Evidence

Details

By Professor Victoria Sutton

September 08, 2024

Guest Opinion. In law, evidence is guided by rules, and judges apply those rules to determine if it is admissible in a court of law. It has to meet some standards, for example, it must be relevant, meaning it has to tend to make the fact more probable than not then it would be without the evidence (Federal Rule of Evidence 401).

 It also has to be more helpful (have probative value) than prejudicial, involving a balancing test (Federal Rule of Evidence 403). Scientific evidence has to meet all of the tests of ordinary evidence, but in addition it has to pass several standards of scientific reliability. One of those is that the evidence has to be acceptable in the field of science in which it is presented. Then there are rules for the “expert” that is proffering the evidence and scientific opinions, and how that expert must explain the foundation for their explanations. The Federal Rules of Evidence are studied in one or two semesters in law school, and make up about 1/5th of the Multistate Bar Examination that (almost) every future lawyer must pass.

Evidence is used to support claims, and other fields have other kinds of “evidence” to support their academic claims.

In anthropology, evidence comes in the form of conversations with others. The perspective of the anthropologist asking the questions and the social position of the subject all have something to do with the resulting evidence that is produced. But how do you know it is true? Many times conversations with anthropologists are just not true or are shades of true. But if it is the truth of that subject, does it matter if it is not accurate? Is that evidence? Evidence can be one’s perception or understanding of what is happening in their community. It may not be “true” but it is their perception and serves as evidence in anthropology. Do anthropologists need to conduct a judicial process to discern the truth? Not at all, and sometimes the lies and biases are part of the study that reveals some truth.

Forensic Anthropology, a subfield of physical anthropology, is evidence intensive from bones and other materials that may involve crimes or cause of death questions. These may or may not cross into the field of legal evidence or may be historical research.

In history, evidence is mainly historic documents with exact quotes from those documents as primary sources, and published articles as secondary sources. The interpretation of that evidence is looked at in terms of bias and corroboration with other sources is also used. One of the reasons for the rise in studies that want to decolonize history is because researcher and entire field bias crept into the process of history. The selective use of documents, sources and even oral histories, left out the stories of people of color and perspectives of other participants in historical periods and events. Revisiting histories have brought to light contributions made by African Americans and Native Americans in a way that was completely suppressed or denied in the past. Thus the decolonizing research wants to uncover truth that was suppressed and gave us only “partial truth” or “shades of truth.” Some go as far as to say it was “half-truths” which ventures into the intentionally deceptive.

In the study of theater, you also have some standards of evidence. The types of evidence you might see in theater studies are articles, theater critics opinions, and ticket sales.

Evidence-based medicine (EBM) has become a catch-phrase for reliable medical practice. It is defined as “evidence-based medicine (EBM) uses the scientific method to organize and apply current data to improve healthcare decisions. Thus, the best available science is combined with the healthcare professional's clinical experience and the patient's values to arrive at the best medical decision for the patient.” The evidence in evidence based medicine is not all the same, according to scholars in the field. There is a hierarchy of evidence that should be considered in order of its importance. Further, recent realization that women and people of color or other ethnicities have often been overlooked in research plans for health, have led to more studies and more “truth” about scientific findings about health in humans.

Indigenous Cultures and their Evidence

Evidence in Indigenous culture can be oral histories passed from one person to another or from generation to generation. This evidence of climate, social or war events may be captured in songs, art and storytelling. These are acceptable forms of evidence in most tribal courts with culturally appropriate processes.

This evidence is not, however, admissible in federal courts that exclude hearsay which is the category in which almost all of indigenous evidence would fall. The use of indigenous evidence for federal rulemaking is also difficult to make it fit into the framework of common law practices.

In Canada, when a First Nations elder was presenting evidence in the form of a traditional song, the judge found it difficult to accept as evidence because it did not conform to traditional common law practices, and because he had a “tin ear.” But this is the foundation case in Canada that established that oral histories were admissible as evidence.

Words that are spoken are testimony but put to music it seems to disrupt what can be documented in a court. Is it still evidence heard through our sense of hearing?

Then what about evidence through the sense of smell? How do we document a smell other than with words? We are able to capture visual evidence through photographs and video and even save it digitally and transport it through the internet. Yet such capture and documentation of smells alludes us. We are left with the limitation of words to describe smells that go into testimony in a courtroom.

But what about smell evidence in medicine? In anthropology? In theater? We cannot yet capture it other than to experience it. Which leads me to conclude that so much evidence in our experience cannot be considered acceptable in a courtroom or in academia due to our limits on technology and skill to capture it.

Then there is truth

Evidence is truth that is used to support a claim.

Truth — telling the truth— is central to the oath that is used in courts across America to swear in witnesses — “I swear to tell the truth, the whole truth and nothing but the truth, so help me God.” Truth is tested by examination and cross examination to test the witnesses statements for their truth. Statements that are suspect or discredited by contrary evidence or lack of veracity on the part of the witness get less consideration or are disregarded.

The trendy, my truth, your truth and the truth

If a witness’s testimony is discredited as a complete lie, a response like, “It is MY truth!” would not improve the acceptability of the evidence. The trendy reference to “my truth” and “your truth” being different is really about perception and understanding and not “truth”. The real meaning of “my truth” is living your values and what you believe is important, but it has often been misused to make anything “true” that one believes. Yet it is hard to conclude that truth is a binary concept — it is either true or not true — because we have shades of truth and partially true as concepts. Yet that still suggests that there is only THE truth.

Our understanding of memory and perception has changed over time, and evidence may be seen differently. Since the Federal Rules of Evidence were written, ideas around memory, neuropsychology and perception and its distortions may make us view testimony differently.

For example, exceptions to the Federal Rule of Evidence for hearsay, that a learned treatise is acceptable read into testimony, although it was written by someone not present, could be seen differently with the rise of electronic publishing that is accessible to everyone, and treatises do not come from just a few printhouses like they did just forty or so years ago.

Evidence that is digital and comes from internet sources can be developed using artificial intelligence, and the truth can be impossible to distinguish from fiction. Video and photos are part of that evidence that can be found on the internet about people and events. How should we now consider it as admissible in a court, or in a scientific publication?

Fake news

The use of the term “fake news” has come to be a descriptor for half-truths told by powerful media outlets to influence political outcomes or anything. Entire courses are now dedicated to teaching students to discern fact from fiction in news media and fake news.¹² Stanford University starting teaching a course before the 2020 election, called “Civic Online Reasoning” based on a study by the Stanford History Education Group (SHEG) that “found that middle and high school students overwhelmingly failed to demonstrate the skills necessary to distinguish credible sources from unreliable ones.” But one has to wonder who is teaching this skill, and do the teachers themselves possess the ability to discern truth from fiction? Is that process itself biased by the political views of the instructor? This report was completed in 2020, before the ability to spin out deep fakes in video and print with the use of artificial intelligence was rolled out in the fall of 2022. What started in universities in 2020 around the national election, has become increasingly an area of teaching and study with all the uses of artificial intelligence that communicates ideas and truths, half-truths and fake news.

All this is to say, evidence was something we could rely on with tests that gave us confidence in its truth. Those old tests may not be enough, and learning what evidence is true has become more challenging due to social media and then artificial intelligence combined with social media. We will be learning to sort through it to find the truth in the coming years.

To read more articles by Professor Sutton go to:  https://profvictoria.substack.com/ 

Professor Victoria Sutton (Lumbee) is a law professor on the faculty of Texas Tech University. In 2005, Sutton became a founding member of the National Congress of American Indians, Policy Advisory Board to the NCAI Policy Center, positioning the Native American community to act and lead on policy issues affecting Indigenous communities in the United States.