What is “real evidence”? Is it the same thing as “physical evidence”?

The term “real evidence” describes any evidence that is a tangible object, as opposed or oral testimony or documentary evidence, which records information that is offered as evidence.  “Real evidence” is often used interchangeably with “physical evidence” to describe objects that are used to prove or disprove arguments in trial or at a hearing.  Real evidence is used to prove a fact based on the characteristics of all or part of an object.

For instance, suppose that in a products liability case, the plaintiff was injured when the blade protector on the power saw she was using suddenly fell off, causing the saw to jump and severely injure the plaintiff’s arm.  At trial, the plaintiff introduces the defective saw, with its now-detached plastic blade protector, into evidence in order to show the judge and the jury the actual defective saw that injured her.  In this situation, the saw and blade protector are examples of real or physical evidence.

Physical evidence is also common in criminal cases, and it frequently shows up on popular TV crime shows.  The alleged murder weapon may be admitted into court as a piece of real evidence, or another object may be admitted.  The infamous blood-soaked glove that didn’t fit O.J. Simpson’s hand in his 1996 murder trial is another example of real or physical evidence.

Real evidence should not be confused with “documentary evidence.”  Documentary evidence also involves physical objects, like written documents, cassette or CD recordings, and videotapes or DVD recordings.  However, when evidence is “documentary,” these physical objects are only the carriers of the evidence – they are not the evidence itself.  The actual evidence is the information recorded on the paper, tape, or disc.

One way to think about the difference between real evidence and documentary evidence is to ask, “If I changed the actual physical object, would it change the information I’m trying to show the jury?”  If the answer is “yes,” the object is real evidence; if the answer is “no,” the object is documentary evidence.

For instance, suppose that in a criminal shoplifting case, the prosecution brings out two pieces of evidence.  Exhibit A is a DVD movie in its box.  Exhibit B is a DVD recording showing someone who looks like the defendant taking Exhibit A off a store shelf and hiding it under his coat.  In this situation, Exhibit A is real evidence, because it is the actual tangible thing the defendant is accused of stealing.  Exhibit B, however, is documentary evidence, because the DVD is merely the carrier for the video of the defendant stealing something.

If you changed Exhibit A to a VHS tape, you would no longer be showing the jury the object the defendant stole, but something else.  If you moved the video on Exhibit B to a VHS tape, however, you could still show the jury the recording of the defendant stealing a DVD.  Therefore, Exhibit A is real evidence, while Exhibit B is documentary evidence.

The line between real and documentary evidence is clearer in some cases than in others.  Written contracts can be particularly confusing, because a breach of contract case may deal with both the existence of the contract and the information contained in it.  In these situations, the contract itself may be both real evidence (because it shows that the contract exists) and documentary evidence (because it records the terms of the contract on its pages).

Luckily, the difference between real evidence and documentary evidence is not a concern in most cases.  It most often comes up when one of the parties challenges the admission of the evidence under the best evidence rule.  The best evidence rule requires that an original or a highly accurate copy of a document or other object be brought into court.

In best evidence rule arguments, sometimes documentary evidence is not enough; real evidence is necessary.  For instance, in the shoplifting case above, suppose that instead of admitting Exhibit A (the DVD the defendant is accused of stealing) into evidence, the prosecutor decides to take a photograph of the DVD and admit that into evidence.  The photograph is documentary evidence showing that the supposedly-stolen DVD exists, but the defendant might object on the grounds of the best evidence rule, because the photograph is not as accurate and thorough a way to show the jury what was stolen as actually letting them see and handle the supposedly-stolen DVD would be.

Whether or not a best evidence rule objection can force a party to use real evidence instead of documentary evidence depends on the case.  Sometimes, it is simply not realistic to use real evidence in court, even if it has not been destroyed through an accident or spoliation.  For instance, suppose that in a personal injury case, the plaintiff was injured when she was hit by some cables hanging off the side of a speeding locomotive.  In this situation, photographs of the locomotive and the cables may be admissible.  Even though the photos are documentary evidence and thus may not be as helpful as the locomotive itself, it would be so difficult to bring the actual locomotive into the courtroom that the photographs are deemed “good enough.”

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