Law 245: Evidence

Lisa Kern Griffin. Courtesy Duke Law School

In an effort to persuade the jury that O.J. Simpson was guilty of murder, Christopher Darden, one of the prosecutors, introduced a dark brown, extra-large, bloodstained leather love as evidence. Little did Darden know, it would wind up in the defense counsel’s argument for why Simpson should be found innocent.

To help her Duke Law School students avoid situations like Darden’s, Professor Lisa Kern Griffin teaches them what types of evidence are admissible in court, and how to determine what evidence to include or exclude.

Evidence, meaning everything a jury considers at a trial, can be divided into two types: physical— such as fingerprints, tire tracks, and the infamously tight glove—and testimonial. To learn how to orchestrate a believable narrative or the jury by using evidence judiciously, the students study the federal Rules of Evidence that govern the admissibility of evidence in civil and criminal proceedings in federal courts. State courts abide by their own set of rules, many of which have been modeled after the federal ones.

Relevancy rules, for example, define the parameters of what lawyers can present to the jury, whose ultimate responsibility is to weigh the significance of each piece of evidence. Other categories in the federal rules include the scope of attorney-client privilege, when and whether statements from witnesses constitute hearsay, the role of expert testimony in trials, and character evidence.

As with all interpretation of law, knowing the rules is not sufficient for applying them skillfully. According to Griffin, "In order to use the rules in practice, you need to internalize them one on top of the other."

Griffin uses a combination of media examples and role-play in her teaching. For instance, she might show a clip from To Kill a Mockingbird, or footage from a news-making trial. Then, students are assigned to the roles of prosecutor and defense lawyer.

Using the relevant facts from the example on screen, the "lawyers" act out a similar scenario to the one they watched by constructing an argument for the exclusion of a piece of evidence. For example, if a statement is made that reveals unsavory details about the defendant’s past behavior, the defense counsel should object, since such information is not admissible according to the character evidence rules.

"You can always refer to the rules," Griffin says, "but you need to have strategy and theory for when they should be deployed and why." She hopes that her students leave her course armed with good judgment and seasoned instincts that one day will guide them in their pursuit to win over a jury.

Professor
Lisa Kern Griffin is a professor of law who researches corporate and federal criminal law. She clerked for U.S. Supreme Court Justice Sandra Day O’Connor and was a federal prosecutor. She received her J.D. from Stanford Law School.

Prerequisites
None; the course is open only to second-year and third-year law students

Readings
George Fisher, Evidence
George Fisher, Statutory and Case Supplement, Federal Rules of Evidence Assignments Final exam