Some basic rules of evidence

Despite television and movie portrayals, it is not easy to have evidence (like photographs and documents) considered at trial (by a judge).


Evidence law is very complicated and that fact is one of the reasons that we have Small Claims Court. In Small Claims, the rules of evidence are ‘relaxed’, allowing more evidence to ‘get in’ and be considered. As a result, self-represented people can speak for themselves (without a lawyer guiding them through evidence law).

But, most court proceedings do not proceed in Small Claims with ‘relaxed’ evidence rules. Instead, most lawsuits proceed with the strict rules of evidence applying…

So, what are those rules? Well, there are A LOT of rules and there is no way that I can describe them all here. But, I can try to describe a few rules.

Last week, I discussed hearsay.

This week, I will discuss two more rules:

  1. some evidence (like documents or photographs) needs to be introduced through a witness; and
  2. you need to provide the court (judge) with original documents. I’ll discuss these issues below.

First, not all evidence comes from the mouth of a witness. Some evidence, such a bloody t-shirt or a photograph, is produced at trial for the judge to actually see and consider. In order for this evidence to be admitted and actually considered, it needs to be ‘authenticated’.

So, what does ‘authenticate’ mean? Well, it basically means a witness is required to say that the piece of evidence is what it intends to be.

Here’s an example: if a party wants to admit a certain photograph into evidence (like in the Vancouver Stanley Cut Riots), the party needs to call a witness (usually the person who took the photograph) to say that they took the photograph, that the photograph hasn’t been changed in any way, that they were in possession of the photograph from the date of development until trial, and that the photograph accurately represents what occurred at the scene (and that there is no intention to mislead).

Another rule is that original documents (and not copies) should be produced in court.

Why does this matter? Well, for one thing, copied documents don’t always tell the whole story.

Consider that there could be situations in which an original document was written on with different coloured pens. Such differences in pen colour could be indicative of certain important issues, such as whether or not a document was signed at different times or locations. Such evidence would be lost if a party were to rely on a copied document, which simply shows black and white.

But, if you have lost the original document, you may not need to ‘panic’. If the original document cannot be produced, the party may try to enter a copy if they have a reasonable explanation as to why the original cannot be produced (and the judge accepts that).

Hopefully, for your sake, you won’t ever have to ‘use’ these rules. To do so would mean you are going to court, which means you have either been hurt (physically or financially) or you have hurt someone else.

And now you know.

**The information contained in this column should not be treated by readers as legal advice and should not be relied on without detailed legal counsel being sought.

Originally posted on on August 14, 2012: Some basic rules of evidence.

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