India Criminal Defense Manual - Evidence

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The laws of evidence impose standards that govern the admission of proof at trial. This proof can come in the form of testimony, documents, or physical objects. There are four main types of evidence that may be offered in a criminal case:

  • Demonstrative
  • Documentary
  • Real
  • Testimonial

Demonstrative evidence illustrates the testimony of a witness and includes items such as maps, diagrams, and charts. Documentary evidence is contained in the form of writing, such as a contract. Real evidence is generally an object that was directly involved in the case, such as the murder weapon or a piece of the victim's clothing. Testimonial evidence is oral evidence provided by a witness under oath. Both the content and form of proffered evidence is considered when determining its admissibility at trial. Many volumes have been written on the rules of evidence. What follows are some general principles that frequently arise in criminal trials.

The Process of Admitting Evidence

Before evidence can be used at trial, it must be admitted. The judge determines the admissibility of evidence. To be admissible, evidence must be material, relevant, trustworthy, and must not violate an exclusionary rule. Real and documentary evidence must also be authenticated, that is, shown to be what the proponent claims it is. Authentication can be accomplished through witness testimony or, if the evidence is the type that can easily be tampered with (i.e. blood samples), authentication can be accomplished by offering evidence that establishes an unbroken chain of possession from the time the evidence was collected to the time it is offered in court. Once admitted, the finder of fact will determine the appropriate weight to give to a particular piece of evidence. Evidence is material if it relates to a substantive legal issue in the case. Evidence is relevant if it tends to prove or disprove a material issue. Exclusionary rules, discussed above, prevent the admissibility of relevant and material evidence due to concerns about the manner in which the evidence was obtained.

Additionally, a trial judge has significant discretion to exclude evidence, despite its relevance, if its probative value is outweighed by its prejudicial value, if it could be confusing or misleading, or if its admission would cause undue delay.

Tips for Evaluating Materiality and Relevancy

Inquiries into materiality and relevancy are intertwined as they both seek to determine whether the proffered evidence tends to prove or disprove a substantive issue in the case. Materiality and relevancy deal with the content of the evidence, not the manner in which it is offered. The questions to ask when evaluating materiality and relevancy are: What is the evidence being used to prove? Is this a material fact? Will the evidence tend to make the fact more or less likely to be true?

As a general guideline, relevant evidence relates to a time, event or person involved in the controversy that is the subject of the trial. Evidence that does not relate to a time, event or person involved in the current controversy, but rather to a similar time, event, or person, should be carefully evaluated. For the most part, evidence of a similar occurrence is not relevant, and even if it is relevant, the risk of unfair prejudice may make it inadmissible. For example, in a murder case, evidence that the criminal accused threatened the victim on the morning of the killing is probably relevant, however evidence that the accused threatened someone else twenty years earlier is probably not relevant, as it is not probative of a material issue in the present controversy.

Legal aid lawyer must be careful not to "open the door" for unfavorable evidence by, for example, having the accused testify that he has never threatened anyone.

Character Evidence: The Basics

Quite often, character evidence is the only evidence offered by an accused in his case. This evidence is intended to show that upstanding persons in the community know the accused and that he has a reputation as a law- abiding citizen.

  • Evidence of the Criminal Accused's Character

Character evidence concerns a specific quality attributed to a person, such as truthfulness or violence. The three main methods for proving an individual's character for a particular quality or trait are:

(1) introducing evidence of the individual's specific acts;

(2) offering a witness's opinion of the individual's character; and

(3) offering a witness's testimony regarding the individual's overall reputation in the community. Evidence concerning the character of a criminal accused raises special relevancy concerns.

Generally, the prosecution cannot offer evidence of the bad character of the criminal accused in order to show that the accused is more likely to have committed the crime of which he is accused.

However, because the liberty of the criminal accused is at stake, the criminal accused may introduce evidence of his good character to demonstrate his innocence of the crime of which he is accused. An accused may do so by calling a qualified witness to testify to the accused's good reputation for the trait involved in the case, as well as to testify to the witness's personal opinion regarding that trait of the accused. Should the accused call a character witness, the prosecution may rebut such testimony by cross examining the character witness, as well as by calling a witness to testify to the accused's bad reputation or the witness's opinion of the accused's character for the particular trait involved. Character evidence may be useful in a case in which the accused is a respected member of the community.

The legal aid lawyer should explore carefully with his client whether there are incidents of improper conduct that could be used to cross-examine such witnesses.

  • Evidence of the Victim's Character

The criminal accused may introduce reputation or opinion evidence of the bad character of the victim only when it is relevant to prove the accused's innocence. For example, in a murder case where the accused claims self defense, the accused may introduce evidence showing that the victim threatened him. Should the accused introduce such evidence, the prosecution may offer reputation or opinion evidence regarding the victim's good character or the accused's bad character for the same trait. As a public policy matter, the criminal accused is generally not allowed to present evidence regarding the bad character of a rape victim.

  • Evidence of Habit

Unlike character evidence, evidence that demonstrates a criminal accused's habit, that is his usual response to a specific circumstance, may be introduced in certain circumstances to prove that the criminal accused acted in conformity with his habit on a particular occasion. The reason for allowing habit evidence as opposed to character evidence is that habits are specific, regular, and consistently repeated.

  • Evidence of Specific Acts of Misconduct

Generally, evidence of an accused's past crimes or specific acts of misconduct is inadmissible to establish the accused's criminal disposition. The purpose of this rule is to prevent conviction based on evidence of prior crimes, rather than evidence that the accused committed the present crime. Although evidence of specific acts of misconduct cannot be used to demonstrate conformity with them, such evidence may be admissible for other purposes, such as to show motive, opportunity, intent, preparation, plan, knowledge, identity or absence of mistake. For example, evidence that the accused committed "signature" prior acts may be introduced to prove that the criminal accused committed the act in question.

Excluding evidence:The Basics

  • The Exclusionary Rule

The exclusionary rule is a rule by which Magistrates prevent the introduction of evidence in a criminal trial that would violate certain rights of the criminal accused. These rights, which are discussed in greater detail above, include: (1) the right to be free from unreasonable search and seizure; (2) the right to be free from compulsory self-incrimination; and (3) the right to the assistance of a legal aid lawyer. The exclusionary rule prohibits the government from using evidence obtained in violation of these rights, as long as it constitutes a "failure of justice". There are several purposes of the exclusionary rule, including: to avoid the risk of unreliable evidence, to discourage law enforcement officers from violating the rights of the accused, and to prevent unfairness to the accused caused by introducing evidence that is more prejudicial than probative.

Hearsay: The Basics

Hearsay is an out of court statement, made by someone other than the witness testifying at trial, offered at trial for the truth of the matter asserted. If a statement is hearsay, and one of the many exceptions to the rule against hearsay does not apply, the statement is inadmissible. Unlike materiality and relevancy which evaluate the content of the evidence, hearsay rules evaluate the manner in which the evidence is offered. The purpose of the rule against hearsay is to insure that the adverse party is afforded an opportunity to cross-examine the declarant to test whether his testimony is accurate.

There are some statements, that although hearsay, are deemed to be trustworthy and therefore admissible as exceptions to the hearsay rule. Some of these exceptions require a declarant to be unavailable. A declarant is unavailable if he is exempted from testifying by a court ruling, refuses to testify despite a court ruling, lacks memory to testify, cannot testify due to death or illness, or he cannot attend the trial.

The following are some examples of exceptions to the hearsay rule requiring a declarant to be unavailable:

  • Statements previously given under oath
  • Statements against the declarant's pecuniary, proprietary, or penal interest
  • Statements made under a belief of impending death
  • Statements about personal or family history

The following are some examples of exceptions to the hearsay rule that are not affected by a declarant's availability:

  • Statements concerning the declarant's then-existing state of mind
  • Excited utterances
  • Present sense impressions
  • Statements concerning present bodily condition
  • Business records
  • Statements previously recorded and used at trial to refresh a witness's recollection
  • Public records and other official documents

Additionally, there is a catch-all exception to the hearsay rule which allows the admission of hearsay, not covered by a specific exception to the rule, if:

(1) the statement has particular guarantees of trustworthiness, (2) the interests of justice would be served by its admission, and (3) the proponent gives adequate notice to his adversary.


Some out-of-court statements are deemed not to be hearsay. According to its very definition, hearsay is a statement that is being offered to prove the truth of the matter asserted. If the statement is offered for any other purpose, then the statement is not hearsay. For example, a witness may testify that yesterday he spoke to a friend who lives in Jaipur. While on the phone that friend said, "It's raining here!" If the witness' lawyer is seeking to use this statement to prove that it was in fact raining in Jaipur, then the statement is hearsay and is not admissible. If the Legal aid lawyer, however, is seeking to use the statement to prove that the phone lines were operating that day, or that the declarant had not lost the power of speech, or that the two parties were in contact on that particular day, or for any other purpose, then the statement is not being offered to prove the truth of the matter asserted, and is not hearsay.

Another situation in which an out-of-court statement is deemed not to be hearsay is a statement by a co-conspirator in the course of a conspiracy. The statement must have been uttered (1) by a co-conspirator of a party (2) in furtherance of the conspiracy (the statement need not have actually furthered the conspiracy to be admissible; it need only have been uttered for the purpose of furthering the conspiracy); and (3) during the existence of the conspiracy (statements made after the object of the conspiracy is attained or after the conspiracy is terminated are still hearsay and inadmissible). The existence of the conspiracy and the accused's participation in it are matters to be determined by the court. The co-conspirator statement offered by the prosecution can be considered by the court in this determination but it cannot be sufficient.

See India Criminal Defense Manual