ABA Family Legal Guide

Criminal Justice

Court Procedures

Evidence in Criminal Cases

What kind of evidence may the prosecution use against me at the trial?

The prosecution may use almost any type of legally admissible evidence that will help establish your guilt. This includes physical evidence, such as a murder weapon or items stolen during a burglary. Testimonial evidence is likely to be used as well. That involves testimony (oral statements) from a person on the witness stand. For example, the owner of a stolen car might testify that no permission was given to anyone to take the car on the day the crime occurred. The prosecution also may introduce circumstantial evidence of a crime, such as the fact that the defendant hurriedly packed and moved out of state within hours after the crime, circumstantially indicating a consciousness of guilt--or that a man charged with killing his wife took out a $100,000 life insurance policy the day before she was slain, circumstantially indicating motive.

If a lawyer asks a witness to testify about statements that someone else made outside the courtroom, the opposing lawyer may object to the admissibility of the testimony because it is hearsay. The problem with hearsay is that the person who made the statement is not a witness and is unavailable for cross-examination.

To decide whether the testimony would be hearsay, the court must decide why the witness is being asked the question. If the witness's testimony about someone else's out-of-court statement is being introduced to prove the truth of the out-of-court statement, it is hearsay. If it is only being introduced to prove that the out-of-court statement was made, it is not hearsay.

For example, assume Jane testifies, "John told me my husband was having an affair." If John's out-of-court statement ("Your husband is having an affair") were being introduced to prove that Jane's husband was in fact having an affair, it would be hearsay. If, on the other hand, Jane is only testifying about what John said in order to explain why she slapped him in the face, her testimony would not be hearsay. Here the only issue is whether John made the statement, not whether the statement was true.

There are many exceptions to the rule against hearsay, so do not be surprised to hear such statements allowed during the trial.