Author Topic: What is the difference between Testimony and Evidence?  (Read 2218 times)

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Offline Robittybob1

What is the difference between Testimony and Evidence?
« on: July 18, 2019, 09:14:04 PM »
What is the difference between Testimony and Evidence?
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Offline Billy Whizz Fan Club

Re: What is the difference between Testimony and Evidence?
« Reply #1 on: July 18, 2019, 09:30:47 PM »
Testimony is a type of evidence (if given with due legal process)

Evidence comes in may forms: written testimony, , objective physical evidence, oral testimony, forensic evidence etc.

Offline Robittybob1

Re: What is the difference between Testimony and Evidence?
« Reply #2 on: July 18, 2019, 09:33:46 PM »
Wikipedia:
"Law
In the law, testimony is a form of evidence that is obtained from a witness who makes a solemn statement or declaration of fact. Testimony may be oral or written, and it is usually made by oath or affirmation under penalty of perjury. To be admissible in court and for maximum reliability and validity, written testimony is usually witnessed by one or more persons who swear or affirm its authenticity also under penalty of perjury. Unless a witness is testifying as an expert witness, testimony in the form of opinions or inferences is generally limited to those opinions or inferences that are rationally based on the perceptions of the witness and are helpful to a clear understanding of the witness' testimony.

Legitimate expert witnesses with a genuine understanding of legal process and the inherent dangers of false or misleading testimony refrain from making statements of fact. They also recognize that they are in fact not witnesses to an alleged crime or other event in any way, shape or form. Their expertise is in the examination of evidence or relevant facts in the case. They should make no firm judgement or claim or accusation about any aspect of the case outside their narrow range of expertise. They also should not allege any fact they can't immediately and credibly prove scientifically.

For example, a hair sample from a crime scene entered as evidence by the prosecution should be described by an expert witness as "consistent with" a sample collected from the defendant, rather than being described as a "match". A wide range of factors make it physically impossible to prove for certain that two hair or tissue samples came from a common source.

Having not actually witnessed the defendant at the scene, the expert witness can not state for a fact that the sample is a match to the defendant, particularly when the samples were collected at different times and different places by different collectors using different collection methods. Ultimately, the testimony of expert witnesses is regarded as supportive of evidence rather than evidence in and of itself, and a good defense attorney will point out that the expert witness is not in fact a witness to anything, but rather an observer.

When a witness is asked a question, the opposing attorney can raise an objection, which is a legal move to disallow or prevent an improper question to others, preferably before the witness answers, and mentioning one of the standard reasons, including:

argumentative
asked and answered
best evidence rule
calls for speculation
calls for a conclusion
compound question or narrative
hearsay
inflammatory
incompetent witness (e.g., child, mental or physical impairment, intoxicated)
irrelevant, immaterial (the words "irrelevant" and "immaterial" have the same meaning under the Federal Rules of Evidence. Historically, irrelevant evidence referred to evidence that has no probative value, i.e., does not tend to prove any fact. Immaterial refers to evidence that is probative, but not as to any fact material to the case. See Black's Law Dictionary, 7th Ed.).
lack of foundation
leading question
privilege
vague
ultimate issue testimony
There may also be an objection to the answer, including:

non-responsive
Up until the mid-20th century, in much of the United States, an attorney often had to follow an objection with an exception to preserve the issue for appeal. If an attorney failed to "take an exception" immediately after the court's ruling on the objection, he waived his client's right to appeal the issue. Exceptions have since been abolished, due to the widespread recognition that forcing lawyers to take them was a waste of time.

When a party uses the testimony of a witness to show proof, the opposing party often attempts to impeach the witness. This may be done using cross-examination, calling into question the witness's competence, or by attacking the character or habit of the witness. So, for example, if a witness testifies that he remembers seeing a person at 2:00 pm on a Tuesday and his habit is to be at his desk job on Tuesday, then the opposing party would try to impeach his testimony related to that event."
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Offline Robittybob1

Re: What is the difference between Testimony and Evidence?
« Reply #3 on: July 18, 2019, 09:41:01 PM »
Testimony is a type of evidence (if given with due legal process)

Evidence comes in may forms: written testimony, , objective physical evidence, oral testimony, forensic evidence etc.
So are we saying the same thing?  "testimony is a form of evidence that is obtained from a witness who makes a solemn statement or declaration of fact."
"Testimony is a type of evidence (if given with due legal process)"

There seems the need to threaten the person into telling the truth - by oath or affirmation under penalty of perjury.
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Offline ShiningInLuz

Re: What is the difference between Testimony and Evidence?
« Reply #4 on: July 18, 2019, 09:51:27 PM »
What is the difference between Testimony and Evidence?

Let me relate a true story that happened recently.

I was up late, when at 4 AM I heard a loud bang.  I put it down to a particular door being slammed by kids upstairs.  They often stay up very late and they often slam that door.

I got on with what I was doing and thought no more about it.

So I would have testified that a door had been slammed, no more or less.

My wife got up in the morning and asked if I had felt the earthquake.  "What earthquake" I asked, thinking I had slept through it.  "It was about 4 AM, it woke me up."  My wife would have testified that the house had been hit by an earthquake.

OK.  We live in an earthquake zone, so I wondered if one of us had got the time wrong.

"That was a door being slammed by someone upstairs" I said.  My wife replied "No it wasn't.  The whole house shook for about 10 seconds."   So we cross-checked.

I looked for items that had been knocked over and for structural damage.  I checked all the Portuguese news sources for a report of an earthquake.  Nothing.

We've got 3 dogs in the house.  Did they bark that early morning.  Not a single time.

My wife checked with everyone living upstairs.  Had they heard or felt an earthquake? None had.

We have a very efficient earthquake monitoring unit in Portugal.  I dare say they would have been called upon to supply evidence in the face of conflicting testimony.
What's up, old man?

Offline Robittybob1

Re: What is the difference between Testimony and Evidence?
« Reply #5 on: July 18, 2019, 10:01:34 PM »
SIL - I think both of you were trying to interpret what you heard or felt.
You heard a noise
Your wife felt something.

It could even be worse than that
You thought you heard a noise.
Your wife thought she felt something.

It is very hard to accept you were both experiencing the same event.
« Last Edit: July 18, 2019, 10:04:32 PM by Robittybob1 »
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Offline Mr Gray

Re: What is the difference between Testimony and Evidence?
« Reply #6 on: July 18, 2019, 10:08:05 PM »
Let me relate a true story that happened recently.

I was up late, when at 4 AM I heard a loud bang.  I put it down to a particular door being slammed by kids upstairs.  They often stay up very late and they often slam that door.

I got on with what I was doing and thought no more about it.

So I would have testified that a door had been slammed, no more or less.

My wife got up in the morning and asked if I had felt the earthquake.  "What earthquake" I asked, thinking I had slept through it.  "It was about 4 AM, it woke me up."  My wife would have testified that the house had been hit by an earthquake.

OK.  We live in an earthquake zone, so I wondered if one of us had got the time wrong.

"That was a door being slammed by someone upstairs" I said.  My wife replied "No it wasn't.  The whole house shook for about 10 seconds."   So we cross-checked.

I looked for items that had been knocked over and for structural damage.  I checked all the Portuguese news sources for a report of an earthquake.  Nothing.

We've got 3 dogs in the house.  Did they bark that early morning.  Not a single time.

My wife checked with everyone living upstairs.  Had they heard or felt an earthquake? None had.

We have a very efficient earthquake monitoring unit in Portugal.  I dare say they would have been called upon to supply evidence in the face of conflicting testimony.

do either of you have any independent corroboration...without that its difficult..have you run it past Goncalo
« Last Edit: July 18, 2019, 10:10:56 PM by Davel »

Offline ShiningInLuz

Re: What is the difference between Testimony and Evidence?
« Reply #7 on: July 18, 2019, 10:24:12 PM »
SIL - I think both of you were trying to interpret what you heard or felt.
You heard a noise
Your wife felt something.

It could even be worse than that
You thought you heard a noise.
Your wife thought she felt something.

It is very hard to accept you were both experiencing the same event.

The point is getting lost.

Faced with conflicting statements, further and higher expertise would have been the go-to route.
What's up, old man?

Offline Mr Gray

Re: What is the difference between Testimony and Evidence?
« Reply #8 on: July 18, 2019, 10:29:57 PM »
The point is getting lost.

Faced with conflicting statements, further and higher expertise would have been the go-to route.

i think youve made the point very well
« Last Edit: July 18, 2019, 10:46:42 PM by Davel »

Offline Robittybob1

Re: What is the difference between Testimony and Evidence?
« Reply #9 on: July 18, 2019, 11:10:13 PM »
The point is getting lost.

Faced with conflicting statements, further and higher expertise would have been the go-to route.
In NZ we have  a Geo-net site where all earthquakes are listed  https://www.geonet.org.nz/earthquake
Do you have a site like that in Portugal?  If you are up and about most times you wouldn't feel a minor earthquake.
« Last Edit: July 18, 2019, 11:23:17 PM by Robittybob1 »
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Offline ShiningInLuz

Re: What is the difference between Testimony and Evidence?
« Reply #10 on: July 19, 2019, 12:08:13 AM »
In NZ we have  a Geo-net site where all earthquakes are listed  https://www.geonet.org.nz/earthquake
Do you have a site like that in Portugal?  If you are up and about most times you wouldn't feel a minor earthquake.

There is an expert organisation that monitors earthquakes.  The news sources continually monitor that for news.  I don't need to go beyond those.

Can we move on?  This exchange has lost all relevance to testimony v evidence.
What's up, old man?

Offline Robittybob1

Re: What is the difference between Testimony and Evidence?
« Reply #11 on: July 19, 2019, 12:29:29 AM »
In a court it seem most say the judge decides whether testimony is entered as evidence in the case.
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Offline Billy Whizz Fan Club

Re: What is the difference between Testimony and Evidence?
« Reply #12 on: July 19, 2019, 12:45:12 AM »
So are we saying the same thing?  "testimony is a form of evidence that is obtained from a witness who makes a solemn statement or declaration of fact."
"Testimony is a type of evidence (if given with due legal process)"

There seems the need to threaten the person into telling the truth - by oath or affirmation under penalty of perjury.

Yes if you're talking about testimony in the legal sense. i.e that which is accepted as evidence in court.

Offline Robittybob1

Re: What is the difference between Testimony and Evidence?
« Reply #13 on: July 19, 2019, 01:59:49 AM »
Yes if you're talking about testimony in the legal sense. i.e that which is accepted as evidence in court.
Is that the important point that the testimony is accepted as evidence in Court.  I.e. it is not evidence till it is accepted by the judge.
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Offline Robittybob1

Re: What is the difference between Testimony and Evidence?
« Reply #14 on: July 19, 2019, 02:47:17 AM »
This article raises some interesting points about how testimony, perjury and evidence relate to each other.
https://www.hg.org/legal-articles/what-can-i-do-if-someone-is-lying-to-the-court-36990

"Witnesses including parties to the case provide testimony to the court that the judge and jury consider. When witnesses testify to the court, they do so under oath. They also do so under the risk of facing criminal charges if they lie to the court. There are steps that another person can take whether a party or an observer to inform the court of lies."

OK so testimony can be truth or lies.  How is that sorted out.  Do some witnesses just take the chance they won't suffer a charge of perjury.

"Provide Testimony
A person who knows that someone else has lied to the court may be called as a witness by the adverse party. In some cases, such a witness is the adverse party. The court can hear both sides of the story and evaluate which story they believe more. Such testimony may occur in criminal proceedings, as well as civil cases, including commercial disputes, family law matters or probate disputes. Even if this testimony does not completely prove that the other side is lying, having a witness provide contrary testimony can call into question the credibility of the first witness. This can cause the judge or jury to question other statements that the witness made. "

That sounds like a blooming mess.

"Cross-Examination
A person cannot simply stand up in court and declare that someone is lying to the court. Instead, his or her attorney has the job of questioning the initial witness during cross-examination. During this time, he or she can try to demonstrate inconsistencies in the initial witness’ testimony to put his or her credibility in question. The jury can accept a witness’ testimony in whole or in part, or it can choose not to believe a witness at all."

That is easier said than done!

"Provide Evidence
The overwhelming problem with simply providing contrary testimony is that the argument becomes one of he-said, she-said. However, additional evidence can help provide an objective background that better informs the truth of what actually occurred. For example, surveillance footage, audio recordings, pictures and other objective evidence can be coupled with a witness’ testimony to refute previous statements made by the initial witness. "

How can that be done by anyone other than the police?"

Perjury
Perjury is the criminal act of lying or making statements to misrepresent something while under oath. Lying under oath disrupts the judicial process and is taken very seriously. Being convicted of perjury can result in serious consequences, including probation and fines. For federal perjury, a person can be convicted by up to five years in prison. For state perjury convictions, a similar sentence in a state prison may be imposed.

Additionally, perjury can have consequences on a person’s career. An individual convicted of perjury may not pass security clearance or be eligible for certain jobs. If the individual is not a citizen, such a conviction can result in immigration consequences. Additionally, a conviction can result in a professional license if truthfulness is vital to the job."

OK but can they ever prove a person was lying.  There seems to be very few cases of perjury proven.  Does that mean it is rare or just hard to get to the bottom of the matter?

"Jury Instruction
The party who believes that the other side has presented untruthful testimony can request that the judge give a jury instruction regarding the credibility of evidence. Such an instruction can state that the jury has the ability to weigh the evidence presented and to make their own impressions regarding credibility and the weight to give each piece of evidence. "

Fun and games there too.

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