How to Get Evidence Thrown out in Court

Excluding Evidence as Unreliable

Challenge a witness’s competency. A witness is only competent to testify about an event if he has personal knowledge of it. Object to any witness who begins testifying about an event without first establishing that he observed it. As the witness is testifying, you or your lawyer stands up and says, “Objection, your honor” and then states your grounds. Here, the grounds are “Lack of personal knowledge.”

Identify lay opinion testimony. A lay witness may only testify to what he or she observed. They are not allowed to provide expert testimony but can only offer opinion that is rationally based on their perception. Acceptable lay opinion includes opinion about size, sound, weight, distance, or manner of conduct. For example, “I thought she was tall” is acceptable lay opinion testimony. The lay witness, however, cannot purport to give scientific opinion. “I thought she was criminally insane” is unacceptable lay opinion testimony. You should move to strike testimony of that nature.

Move to strike hearsay evidence. Hearsay is a term for testimony in court from a witness who does not have personal knowledge of the events that they are testifying to; instead, they were told the information by someone else (the “declarant”). Because a witness must have personal knowledge of an event he testifies to, you can often get hearsay evidence thrown out. A classic example of hearsay would be if someone testified that they heard something somebody had done, but didn’t see it. There are several exceptions to the hearsay rule. Among the more common are an excited utterance, a statement made for purposes of obtaining medical treatment, a dying declaration, and statements against interest. These hearsay statements are allowed because they have circumstantial guarantees of trustworthiness. If the declarant is unavailable, then his out-of-court statements may be admitted through hearsay. If the statement was given during another trial or proceeding under oath, and if the statement was subject to cross examination at that time, then it may be admitted into evidence. Additionally, any statement made by a party is admissible against that party. For example, if you admitted to your neighbor that you were responsible for hitting the plaintiff with your car, then your neighbor can repeat your statement in court.

Argue the evidence was coerced. The Due Process Clause prevents the government from introducing any statement that was made involuntarily. You can get a confession thrown out if it was made involuntarily. You should challenge a confession as involuntary before trial. File a Motion to Suppress. Among the factors a court will consider are: threats, promises, physical coercion, the length of the interrogation, as well as the defendant’s health, age, and intelligence. The ultimate standard is whether the defendant’s free will was “overborne” by police coercion.

Throwing Out Prejudicial Evidence

Move to exclude character evidence. You can throw out evidence of a character trait if it is offered to prove that you acted in accordance with the trait on a particular occasion. Courts see this evidence as inherently prejudicial and irrelevant. The purpose behind this rule is to focus the jury’s attention on the main issue—what happened on this particular occasion—and to prevent the jury from rewarding good people and punishing bad people based on their character. There are exceptions. For example, if in a criminal trial a defendant offers evidence that he is generally peaceful, then the government could offer evidence to rebut it. A defendant in a criminal trial may also offer evidence of a victim’s character trait (such as a violent character), which the government may also rebut.

Identify “propensity” evidence. Evidence that you committed a crime on a prior occasion cannot be used as evidence that you committed the crime the government has charged you with on this occasion. Propensity evidence may, however, be used to prove motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident. A classic example is to prove “modus operandi”; that is, a criminal’s unique way of committing a crime. If a defendant always spray-painted a house after burglarizing it, then this evidence could be introduced to prove that the defendant committed the most recent burglary where the house was also spray-painted. This evidence is admitted to show identity, not a propensity to commit burglary.

Argue the evidence is unfairly prejudicial. Courts will exclude evidence if its probative value is substantially outweighed by its prejudicial effect. For example, you can exclude “guilt by association” evidence as unfairly prejudicial. If the government tries to introduce evidence that you hang out with drug dealers to prove that you, too, are a drug dealer, then you should move to have this evidence excluded as prejudicial.

Exclude evidence of your wealth or your amount of insurance coverage. Courts have acknowledged that evidence of your wealth, including any insurance policy, will likely induce juries to decide a case on improper grounds, namely your ability to pay the plaintiff. Because you should be held liable only for what you did, and not because of your wealth, you should move to exclude this evidence.

Excluding Inauthentic Evidence

Move to strike evidence that lacks a proper foundation. A document cannot be entered into evidence unless someone lays a foundation for it. This means that the person offering the evidence must produce testimony sufficient to prove that the item is what the party claims it is. For example, a person cannot just get up on the stand and argue that a photograph shows you hitting another car in an intersection. The witness must first establish: that the photograph is actually of the intersection in which the accident occurred; how she knows that it is the intersection (e.g., she drives through it daily), and how she knows the day and time the photograph was taken. If a witness fails to make these connections, then she has failed to lay a proper foundation, and the evidence may be excluded by the court. The judge will ultimately determine whether the witness has provided sufficient evidence. Some documents are self-authenticating. For example, domestic records that are sealed and signed, certified copies of public records, newspapers and magazines, as well as acknowledged (notarized) documents do not require a foundation.

Demand the use of original documents. Generally, a duplicate is admissible. But you can challenge its admissibility if you argue that it is not authentic, or that only a partial duplicate of the original is being offered.

Challenge the chain of custody. For example, if in a criminal trial the prosecution sent off the murder weapon to the lab to test for fingerprints, then the defendant should look through all of the reports describing the movement of the weapon. If the defendant can find a time when the gun is not accounted for as being in police custody, then the chain of custody is broken. The defendant could move to have the evidence thrown out.

Rejecting Evidence that Violates Public Policy

Move to strike any statements made during settlement negotiations. Conduct and statements made during a compromise negotiation are not admissible at trial to prove your liability. Also, any offers to pay for medical expenses may not be used at trial to establish liability for an injury. Courts exclude this evidence because they want to encourage settlement negotiations. If you were worried that your offer of a settlement could be used against you in court, then you might never agree to settle.

Claim attorney-client privilege. Because the courts want to encourage people to seek legal advice, they prohibit the introduction of any statement made to an attorney for the purpose of seeking legal advice when the attorney is acting in a professional capacity (as opposed to acting as your friend). Also, the client must intend that the statement be private. The attorney-client privilege can be waived—and waived inadvertently. If you tell your attorney something in public and it is overhead, then the witness can testify to what you said.

Claim spousal privilege. To promote spousal harmony, courts will exempt spouses from being forced to testify against each other. Also, they will exclude statements made between spouses. The communications privilege allows you to throw out any statement you made to your spouse. Although your spouse may still testify about other matters—e.g., what he observed—he cannot testify as to what you told him. The testimonial privilege allows you to keep your spouse from testifying completely, about any matter. In federal court, however, the testifying spouse holds the privilege; that is, if she wants to testify, then you cannot stop her.

Argue that evidence was seized without a warrant. The government also wants to encourage police to adhere to the Constitution when gathering evidence. Under the “exclusionary rule,” courts will throw out evidence seized without a search warrant to induce compliance. This is a complicated area of law, but you can learn the general rule. Generally, to use evidence at trial, police must seize it pursuant to a valid search warrant. If police grab it without a valid warrant, you can move before trial to have the evidence suppressed. There are many exceptions to the valid warrant requirement. For example, if the warrant was defective but police relied on it in a good faith belief that it was valid, then the evidence is admissible. Furthermore, if you consent to a search then the evidence will be admissible. Evidence is also admissible if it is gathered incident to a valid arrest, was in plain view of the police officers, or was discovered while the officers were in “hot pursuit” of the suspect. Also, evidence seized by private parties (not the police) is admissible if turned over to the police.

Argue that you were not given Miranda warnings. If you are interrogated when you are under arrest, the police must give you four Miranda warnings: you have the right to remain silent; if you say anything, it can be used against you in a court of a law; you have the right to an attorney; and, if you can’t afford an attorney, one will be provided for you. Failure to give even one warning can keep the prosecution from introducing the statements in their case-in-chief. Any statement you make could, however, be introduced to impeach you should you testify. If you allege a constitutional violation, an oral objection at trial is not enough. You should also file a pretrial motion. If you do not file a pretrial motion, then the issue could be forfeited on appeal.