There are two categories of blog postings of mine that I have not posted to very often. Law and politics. You can see them listed on the left-hand sidebar. 🙂
Although admittedly, I did post a piece on administrative law that gives you a peek into how executive agencies have the power to create legislation and how that power is exercised. See: Framers, Federalists, and the Reality of the Administrative State. And I did do a series on marriage and divorce.* There are a few other posts there as well.
I’ve intentionally avoided these categories during the past four years because politics, in my country anyway, has been a very contentious topic. To say the least. And when I’ve tried to explain the Constitution and statutes, well, let’s just say that people have notions about how the law is “supposed” to work that are largely based on TV shows and outright fantasy.
But today, I’m going to go ahead and post something, very brief, about evidentiary law. Which is relevant to all of the litigation currently swirling about the US election.
But first, a disclaimer. Whenever I write about the law, it should never be construed to be legal advice. I have no attorney-client relationship with any of my readers. If you are involved in a legal situation, I suggest you seek out the advice of competent legal counsel.
And finally, obviously, this is not supposed to be entire encapsulation of evidentiary law. What I’m presenting is a very boiled down summary of what constitutes evidence that attorneys spend their entire legal careers practicing and learning about the various nuances of how to present it. Moreover, the rules of evidence are different in different states and there are differences between the state and federal rules of evidence.
With that disclaimer in mind . . . read on. 🙂
In case anyone is wondering about all of the current litigation going on, which from what I can see there was only one valid filing so far, here is what constitutes evidence.
There are four basic types of evidence recognized by the courts – demonstrative, real, testimonial and documentary.
To be admitted as evidence, an offering must be relevant, material, and competent.
Evidence is relevant if it indicates a relationship between facts that increases the probability of the existence of the other.
Evidence is material if it is offered to prove or disprove a specific fact in issue. Thus, evidence is material if it relates to one of the particular elements necessary for proving or disproving a case. In all cases, there will be numerous elements, all of which must be proven, to succeed on any particular claim.
Evidence is considered “competent” if it complies with certain traditional notions of reliability.
The weight of the evidence, once admitted, is based on the believability or persuasiveness of evidence. The credibility of witnesses falls into this category. The probative value (tending to convince a person of the truth of some proposition) of evidence does not necessarily correlate to the quantity of the evidence but rather the persuasiveness of the evidence.
Then the evidence received and admitted must meet the burden of proof in the case. There are three different burdens depending on the case – preponderance of the evidence for most civil trials; competent and substantial evidence for administrative law cases; and beyond a reasonable doubt for criminal cases.
Allegations in the petitions drafted and filed by attorneys are not evidence.
The statements and arguments made by attorneys are not evidence.
The statements made by persons who are not even party to a case, or not presented as a witness, are not evidence.
Even affidavits, sworn and signed statements by witnesses and offered into evidence, do not become evidence unless meeting these standards and then being formally admitted to the record. There are many evidentiary rules that are followed to ensure that evidence is credible.
In fact, while the term “evidence” is thrown about willy-nilly, in the legal context, there is no “evidence” at all unless the offering passes the legal thresholds to be formally admitted into the court record.
Otherwise, it’s all just bullshit.
And courts can issue summary judgments based on the pleadings and filings alone when there are no material facts in dispute, while applying the proper legal standards.
What I’ve seen so far in these case filings is a lot of bullshit and no substance.
Photos: The feature photo is of the Clay County Courthouse in Brazil, Indiana. There’s a great family story about this courthouse and how Clay County became the “county seat.” It seems that, beginning in 1825, the original county seat and courthouse was in Bowling Green, Indiana. The people of Brazil had to travel some 20 miles to Bowling Green to conduct various business because of this, and traveling 20 miles back in the 1800s was a pretty big deal. Pictures horses and buggies.
I’m unsure if the following events were correlated as there have been several stories told. But it’s said that the folks in Brazil showed up one night in Bowling Green, broke into the courthouse there, packed up all of the county records, and carted them back to Brazil to make Brazil the county seat. And the Bowling Green Courthouse then mysteriously burned to the ground. This all happened around 1877. My Great, Great Grandfather was the county sheriff during this time period, and his contribution to this hijacking was to do nothing. No one was ever arrested or prosecuted for this grand theft. 🙂 No case. No parties. A lot of hearsay. No Evidence. 🙂
The feature image and the first picture above are of the Clay County Courthouse. Those two pics were found on the Internet in the Public Domain. You may refer to the web page for Clay County.
The final picture is a close up of the retired F-86 Fighter Jet that sits on the Courthouse lawn that I took. This Korean War era jet fighter found its final landing spot here due to my Great Uncle’s influence. He was a Major General in the Air Force, with his origins in Brazil, and he was the Commander of Kadena Air Force Base in Japan during the Korean War. His planes were providing the air support for General MacArthur during the Korean War.
*If anyone is interested and hasn’t already read these posts, here are the links to my series on marriage and divorce. It’s not pretty.