Evidence, in a legal sense, is anything that proves or disproves the existence of something, a ground for belief, or proof. It may be through witness testimony, records, documents, exhibits, or other tangible objects. The evidence rules affect each legal case presented, cover what counts as evidence, and consider how to gather, handle, and present evidence.
For a court to accept evidence, it must be relevant, meaning it makes some fact at issue more or less likely than it would be without the evidence. Aside from being relevant, it is also essential to weigh the importance of evidence by examining the evidence source, distinguishing whether the evidence is direct or circumstantial, and assessing the witness’s credibility.
Before discussing direct versus circumstantial evidence, it is essential to know the three primary forms of evidence. These three are testimonial evidence, real evidence, and demonstrative evidence.
Testimonial evidence pertains to either oral or written statements made by witnesses under oath. It could be from an expert witness who the court permitted testifying at a trial because of special knowledge or proficiency in a particular field relevant to the case. It could also be from a lay witness who does not testify as an expert witness, which testifies based on personal knowledge about a matter at issue.
The second often called physical evidence, is real evidence. It is any material object that plays some role and gives rise to the litigation. Some of its examples could be tape recordings, canceled checks, letters, and photographs.
The third one is demonstrative evidence. This evidence represents an object explicitly created for a trial as a visual aid to the fact finder. Examples could be a chart, a map, graphs, or diagrams. CFE candidates should note that an object such as a photograph can either be real evidence – if it was part of the underlying event, or demonstrative evidence if explicitly created for the trial.
Now, let us discuss the two basic types of admissible evidence: direct and circumstantial evidence.
Direct evidence proves or disproves a fact directly. Examples of this are eyewitness testimony and confession.
Circumstantial evidence relies on an inference to connect it to a conclusion of fact. To illustrate, an eyewitness testifying that he saw the suspect getting Rs. 100,000 from the cash register is direct evidence. Or a suspect, confessing to a fraud examiner that he got the cash from his employer’s vault, is also direct evidence. However, if a bank statement shows a deposit of Rs. 100,000 to the suspect’s bank account after its employer reported missing Rs. 100,000 from its vault is a form of circumstantial evidence.
Such a situation could indirectly prove that the cash stolen is the same cash that the suspect deposited to its account. CFE candidates should note that direct evidence alone does not prove a fraud case, as prosecutors should prove it entirely through circumstantial evidence or combining these two forms. We have mentioned earlier that for evidence to be admissible, it should be relevant and carries weight. CFE candidates should note that evidence’s authenticity is essential in both civil and common law systems. In the law of evidence, authenticity establish show documentary evidence and other physical evidence are genuine, not a forgery.
Suppose evidence is subject to change overtime or is susceptible to alteration. The offering party should establish no modification or alteration from the time of collection until production in court. They can do it through a proper chain of custody to maintain the evidence’s authenticity. Chain of custody is the chronological documentation or paper trail that records the custody, control, transfer, analysis, and disposition of physical or electronic evidence.
Also, candidates should note the legal principles related to the best evidence rule and the hearsay evidence rule. The best evidence rule holds an original document as superior evidence. The rule specifies that secondary evidence, such as a copy or facsimile, will not be admissible if an original form exists and obtainable. Whereas, Hearsay evidence is testimony from a witness under oath who recites an out-of-court statement, the content of which is proving the truth of the matter asserted. In most courts, hearsay evidence is in admissible unless an exception to the Hearsay Rule applies.