By Collin County Criminal Defense Lawyer Jeremy Rosenthal
After years of practice, I have come to the following unescapable conclusion:
Your lawyer and you have a different idea of what the word “evidence” means!
The question about evidence is one of the most common and understandable questions I get. The answer is complex but I’ll do my best to break it down.
How My Clients and their Families Think About Evidence:
Most of my clients and their families think of evidence as what lawyers would consider “direct” evidence or “circumstantial evidence.”
Direct evidence would be something typically solid or concrete such as a DNA sample in a sexual assault case, a blood specimen in a DWI case, or perhaps a police video taken of a drug arrest.
Circumstantial evidence, by contrast, is evidence which requires an assumption of some sort to be made to reach a conclusion. For example — there was no snow on the ground when you went to bed and when you woke up the ground was covered in snow. This is circumstantial evidence it snowed while you slept. Pretty much everyone gets that too though sometimes it can be tenuous. (For example, “the Defendant was nervous when he was talking to the police so he must be guilty….” as you can see circumstantial evidence can be pretty shaky too).
Many people do not like considering testimony as “evidence” for the reason most testimony cannot be verified or dis-proven. This is perfectly understandable and perhaps should be the standard by which people’s lives and criminal records should be decided but as with all things — it’s not so simple.
How Your Lawyer Thinks About Evidence:
Evidence is a topic which occupies a full major law school class and is a huge chunk of the bar exam. Texas has its own rules of evidence largely modeled after the Federal Rules of Evidence.
Those rules are detailed and in many cases have legal opinion after legal opinion dissecting those rules even further in to minuscule nuances. Those rules conform to the U.S. Constitution and Supreme Court cases can and do change how these rules are construed in courtrooms on a frequent basis. Often a small evidentiary issue can literally decide an entire case.
Most evidence in a criminal case is testimony. Yes, much of it is difficult to either verify or dis-prove. But the Texas and Federal Rules of Evidence allow testimony alone to be the basis of a conviction whether it can be verified or not. In lawyer’s terms, testimony alone is “legally sufficient” to sustain a conviction.
The law presumes a jury is able to decide what is credible and what is not. In a sense, a jury could consider an accuser’s testimony to be just as concrete as DNA evidence.
So an accuser making an allegation of sexual abuse, a spouse claiming to be hit, or a police officer claiming to have found drugs in the center console of a car all count as “evidence” though it may not seem as solid from our standpoint.
Can Someone Come in to Court and Just Say Anything?
Not quite. Obviously, a person who lies can be subject to aggravated perjury. The threat of perjury rule doesn’t keep people from lying under oath but it certainly deters. Again, when something can’t be verified or disproven then proving perjury can be impossible too.
A person cannot testify to hearsay or to something not within their first-hand knowledge. A simplified explanation is someone can only testify to something directly observed by them. Witnesses are normally not allowed to guess as to what may or may not have occurred. Expert witnesses must have some scientific basis to draw certain conclusions. Many other rules are in place to promote fairness with regards to testimony.
Allowing Uncorroborated Testimony Seems Unfair. Why is this the Rule?
Examples would be cases where a robber mugs someone in an alley or a sex offender engages in inappropriate touching of a child. There might not be any corroborating evidence other than the accusation itself. So while it might seem unfair to allow testimony of one person alone to convict — it would be just as unfair to victims to allow their perpetrator to go free for the same reason.
“He-Said, She-Said” Trials
Many trials come down to a “he-said, she-said” courtroom fight. This is unfortunate but any decent lawyer should be able to deal with this by scrapping, clawing, and fighting so their theory of the case prevails.
It is important for your lawyer to know how to understand and persuade a jury to believe their theory of the case over the prosecution’s theory. It is no small task. Prosecutors get a lot of experience and it is a mistake to under-estimate them.
The Answer to the Question, “How Can they Prosecute Me with No Evidence?”
They probably do have some degree of what the law considers to be evidence. We just don’t like it and we have to learn to over-come the evidence it in court.
*Jeremy Rosenthal is Board Certified in Criminal Law by the Texas Board of Legal Specialization and licensed by the Supreme Court of Texas. Nothing in this article is intended to be legal advice. For legal advice about any situation you should contact a lawyer directly.