost an important struggle—for a client.  At that point, in somewhere above 95% of the cases, the issue is over.  As the Tenth Circuit famously stated about the chances of winning on appeal after losing an evidence struggle at trial:

The district judge has a particularly wide range of discretion in ruling on the admissibility of evidence.   Indeed, we have gone so far as to declare that appellants who challenge evidentiary rulings “are like rich men who wish to enter the Kingdom; their prospects compare with those of camels who wish to pass through the eye of a needle.”  United States v. Glecier, 923 F.2d 496, 503 (7th Cir.) (citing Matthew 19:24), cert. denied, 502 U.S. 810 (1991).

We’ll talk more about this later.  For now, I’m just glad you’re in the class!  We’re going to learn a lot—together—about how lawyers use the law of evidence to help real people.  It’s an Art!  Stay tuned!

One Comment leave one →
  1. Brian Burns permalink
    June 5, 2012 1:50 pm

    I continually find the intersection of law and art, where rules and structure yield to creativity, very appealing. I like how this post links these skills to the ultimate goal of helping the client. I look forward to learning more about both the rules and the art of making an evidence argument this semester.

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