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Can I get a Witness? Beginner's Guide to Testimonial Evidence

“They got nuthin’ on me, they can’t prove it, they don’t have no evidence! It’s just some witnesses... it’s just hearsay!”fingerprint-146242_640

Have you heard that before? I have. Our firm has. It’s not an uncommon way that people have described what they think their case is about, about what evidence they think exists. But double-negative aside, some people are very surprised when we explain just exactly what EVIDENCE is.
Let’s start from the very beginning, a very good place to start. So, what is evidence?
Evidence is the available body of facts or information, proof, indicating whether a belief or proposition is true or valid. It can support a fact or disprove a fact. In order for Evidence to be admissible, it first has to be relevant. Relevant evidence is evidence tending to prove or disprove a material fact. [1] This means that only information that helps prove or disprove the facts at hand. For instance, it may be relevant that Aaron acted in self-defense and acted first in a fight with Brutus because the Brutus is known to get into fights and beat people up. It is not relevant that Brutus is known to drive on a suspended license, because that doesn’t have anything to do with the fight. Make sense?
“So what?! They still don’t have evidence! There aren’t any pictures!”
Ah, yes… the second part. Evidence comes in several forms. Like water can be ice (solid), steam (gas), or a liquid, evidence can be verbal (testimony in written or oral form, even recorded), tangible (physical – drugs, money, weapon, fingerprints), or photographic (pictures or video). While the physical stuff and photos, fingerprints or videos are easy to understand, what seems to trip people up the most is testimonial evidence. So, I’m going to focus this post on that kind of evidence.
What is testimony?
tes·ti·mo·ny (ˈtestəˌmōnē/) noun
  • a formal written or spoken statement, especially one given in a court of law.
  • evidence or proof provided by the existence or appearance of something.
  • It means they saw something happen and they’re gonna tell EVERYONE about it.. in court.. at trial (*whether or not the jury believes them is another story)
A person can testify in court about what they saw, and in some cases what they heard, what they did, and what the defendant said. Now, there are rules. The evidence has to be relevant. If it the testimony is relevant, then the testimonial evidence cannot be inadmissible hearsay. Ahhh.. that one, that’s the one you were thinking of, right? They can’t testify because it’s just hearsay, right?! It. Depends.
Let’s talk about what hearsay actually means.
The Florida Code of Evidence, because yes, we lawyers have to have rules about everything, says that “Hearsay” is a statement, other than one made by the declarant (aka witness) while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted (meaning that what they heard is being used because it directly goes to whether or not something happened). Gossip Sticking with the oral testimony example (aka what someone says), this means that if Betty overhears Jane say that she saw Aaron punch Brutus before Brutus even did anything, that would be not admissible. Jane didn’t see it. She can’t testify about something Jane saw. Only Jane can testify about what she saw. Now, if Jane hears Aaron say that he just didn’t like Brutus, so he punched him, she can testify about Aaron’s statements. Why? Because Aaron made a statement that went against his interest. That is what we call an “exception.” Are there other exceptions? YES. We like exceptions. Unless they go against us, but that’s another story. You could read about the exceptions, but why read when you can watch this fun little video about hearsay exceptions (based on the Federal rules of evidence):

So, remember kids. Just because someone said it, or observed it, doesn't mean that it can't be used as EVIDENCE against you in a court of law. Just like a photo. If you have a question about what other evidence may or may not be admissible, call us at Colbert Law. (407) 705-3220. [1] Florida Statute § 90.401