Evidence...what is evidence?

Evidence…what is evidence? We have all heard the term. We all have ideas about what constitutes evidence. Yet in my experience, many people approach this noun as if it is a mysterious otherworldly phenomenon that exists independently of human effort. I want to remind you that evidence is a verb before it is a noun.

Did you make a phone call?

Did you send a text?

Did you send an e-mail?

Did you capture an event on your phone?

Did you take a picture?

Did you make a note in a journal?

Did you keep a receipt?( I never do; my wife and accountant hate me!)

Did you make an entry in your business records?

Did you write a letter?

Did you write a check?

Did you make a social media post?

Evidence is everywhere; you create evidence every day. Did you have a strange conversation over the phone that you want to memorialize? Consider sending a confirming text or e-mail in which you layout the facts discussed. Create a record. Evidence is a verb as well as a noun.

Direct vs circumstantial evidence: On any given night, on any given television network, there will be an irate police chief berating two detectives, one of whom is a by-the-book officer and the other a loose cannon who shoots from the hip but gets results. Results which, in reality, are not admissible in court (but this is a topic for another time).

The Police chief is yelling at the detectives because they blew up 12 city blocks in a crowded urban area. The police chief is undoubtedly slamming a fist on a desk and screaming: “This is all circumstantial evidence…get back out there and find the real evidene”

The Police Chief is yelling at the detectives because they blew up 12 city blocks in a crowded urban area. The police chief is undoubtedly slamming a fist on a desk and screaming: “This is all circumstantial evidence…get back out there and find the real evidence." You do not need surveillance footage, wire taps, a CSI team to create evidence you need for seeking a judicial remedy. I believe most people mistake the circumstantial evidence for hearsay.

Did you know that a jury may base a verdict on either or both direct and circumstantial evidence? Direct evidence is exactly what it sounds like: video surveillance capturing an unmasked jewel thief smiling into the camera while he places the diamond in his pocket. Circumstantial evidence is defined as the proof of a chain of circumstances pointing to the existence or nonexistence of a certain fact. That definition might make your head spin, but an example might help you understand the concept.

My oldest son loves Legos. He will build cars, homes, stores, secret lairs, entire Lego civilizations for Batman, Spiderman, Yoda, the Joker, and occasionally a few Barbie Dolls and shopkin folks may stop by. He will spend an hour building a world in the play room while I make dinner in the kitchen. He will inevitably ask me to come and see his creation.

As we turn from the kitchen, his younger brother high tails it out of the play room, laughing like a banshee. Upon entering the playroom, we see Lego body parts strewed all over the floor: a head here, pair of legs there. The city has been destroyed. Roofs torn off buildings. Walls lay on the ground. The Bat Cave has collapsed. Even the Barbie dolls lay in awkward positions, covered with Lego bricks. In fact, right outside of the door to the playroom is a four piece Lego brick. I almost missed it, but I stepped on it, which is the only way adults find Legos.

My oldest son breaks into tears and begins screaming his younger brother’s name.

Now, what evidence do we have that my youngest son perpetrated a Lego apocalypse? We didn’t see him destroy the Lego World. We didn’t even see him close to the Legos. There were not any direct witnesses to the mayhem. I do not have any surveillance of my youngest son destroying Lego civilizations like a three-year-old Godzilla. I am most certain that I will never elicit a confession from my youngest son; he will straight lie to my face.

So, what circumstantial evidence do I have? My oldest son will testify that he has tons of Legos that he leaves all over the house until his parents step on them, quietly curse, and then demand he pick them up and put them away. My oldest son will testify that he built a Lego City, a peaceful city, where Batman and the Joker and Barbie commingled amongst the backdrop of homes and shops in the playroom. My oldest son will testify that he came to get me in the kitchen because he wanted to show me his Lego utopia.

When walking towards the playroom, I saw my youngest son run out of playroom, laughing like the devil on a Saturday night. Finally, I stepped on Lego blocks by the door of the play room. My oldest son will testify that he used all of the Lego bricks to build his Lego Jericho, so the brick by the door must have come from one of the collapsed walls.

All the aforementioned is circumstantial evidence. Each circumstance creates a chain that supports the fact that my youngest son committed Lego atrocities in the playroom. Now, for some of you reading this the T.V, Police chief is still screaming in the back of your head, and you’re saying " whoa, I see the circumstantial chain, the Legos, the running from the room, etc., but you are making some inferences from the circumstantial evidence, and that can’t be right." You would be wrong. The jury may draw inferences and conclusions from the evidence, provided the inferences and conclusions are reasonable and based upon the jurors’ common sense and experience.

The truth is that most cases turn on circumstantial evidence. We all don’t have an investigative governmental agency at our disposal or a CSI crime lab filled with scientist working around the clock to prove my wife drank the last of the wine or my youngest son destroyed his older brother’s Lego world, but that doesn’t mean we do not have evidence.

What is evidence? It is noun and verb. You create evidence every day. Be mindful of what you see, hear, say, and do, and create a record of your experience. Write that receipt, send a confirming text, make that Facebook or Instagram post, or send an e-mail. Call me; we'll asses what evidence we have or we will create a record. I'll even draft a contract for you.

#salemOregonattorney #evidence #circumstantialevidence