Principles of Evidence Display slide. Say “Welcome to the Professional Conduct session of the CLEAR Learning NCIT Basic course.” Introduce yourself, including a brief overview of your credentials and history with CLEAR. National Certified Investigator & Inspector Training Basic Program Instructor Name Agency

Law of Evidence Common Law Statutory Code

Rules of Evidence A system of rules of when, how and whether a piece of information can be used in a trial Whether or not the strict rules of evidence will apply in a regulatory case depends on the legislation governing that profession

Why? Consistency Reliability Fairness

Definitions Evidence Probative Admissibility

Categories Direct Circumstantial

Direct Establishes fact in issue directly Eyewitness

Circumstantial Indirectly establishes a fact Series of facts Reasonable inference

Forms Real Testimonial Demonstrative Judicial Notice

Real Tangible Objects Documentary Physical Scientific

Real Evidence - Issues Best Evidence Rule Authentication

Best Evidence Rule To prove the contents of a writing, the most original document is best Applies to: Documents Recordings Photographs Correspondence

Administrative Proceedings Duplicate is allowable to the same extent as the original unless an issue is raised as to: (i) authenticity, or (ii) fairness

Authentication The process of establishing at a trial or hearing that something is what you claim it to be.

Authentication What requires authentication? How do you authenticate an item? Testimony Personal Knowledge Distinctive markings, chain of custody Stipulation Evidence Act

Process of Authentication Identify Source Proof of Source Document Custody Document Condition Prepare Receipt

Testimonial Lay Expert

Testimonial - Lay Presumed to be competent to testify Personal knowledge Oath or affirmation

Testimonial - Expert Average person unable to make reasoned judgment without assistance of an expert Competency to testify is not presumed; must be qualified Frequently used in administrative cases

Testimonial Evidence Credibility Bias Interest Hostility

Demonstrative A representation or illustration intended to prove a material fact Used to aid testimonial evidence so as to give it more weight and make it more understandable

Judicial Notice When a commonly known or easily ascertainable fact is recognized as being true without requiring formal proof (e.g., what day of the week a particular date falls upon).

Materiality Has something substantive to do with an issue in the case

Relevancy Logical relevance Legal relevance

Evidence Acts Evidence Acts facilitate the use of evidence that would otherwise be excluded.

Admissibility of Evidence The requirement that the evidence does not violate an exclusionary rule Types of exclusionary rules: Hearsay Prior consistent statements Oath helping

Privileges Solicitor-Client Public Policy Settlement Public interest Litigation

Prejudicial Evidence Inflammatory Public policy concerns Similar acts Subsequent remedial measures Similar acts

Prejudicial Evidence Excessive/Confusing/Cumulative Unfair surprise Physical inconvenience Indecency

Hearsay Statement made outside of the trial or hearing by a person who is not a party to the proceeding that is offered in evidence to prove what was said is true

Why is Hearsay Suspect? No opportunity of cross-examine Not under oath at the time statement was made Not in courtroom or hearing room when the statement was made Danger of inaccurate reporting

Exceptions Reliable and necessary Not offered to prove what is said is true Former testimony Admission Declarations against interest

Exceptions Dying declarations Business Records Official Records Past Recollection Recorded Res Gestae

Evidence in Administrative Cases Sometimes, strict rules of evidence do not apply, but are often followed to some extent In cases where hearsay is allowed, it is often given limited weight and is usually not sufficient to support a finding on its own Privileged communications are typically excluded

Standard of Proof Balance of Probabilities E.g.: it is more likely than not that

Sufficiency of Evidence Burden of Proof Assessing Credibility

Assessing Credibility Appearance or Demeanor Ability to perceive Ability to recall Motivation Probability Internal consistency External consistency

Judicial Scrutiny Challenge an agency action Degree of scrutiny Appeal provided by statute Application for Judicial Review Degree of scrutiny Discretion? Expertise? Witness credibility? Nature of ruling?

Evidence Review Questions

The two broad classifications of evidence are direct and: Review Question 1 The two broad classifications of evidence are direct and: Indirect Circumstantial Negligent Contextual

Review Question 2 The reasons for having rules of evidence are Consistency, Fairness, and: Reliability Admissibility Relevancy Materiality

“The most original document is best” is the definition of: Review Question 3 “The most original document is best” is the definition of: Admissibility Direct Evidence The Best Evidence Rule Authentication

Principles of Evidence Summary (1 of 2) The rules of evidence exist to ensure fairness, consistency and reliability Evidence is classified as direct or circumstantial Real evidence includes objects that can been seen and felt Most often, demonstrative evidence is used to support testimonial evidence

Principles of Evidence Summary (2 of 2) The best evidence rule states that the most original evidence is best Authenticating evidence means proving that the information is what you claim it to be Privileged evidence is excluded from administrative hearings

NCIT Basic Evaluations Principles of Evidence

In general, this instructor: Unacceptable Needs to Improve Is Good Is Very Good Excellent

The style of delivery: Unacceptable Needs to Improve Is Good Is Very Good Excellent

The content: Unacceptable Needs to Improve Is Good Is Very Good Excellent

The amount of material covered: Unacceptable Needs to Improve Is Good Is Very Good Excellent

The usefulness of this session : Unacceptable Needs to Improve Is Good Is Very Good Excellent