Definitions from Black's Law Dictionary: 2nd Edition and Ballentine's Law Dictionary as are available for each term in each dictionary.
  • Ballentine's Law Dictionary

    The means by which alleged facts are proved or disproved. See 31 Cal. 201.

  • Black's Law Dictionary: 2nd Edition

    Any species of proof or probative matter, legally presented 8t the trial of an issue, by the act of the parties and through the medium of witnesses, records, documents, concrete objects, etc., for the purpose of inducing belief in the minds of the court or jury as to their contention. Hotcbklss v. Newton, 10 Ga. 567; Sinte v. Thomas, 50 La. Ann. 148, 23 South. 250; Cook v. New Durham, 64 N. H. 419, 13 Atl. 650; Kring v. Missouri, 107 U. S. 221, 2 Sup. Ct. 443, 27 In Ed. 506; O'Brien v. State, 69 Neb. 691, 96 N. W. 650; Hubbell v. U. S., 15 Ct. Cl. 606; McWilliams v. Rodgers, 56 Ala. 93. The word "evidence," in legal acceptation, includes ali the means by which any alleged matter of fact, the truth of which is submitted to investigation, is established or disproved. 1 Greenl. Ev. c. 1, § 1. That which is legally submitted to a jury, to enable them to decide upon the questions in dispute or issue, as pointed out by the pleadings, and distinguished from ali comment and aigu-ment, is termed "evidence." 1 Starkie, Ev. pt. 1, § 3. Synonyms distinguished. The term "evidence" is to be carefully distinguished from its synonyms "proof" and "testimony." "Proof" is the logically sufficient reason for assenting to the truth of a proposition advanced. In its juridical sense it is a term of wide import, and comprehends everything that may be adduced at a trini, within the legal rules, for the purpose of producing conviction in the mind of judge or jury, aside from mere argument; that is, everything that has a probative force intrinsically, and not mereig as a deduction from, or combination' of, original probative facts. But "evidence" is a narrower term, and includes only such kinds of proof as may be legally presented at a trial, by the act of the parties, and through the aid of such concrete facts as witnesses, records, or other documents. Thus, to urge a presumption of law in support of one's case is adducing proof, but it is not offering evidence. "Testimony," again, is a still more restricted term. It properly means only such evidence as is delivered by a witness on the trial of a cause, either orally or in the form of affidavits or depositions. Thus, an ancient deed, when offered under proper circumstances, is evidence, but it could not strictly be called "testimony." "Belief" is a subjective condition resulting from proof. It is a conviction of the truth of a proposition, existing in the mind, and induced by persuasion, proof, or argument addressed to the judgment. The bili of exceptions states that ali the "testimony" is in the record; but this is not equivalent to a statement that all the "evidence" is in the record. Testimony is one species of evidence. But the word "evidence" is a generic term which includes every species of it. And, in a bill of exceptions, the general term covering all species should be used in the statement as to its embracing the evidence, not the term "testimony," which is satisfied if the bill only contains all of that species of evidence. The statement that ali the testimony is in the reconi may, with reference to judicial records, properly be termed an "affirmative pregnant." Gazette Printing Co. v. Morss, 60 Ind. 157. The word "proof seems properly to mean anything which serves, either immediately or mediately, to convince the mind of the truth or falsehood of a fact or proposition. It is also applied to the conviction generated in the mind by proof properly so calied. The word "evidence" signifies, in its original sense, the state of being evident, i. e., plain, apparent, or notorious. But by an almost peculiar inflection of our language, it is applied to that which tends to render evident or to generate proof. Best, Ev. §§ 10, 11. Classification. There are many species of evidence, and it is susceptible of being classified on several different principles. The more usual divisions are here subjoined. Evidence is either judicial or extrajudicial. Judicial evidence is the means, sanctioned by law, of ascertaining in a judicial proceeding the truth respecting a question of fact, (Code Civ. Proc. Cal. § 1823 ;) while extrajudicial evidence is that which is used to satisfy private persons as to facts requiring proof. Evidence is either primary or secondary. Primary evidence is that kind of evidence which, under every possible circumstance, affords the greatest certainty of the fact in question. Thus, a written instrument is itself the best possible evidence of its existence and contents. Secondary evidence is that which is inferior to primary. Thus, a copy of an instrument, or oral evidence of its contente, is secondary evidence of the instrument and contents. Code Civ. Proc. Cal. §§ 1829, 1830. In other words, primary evidence means original or first-hand evidence; the best evidence that the nature of the case admits of; the evidence which is required in the first instance, and which must fail before secondary evidence can be admitted. Thus, an original document la primary evidence; a copy of it would be secondary. That evidence which the nainre of the case or question suggests as the proper means of ascertaining the truth. See Cross v. Baskett, 17 Or. 84, 21 Pac. 47; Civ. Code Ga, 1895. § 5164. Secondary evidence is that species of evidence which becomes admissible, as being the next best, when the primary or best evidence of the fact in question is lost or inaccessible; as when a witness details orally the contents of an instrument which is lost or destroyed. Williams v. Davis, 56 Tex. 253; Baucum v. George, 65 Ala. 259; Roberts v. Dixon, 50 Kan. 436, 31 Pac. 1083. Evidence is either direct or indirect. Direct evidence is evidence directly proving any matter, as opposed to circumstantial evidence, which is often calied "indirect." It is usually conclusive, but, like other evidence, it is fallible, aud that on various accounts. It is not to be confounded with primary evidence, as opposed to secondary, although in point of fact it usually is primary. Brown; Com. v. Webster, 5 Cush. (Mass.) 310, 52 Am. Dec. 711; Pease v. Smith, 61 N. Y. 477; State v. Calder, 23 Mont. 504, 59 Pac. 903; People v. Palmer, 11 N. Y. St. Rep. 820; Lake County v. Neilon, 44 Or. 14, 74 Pac. 212. Indirect evidence is evidence which does not tend directly to prove the controverted fact, but to establish a state of facts, or the existence of other facts, from which it will follow as a logical inference. Inferential evidence as to the fruth of a disputed fact, not by testimony of any witness to the fact, but by collateral circumstances ascertained by competent means. 1 Starkie, Ev. 15. See Code Civ. Proc. Cal. 1903, § 1832; Civ. Code Ga. 1895, § 5143. Evidence is either intrinsic or extrinsic. Intrinsic evidence is that which is derived from a document wthout anything to explain it. Extrinsic evidence is external evidence, or that which is not contained in the body of an agreement, contract, and the like. Compound and descriptive terms.
    —Adminicular evidence. Auxiliary or supplementary evidence, such as is presented for the purpose of explaining and completing other evidence. (Chiefly used in ecclesiastical law.)
    — Circumstantial evidence. This is proof of various facts or circumstances which usually attend the main fact in depute, and therefore tend to prove its existence, or to sustain, by their consistency, the hypothesis claimed. Or as otherwise defined, it consists in reasoning from facts which are known or proved to establish such as are conjectured to exist. See, more fully, Circumstantial Evidence.
    —Competent evidence. That which the very nature of the thing to be proven requires, as, the production of a writing where its contents are the subject of inquiry. 1 Greenl. Ev. § 2; Chapman v. McAdams, 1 Lea (Tenn.) 504; Hor-bach v. State, 48 Tex. 249. Also, generally, admissible or relevant, as the opposite of "incompetent," (see infra ) State v. Johnson, 12 Minn. 476 (Gil. 378), 93 Am. Dec. 241.
    —Conclusive evidence is that which is incontrovertible, either because the law does not permit it to be contradicted, or because it is so strong aud convincing as to overbear all proof to the contrary and establish the proposition in question beyond any reasonable doubt. Wood v. Chapin, 13 N. Y. 509, 67 Am. Dec. 62; Haupt v. Pohlmann, 24 N. Y. Super. Ct. 121; Moore v. Hopkins, 83 Cal. 270, 23 Pac. 318, 17 Am. St. Rep. 248; West v. West, 90 Iowa, 41, 57 N. W. 639; Freese v. Loan Soc., 139 Cal. 392, 73 Pac. 172 ; People v. Stephenson, 11 Misc. Rep. 141, 32 N. Y. Supp. Ill2.
    —Corroborative evidence. Strengthening or confirming evidence; additional evidence of a different character adduced in support of the same fact or proposition. Code Civ. Proc. Cal. § 1839.
    —Cumulative evidence. Additional or corroborative evidence to the same point. That which goes to prove what has already been established by other evidence. Glidden v. Dunlap, 28 Me. 383; Parker v. Hardy, 24 Pick. (Mass.) 248; Waller v. Graves, 20 Conn. 310; Roe v. Kalb, 37 Ga. 459. All evidence material to the issue, after any such evidence has been given, is in a certain sense cumulative; that is, is added to what has been given before. It tends to sustain the issue. But cumulative evidence, in legal phrase, means evidence from the same or a new witness, simply repeating, in substance and effect, or adding to, what has been before testified to. Parshall v. Kiincia 43 Barb. (N. Y.) 212. Evidence is not cumulative merely because it tends to establish the same ultimate or principally controverted fact. Cumulative evidence is additional evidence of the same kind to the same point. Able v. Frazier, 43 Iowa, 177.
    —Documentary evidence. Evidence supplied by writings and documents of every kind in the widest sense of the term; evidence derived from conventional symbols (such as letters) by which ideas are represented on material substances.
    —Evidence aliunde. Evidence from outside, from another source. In certain cases a written instrument may be explained by evidence aliunde, that is, by evidence drawn from sources exterior to the instrument itseif, c. g., the testimony of a witness to conversations, admissions, or preliminary negotiations.
    —Expert evidence. Testimony given in relation to some scientific, technical, or professional matter by experts, i. e., persons qualified to speak authoritatively by reason of their special training, skill, or familiarity with the subject.
    —Extraneons evidence. With reference to a contract, deed, will, or any writing, extraneous evidence is such as is not furnished by the document itself, but is derived from outside sources; the same as evidence aliunde. (See supra.)
    —Hearsay evidence. Evidence not proceeding from the personal knowledge of the witness, but from the mere repetition of what he has heard others say. See, more fully, Hearsay.
    —Incompetent evidence. Evidence Which is not admissible under the established rules of evidence; evidence which the law does not permit to be presented at ali, or in relation to the particular matter, on account of lack of originality or of some defect in the witness, the document, or the nature of the evidence itself. Texas Brewing Co. v. Dickey (Tex. Civ. App.) 43 S. W. 578; Beil v. Bumstead, 60 Hun, 580, 14 N. Y. Supp. 607; Atkins v.' Blwell, 45 N. Y. 757; People v. Mullings, 83 Cal. 138, 23 Pac. 229, 17 Am. St. Rep. 223.
    —Incnlpatory evidence. Criminative evidence; that which tends, or is intended, to establish the guilt of the accused.
    —Indispensable evidence. That without which a particular fact cannot be proved. Code Civ. Proc. Cal. 1903, § 1836; Ballinger's Ann. Codes & St. Or. 1901, § 689
    —Legal evidence. A broad general term meaning all admissible evidence, including both oral and documentary, but with a further implication that it must be of such a character as tends reasonably and substantially to prove the point, not to raise a mere suspicion or conjecture. Lewis v. Clyde S. S. Co., 132 N. C. 904, 44 S. E. 666; Curtis v. Bradley, 65 Conn. 99, 31 Atl. 591, 28 L. R. A. 143, 48 Am. St. Rep. 177; West v. Hayes, 51 Conn. 533
    —Material evidence. Such as is relevant and goes to the substantial matters in dispute, or has a legitimate and effective influence or bearing on the decision of the case. Porter v. Valentine, 18 Misc. Rep. 213, 41 N. Y. Supp. 507.
    —Mathematical evidence. Demonstrative evidence; such as establishes its conclusions with absolute necessity and certainty. It is used in contradistinction to moral evidence.
    —Moral evidence. As opposed to "mathematical" or "demonstrative" evidence, this term denotes that kind of evidence which, without developing an absolute and necessary certainty, generates a high degree of probability or persuasive force. It is founded upon analogy or induction, experience of the ordinary course of nature or the sequence of events, and the testimony of men.
    —Newly-discovered evidence. Evidence of a new and material fact, or new evidence in relation to a fact in issue, discovered by a party to a cause after the rendition of a verdict or judgment therein. In re McManus, 35 Misc. Rep. 678, 72 N. Y. Supp. 409; Wynne v. Newman, 75 Va. 816; People v. Priori, 164 N. Y. 459, 58 N. E. 668.
    —Opinion evidence. Evidence of what the witness thinks, believes, or infers in regard to facts in dispute, as distinguished from his personal knowledge of the facts themselves ; not admissible except (under certain limitations) in the case of experts. See Lipscomb v. State, 75 Miss. 559, 23 South. 2l0.
    —Oral evidence. Evidence given by word of mouth; the oral testimony of a witness.
    —Original evidence. An original document, writing, or other materini object introduced in evidence (Ballinger's Ann. Codes & St. Or. 1901, § 682) as distinguished from a copy of it or from extraneous evidence of its contents or purport.
    —Parol evidence. Oral or verbal evidence; that which is given by word of mouth; the ordinary kind of evidence, given by witnesses in court. 3 Bl. Comm. 369. In a particular sense, and with reference to contracts, deeds, wills, and other writings, parol evidence is the same as extraneous evidence or evidence aliunde. (See supra.)
    —Partial evidence is that which goes to establish a detached fact, in a series tending to the fact in dispute. It may be received, subject to be rej'ected as incompetent, unless connected with the fact in dispute by proof of other facts; for example, on an issue of title to real property, evidence of the continued possession of a remote occupant is partial, for it is of a detached fact, which may or may not be afterwards connected with the fact in dispute. Code Civ. Proc. Cal. § 1834.
    —Positive evidence. Direct proof of the fact or point in issue ; evidence which, if believed, establishes the truth or falsehood of a fact in issue, and does not arise from any presumption. It is distinguished from circumstantial evidence. 3 Bouv. Inst, no. 3057; Cooper v. Holmes, 71 Md. 20, 17 Atl. 711; Davis v. Curry, 2 Bibb (Ky) 239; Com. v. Webster, 5 Cush. (Mass.) 310, 52 Am. Dec. 711,
    —Presumptive evidence. This term has several meanings in law. (i) Any evidence which is not direct and positive; the proof of minor or other facts incidental to or usually connected with the fact sought to be proved, which, when taken together, inferentially establish or prove the fact in question to a reasonable degree of certainty; evidence drawn by human experience from the connection of cause and effect and observation of human conduct; the proof of facts from which, with more or less certainty, according to the experience of mankind of their more or less universal connection, the existence of other facts can be deduced. In this sense the term is nearly equivalent to "circumstantial" evidence. See 1 Starkie, Bv. 558; 2 Saund. PI. & Ev. 673; Civ. Code Ga. 1895, § 5143; Davis v. Curry, 2 Bibb (Ky.) 239; Horbach v. Miller, 4 Neb. 44; State v. Miller, 9 Houst. (Del.) 564, 32 Atl. 137. (2) Evidence which must be received and treated as true and sufficient until rebutted by other testimony; as, where a statute provides that certain facts shall be presumptive evidence of guilt, of title, etc. State v. Mitchell, 119 N. C. 784, 25 S. Bl 783 ; State v. Intoxicating Liquors, 80 Me. 57, 12 Atl. 794. (3) Evidence which admits of explanation or contradiction by other evidence, as distinguished from conclusive evidence. Burrill, Circ. Ev. 89.
    —Prima facie evidence. Evidence good and sufficient on its face; such evidence as, in the judgment of the law, is sufficient to establish a given fact, or the group or chain of facts constituting the party's claim or defense, and which if not rebutted or contradicted, will remain sufficient. Crane v. Morris, 6 Peti 6ll, 8 LEd. 514; State v. Burungame, 146 Mo. 207, 48 S. W. 72; State v. Roten, 86 N. C. 701; Blough v. Parry, 144 Ind. 463, 43 N. E. 560. Evidence which suffices for the proof of a particular fact until contradicted and overcome by other evidence. Code Civ. Proc. Cal. 1903, § 1833. Evidence which, standing alone and unexplained, would maintain the proposition and warrant the conclusion to support which it is introduced. Emmons v. Bank, 07 Mass. 230. An inference or presumption of law, affirmative or negative of a fact, in the absence of proof, or until proof can be obtained or produced to overcome the inference. People v. Thacher, 1 Thomp. & C(N. Y.) 167.
    —Probable evidence. Presumptive evidence is so calied, from its foundation in probability.
    — Real evidence. Evidence furnished by things themselves, on view or inspection, as distinguished from a description of them by the mouth of a witness; e. g., the physical appearance of a person when exhibited to the jury, marks, scars, wounds, finger-prints, etc., also the weapons or implements used in the commission of a crime, and other inanimate objects, and evidence of the physical appearance of a place (the scene of an accident or of the commission of a crime or of property to be taken under condemnation proceedings) as obtained by a jury when they are taken to view it.
    —Rebutting evidence. Evidence given to explain, repel, counteract, or disprove facts given in evidence by the adverse party. Davis v. Hamblin, 5l Md. 539; Railway Co. v. Wales, 5 OC. D. 170; People v. Page, 1 Idaho, 195; State v. Fourchy, 51 La. Ann. 228, 25 South. 109. Also evidence given in opposition to a presumption of fact or a prima facie case; in this sense, it may be not only counteracting evidence, but evidence sufficient to counteract, that is, conclusive. Fain v. Cornett, 25 Ga. 186
    —Relevant evidence. Such evidence as relates to, or bears directly upon, the point or fact in issue, and proves or has a tendency to prove the proposition alleged; evidence which conduces to prove a pertinent theory in a case. Platner v. Plainer, 78 N. Y. 95; Seller v. Jenkins, 97 Ind. 438: Levy v. Campbell (Text) 20 S. W. 196; State v O'Neil, 13 Or. 183, 9 Pac. 286; 1 Whart. Ev. § 20
    —Satisfactory evidence. Such evidence as is sufficient to produce a belief that the thing is true; credible evidence ; that amount of proof which ordinarily produces a moral certainty or conviction in an unprejudiced mind; such evidence as, in respect to its amount or weight, is adequate or sufficient to justify the court or jury in adopting the conclusion in support of which it is adduced. Thayer v. Boyle, 30 Me. 481; Walker v. Collins, 59 Fed. 74, 8 C. C. A. 1; U. S. v. Lee Huen (D. C.) 118 Fed. 457; People v. Stewart, 80 Cal 129, 22 Pac. 124; Pittman v Pittman, 72 III. App. 503.
    —Second-hand evidence. Evidence which has passed through one or more media before reaching the witness; hearsay evidence.
    —State's evidence. A popular term for testimony given by an accomplice or joint participant in the commission of a crime tending to criminate or convict the others, and given under an actual or implied promise of immunity for himself.
    —Substantive evidence is that adduced for the purpose of proving a fact in issue, as opposed to evidence given for the purpose of discrediting a witness, (i. e., showing that he is unworthy of belief.) or or corroborating his testimony. Best, Ev. 246, 773, 803.
    —-Substitutionary evidence. Such as is admitted as a substifute for what would be the original or primary instrument of evidence; as where a witness is permitted to testify to the contents of a lost document.
    —Sufficient evidence. Adequate evidence; such evidence, in character, weight, or amount, as will legally justify the judicial or official action demanded; according to circumstances, it may be "prima facie" or "satisfactory" evidence, according to the definitions of those terms given above. Moore v. Stone (Tex. Civ. App.) 36 S. W. 9lO; People v. Stem, 33 Misc. Rep. 455, 68 N. Y. Snpp. 732; Mallery v. Young, 94 Ga. 804, 22 S. E. 142; Parker v. Overman. 18 How. 141, 15 L. Eld. 318; State v. Newton. 33 Aria 284.
    —Traditionary evidence. Evidence derived from tradition or reputation or the statements formerly made by persons since deceased, in regard to questions of pedigree, ancient boundaries, and the like, where no living witnesses can be produced having knowledge of the facia Lay v. Neville, 25 Cal. 554.