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Evidence 2.0: The Next Era of Evidence-Based Policymaking

Five years after passage of the Evidence Act, has it worked? And what's next?

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By Nick Hart & Jason Saul Sep. 28, 2023

One of the great—if largely unsung—bipartisan congressional acts of recent history was the passage in 2018 of the Foundations for Evidence-Based Policymaking Act. In essence, the “ Evidence Act ” codified the goal of using solid, consistent evidence as the basis for funding decisions on trillions of dollars of public money. Agencies use this data to decide on the most effective and most promising solutions for a vast array of issues, from early-childhood education to environmental protection.

Five years later, while most federal agencies have created fairly robust evidence bases, unlocking that evidence for practical use by decision makers remains challenging. One might argue that if Evidence 1.0 was focused on the production of evidence, then the next five years—let’s call it Evidence 2.0—will be focused on the effective use of that evidence. Now that evidence is readily available to policymakers, the question is, how can that data be standardized, aggregated, derived, applied, and used for predictive decision-making?

In the following conversation, two expert leaders—Nick Hart, president of the Data Foundation, and Jason Saul, founder and executive director of the Center for Impact Sciences at the University of Chicago’s Harris School of Public Policy—share thoughts about the next phase of the evidence movement.

Q. Can you summarize for us the goal of Evidence 2.0?

Nick Hart : It’s all about using the data. Evidence 1.0 is great: we’ve generated a wealth of better knowledge, and that is fantastic. But the real point is to make all that knowledge accessible and usable, so that our policymaking is better informed. It doesn’t make any difference if you’ve got the best study in the world but nobody uses it. We want all this research and evaluation to be open and understandable to all. That’s the goal!

Q. Jason, how do we get there?

Jason Saul : The crux of the issue is unlocking the data. We’ve generated hundreds of thousands of pieces of “evidence”—evaluations, research studies and control trials published in PDFs. But there’s a pretty big difference between “evidence” and actionable data. Every piece of evidence uses different terminology and data definitions. The data are not coded in any standardized way; we have no common indexing or taxonomies for impact. Look at what Google did for website indexing, look at what Westlaw did for indexing case law, look at what the Human Genome Project did for indexing genetic research. We need an “impact index” to do the same for social science research.

Q. Is the government doing that?

Nick Hart : The Evidence Act actually set the stage for this via the data governance processes. One example: Congress passed another law in 2022 called the Financial Data Transparency Act that clearly says: publish financial information as searchable data, not just as written reports. We have to do that across the board. It's a hugely exciting opportunity for the government to build public trust in government institutions, in data, in evidence, and in the ability to communicate better with the American public using tools that are available to everyone today. That’s the democratization of data. Some government agencies are doing well, but many have a long ways to go. It’s like changing the course of a large ship.

At the same time, it’s critical for the government to make rapid progress because of all the rapid advances in artificial intelligence. If we don’t, AI could still mine what’s out there and produce misinformation, disinformation, confusion. That would be Evidence minus-1.0, and nobody wants that!

Q.: Jason, are you similarly optimistic?

Jason Saul : I am optimistic, but impatient. The federal debt stands at $32 trillion and growing, with historic levels of investment in social programs. Yet we are not seeing the return on that investment. I would argue that we don’t have a “resource” problem, we have a “resource allocation” problem—we still don’t know what works and where to place the right bets. In a prior life I was a public finance attorney, and I always wondered why there were no bond ratings for ‘impact’—i.e. how many units of housing, education, employment, food security, crime reduction is generated per dollar spent? And is that a good return? What if suddenly the ratings agencies start saying, “Hey, all those municipal bonds are going to be rated based on outcomes, not just ability to repay”? This type of market driver would increase demand for evidence and data because there are financial consequences for results. We need to find better ways to connect evidence to finances.

Q. Is that feasible?

Nick Hart : It certainly is. What we have now is an expectation of evaluation for the purposes of learning. That's what the Evidence Act does. And it’s having a cascading effect on state and county and local agencies. That's exciting. But the thing I would say about Evidence 2.0 is we don't know all the answers. This is the beginning of a conversation and we should invite the broader community to be part of it. Nonprofits, donors, recipients: they should all speak up about how to measure success, so we can figure out where to go next and reach that point together.

Q. Is there indeed a role for community-based organizations and other local nonprofits to play in getting to Evidence 2.0?

Jason Saul : Nonprofits are a crucial part of the ecosystem, so they must be part of the evidence conversation. Nonprofits will benefit from data standards and more rational decision making. In fact, I would argue that nonprofits have been victims of an “evaluation industrial complex” that is biased against smaller organizations which can’t afford pricey evaluators. Just because a social program doesn’t have an evaluation doesn’t mean that it's not “evidence-based” or effective. In a way, the current evidence standard structurally marginalizes smaller, community-based organizations that may in fact be highly effective. But because the definition of “evidence-based” is so limited, we are forcing policymakers to make limited choices.

Q. Of course, evidence of past results isn’t proof of future success. How do you factor that in?

Nick Hart : That’s true, but then you might question whether evidence is even the right word here, because everybody else uses probabilistic modeling in decision-making. We look at the best data we have at hand and we forecast the probability of success—and then we adjust, hopefully quickly, if there isn’t success. No trader on Wall Street is making evidence-based decisions. They make probabilistic decisions. But they use comparisons, benchmarks and all kinds of other measures to do so. We have the muscles to do that in government, but I just don’t think we were systematically applying them. That’s what the Evidence Act is all about. I want people to realize that: because of the Act, we’ve become more sophisticated in measuring impact.

Q. What are some “real world” ways of making the general public aware of what works and what doesn’t?

Jason Saul: There should be a common outcomes taxonomy for tagging all federal programs. The average person should be able to look at how much we’ve spent on each outcome that matters to them, understand the “cost per outcome” for every funded program, and see how that compares to others. The "data" that we make available to the public is of little value to discerning what works. For example, the U.S. State Department reports on over 250 “f-indicators” for foreign assistance, such as "number of first responders trained on victim identification," "percent of audience who recall hearing or seeing a specific USG-supported family planning/reproductive health (FP/RH) message," and "number of investments in the digital ecosystem." Tough for any taxpayer (or legislator) to make sense of that kind of data.

Also, we need to engage the capital markets better, and create data that they can understand and use on Wall Street. We need to build financial incentives for impact into municipal bonds, and also enable economists to start forecasting the ROI on government spending based on outcomes and real-world impact. All of a sudden you create a whole new motivation for policymakers and legislators to care about evidence. So, you know, I'm already thinking about Evidence 3.0!

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August 24, 2021

An insider’s view on implementing the evidence act.

By Matt Soldner, Evaluation Officer, ED

The Important Role of the Evaluation Officer Council . As many readers will already know, the Evidence Act creates three new roles: Evaluation Officers (EOs), Statistical Officials, and Chief Data Officers. How it arrays and organizes those roles across government, though, varies. Although every federal agency is required to appoint a Chief Data Officer, for example, only CFO Act agencies are required to appoint a Statistical Official and EO. (Though I should note many non-CFO Act agencies have appointed all three positions.) More variation is seen in how roles organize themselves to complete their work. For whatever reason, the Evidence Act organizes Chief Data Officers and Statistical Officials into formal councils but does not do the same for EOs. Evaluators are not ones to be left out, though, and thanks to OMB we don’t have to be: with their support, the Evaluation Officer Council was codified in guidance (OMB M-19-23) and kicked off in the fall of 2019. And thank goodness for it.

The Evaluation Officer Council—or EOC—is the official community of practice for EOs across government. Our ranks are further augmented by “plus ones,” typically EO’s chief deputy in their home agency. Taken together, the membership of the EOC has hundreds of years’ worth of collective experience in program evaluation, both in and out of government. Importantly, that experience goes well beyond how to design a randomized trial or an implementation evaluation—it includes deep expertise in the competencies required to make evaluation happen in government. This includes skill in procurement, contracts, and grants; leading teams and managing multimillion dollar/multi-year projects; statistical analysis and data visualization; plain writing and effective dissemination of complex information; and coalition building and political savvy. From my perspective, the most critical role of the EOC is ensuring that each EO—and each agency—has access to that deep well of talent whenever they need it. Further, some non-CFO Act agencies, sub-agencies, and bureaus have also recognized the importance of evaluation in evidence-building and use and have appointed an EO when not required to do so. Their expertise, and that of their staffs, is being leveraged through the Interagency Council on Evaluation Policy (ICEP).

The EOC also provides a forum for solving problems that are new to each of us as we seek to implement the Evidence Act and to coordinate with other councils and committees whose work bears upon our own. In the first year of Evidence Act implementation, no EO really knew how to craft the three statutory deliverables that are core to our work—the Learning Agenda, Annual Evaluation Plan, and Capacity Assessment—even if they’d done something similar for their agency in prior years. Luckily, the EOC became a forum for brainstorming, group problem solving, peer mentoring and feedback, and sharing promising practices. EOC meetings and events are also forums for EOs to connect with peers in adjacent functions to ensure our work is aligned. For example, the work of EOs is tightly coupled to the work of agency Performance Improvement Officers (PIOs) due to the statutory connection between Evidence Act deliverables and Agency Strategic Plans. In many agencies, the PIO’s office is a finely oiled machine, and the need to collaborate with EOs could have thrown a wrench in their work. Thanks to OMB, though, the EO and PIO Councils met together early in our first year of Evidence Act implementation, making sure each agency started off on the best possible foot, EOs and PIOs working together to achieve their mutual goals. Similar relationships exist with the Chief Data Officers’ Council and the federal Advisory Committee on Data for Evidence Building .

Challenges, and Looking Ahead . No effort, particularly as one as young and complex as the implementation of the Evidence Act, proceeds without a hitch. It should come as no surprise, then, that there are still areas of growth for individual EOs, our work within our own agencies, the EOC, and the EOC’s collaboration with our peers. From my perspective, three are of note:

• Cross-agency collaboration on Learning Agendas . Agencies will complete their first official multi-year learning agenda in fall of 2020 and share them broadly in early 2021. As they do, there is a natural opportunity for agencies to look across agendas and identify collaborations that can accelerate evidence-building and use. (In truth, this is already beginning—but we should expect more in the years to follow.) Individuals don’t live their lives in silos that mirror the organization of the Executive Branch, and we can’t build evidence in those silos, either. In my own agency, there are natural and obvious synergies with the work of the Department of Labor, the Department of Health and Human Services, the Department of Housing and Urban Development, and several others. Each agency can say the same, and I expect that each of us will come to realize the benefits of more frequent collaboration.
• Reducing barriers to data sharing . It isn’t enough, of course, for two or more agencies to realize that they can accelerate evidence-building by partnering with one another: they have to execute! That’s where things can get tricky. Again, using my own agency as an example, consider the case of trying to more completely understand the outcomes associated with one of our most important programs: the Pell grant. In academic year 2019-2020, nearly 7 million students received Pell grants of up to $6,195 to pursue a postsecondary certificate or degree. The program represents a critical—and significant—investment in the nation’s human capital. But just how large is the return on that investment? By securely linking data on Pell recipients with longitudinal income data from the IRS in a privacy-protecting way, that return could be calculated to the penny. Understandably, the process of linking administrative (or other) data across agencies is both legally and organizationally complex. The Evidence Act seeks to reduce those barriers when appropriate, and charges EOs, Chief Data Officers, and Statistical Officials to do their part to make data more accessible for evidence-building. How effectively we meet that challenge will, in no small measure, define the success of the Evidence Act.
• Ensuring the use of research evidence in policymaking and agency improvement efforts . Finally, the most carefully-built evidence isn’t truly valuable unless it is used. Neither data nor evaluation are ends unto themselves—they are each in service of improving operations and programs so that peoples’ lives are changed for the better. This means evidence must be front and center in agency decision-making processes, using high-quality evidence when it is available and ensuring that it is built when it is not. As I noted above, the Evidence Act is off to a good start in this regard as it has brought together the Performance, Evaluation, Data, and Statistical communities in ways they may not have been traditionally aligned. But that work will need to continue to be sure that the right evidence is available on the right issues at the right time. (Those of you who are particularly interested in this topic may wish to learn more about the academic scholarship surrounding the use of research evidence .)

If EOs and our partners keep working together, continuing along the strong positive trajectory we’ve seen over these past two years, I have every confidence we can meet the challenge the Evidence Act sets for us: policymaking driven by the best available evidence. When we do, it’ll be a technical, managerial, and—yes—bureaucratic feat for which all involved should feel rightly proud. But, as we all know, this work is about much more than new deliverables, processes, and structures. Government isn’t the beneficiary of evidence-based policymaking. Instead, it’s the infant and new mother who benefitted from higher-quality home visits; the middle-schooler who participated in a college access program with a proven track-record of success and was catapulted along the pathway to a career with family-sustaining wages; or the entrepreneur who received evidence-based technical support to open their small business. That’s who really wins when evidence drives policy. Time to get back to work.

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Important Case Laws Related to Indian Evidence Act

The Indian Evidence Act, 1872, is a critical legislation that governs the admissibility and evaluation of evidence in Indian courts. Over the years, landmark judgments by the Supreme Court of India and various High Courts have played a crucial role in shaping the interpretation and application of the Act. In this comprehensive guide, we will explore 10 important case laws that have significantly influenced the understanding of evidence law in India.

1. Kalyan Kumar Gogoi v. Ashutosh Agnihotri and Anr. (2011)

In this case, the Supreme Court of India examined the admissibility of hearsay evidence under the Indian Evidence Act. The court highlighted the inherent unreliability of hearsay evidence, which is information received from a third party about a state of affairs or an event that the first party did not witness firsthand.

The court emphasized that hearsay evidence is inadmissible in court due to its lack of legal certainty and reliability. It noted that hearsay evidence undermines the principles of responsibility and knowledge that should govern the presentation of evidence in court. Allowing hearsay evidence can lead to fraud, deceit, and undue influence, which is unfair to the party against whom it is presented.

2. Roop Kumar v. Mohan Thedani (2003)

This case involved the interpretation of Sections 91 and 92 of the Indian Evidence Act. The dispute revolved around the proving of written documents and the use of oral evidence to modify the terms of a contract.

The Supreme Court clarified that Section 91 of the Act prohibits proving the contents of written documents other than by writing. This section gives written documents more weight than oral testimony. On the other hand, Section 92 restricts the use of oral evidence to vary the terms of a contract. The court emphasized that if a third party wants to prove the existence of a contract between two parties, it must be done through a written contract. The judgment highlighted the importance of documentary evidence and the restrictions on using oral evidence to change contractual terms.

3. Mangala Waman Karandikar (D) TR. LRS. v. Prakash Damodar Ranad (2021)

In this recent case, the Supreme Court examined the application of Sections 92 and 95 of the Indian Evidence Act. The dispute centered around the interpretation of a contract and the need for extrinsic evidence when the terms of the contract are clear and unambiguous.

The court held that when the terms of a contract are apparent and straightforward, there is no need to rely on extrinsic evidence to interpret the contract. The court emphasized the importance of giving literal interpretation to the contract's wording and the intention of the parties involved. It stated that Section 95 of the Act merely elaborates on the proviso in Section 92 and does not expand its scope beyond the principal section. The judgment highlighted the need to adhere to the basic principles of legal interpretation and the prohibition on introducing oral evidence that contradicts the conditions of Section 92.

4. Bodh Raj @ Bodha and Ors v. State Of Jammu and Kashmir (2002)

This case focused on Section 27 of the Indian Evidence Act, which deals with the admissibility of statements made by an accused person in police custody. The issue at hand was whether the discovery of an assault weapon based on information provided by the accused is sufficient to establish guilt.

The court clarified that Section 27 allows certain parts of the accused's statements made to the police to be admissible as evidence, even if they are not confessions. The court noted that the purpose of Section 27 is to enable the court to use such statements to establish a connection between the accused and the commission of the crime. It highlighted the distinction between the recovery of an object and the discovery of facts, stating that the admissibility of the information depends on the nature of the fact discovered.

5. Anvar P.V v. P.K.Basheer & Ors (2014)

This case addressed the admissibility of electronic evidence under Section 65B of the Indian Evidence Act. The dispute revolved around the requirements for proving electronic records in court.

The Supreme Court overruled its previous decision in the Navjot Sandhu case and held that electronic records can be admissible as secondary evidence if the conditions specified in Section 65B are met. The court emphasized the importance of complying with the procedure laid down in Section 65B for the admissibility of electronic evidence. It clarified that Section 65B is a complete code in itself and that electronic records must be authenticated as per the requirements of this section.

6. Bhimsha Subanna Pawar v. State of Maharashtra (1996)

In this case, the Bombay High Court examined the circumstances in which independent evidence is not available to support a conviction.

The court held that in the absence of independent evidence, the court must carefully evaluate the testimony of the police witnesses. If the testimony is found to be reliable, it can form the basis for the conviction of the accused. The court emphasized the need for a thorough examination of the evidence and the absence of any enmity between the police witnesses and the accused in such cases.

7. Dr. Sunil Clifford Daniel v. the State of Punjab (2012)

This case involved the interplay between Section 162(1) of the Code of Criminal Procedure and Section 27 of the Indian Evidence Act. The question at hand was whether a witness is bound by the statements made to the investigating officer.

The court clarified that Section 162(1) requires that statements made by a person to a police officer during an investigation should not be signed by the person making them. It stated that such statements do not bind the witness and cannot be used against them in court. However, the court noted that Section 162(1) does not apply to statements made in accordance with Section 27 of the Evidence Act. It emphasized that investigators are not legally required to obtain the accused's initials on statements prepared under Section 27, but if obtained, they are not considered illegal.

8. Arjun Panditrao Khotkar v. Kailash Kushanrao Gorantyal and Ors (2020)

This case dealt with the admissibility of electronic evidence under Section 65B of the Indian Evidence Act.

The Supreme Court reiterated that electronic records can be admissible as secondary evidence if the requirements of Section 65B are fulfilled. The court emphasized that Section 65B is a complete code in itself and must be followed for the admissibility of electronic evidence. It noted that electronic documents should be recognized as documentary evidence under Section 3 of the Act.

The Indian Evidence Act, 1872, is a crucial legislation that governs the admissibility and evaluation of evidence in Indian courts. Landmark judgments by the Supreme Court of India and various High Courts have played a significant role in shaping the interpretation and application of the Act. The case laws discussed in this comprehensive guide highlight important principles and provisions of evidence law, including the admissibility of hearsay evidence, the interpretation of written documents, the use of electronic evidence, and the evaluation of statements made by an accused person. These judgments provide valuable insights into the understanding and application of evidence law in India.

References:

• Kalyan Kumar Gogoi v. Ashutosh Agnihotri and Anr. (2011)
• Roop Kumar v. Mohan Thedani (2003)
• Mangala Waman Karandikar (D) TR. LRS. v. Prakash Damodar Ranad (2021)
• Bodh Raj @ Bodha and Ors v. State Of Jammu and Kashmir (2002)
• Anvar P.V v. P.K.Basheer & Ors (2014)
• Bhimsha Subanna Pawar v. State of Maharashtra (1996)
• Dr. Sunil Clifford Daniel v. the State of Punjab (2012)

Arjun Panditrao Khotkar v. Kailash Kushanrao Gorantyal and Ors (2020)

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Law of Evidence – Notes, Case Laws and Study Material

Legal bites brings to you a comprehensive study material on the law of evidence..

Legal Bites brings you comprehensive study material on the Law of Evidence. The corpus juris or body of laws is generally divided into two types of laws- Substantive laws and Adjective laws. Simply put, substantive laws are those laws which define certain rights and liabilities, and adjective laws are those which facilitate the realization of those rights and liabilities. Adjective laws are further divided into procedural laws and laws of Evidence.

Law of Evidence has been recognized as a distinct category because it consists of elements of both substantive as well as procedural law.

Module 1: general introduction to the law of evidence.

• An Overview of Bharatiya Sakshya Adhiniyam 2023
• The Law of Evidence: An Introduction
• 1000+ Detailed Questions MCQ Test Series for Competitions
• Important Definitions under the Indian Evidence Act, 1872
• Law relating to Presumption
• The Concept of the Best Evidence Rule and its Evolution in India
• Law of Evidence in the United States of America; An Introduction
• Types of Evidence and their Characteristics

Module 2: Relevancy and Admissibility of Facts

• Distinction between Relevancy and Admissibility
• Doctrine of Res Gestae
• Motive, preparation and conduct
• Conspiracy under the Indian Evidence Act, 1872
• When Facts not otherwise relevant become relevant
• The specific State of mind
• Confessions
• Dying Declaration
• Relevancy of Opinions of Third Parties
• Electronic Evidence – Relevancy and Admissibility
• Extra-Judicial Confessions: Admissibility, Relevance and Sufficiency

Module 3: Proof and forms of proof

• Facts which need not be proved
• Oral and Documentary Evidence
• Exclusion of Oral by Documentary Evidence
• Legitimacy under Section 112 of The Indian Evidence Act, 1872
• Legal Development of DNA Evidence in Determining Paternity Tests

Module 4: Burden of Proof

• Rules relating to the burden of proof
• Presumption as to Dowry Death
• Doctrine of Estoppel
• Privileged Communication

Module 5: Witnesses: Competency and Examination

• Kinds of witnesses- Child witness, Dumb witness, Hostile witness
• Procedure for examination of witnesses
• Doctrine of Fruits of Poisonous Tree

Important Mains Questions Series for Judiciary, APO & University Exams

• Law of Evidence Mains Questions Series Part-I
• Law of Evidence Mains Questions Series Part-II
• Law of Evidence Mains Questions Series Part-III
• Law of Evidence Mains Questions Series Part-IV
• Law of Evidence Mains Questions Series Part-V
• Law of Evidence Mains Questions Series Part-VI
• Law of Evidence Mains Questions Series Part-VII
• Law of Evidence Mains Questions Series Part-VIII
• Law of Evidence Mains Questions Series Part-IX
• Law of Evidence Mains Questions Series Part-X

Other Important Articles

A Comprehensive Study About Dying Declaration

• Introduction
• The Indian Evidence Act 1872 – Bare Act
• Important Definitions – Meaning and Explanation
• Relevancy of Facts
• Admission And Confession
• Judgments of Courts of Justice when Relevant (Section 40-44)
• Expert Evidence and Relevancy of Character
• Relevancy of Character Evidence in Civil and Criminal Cases
• Facts Which Need Not Be Proved – Provisions and Case Laws
• Electronic Evidence Under Indian Evidence Act, 1872
• Documentary Evidence & Presumptions As To Documents (Sections 61 to 90)
• Exclusion Of Oral Evidence By Documentary Evidence (Sections 91 to 100)
• Burden of Proof and Presumptions (Section 101 – 114 A)
• Estoppel – Meaning, Types and Exceptions
• Estoppel (Section 115 – 117)
• Accomplice Evidence
• Presumption Of Facts
• Examination of Witnesses

Reliability and Trustworthiness of Hearsay Evidence

Doctrine of Last Seen Together

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CRITICAL ANALYSIS OF SECTION 27 OF THE INDIAN EVIDENCE ACT

Introduction.

“There is no greater tyranny than that which is perpetrated under the shield of the law and in the name of justice.” ~ Montesquieu

The Indian Evidence Act of 1872, which is lex fori . Even though this specific legislation predates the Constitution, several amendments and judicial interpretations have constrained its overarching implications. One of the Indian Evidence Act provisions is the subject of this critical study in Section 27.

Section 27 of IEA 1872 – This section is a legal requirement for judges presiding over criminal trials. It is based on the theory that if the finding of a fact corroborates an accused person’s confession or statement, it is more likely than not true. (1) when certain facts are inferred to have been discovered as a result of information obtained from an accused person detained by the police, and (2) If the information relates to the fact acquired.

Section 27 requires that in all judicial proceedings, so long as that information is factually related, establish that facts have been discovered as a result of information provided by the accused about an offense in police custody. It stipulates that evidence must be obtained. Through such information can be discovered, as a result of the information provided, some assurance is if it was true and can, therefore, be safely allowed to be given in evidence. However, the precise nature of the fact discovered to which such information is required to relate must depend on the scope of the admissible information.

Requirements according to S 27 :-

(1) The facts have been clarified by providing information from the defendant. (2) The person providing the information must be charged with a criminal offense. (3) being protected by a police officer; (4) Only those parts of the information that are related to the confirmed facts can be proved. The rest are not allowed. (5) Before a statement can be substantiated, the entity must state that some items were discovered based on information received from the accused. In the example above, before the defendant’s testimony can be proven, someone like the sub-inspector must determine that some facts have been discovered based on the information provided by the defendant. (6) The facts discovered must be relevant.

CONSTITUTIONAL RELATION

Since all laws and provisions, whether they date from before or after the Indian Constitution, were derived from it and were under its provisions, in a similar manner in Section 27 of IEA is pari materia to Article 20(3) of the Indian constitution, Article 20 (3) of the Constitution reads as “ No person accused of an offense shall be compelled to be a witness against himself ”

Article 20 (3) of the Constitution embodies the idea of protection against being forced to incriminate oneself. The protection provided by that provision includes any forced testimony previously obtained from him. The information that the accused provided to the police was unquestionably testimony that had already been obtained from him and was intended for use in a court of law. Article 20 (3) forbids the use of the material in court if it is forced testimony rather than voluntary information. They must be excluded from evidence as of Article 20 (3) passage because if they were included, the accused would be forced to testify against himself. The Constitution’s Article 20 (3) limits the use of Section 27 of the Evidence Act, and as a result, the discoveries that result from a confession obtained under duress cannot be utilized against the person who confessed.

LAW COMMISSION REPORTS

The interrelationship between Article 20(3) , which states the principle of self-incrimination, and other judgments, including DK Basu and Maneka Gandhi , was also examined in these reports. All confessions made to senior police officials will be accepted, excepting specific situations, as proposed in the 69th Report. It also outlines safeguards that must be followed if a senior police officer is given a confession, including having the accused’s attorney present and abiding by all the provisions of Section 164 of the Criminal Procedure Code.

Through a variety of situations, the 185th report also examined the idea of inmate deaths and police abuse. The 185th Report stated that while the 69th Report’s aim was reasonable, the actual situation was far more dangerous. India could not provide the police with this kind of authority at the time because there were already hundreds of legal cases involving police violence. The study also stated that doing so would be against Articles 14 and 21 and several other Supreme Court rulings that have established numerous safeguards and rules for police officers.

FROM A JUDICIAL POINT OF VIEW

It is very important to understand the definition of confession and its relation to Section 27 of the Indian Evidence Act and here two landmark cases are analysed:

Pulukuri Kottaya v King-Emperor 

In this instance, nine people were charged with murder. Convicted by the Guntur Court of Session, and the judgment of the lower court was affirmed by the Madras High Court. According to the Madras High Court, the entire confession was acceptable; otherwise, there wouldn’t be any nexus. The admission of the evidence was challenged before the Privy Council per Section 27 of the Evidence Act. On December 19, 1946, the Privy Council issued its decision in this case. This decision was written by Justice John Beaumont.

• Difference between discovered and produced facts – The fact discovered encompasses the location from which the thing is generated as well as the accused’s knowledge of this.
• The information provided must be directly related to this fact. Information about the object’s previous user or history is unrelated to its finding in the context in which it is discovered.
• For instance, the information provided by a person in prison that “I will produce a weapon concealed in the roof of my house” does not result in the finding of a knife; knives have been discovered for many years. It leads to the discovery of the fact that a knife is hidden in the informant’s residence without his knowledge, and if the knife is proven to have been used in the commission of the offense, the fact found is extremely important. However, if the words “with which I stabbed A” are added to the statement, they are inadmissible because they have nothing to do with the discovery of the knife at the informant’s house.
• In this case, the Privy Council ruled that just that part of a statement or confession can be proven as a result of which a fact was discovered, and the rest must be rejected.

Aghnoo Nagesia v State Of Bihar

A single Bench of the Supreme Court comprising R.S. Bachawat decided Aghnoo Nagesia v. State of Bihar on May 04, 1965. No one was an eyewitness to the murder. The decision of the case is solely based on the evidentiary value of FIR and the relevancy of confession under Section 27 of the Indian Evidence Act.  Relevant confession under section 27 was not sufficient for conviction. So accused was acquitted.

The ratio of Supreme Court

Scope of confession – In this decision, the Supreme Court examined previous definitions of confession and decided that confession can be defined as an acknowledgment of guilt by a person accused of an offense.

• FIR’s evidentiary value – Section 154 of the Code of Criminal Procedure requires the recording of the initial information. The information report is not meaningful evidence in and of itself. If the informant is called as a witness, it may be used to corroborate him per Section 157 of the Evidence Act or to oppose him under Section 145 of the Act. If the accused provides the first information, the fact that he provided the input is admissible towards him as proof of his behavior under Section 8 of the Evidence Act.
• If the statement is a non-confessional admission, it is admissible as an admission against the accused per Section 21 of the Evidence Act and is significant.
• Jurisprudence of refusing to accept a confession given to a police officer or any other person while in the custody of a police officer – Police officers should not be trusted. So a confession made to a police officer during an inquiry ( Section 161 P.C.) or a confession made under duress, threat, or promise ( Section 24 ), a confession made to policemen ( Section 25 ), or a confession made to a third person while in police custody ( Section 26 ) is irrelevant.

From the aforementioned, it is clear that section 27 of this code is not very beautifully crafted, but it has been very carefully shaped with the application of our Constitution and then by our Supreme courts as well as High courts of various states. Section 27 guarantees the liberty of the accused, and the law commission observations are there to further transform this section so that it can withstand the test of time and society.

Author(s) Name: Anurag Sinha (Delhi University, Faculty of Law)

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Evidence Act - Important Amendments, Books, Questions

Indian Evidence Act 1872 - The Indian Evidence Act, of 1872 (IEA) lays down the rules regarding the admissibility, production, and evaluation of evidence in Indian courts. Understanding its critical concepts can be valuable for legal professionals and citizens alike. Here's an overview of some key aspects:

Important Amendments to the Indian Evidence Act, 1872 and Case Laws

Important books for indian evidence act, questions on the indian evidence act.

1. Relevancy of Facts (Section 6-9)

Only facts relevant to the case can be proven as evidence. Relevance is determined by their connection to the issues in dispute.

Case Law : In State (NCT of Delhi) v. Navjot Sandhu, the Supreme Court held that the accused's previous criminal record becomes relevant if it shows a propensity to commit the same crime again.

2. Admissibility of Evidence (Section 11-126)

Not all relevant facts are admissible. Certain evidence might be excluded due to legal restrictions or policy considerations.

Exceptions : Hearsay evidence (secondhand information) is generally inadmissible, but exceptions exist, like dying declarations or admissions against interest.

Case Law : In Khwaja Abbas v. State of Bihar, the Supreme Court allowed a dying declaration as primary evidence due to its exceptional circumstances.

3. Burden of Proof (Section 101-111)

The party asserting a claim bears the burden of proving it with reasonable certainty. In criminal cases, the prosecution must prove guilt beyond reasonable doubt.

Presumptions : The law may presume certain facts based on established patterns, shifting the burden of proof conditionally.

Case Law : In Satendar Sharma v. State of Himachal Pradesh, the Supreme Court clarified that the burden of proving consent in rape cases lies with the accused when certain presumptions apply.

4. Examination of Witnesses (Section 135-160)

Rules govern the proper questioning of witnesses to ensure fairness and clarity.

Leading questions : Suggesting the desired answer is generally prohibited during examination-in-chief.

Cross-examination : Allows the opposing party to test the witness's credibility and memory.

Case Law : In Kartar Singh v. State of Punjab, the Supreme Court stressed the importance of fair and unbiased cross-examination.

5. Documentary Evidence (Section 90-106)

Documents must be duly authenticated and produced before the court. Electronic records are now recognized as valid evidence under amended provisions.

Case Law : In Anvar P.V. v. State of Kerala, the Supreme Court upheld the admissibility of digitally altered photographs after proper authentication.

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The Indian Evidence Act, 1872 (IEA) has undergone several significant amendments since its inception to align with evolving legal and technological landscapes. Here, we'll explore some critical amendments and related case laws:

1. Admissibility of Electronic Evidence (2000)

Amendment : Introduced Sections 65A and 65B, recognizing electronic records as evidence and outlining their admissibility requirements.

Landmark Case : Arjun Pandit Rao vs. Kailash Kishanrao (2022): Supreme Court mandated furnishing a certificate under Section 65B as mandatory for electronic evidence admissibility, making oral evidence inadmissible in such cases.

2. Opinion of Examiner of Electronic Evidence (2009)

Amendment : Section 45A allows admitting the opinion of an examiner of electronic evidence, subject to specific conditions.

Case Example : State of Maharashtra vs. Pradeep Shukla (2014):** High Court relied on a computer expert's opinion to establish the accused's involvement in a cybercrime, highlighting the significance of Section 45A.

3. Presumption of Genuineness of Certified Copies (2011)

Amendment : Section 83A creates a presumption of genuineness for certified copies of electronic records stored by government bodies.

Case Example : State (N.C.T. of Delhi) vs. Navjot Sandhu (2018): Court admitted a certified copy of a website's content stored by a government agency due to the presumption under Section 83A.

4. Presumption of Abetment of Suicide by Married Woman (2005)

Amendment : Introduced Section 113A, creating a rebuttable presumption that if a married woman dies within seven years of marriage due to unnatural causes, the husband caused her death.

Case Example : K.M. Nanavati vs. State of Maharashtra (1959): Supreme Court, while interpreting the pre-amendment law, highlighted the need for considering all evidence before drawing conclusions about abetment.

5. Protection of Witnesses (2009)

Amendment : Introduced Sections 132A and 132B, empowering courts to take measures to protect vulnerable witnesses, including child victims and witnesses facing threats.

Case Example : Sheela Barse vs. State of Maharashtra (2013): High Court upheld the use of screen to protect a child witness during testimony, emphasizing the importance of Section 132A.

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For your reference, the list of important books is provided below.

Ratanlal & Dhirajlal's The Law of Evidence: The classic commentary. Offers in-depth analysis and case law references. Best for serious legal professionals.

Batuk Lal's Law of Evidence: A comprehensive textbook with clear explanations. Great for students and exam prep.

Sarkar on Evidence: An authoritative guide covering the latest legal developments.

Avtar Singh's Principles of the Law of Evidence: A good introductory text with simplified explanations.

V.P. Sarathi's Law of Evidence: Focuses on practical application of the law.

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Here are a few example questions for your better understanding.

1. A witness in a court case makes a statement about what they heard someone else say. This statement would be considered:

(a) Relevant evidence

(b) Hearsay evidence

(c) Direct evidence

(d) Opinion evidence

Answer : (b) Hearsay evidence

Explanation : Under the Indian Evidence Act, hearsay evidence is generally inadmissible because it is not firsthand information and its reliability cannot be verified. While it may be relevant to the case, the court cannot rely on it as proof unless there is an exception to the hearsay rule.

2. A document presented in court does not bear the signature of the alleged author. To prove its authenticity, the best course of action would be to:

(a) Submit the document as is

(b) Call the author as a witness

(c) Compare the handwriting to other known samples

(d) All of the above

Answer : (d) All of the above

Explanation : To establish the authenticity of a document, the court might consider various approaches: submit the document as is (allowing the opposing party to challenge it), call the author as a witness for verification, or compare the handwriting to other known samples through expert analysis. All of these actions might contribute to strengthening the document's admissibility.

3. In a criminal case, the burden of proof lies with the:

(a) Defendant to prove their innocence

(b) Plaintiff to prove the crime beyond a reasonable doubt

(c) Judge to determine guilt or innocence based on available evidence

(d) Jury to reach a verdict based on their understanding of the case

Answer : (b) Plaintiff to prove the crime beyond a reasonable doubt

Explanation :In criminal cases, the prosecution (acting on behalf of the state) carries the burden of proving the accused's guilt beyond a reasonable doubt. The accused is presumed innocent until proven guilty and is not obligated to prove their innocence.

4. A wife files for divorce based on her husband's cruelty. She has no physical evidence of the abuse, but can present witness testimonies from neighbors and family members. These testimonies would be considered:

(a) Relevant but not reliable due to personal bias

(b) Irrelevant unless they directly witnessed the abuse

(c) Relevant and admissible circumstantial evidence

(d) Hearsay evidence and therefore inadmissible

Answer : (c) Relevant and admissible circumstantial evidence

Explanation : While the neighbor and family member testimonies are not direct evidence of the abuse, they can be considered relevant circumstantial evidence. Their observations and experiences might indirectly support the wife's claim of cruelty, especially if they corroborate other details of her statement.

5. A company seeks to present a social media post by the defendant as evidence in a defamation case. Which factor would the court NOT consider when assessing the post's admissibility?

(a) The tone and language used in the post

(b) The factual accuracy of the statements made

(c) The context in which the post was published

(d) The number of likes and shares the post received

Answer : (d) The number of likes and shares the post received

Explanation : While the post's popularity might reflect its reach and potential impact, the number of likes and shares does not directly contribute to determining its truthfulness or defamatory nature. The court primarily focuses on the content, context, and factual basis of the statements within the post when evaluating its admissibility and potential harm.

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Frequently Asked Question (FAQs)

The IEA recognizes various forms of evidence, including:

Oral evidence : Statements made in court by witnesses

Documentary evidence : Written documents, electronic records, etc.

Material objects : Physical evidence related to the case

Expert opinions : Testimony from individuals with specialized knowledge

Since 2000, electronic records are admissible, but specific requirements must be met:

Authenticity : Requires proving the electronic record originates from the claimed source and hasn't been tampered with.

Integrity : Demonstrates the record hasn't been altered or modified.

Reliability : Establishes the system used to create and maintain the record follows standard procedures.

The IEA outlines situations where witness testimony might be inadmissible:

Hearsay rule : Witness recounts what someone else told them, not their own experience.

Privilege: Certain relationships (lawyer-client, doctor-patient) create confidentiality, limiting disclosure.

Incompetence : Witness deemed incapable of understanding the oath or communicating effectively.

Burden of proof : Lies with the party asserting a claim (plaintiff in civil cases, prosecution in criminal cases) to prove their case by a preponderance of evidence (civil) or beyond a reasonable doubt (criminal).

Burden of rebuttal : Rests with the opposing party to counter the other side's evidence but doesn't require proving their own case.

While the IEA serves as the primary framework for evidence admissibility, other specific laws might prescribe additional or different rules for particular types of cases, such as family law or taxation matters.

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Individuals in the operations manager jobs are responsible for ensuring the efficiency of each department to acquire its optimal goal. They plan the use of resources and distribution of materials. The operations manager's job description includes managing budgets, negotiating contracts, and performing administrative tasks.

Stock Analyst

Individuals who opt for a career as a stock analyst examine the company's investments makes decisions and keep track of financial securities. The nature of such investments will differ from one business to the next. Individuals in the stock analyst career use data mining to forecast a company's profits and revenues, advise clients on whether to buy or sell, participate in seminars, and discussing financial matters with executives and evaluate annual reports.

A Researcher is a professional who is responsible for collecting data and information by reviewing the literature and conducting experiments and surveys. He or she uses various methodological processes to provide accurate data and information that is utilised by academicians and other industry professionals. Here, we will discuss what is a researcher, the researcher's salary, types of researchers.

Welding Engineer

Welding Engineer Job Description: A Welding Engineer work involves managing welding projects and supervising welding teams. He or she is responsible for reviewing welding procedures, processes and documentation. A career as Welding Engineer involves conducting failure analyses and causes on welding issues. 

Transportation Planner

A career as Transportation Planner requires technical application of science and technology in engineering, particularly the concepts, equipment and technologies involved in the production of products and services. In fields like land use, infrastructure review, ecological standards and street design, he or she considers issues of health, environment and performance. A Transportation Planner assigns resources for implementing and designing programmes. He or she is responsible for assessing needs, preparing plans and forecasts and compliance with regulations.

Environmental Engineer

Individuals who opt for a career as an environmental engineer are construction professionals who utilise the skills and knowledge of biology, soil science, chemistry and the concept of engineering to design and develop projects that serve as solutions to various environmental problems. 

Safety Manager

A Safety Manager is a professional responsible for employee’s safety at work. He or she plans, implements and oversees the company’s employee safety. A Safety Manager ensures compliance and adherence to Occupational Health and Safety (OHS) guidelines.

Conservation Architect

A Conservation Architect is a professional responsible for conserving and restoring buildings or monuments having a historic value. He or she applies techniques to document and stabilise the object’s state without any further damage. A Conservation Architect restores the monuments and heritage buildings to bring them back to their original state.

Structural Engineer

A Structural Engineer designs buildings, bridges, and other related structures. He or she analyzes the structures and makes sure the structures are strong enough to be used by the people. A career as a Structural Engineer requires working in the construction process. It comes under the civil engineering discipline. A Structure Engineer creates structural models with the help of computer-aided design software. 

Highway Engineer

Highway Engineer Job Description:  A Highway Engineer is a civil engineer who specialises in planning and building thousands of miles of roads that support connectivity and allow transportation across the country. He or she ensures that traffic management schemes are effectively planned concerning economic sustainability and successful implementation.

Field Surveyor

Are you searching for a Field Surveyor Job Description? A Field Surveyor is a professional responsible for conducting field surveys for various places or geographical conditions. He or she collects the required data and information as per the instructions given by senior officials. 

Orthotist and Prosthetist

Orthotists and Prosthetists are professionals who provide aid to patients with disabilities. They fix them to artificial limbs (prosthetics) and help them to regain stability. There are times when people lose their limbs in an accident. In some other occasions, they are born without a limb or orthopaedic impairment. Orthotists and prosthetists play a crucial role in their lives with fixing them to assistive devices and provide mobility.

Pathologist

A career in pathology in India is filled with several responsibilities as it is a medical branch and affects human lives. The demand for pathologists has been increasing over the past few years as people are getting more aware of different diseases. Not only that, but an increase in population and lifestyle changes have also contributed to the increase in a pathologist’s demand. The pathology careers provide an extremely huge number of opportunities and if you want to be a part of the medical field you can consider being a pathologist. If you want to know more about a career in pathology in India then continue reading this article.

Veterinary Doctor

Speech therapist, gynaecologist.

Gynaecology can be defined as the study of the female body. The job outlook for gynaecology is excellent since there is evergreen demand for one because of their responsibility of dealing with not only women’s health but also fertility and pregnancy issues. Although most women prefer to have a women obstetrician gynaecologist as their doctor, men also explore a career as a gynaecologist and there are ample amounts of male doctors in the field who are gynaecologists and aid women during delivery and childbirth. 

Audiologist

The audiologist career involves audiology professionals who are responsible to treat hearing loss and proactively preventing the relevant damage. Individuals who opt for a career as an audiologist use various testing strategies with the aim to determine if someone has a normal sensitivity to sounds or not. After the identification of hearing loss, a hearing doctor is required to determine which sections of the hearing are affected, to what extent they are affected, and where the wound causing the hearing loss is found. As soon as the hearing loss is identified, the patients are provided with recommendations for interventions and rehabilitation such as hearing aids, cochlear implants, and appropriate medical referrals. While audiology is a branch of science that studies and researches hearing, balance, and related disorders.

An oncologist is a specialised doctor responsible for providing medical care to patients diagnosed with cancer. He or she uses several therapies to control the cancer and its effect on the human body such as chemotherapy, immunotherapy, radiation therapy and biopsy. An oncologist designs a treatment plan based on a pathology report after diagnosing the type of cancer and where it is spreading inside the body.

Are you searching for an ‘Anatomist job description’? An Anatomist is a research professional who applies the laws of biological science to determine the ability of bodies of various living organisms including animals and humans to regenerate the damaged or destroyed organs. If you want to know what does an anatomist do, then read the entire article, where we will answer all your questions.

For an individual who opts for a career as an actor, the primary responsibility is to completely speak to the character he or she is playing and to persuade the crowd that the character is genuine by connecting with them and bringing them into the story. This applies to significant roles and littler parts, as all roles join to make an effective creation. Here in this article, we will discuss how to become an actor in India, actor exams, actor salary in India, and actor jobs. 

Individuals who opt for a career as acrobats create and direct original routines for themselves, in addition to developing interpretations of existing routines. The work of circus acrobats can be seen in a variety of performance settings, including circus, reality shows, sports events like the Olympics, movies and commercials. Individuals who opt for a career as acrobats must be prepared to face rejections and intermittent periods of work. The creativity of acrobats may extend to other aspects of the performance. For example, acrobats in the circus may work with gym trainers, celebrities or collaborate with other professionals to enhance such performance elements as costume and or maybe at the teaching end of the career.

Video Game Designer

Career as a video game designer is filled with excitement as well as responsibilities. A video game designer is someone who is involved in the process of creating a game from day one. He or she is responsible for fulfilling duties like designing the character of the game, the several levels involved, plot, art and similar other elements. Individuals who opt for a career as a video game designer may also write the codes for the game using different programming languages.

Depending on the video game designer job description and experience they may also have to lead a team and do the early testing of the game in order to suggest changes and find loopholes.

Radio Jockey

Radio Jockey is an exciting, promising career and a great challenge for music lovers. If you are really interested in a career as radio jockey, then it is very important for an RJ to have an automatic, fun, and friendly personality. If you want to get a job done in this field, a strong command of the language and a good voice are always good things. Apart from this, in order to be a good radio jockey, you will also listen to good radio jockeys so that you can understand their style and later make your own by practicing.

A career as radio jockey has a lot to offer to deserving candidates. If you want to know more about a career as radio jockey, and how to become a radio jockey then continue reading the article.

Choreographer

The word “choreography" actually comes from Greek words that mean “dance writing." Individuals who opt for a career as a choreographer create and direct original dances, in addition to developing interpretations of existing dances. A Choreographer dances and utilises his or her creativity in other aspects of dance performance. For example, he or she may work with the music director to select music or collaborate with other famous choreographers to enhance such performance elements as lighting, costume and set design.

Social Media Manager

A career as social media manager involves implementing the company’s or brand’s marketing plan across all social media channels. Social media managers help in building or improving a brand’s or a company’s website traffic, build brand awareness, create and implement marketing and brand strategy. Social media managers are key to important social communication as well.

Photographer

Photography is considered both a science and an art, an artistic means of expression in which the camera replaces the pen. In a career as a photographer, an individual is hired to capture the moments of public and private events, such as press conferences or weddings, or may also work inside a studio, where people go to get their picture clicked. Photography is divided into many streams each generating numerous career opportunities in photography. With the boom in advertising, media, and the fashion industry, photography has emerged as a lucrative and thrilling career option for many Indian youths.

An individual who is pursuing a career as a producer is responsible for managing the business aspects of production. They are involved in each aspect of production from its inception to deception. Famous movie producers review the script, recommend changes and visualise the story. 

They are responsible for overseeing the finance involved in the project and distributing the film for broadcasting on various platforms. A career as a producer is quite fulfilling as well as exhaustive in terms of playing different roles in order for a production to be successful. Famous movie producers are responsible for hiring creative and technical personnel on contract basis.

Copy Writer

In a career as a copywriter, one has to consult with the client and understand the brief well. A career as a copywriter has a lot to offer to deserving candidates. Several new mediums of advertising are opening therefore making it a lucrative career choice. Students can pursue various copywriter courses such as Journalism , Advertising , Marketing Management . Here, we have discussed how to become a freelance copywriter, copywriter career path, how to become a copywriter in India, and copywriting career outlook. 

In a career as a vlogger, one generally works for himself or herself. However, once an individual has gained viewership there are several brands and companies that approach them for paid collaboration. It is one of those fields where an individual can earn well while following his or her passion. 

Ever since internet costs got reduced the viewership for these types of content has increased on a large scale. Therefore, a career as a vlogger has a lot to offer. If you want to know more about the Vlogger eligibility, roles and responsibilities then continue reading the article. 

For publishing books, newspapers, magazines and digital material, editorial and commercial strategies are set by publishers. Individuals in publishing career paths make choices about the markets their businesses will reach and the type of content that their audience will be served. Individuals in book publisher careers collaborate with editorial staff, designers, authors, and freelance contributors who develop and manage the creation of content.

Careers in journalism are filled with excitement as well as responsibilities. One cannot afford to miss out on the details. As it is the small details that provide insights into a story. Depending on those insights a journalist goes about writing a news article. A journalism career can be stressful at times but if you are someone who is passionate about it then it is the right choice for you. If you want to know more about the media field and journalist career then continue reading this article.

Individuals in the editor career path is an unsung hero of the news industry who polishes the language of the news stories provided by stringers, reporters, copywriters and content writers and also news agencies. Individuals who opt for a career as an editor make it more persuasive, concise and clear for readers. In this article, we will discuss the details of the editor's career path such as how to become an editor in India, editor salary in India and editor skills and qualities.

Individuals who opt for a career as a reporter may often be at work on national holidays and festivities. He or she pitches various story ideas and covers news stories in risky situations. Students can pursue a BMC (Bachelor of Mass Communication) , B.M.M. (Bachelor of Mass Media) , or  MAJMC (MA in Journalism and Mass Communication) to become a reporter. While we sit at home reporters travel to locations to collect information that carries a news value.  

Corporate Executive

Are you searching for a Corporate Executive job description? A Corporate Executive role comes with administrative duties. He or she provides support to the leadership of the organisation. A Corporate Executive fulfils the business purpose and ensures its financial stability. In this article, we are going to discuss how to become corporate executive.

Multimedia Specialist

A multimedia specialist is a media professional who creates, audio, videos, graphic image files, computer animations for multimedia applications. He or she is responsible for planning, producing, and maintaining websites and applications. 

Quality Controller

A quality controller plays a crucial role in an organisation. He or she is responsible for performing quality checks on manufactured products. He or she identifies the defects in a product and rejects the product. 

A quality controller records detailed information about products with defects and sends it to the supervisor or plant manager to take necessary actions to improve the production process.

Production Manager

A QA Lead is in charge of the QA Team. The role of QA Lead comes with the responsibility of assessing services and products in order to determine that he or she meets the quality standards. He or she develops, implements and manages test plans. 

Process Development Engineer

The Process Development Engineers design, implement, manufacture, mine, and other production systems using technical knowledge and expertise in the industry. They use computer modeling software to test technologies and machinery. An individual who is opting career as Process Development Engineer is responsible for developing cost-effective and efficient processes. They also monitor the production process and ensure it functions smoothly and efficiently.

AWS Solution Architect

An AWS Solution Architect is someone who specializes in developing and implementing cloud computing systems. He or she has a good understanding of the various aspects of cloud computing and can confidently deploy and manage their systems. He or she troubleshoots the issues and evaluates the risk from the third party. 

Azure Administrator

An Azure Administrator is a professional responsible for implementing, monitoring, and maintaining Azure Solutions. He or she manages cloud infrastructure service instances and various cloud servers as well as sets up public and private cloud systems. 

Computer Programmer

Careers in computer programming primarily refer to the systematic act of writing code and moreover include wider computer science areas. The word 'programmer' or 'coder' has entered into practice with the growing number of newly self-taught tech enthusiasts. Computer programming careers involve the use of designs created by software developers and engineers and transforming them into commands that can be implemented by computers. These commands result in regular usage of social media sites, word-processing applications and browsers.

Information Security Manager

Individuals in the information security manager career path involves in overseeing and controlling all aspects of computer security. The IT security manager job description includes planning and carrying out security measures to protect the business data and information from corruption, theft, unauthorised access, and deliberate attack 

ITSM Manager

Automation test engineer.

An Automation Test Engineer job involves executing automated test scripts. He or she identifies the project’s problems and troubleshoots them. The role involves documenting the defect using management tools. He or she works with the application team in order to resolve any issues arising during the testing process. 

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O'Mathúna D, Iphofen R, editors. Ethics, Integrity and Policymaking: The Value of the Case Study [Internet]. Cham (CH): Springer; 2022. doi: 10.1007/978-3-031-15746-2_1

Ethics, Integrity and Policymaking: The Value of the Case Study [Internet].

Chapter 1 making a case for the case: an introduction.

Dónal O’Mathúna and Ron Iphofen .

Affiliations

Published online: November 3, 2022.

This chapter agues for the importance of case studies in generating evidence to guide and/or support policymaking across a variety of fields. Case studies can offer the kind of depth and detail vital to the nuances of context, which may be important in securing effective policies that take account of influences not easily identified in more generalised studies. Case studies can be written in a variety of ways which are overviewed in this chapter, and can also be written with different purposes in mind. At the same time, case studies have limitations, particularly when evidence of causation is sought. Understanding these can help to ensure that case studies are appropriately used to assist in policymaking. This chapter also provides an overview of the types of case studies found in the rest of this volume, and briefly summarises the themes and topics addressed in each of the other chapters.

1.1. Judging the Ethics of Research

When asked to judge the ethical issues involved in research or any evidence-gathering activity, any research ethicist worth their salt will (or should) reply, at least initially: ‘It depends’. This is neither sophistry nor evasive legalism. Instead, it is a specific form of casuistry used in ethics in which general ethical principles are applied to the specifics of actual cases and inferences made through analogy. It is valued as a structured yet flexible approach to real-world ethical challenges. Case study methods recognise the complexities of depth and detail involved in assessing research activities. Another way of putting this is to say: ‘Don’t ask me to make a judgement about a piece of research until I have the details of the project and the context in which it will or did take place.’ Understanding and fully explicating a context is vital as far as ethical research (and evidence-gathering) is concerned, along with taking account of the complex interrelationship between context and method (Miller and Dingwall 1997 ).

This rationale lies behind this collection of case studies which is one outcome from the EU-funded PRO-RES Project. 1 One aim of this project was to establish the virtues, values, principles and standards most commonly held as supportive of ethical practice by researchers, scientists and evidence-generators and users. The project team conducted desk research, workshops and consulted throughout the project with a wide range of stakeholders (PRO-RES 2021a ). The resulting Scientific, Trustworthy, and Ethical evidence for Policy (STEP) ACCORD was devised, which all stakeholders could sign up to and endorse in the interests of ensuring any policies which are the outcome of research findings are based upon ethical evidence (PRO-RES 2021b ).

By ‘ethical evidence’ we mean results and findings that have been generated by research and other activities during which the standards of research ethics and integrity have been upheld (Iphofen and O’Mathúna 2022 ). The first statement of the STEP ACCORD is that policy should be evidence-based, meaning that it is underpinned by high-quality research, analysis and evidence (PRO-RES 2021b ). While our topic could be said to be research ethics, we have chosen to refer more broadly to evidence-generating activities. Much debate has occurred over the precise definition of research under the apparent assumption that ‘non-research projects’ fall outside the purview of requirements to obtain ethics approval from an ethics review body. This debate is more about the regulation of research than the ethics of research and has contributed to an unbalanced approach to the ethics of research (O’Mathúna 2018 ). Research and evidence-generating activities raise many ethical concerns, some similar and some distinct. When the focus is primarily on which projects need to obtain what sort of ethics approval from which type of committee, the ethical issues raised by those activities themselves can receive insufficient attention. This can leave everyone involved with these activities either struggling to figure out how to manage complex and challenging ethical dilemmas or pushing ahead with those activities confident that their approval letter means they have fulfilled all their ethical responsibilities. Unfortunately, this can lead to a view that research ethics is an impediment and burden that must be overcome so that the important work in the research itself can get going.

The alternative perspective advocated by PRO-RES, and the authors of the chapters in this volume, is that ethics underpins all phases of research, from when the idea for a project is conceived, all the way through its design and implementation, and on to how its findings are disseminated and put into practice in individual decisions or in policy. Given the range of activities involved in all these phases, multiple types of ethical issues can arise. Each occurs in its own context of time and place, and this must be taken into account. While ethical principles and theories have important contributions to make at each of these points, case studies are also very important. These allow for the normative effects of various assumptions and declarations to be judged in context. We therefore asked the authors of this volume’s chapters to identify various case studies which would demonstrate the ethical challenges entailed in various types of research and evidence-generating activities. These illustrative case studies explore various innovative topics and fields that raise challenges requiring ethical reflection and careful policymaking responses. The cases highlight diverse ethical issues and provide lessons for the various options available for policymaking (see Sect.  1.6 . below). Cases are drawn from many fields, including artificial intelligence, space science, energy, data protection, professional research practice and pandemic planning. The issues are examined in different locations, including Europe, India, Africa and in global contexts. Each case is examined in detail and also helps to anticipate lessons that could be learned and applied in other situations where ethical evidence is needed to inform evidence-based policymaking.

1.2. The Case for Cases

Case studies have increasingly been used, particularly in social science (Exworthy and Powell 2012 ). Many reasons underlie this trend, one being the movement towards evidence-based practice. Case studies provide a methodology by which a detailed study can be conducted of a social unit, whether that unit is a person, an organization, a policy or a larger group or system (Exworthy and Powell 2012 ). The case study is amenable to various methodologies, mostly qualitative, which allow investigations via documentary analyses, interviews, focus groups, observations, and more.

At the same time, consensus is lacking over the precise nature of a case study. Various definitions have been offered, but Yin ( 2017 ) provides a widely cited definition with two parts. One is that a case study is an in-depth inquiry into a real-life phenomenon where the context is highly pertinent. The second part of Yin’s definition addresses the many variables involved in the case, the multiple sources of evidence explored, and the inclusion of theoretical propositions to guide the analysis. While Yin’s emphasis is on the case study as a research method, he identifies important elements of broader relevance that point to the particular value of the case study for examining ethical issues.

Other definitions of case studies emphasize their story or narrative aspects (Gwee 2018 ). These stories frequently highlight a dilemma in contextually rich ways, with an emphasis on how decisions can be or need to be made. Case studies are particularly helpful with ethical issues to provide crucial context and explore (and evaluate) how ethical decisions have been made or need to be made. Classic cases include the Tuskegee public health syphilis study, the Henrietta Lacks human cell line case, the Milgram and Zimbardo psychology cases, the Tea Room Trade case, and the Belfast Project in oral history research (examined here in Chap. 10 ). Cases exemplify core ethical principles, and how they were applied or misapplied; in addition, they examine how policies have worked well or not (Chaps. 2 , 3 and 5 ). Cases can examine ethics in long-standing issues (like research misconduct (Chap. 7 ), energy production (Chap. 8 ), or Chap. 11 ’s consideration of researchers breaking the law), or with innovations in need of further ethical reflection because of their novelty (like extended space flight (Chap. 9 ) and AI (Chaps. 13 and 14 ), with the latter looking at automation in legal systems). These case studies help to situate the innovations within the context of widely regarded ethical principles and theories, and allow comparisons to be made with other technologies or practices where ethical positions have been developed. In doing so, these case studies offer pointers and suggestions for policymakers given that they are the ones who will develop applicable policies.

1.3. Research Design and Causal Inference

Not everyone is convinced of the value of the case study. It must be admitted that they have limitations, which we will reflect on shortly. Yet we believe that others go too far in their criticisms, revealing instead some prejudices against the value of the case (Yin 2017 ). In what has become a classic text for research design, Campbell and Stanley ( 1963 ) have few good words for what they call the ‘One Shot Case Study.’ They rank it below two other ‘pre-experimental’ designs—the One-Group Pretest–Posttest and the Static-Group Comparison—and conclude that case studies “have such a total absence of control to be of almost no scientific value” (Campbell and Stanley 1963 , 6). The other designs have, in turn, a baseline and outcome measure and some degree of comparative analysis which provides them some validity. Such a criticism is legitimate if one prioritises the experimental method as the most superior in terms of effectiveness evidence and, as for Campbell and Stanley, one is striving to assess the effectiveness of educational interventions.

What is missing from that assessment is that different methodologies are more appropriate for different kinds of questions. Questions of causation and whether a particular treatment, policy or educational strategy is more effective than another are best answered by experimental methods. While experimental designs are better suited to explore causal relationships, case studies are more suited to explore “how” and “why” questions (Yin 2017 ). It can be more productive to view different methodologies as complementing one another, rather than examining them in hierarchical terms.

The case study approach draws on a long tradition in ethnography and anthropology: “It stresses the importance of holistic perspectives and so has more of a ‘humanistic’ emphasis. It recognises that there are multiple influences on any single individual or group and that most other methods neglect the thorough understanding of this range of influences. They usually focus on a chosen variable or variables which are tested in terms of their influence. A case study tends to make no initial assumptions about which are the key variables—preferring to allow the case to ‘speak for itself’” (Iphofen et al. 2009 , 275). This tradition has sometimes discouraged people from conducting or using case studies on the assumption that they take massive amounts of time and lead to huge reports. This is the case with ethnography, but the case study method can be applied in more limited settings and can lead to high-quality, concise reports.

Another criticism of case studies is that they cannot be used to make generalizations. Certainly, there are limits to their generalisability, but the same is true of experimental studies. One randomized controlled trial cannot be generalised to the whole population without ensuring that its details are evaluated in the context of how it was conducted.

Similarly, it should not be assumed that generalisability can adequately guide practice or policy when it comes to the specifics of an individual case. A case study should not be used to support statistical generalizations (that the same percentage found in the case will be found in the general public). But a case study can be used to expand and generalize theories and thus have much usefulness. It affords a method of examining the specific (complex) interactions occurring in a case which can only be known from the details. Such an analysis can be carried out for individuals, policies or interventions.

The current COVID-19 pandemic demonstrates the dangers of generalising in the wrong context. Some people have very mild cases of COVID-19 or are asymptomatic. Others get seriously ill and even die. Sometimes people generalise from cases they know and assume they will have mild symptoms. Then they refuse to take the COVID-19 vaccine, basically generalising from similar cases. Mass vaccination is recommended for the sake of the health of the public (generalised health) and to limit the spread of a deadly virus. Cases are reported of people having adverse reactions to COVID-19 vaccines, and some people generalise from these that they will not take whatever risks might be involved in receiving the vaccine themselves. It might be theoretically possible to discover which individuals WILL react adversely to immunisation on a population level. But it is highly complex and expensive to do so, and takes an extensive period of time. Given the urgency of benefitting the health of ‘the public’, policymakers have decided that the risks to a sub-group are warranted. Only after the emergence of epidemiological data disclosing negative effects of some vaccines on some individuals will it become more clear which characteristics typify those cases which are likely to experience the adverse effects, and more accurately quantify the risks of experiencing those effects.

Much literature now points to the advantages and disadvantages of case studies (Gomm et al. 2000 ), and how to use them and conduct them with adequate rigour to ensure the validity of the evidence generated (Schell 1992 ; Yin 2011 , 2017 ). At the same time, legitimate critiques have been made of some case studies because they have been conducted without adequate rigor, in unsystematic ways, or in ways that allowed bias to have more influence than evidence (Hammersley 2001 ). Part of the problem here is similar to interviewing, where some will assume that since interviews are a form of conversation, anyone can do it. Case studies have some similarities to stories, but that doesn’t mean they are quick and easy ways to report on events. That view can lead to the situation where “most people feel that they can prepare a case study, and nearly all of us believe we can understand one. Since neither view is well founded, the case study receives a lot of approbation it does not deserve” (Hoaglin et al., cited in Yin 2017 , 16).

Case studies can be conducted and used in a wide range of ways (Gwee 2018 ). Case studies can be used as a research method, as a teaching tool, as a way of recording events so that learning can be applied to practice, and to facilitate practical problem-solving skills (Luck et al. 2006 ). Significant differences exist between a case study that was developed and used in research compared to one used for teaching (Yin 2017 ). A valid rationale for studying a ‘case’ should be provided so that it is clear that the proposed method is suitable to the topic and subject being studied. The unit of study for a case could be an individual person, social group, community, or society. Sometimes that specific case alone will constitute the actual research project. Thus, the study could be of one individual’s experience, with insights and understanding gained of the individual’s situation which could be of use to understand others’ experiences. Often there will be attempts made at a comparison between cases—one organisation being compared to another, with both being studied in some detail, and in terms of the same or similar criteria. Given this variety, it is important to use cases in ways appropriate to how they were generated.

The case study continues to be an important piece of evidence in clinical decision-making in medicine and healthcare. Here, case studies do not demonstrate causation or effectiveness, but are used as an important step in understanding the experiences of patients, particularly with a new or confusing set of symptoms. This was clearly seen as clinicians published case studies describing a new respiratory infection which the world now knows to be COVID-19. Only as case studies were generated, and the patterns brought together in larger collections of cases, did the characteristics of the illness come to inform those seeking to diagnose at the bedside (Borges do Nascimento et al. 2020 ). Indeed case studies are frequently favoured in nursing, healthcare and social work research where professional missions require a focus on the care of the individual and where cases facilitate making use of the range of research paradigms (Galatzer-Levy et al. 2000 ; Mattaini 1996 ; Gray 1998 ; Luck et al. 2006 ).

1.4. Devil’s in the Detail

Our main concern in this collection is not with case study aetiology but rather to draw on the advantages of the method to highlight key ethical issues related to the use of evidence in influencing policy. Thus, we make no claim to causal ‘generalisation’ on the basis of these reports—but instead we seek to help elucidate ethics issues, if even theoretical, and anticipate responses and obstacles in similar situations and contexts that might help decision-making in novel circumstances. A key strength of case studies is their capacity to connect abstract theoretical concepts to the complex realities of practice and the real world (Luck et al. 2006 ). Ethics cases clearly fit this description and allow the contextual details of issues and dilemmas to be included in discussions of how ethical principles apply as policy is being developed.

Since cases are highly focussed on the specifics of the situation, more time can be given over to data gathering which may be of both qualitative and quantitative natures. Given the many variables involved in the ‘real life’ setting, increased methodological flexibility is required (Yin 2017 ). This means seeking to maximise the data sources—such as archives (personal and public), records (such as personal diaries), observations (participant and covert) and interviews (face-to-face and online)—and revisiting all sources when necessary and as case participants and time allows.

1.5. Cases and Policymaking

Case studies allow researchers and practitioners to learn from the specifics of a situation and apply that learning in similar situations. Ethics case studies allow such reflection to facilitate the development of ethical decision-making skills. This volume has major interests in ethics and evidence-generation (research), but also in a third area: policymaking. Cases can influence policymaking, such as how one case can receive widespread attention and become the impetus to create policy that aims to prevent similar cases. For example, the US federal Brady Law was enacted in 1993 to require background checks on people before they purchase a gun (ATF 2021 ). The law was named for White House Press Secretary James Brady, and his case became widely known in the US. He was shot and paralyzed during John Hinckley, Jr.’s 1981 assassination attempt on President Ronald Reagan. Another example, this time in a research context, was how the Tuskegee Syphilis Study led, after its public exposure in 1971, to the US Department of Health, Education and Welfare appointing an expert panel to examine the ethics of that case. This resulted in federal policymakers enacting the National Research Act in 1974, which included setting up a national commission that published the Belmont Report in 1976. This report continues to strongly influence research ethics practice around the world. These examples highlight the power of a case study to influence policymaking.

One of the challenges for policymakers, though, is that compelling cases can often be provided for opposite sides of an issue. Also, while the Belmont Report has been praised for articulating a small number of key ethical principles, how those principles should be applied in specific instances of research remains an ongoing challenge and a point of much discussion. This is particularly relevant for innovative techniques and technologies. Hence the importance of cases interacting with general principles and leading to ongoing reflection and debate over the applicable cases. At the same time, new areas of research and evidence generation activities will lead to questions about how existing ethical principles and values apply. New case studies can help to facilitate that reflection, which can then allow policymakers to consider whether existing policy should be adapted or whether whole new areas of policy are needed.

Case studies also can play an important role in learning from and evaluating policy. Policymakers tend to focus on practical, day-to-day concerns and with the introduction of new programmes (Exworthy and Peckam 2012 ). Time and resources may be scant when it comes to evaluating how well existing policies are performing or reflecting on how policies can be adapted to overcome shortcomings (Hunter 2003 ). Effective policies may exist elsewhere (historically or geographically) and be more easily adapted to a new context instead of starting policymaking from scratch. Case studies can permit learning from past policies (or situations where policies did not exist), and they can illuminate various factors that should be explored in more detail in the context of the current issue or situation. Chaps. 2 , 3 and 5 in this volume are examples of this type of case study.

1.6. The Moral Gain

This volume reflects the ambiguity of ethical dilemmas in contemporary policymaking. Analyses will reflect current debates where consensus has not been achieved yet. These cases illustrate key points made throughout the PRO-RES project: that ethical decision-making is a fluid enterprise, where values, principles and standards must constantly be applied to new situations, new events and new research developments. The cases illustrate how no ‘one point’ exists in the research process where judgements about ethics can be regarded as ‘final.’ Case studies provide excellent ways for readers to develop important decision-making skills.

Research produces novel products and processes which can have broad implications for society, the environment and relationships. Research methods themselves are modified or applied in new ways and places, requiring further ethical reflection. New topics and whole fields of research develop and require careful evaluation and thoughtful responses. New case studies are needed because research constantly generates new issues and new ethics questions for policymaking.

The cases found in this volume address a wide range of topics and involve several disciplines. The cases were selected by the parameters of the PRO-RES project and the Horizon 2020 funding call to which it responded. First, the call was concerned with both research ethics and scientific integrity and each of the cases addresses one or both of these areas. The call sought projects that addressed non-medical research, and the cases here address disciplines such as social sciences, engineering, artificial intelligence and One Health. The call also sought particular attention be given to (a) covert research, (b) working in dangerous areas/conflict zones and (c) behavioral research collecting data from social media/internet sources. Hence, we included cases that addressed each of these areas. Finally, while an EU-funded project can be expected to have a European focus, the issues addressed have global implications. Therefore, we wanted to include cases studies from outside Europe and did so by involving authors from India and Africa to reflect on the volume’s areas of interest.

The first case study offered in this volume (Chap. 2 ) examines a significant policy approach taken by the European Union to address ethics and integrity in research and innovation: Responsible Research and Innovation (RRI). This chapter examines the lessons that can be learned from RRI in a European context. Chapter 3 elaborates on this topic with another policy learning case study, but this time examining RRI in India. One of the critiques made of RRI is that it can be Euro-centric. This case study examines this claim, and also describes how a distinctively Indian concept, Scientific Temper, can add to and contextualise RRI. Chapter 4 takes a different approach in being a case study of the development of research ethics guidance in the United Kingdom (UK). It explores the history underlying the research ethics framework commissioned by the UK Research Integrity Office (UKRIO) and the Association of Research Managers and Administrators (ARMA), and points to lessons that can be learned about the policy-development process itself.

While staying focused on policy related to research ethics, the chapters that follow include case studies that address more targeted concerns. Chapter 5 examines the impact of the European Union’s (EU) General Data Protection Regulation (GDPR) in the Republic of Croatia. Research data collected in Croatia is used to explore the handling of personal data before and after the introduction of GDPR. This case study aims to provide lessons learned that could contribute to research ethics policies and procedures in other European Member States.

Chapter 6 moves from policy itself to the role of policy advisors in policymaking. This case study explores the distinct responsibilities of those elevated to the role of “policy advisor,” especially given the current lack of policy to regulate this field or how its advice is used by policymakers. Next, Chap. 7 straddles the previous chapters’ focus on policy and its evaluation while introducing the focus of the next section on historical case studies. This chapter uses the so-called “race for the superconductor” as a case study by which the PRO-RES ethics framework is used to explore specific ethical dilemmas (PRO-RES 2021b ). This case study is especially useful for policymakers because of how it reveals the multiple difficulties in balancing economic, political, institutional and professional requirements and values.

The next case study continues the use of historical cases, but here to explore the challenges facing innovative research into unorthodox energy technology that has the potential to displace traditional energy suppliers. The wave power case in Chap. 8 highlights how conducting research with integrity can have serious consequences and come with considerable cost. The case also points to the importance of transparency in how evidence is used in policymaking so that trust in science and scientists is promoted at the same time as science is used in the public interest. Another area of cutting-edge scientific innovation is explored in Chap. 9 , but this time looking to the future. This case study examines space exploration, and specifically the ethical issues around establishing safe exposure standards for astronauts embarking on extended duration spaceflights. This case highlights the ethical challenges in policymaking focused on an elite group of people (astronauts) who embark on extremely risky activities in the name of science and humanity.

Chapter 10 moves from the physical sciences to the social sciences. The Belfast Project provides a case study to explore the ethical challenges of conducting research after violent conflict. In this case, researchers promised anonymity and confidentiality to research participants, yet that was overturned through legal proceedings which highlighted the limits of confidentiality in research. This case points to the difficulty of balancing the value of research archives in understanding conflict against the value of providing juridical evidence to promote justice. Another social science case is examined in Chap. 11 , this time in ethnography. This so-called ‘urban explorer’ case study explores the justifications that might exist for undertaking covert research where researchers break the law (in this case by trespassing) in order to investigate a topic that would remain otherwise poorly understood. This case raises a number of important questions for policymakers around: the freedoms that researchers should be given to act in the public interest; when researchers are justified in breaking the law; and what responsibilities and consequences researchers should accept if they believe they are justified in doing so.

Further complexity in research and evidence generation is introduced in Chap. 12 . A case study in One Health is used to explore ethical issues at the intersection of animal, human and environmental ethics. The pertinence of such studies has been highlighted by COVID-19, yet policies lag behind in recognising the urgency and complexity of initiating investigations into novel outbreaks, such as the one discussed here that occurred among animals in Ethiopia. Chapter 13 retains the COVID-19 setting, but returns the attention to technological innovation. Artificial intelligence (AI) is the focus of these two chapters in the volume, here examining the ethical challenges arising from the emergency authorisation of using AI to respond to the public health needs created by the COVID-19 pandemic. Chapter 14 addresses a longer term use of AI in addressing problems and challenges in the legal system. Using the so-called Robodebt case, the chapter explores the reasons why legal systems are turning to AI and other automated procedures. The Robodebt case highlights problems when AI algorithms are built on inaccurate assumptions and implemented with little human oversight. This case shows the massive problems for hundreds of thousands of Australians who became victims of poorly conceived AI and makes recommendations to assist policymakers to avoid similar debacles. The last chapter (Chap. 15 ) draws some general conclusions from all the cases that are relevant when using case studies.

1.7. Into the Future

This volume focuses on ethics in research and professional integrity and how we can be clear about the lessons that can be drawn to assist policymakers. The cases provided cover a wide range of situations, settings, and disciplines. They cover international, national, organisational, group and individual levels of concern. Each case raises distinct issues, yet also points to some general features of research, evidence-generation, ethics and policymaking. All the studies illustrate the difficulties of drawing clear ‘boundaries’ between the research and the context. All these case studies show how in real situations dynamic judgements have to be made about many different issues. Guidelines and policies do help and are needed. But at the same time, researchers, policymakers and everyone else involved in evidence generation and evidence implementation need to embody the virtues that are central to good research. Judgments will need to be made in many areas, for example, about how much transparency can be allowed, or is ethically justified; how much risk can be taken, both with participants’ safety and also with the researchers’ safety; how much information can be disclosed to or withheld from participants in their own interests and for the benefit of the ‘science’; and many others. All of these point to just how difficult it can be to apply common standards across disciplines, professions, cultures and countries. That difficulty must be acknowledged and lead to open discussions with the aim of improving practice. The cases presented here point to efforts that have been made towards this. None of them is perfect. Lessons must be learned from all of them, towards which Chap. 15 aims to be a starting point. Only by openly discussing and reflecting on past practice can lessons be learned that can inform policymaking that aims to improve future practice. In this way, ethical progress can become an essential aspect of innovation in research and evidence-generation.

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PRO-RES is a European Commission-funded project aiming to PROmote ethics and integrity in non-medical RESearch by building a supported guidance framework for all non-medical sciences and humanities disciplines adopting social science methodologies. This project has received funding from the European Union’s Horizon 2020 research and innovation programme under grant agreement No 788352. Open access fees for this volume were paid for through the PRO-RES funding.

Open Access This chapter is licensed under the terms of the Creative Commons Attribution 4.0 International License ( http://creativecommons.org/licenses/by/4.0/ ), which permits use, sharing, adaptation, distribution and reproduction in any medium or format, as long as you give appropriate credit to the original author(s) and the source, provide a link to the Creative Commons license and indicate if changes were made.

The images or other third party material in this chapter are included in the chapter's Creative Commons license, unless indicated otherwise in a credit line to the material. If material is not included in the chapter's Creative Commons license and your intended use is not permitted by statutory regulation or exceeds the permitted use, you will need to obtain permission directly from the copyright holder.

• Cite this Page O’Mathúna D, Iphofen R. Making a Case for the Case: An Introduction. 2022 Nov 3. In: O'Mathúna D, Iphofen R, editors. Ethics, Integrity and Policymaking: The Value of the Case Study [Internet]. Cham (CH): Springer; 2022. Chapter 1. doi: 10.1007/978-3-031-15746-2_1
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In this Page

• Judging the Ethics of Research
• The Case for Cases
• Research Design and Causal Inference
• Devil’s in the Detail
• Cases and Policymaking
• The Moral Gain
• Into the Future

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Home » Judiciary Corner » How to Study the Indian Evidence Act for Judiciary?

How to Study the Indian Evidence Act for Judiciary?

• Mar 7, 2022

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Hello, aspirants! Welcome to Lawctopus’ Judiciary Corner .

Today, we are talking about the Indian Evidence Act and how to prepare it for judicial examinations.

It is a fact that it hardly matters which state the aspirant will appear for in the judicial exam. The Evidence Act is a non-negotiable Act that is asked in all exams.

That is why we have dedicated an entire article specifically to the Indian Evidence Act.

Background of the Indian Evidence Act

Initially, with the introduction of the judicial system in India, the need for the enactment of evidence became necessary. Even though the English Law was there, it was not suitable for India.

That is why on the recommendation of the commissioners, the Evidence Bill was prepared and submitted to the council of Governor-General of India on 31st March, 1871.

The Council of the Governor-General made certain amendments to the Bill as settled by the Select Committee in its report on 30th January, 1872.

Meaning and Structure of the Indian Evidence Act

The word ‘Evidence’ has its origin in the word ‘Evidentia’ that means be clear. The Indian Evidence Act, 1872 is divided into three parts and comprises of 167 sections.

Application of the Indian Evidence Act, 1872

Section 2 mentions where the Evidence Act applies. It applies to:

• Whole of India

• To all judicial proceedings in or before any courts including Courts-martial.

The Indian Evidence Act doesn’t apply to:

• Court Martial convened under the Army Act, The Naval Discipline Act, Indian Navy Discipline Act, 1934, and the Air Force Act;
• Affidavits presented to any Court or officers and;
• Proceedings before an arbitrator.

It may seem like a daunting task at first when you pick up the Bare Act. However, if aspirants systematically study the Act, they will understand more of it.

The focus should be on understanding the concepts and necessity of each Section rather than memorization.

For example, rather than memorizing Sections 5 to 55 that talk about relevant facts, try creating a flowchart to understand what the facts are, what kind of facts are presented before the court, etc. Try to break the Index into smaller concepts to remember more information.

Also, make sure to incorporate the chart method for all your sections and concepts.

Reading the Bare Act from Section 1 is a fine strategy for the first time to see the flow of the section and procedure. However, in the long run, breaking the sections into tiny concepts is the key to success.

Combination of Previous Years’ Question Papers & the Indian Evidence Act

The syllabus is vast and you have limited time. How would you know which topics should be your priorities and which are not?

Just go through the PYQs of the state you are appearing for and mark the topics that are always repeated in the examination. Prepare them first and move forward with the rest of the syllabus the same way. This method helps eliminate unnecessary information but aspirants get an idea about the pattern of the exam as well.

And, no, we are not encouraging anyone to skip reading the Bare Act. It is an integral part of clearing the preliminary stage of any state judicial exams. We are only advising the aspirants to read the Bare Act and also mark topics from PYQs that are important from the exam point of view.

Important Topics of the Indian Evidence Act for Judiciary

Even though the whole Act is important, there are a few topics that aspirants must not skip. These are:

• Oral Evidence 59-60
• Documentary Evidence- 61-90A
• The burden of Proof- 101-114A
• Witness- 118-134
• Section 135-166- Examination of Witness

These sections are very broad and from them, small topics will emerge. That is why, it is advisable that aspirants make small topics from each broad category and prepare them for 5 marks and 20marks.

Looking for more information about the upcoming judiciary vacancies , click here .

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Evidence Cases Outline

The Federal Rules of Evidence and parallel rules at the state level define the scope of the evidence that can be introduced in civil and criminal trials. However, a student of this topic also must understand how courts have interpreted these rules and certain related constitutional doctrines. Courts have addressed issues such as relevance, character evidence, witness qualifications and impeachment, the hearsay rule and its exceptions, and privileges that shield communications from disclosure. Below is an outline of key cases in evidence law with links to the full text of virtually every case, provided free by Justia.

• 1 Relevance and Sources for Exclusion
• 2 Rule 403 and the Balancing Test
• 3 Subsequent Remedial Measures
• 4 Offers of Compromise
• 5 Plea Bargains and Negotiations
• 6 Proof of Liability Insurance
• 7 Character Evidence and Witnesses
• 8 Prior Bad Acts
• 9 Habit Evidence
• 10 Special Rules in Sexual Misconduct Cases
• 11 Lay Witnesses
• 12 Expert Witnesses
• 13 Defining the Hearsay Rule
• 14 Hearsay Exclusions
• 15 Witness Unavailability and Hearsay
• 16 Former Testimony and Hearsay
• 17 Dying Declarations and Hearsay
• 18 Statements Against Interest and Hearsay
• 19 Forfeiture of Hearsay Objection
• 20 Present Sense Impressions and Hearsay
• 21 Excited Utterances and Hearsay
• 22 State of Mind and Hearsay
• 23 Business and Public Records and Hearsay
• 24 The Confrontation Clause
• 25 Impeachment
• 26 The Attorney-Client Privilege
• 27 Spousal Privileges
• 28 The Psychotherapist-Patient Privilege
• 29 The Executive Privilege
• 30 The First Amendment and Reporter Shields
• 31 Authentication of Documents and the Best Evidence Rule

Relevance and Sources for Exclusion

Under Federal Rule of Evidence 401, evidence is relevant if it may make the existence of any fact of consequence more or less probable. Rule 402 provides that evidence is admissible if it is relevant, unless the Constitution, a federal law, the Federal Rules of Evidence, or rules created by the US Supreme Court provide that it is not admissible.

Douglas v. Eaton Corp. 一 In making a determination of whether evidence is relevant, a court must consider merely whether this evidence has "any tendency" to support a consequential fact.

U.S. v. Foster 一 There is no such thing as highly relevant evidence or marginally relevant evidence. Evidence is either relevant, or it is not.

U.S. v. Lowery 一 Rule 402 provides an exclusive list of the sources of authority for exclusion of evidence in federal court. State rules of professional conduct are not included in the list, nor are local rules of federal courts.

Contemporary Mission, Inc. v. Famous Music Corp. 一 Evidence need not be conclusive to be relevant.

Rule 403 and the Balancing Test

Even if evidence is relevant, it may be excluded in certain situations if its probative value is substantially outweighed by a danger of unfair prejudice or certain other concerns, such as confusing the issues, misleading the jury, unduly delaying the case, or presenting redundant evidence.

Old Chief v. U.S . 一 A district court abuses its discretion under Rule 403 if it spurns a defendant’s offer to concede a prior judgment and admits the full judgment record over the defendant’s objection, when the name or nature of the prior offense raises the risk of a verdict tainted by improper considerations, and when the purpose of the evidence is solely to prove the element of prior conviction.

Dollar v. Long Mfg., N.C., Inc. 一 “Unfair prejudice” as used in Rule 403 is not to be equated with testimony simply adverse to the opposing party. Virtually all evidence is prejudicial, or it is not material. The prejudice must be “unfair.”

Ballou v. Henri Studios, Inc. 一 A court should determine the probative value of evidence under the assumption that it is true, and then weigh that probative value against the danger of unfair prejudice, leaving to the jury the difficult choice of whether to credit the evidence.

U.S. v. Powers 一 Cautionary or limiting instructions generally obviate prejudice, particularly if the danger of prejudice is slight in view of the overwhelming evidence of guilt.

McQueeney v. Wilmington Trust Co. 一 In the absence of a showing of particularized danger of unfair prejudice, evidence must be admitted.

Douglass v. Hustler Magazine, Inc. 一 To pick out the 128 worst pictures from many years of a magazine, when there is no pretense that the pictures are a random or representative sample of the magazine’s contents, was to assail the senses and distract the mind. The prejudicial effect of the parade of filth in this slide show so clearly outweighed its probative value as to require exclusion under Rule 403.

Terry v. State 一 Photographs taken after an autopsy had been performed should have been excluded because they were only remotely connected with the crime and clearly served to inflame the minds of the jury.

U.S. v. McVeigh 一 Evidence on an alleged alternative perpetrator must be sufficient, on its own or in combination with other evidence, to show a nexus between the crime charged and the asserted alternative perpetrator.

Holmes v. South Carolina 一 A criminal defendant’s federal constitutional rights are violated by an evidence rule under which the defendant may not introduce evidence of third-party guilt if the prosecution has introduced forensic evidence that, if believed, strongly supports a guilty verdict.

Guam v. Shymanovitz 一 Generally, evidence of homosexuality is extremely prejudicial. Evidence implicating a defendant’s sexual orientation is particularly prejudicial when they are being tried on sex offense charges.

U.S. v. Curtin 一 A court does not properly exercise its balancing discretion under Rule 403 when it fails to place on the scales and personally examine and evaluate all that it must weigh.

Fusco v. General Motors Corp. 一 When the deliberate recreation of an event under staged conditions could easily seem to resemble the actual occurrence, there must be a foundational showing of substantial similarity in circumstances.

Nachtsheim v. Beech Aircraft Corp. 一 Evidence of other accidents in products liability cases is relevant to show notice to the defendant of the danger, to show existence of the danger, and to show the cause of the accident. However, before such evidence will be admitted, the proponent must show that the other accidents occurred under substantially similar circumstances.

Pandit v. American Honda Motor Co., Inc. 一 Evidence of the absence of similar accidents or claims is admissible as long as the proponent provides an adequate foundation.

Subsequent Remedial Measures

Under Rule 407, a plaintiff cannot introduce evidence of subsequent remedial measures by a defendant to show negligence, a product defect, or culpable conduct. However, this evidence may be admitted for certain purposes, such as impeaching a witness, showing ownership or control, or proving that precautions were feasible.

Flaminio v. Honda Motor Co., Ltd. 一 Rule 407 applies to strict liability cases.

Muzyka v. Remington Arms Co., Inc. 一 Evidence of a subsequent design change to a rifle should have been permitted for purposes of impeachment.

Cameron v. Otto Bock Orthopedic Industry, Inc. 一 The exceptions in Rule 407 for feasibility and control apply only if feasibility or control is controverted.

Diehl v. Blaw-Knox 一 Rule 407 does not bar evidence of remedial measures taken by a non-party.

Offers of Compromise

Rule 408 provides that offers of compromise generally cannot be admitted to prove or disprove the validity or amount of a disputed claim, nor can conduct and statements during compromise negotiations. However, this evidence may be admitted in narrow situations.

John McShain, Inc. v. Cessna Aircraft Co. 一 Rule 408 does not require the exclusion of evidence when offered for the purpose of proving bias or prejudice of a witness.

Davidson v. Beco Corp. 一 A trial court may allow the use of statements contained in settlement negotiations for the purpose of impeaching witnesses who give contrary testimony at trial.

Freidus v. First National Bank of Council Bluffs 一 Letters exchanged during settlement negotiations were admissible to negative a contention of undue delay.

U.S. v. Austin 一 Evidence related to an FTC settlement was admissible in a subsequent criminal case, including the terms of a consent decree and the defendant’s stipulation in the settlement admitting to the allegations in the FTC’s complaint.

Cates v. Morgan Portable Building Corp. 一 A settlement agreement is admissible to prove the parties’ undertakings in the agreement, should it be argued that a party broke the agreement.

Pierce v. F.R. Tripler & Co. 一 Rule 408 excludes evidence of settlement offers to prove liability for or the amount of a claim, regardless of which party attempts to offer the evidence.

Alpex Computer Corp. v. Nintendo Co., Ltd. 一 All that is needed for Rule 408 to apply is an actual dispute, or at least an apparent difference of opinion between the parties as to the validity of a claim.

Plea Bargains and Negotiations

Under Federal Rule of Evidence 410, with narrow exceptions, statements made in plea negotiations are not admissible against a defendant in a criminal case. A guilty plea that has been withdrawn, a nolo contendere plea, and statements in certain proceedings involving these pleas are also not admissible.

U.S. v. Udeagu 一 The statements of a defendant given in open court under oath in the presence of counsel under Federal Rule of Criminal Procedure 11 when admitting details of guilt could not be used at the defendant’s trial after the plea of guilty was withdrawn.

U.S. v. Robertson 一 In determining whether a discussion should be characterized as a plea negotiation, the trial court must determine whether the accused exhibited an actual subjective expectation to negotiate a plea at the time of the discussion, and whether their expectation was reasonable given the totality of the objective circumstances.

U.S. v. Swidan 一 A formal disavowal of the ability to bargain, which is so couched as to elicit a continued response, does not render an accused’s expectations unreasonable.

U.S. v. Mezzanatto 一 An agreement to waive the exclusionary provision of Rule 410 is valid and enforceable, absent some affirmative indication that the defendant entered the agreement unknowingly or involuntarily.

U.S. v. Burch 一 The Mezzanatto principles do not countenance drawing a distinction between permitting waivers for purposes of impeachment or rebuttal and permitting waivers for the prosecution's case-in-chief.

Proof of Liability Insurance

Federal Rule of Evidence 411 provides that a plaintiff generally cannot introduce evidence of liability insurance (or the lack thereof) to prove that a defendant was negligent or engaged in misconduct. However, a plaintiff can introduce liability insurance for purposes such as proving witness bias or showing ownership or control.

Bernier v. Board of County Road Commissioners for Ionia County 一 Should the nature of the defendant’s proofs be such that the jury might infer the defendant’s inability to pay a judgment, evidence that the defendant has liability insurance may become admissible as an exception to the general prohibition of insurance evidence contained in Rule 411.

Dobbins v. Crain Brothers, Inc. 一 The existence of insurance served as evidence of ownership and control of a barge, which could be considered by the jury under the exception clause to Rule 411.

Charter v. Chleborad 一 The fact that the defendant’s insurer employed a witness was admissible to show the possible bias of that witness.

Character Evidence and Witnesses

Rule 404 generally prevents evidence of a person’s character or character trait to show that they acted in accordance with it. In a criminal case, however, the defendant can introduce evidence regarding their character or the character of the alleged victim if that is pertinent to the case. Unless the defendant opens this door, the prosecution generally cannot use character evidence. Character evidence is admissible in a civil case when character is at issue.

Michelson v. U.S. 一 The law does not invest the defendant with a presumption of good character; it simply closes the whole matter of character, disposition, and reputation on the prosecution's case in chief. The defendant may introduce evidence tending to prove his good reputation, but, if he does so, it throws open the entire subject, and the prosecution may then cross-examine the defendant's witnesses to test their credibility and qualifications, and it may also introduce contradictory evidence.

Ginter v. Northwestern Mutual Life Ins. Co. 一 It is the intention of Rule 404(a) to exclude evidence of a character trait in civil cases, except when character is an element of the claim or defense, as in cases involving defamation.

Schafer v. Time, Inc. 一 In an action for defamation or libel, the issue of the plaintiff’s reputation and character scarcely can be avoided because the plaintiff typically seeks to recover compensation for damage to their reputation.

Arizona v. Elmer 一 When a defendant must show that he honestly believed that his actions were reasonable under the circumstances, this does not involve placing his character for honesty at issue.

U.S. v. Williams 一 When a detective’s testimony about the defendant’s nickname was completely unrelated to any of the other proof against the defendant, the only possible purpose in eliciting the testimony was to create an impression in the minds of the jurors that the defendant was known by the police to be an unsavory character or a criminal. This was tantamount to testimony about a defendant’s character that is proffered to show the probability that the defendant acted in conformity with that character.

U.S. v. Keiser 一 Victim character evidence introduced to support a claim of self-defense or defense of others should be limited to reputation or opinion evidence.

State v. Hicks 一 The prosecution could not present evidence showing the peacefulness of the victim to anticipate a defense of self-defense.

U.S. v. Holt 一 By calling witnesses to testify regarding their reputation as law-abiding, a defendant opens the door for the prosecution to examine the witnesses’ familiarity with their reputation.

U.S. v. Bruguier 一 When defense witnesses testify in the form of an opinion about the defendant’s character, the government can explore the witnesses’ basis for holding such an opinion by inquiring about a relevant fact.

U.S. v. Monteleone 一 Before conducting “specific act” cross-examination of a defendant’s reputation witness, the government must demonstrate a good-faith factual basis for the incidents raised during cross-examination, and the incidents must be relevant to the character traits at issue. To meet the first requirement, the prosecutor must not only establish a good-faith belief that the incidents actually occurred but also possess a good-faith belief that the described events are of a type likely to have become a matter of general knowledge, currency, or reputation in the community.

Prior Bad Acts

Evidence of prior bad acts, such as a criminal record, generally cannot be admitted to show that a person acted in accordance with the character suggested by the bad acts. However, this evidence can be admitted for purposes not related to character, such as showing intent, motive, opportunity, or identity.

U.S. v. Beechum 一 When extrinsic offense evidence is relevant to an issue such as intent, it may well be that the evidence has probative force that is not substantially outweighed by its inherent prejudice. If so, the evidence may be admissible.

U.S. v. Hearst 一 When a defendant raised the defense of duress, and the government was required to show that the defendant was not acting under duress, the government could present evidence that tended to show that the defendant willingly engaged in other criminal activity with persons of the same group at a time not unduly remote.

U.S. v. Mejia-Uribe 一 Other crimes evidence is admissible if it is relevant to a material issue, of crimes similar in kind and reasonably close in time to the crime charged, sufficient to support a jury finding that the defendant committed the other crimes, and more probative than prejudicial. However, it is not admissible if it tends to prove only the defendant’s criminal disposition.

U.S. v. Crowder 一 Despite a defendant’s unequivocal offer to stipulate to an element of an offense, Rule 404(b) does not preclude the government from introducing evidence of other bad acts to prove that element.

U.S. v. Potter 一 Evidence was admissible under Rule 404(b) to prove motive and lack of good-faith intent in failing to comply with usual professional practices and legitimate medical purposes.

U.S. v. Carroll 一 Prior bad acts can be used to show a plan or pattern when a defendant’s prior bad acts are part of a broader plan or scheme relevant to the charged offense, or when the pattern and characteristics of the crimes are so unusual and distinctive as to be like a signature.

U.S. v. Hilgeford 一 When the evidence of the defendant’s prior conduct is intricately related or inextricably tied to the facts in the case, it is not subject to Rule 404(b).

U.S. v. Gomez 一 A court should not just ask whether the proposed other-act evidence is relevant to a non-propensity purpose but how exactly the evidence is relevant to that purpose—or more specifically, how the evidence is relevant without relying on a propensity inference.

Huddleston v. U.S. 一 “Similar” acts evidence should be admitted if there is sufficient evidence to support a finding by the jury that the defendant committed the similar act. The district court need not make a preliminary finding that the government has proved the “other act” by a preponderance of the evidence.

Habit Evidence

Rule 406 distinguishes between evidence of character and evidence of habit or routine practice. This evidence may be admissible to show that a person or organization acted in accordance with the habit or routine practice on a certain occasion.

Halloran v. Virginia Chemicals, Inc. 一 When the issue involves proof of a deliberate and repetitive practice, a party should be able, by introducing evidence of such habit or regular usage, to allow the inference of its persistence, and hence negligence on a particular occasion.

Perrin v. Anderson 一 “Habit” is a regular practice of meeting a particular kind of situation with a certain type of conduct, or a reflex behavior in a specific set of circumstances.

U.S. v. Angwin 一 Merely indicating that a person takes a non-confrontational course of action in dangerous situations in general does not describe their conduct with sufficient particularity to be probative of whether they acted in conformity with that general practice on a particular occasion.

Special Rules in Sexual Misconduct Cases

Rule 412 generally prevents a party from introducing evidence of the sexual behavior or predisposition of an alleged victim in cases that involve alleged sexual misconduct. Rules 413-415 provide that prior instances of sexual assault or child molestation by a defendant may be admissible in criminal and civil cases involving the same type of misconduct.

Judd v. Rodman 一 When evidence of the plaintiff’s prior sexual relationships and the type of protection used during sexual intercourse was highly relevant to the defendant’s liability, the court did not abuse its discretion in admitting evidence of the plaintiff’s prior sexual history.

U.S. v. Bear Stops 一 Evidence of sexual abuse of the alleged victim by persons other than the defendant was constitutionally required to be admitted to provide an alternative explanation for the characteristics identified as frequently observed in sexually abused children and exhibited by the alleged victim, and to provide an alternative explanation to testimony regarding the alleged victim’s bloody underwear.

Wood v. Alaska 一 While a rape victim’s sexual history with others only goes to show a generalized attitude toward sex that says little if anything about the victim’s attitude toward sex with the defendant, the victim’s prior acts with the defendant can shed considerable light on her attitude toward having sex with him.

U.S. v. Lemay 一 Rule 403 remains applicable to evidence introduced under Rule 414 and, if conscientiously applied, will protect defendants from propensity evidence so inflammatory as to jeopardize their right to a fair trial.

Lay Witnesses

Under Rule 701, a lay witness can testify about their opinion if it is rationally based on their perception, and this would help the jury understand their testimony or determine a fact at issue. However, lay witnesses cannot testify about scientific, technical, or other specialized knowledge.

Gorby v. Schneider Tank Lines, Inc. 一 Rule 701 assumes that a lay witness will give their testimony by stating their observations in as raw a form as practicable, but it permits the witness to resort to inferences and opinions when the opinions are based on first-hand knowledge or observations.

U.S. v. Hoffner 一 Lay testimony was properly excluded when the opinions of witnesses could not have been based on any concrete facts but amounted only to speculative conclusions.

Kostelecky v. NL Acme Tool/NL Industries, Inc. 一 Evidence that merely tells the jury what result to reach is not sufficiently helpful to the trier of fact to be admissible.

U.S. v. Koon 一 Lay testimony is admissible when it could help the jury resolve the ultimate issue, as long as it does not settle the issue in and of itself.

U.S. v. Meises 一 Testimony from a law enforcement agent, not based on personal knowledge, describing the roles played in a drug conspiracy by individual defendants is impermissible testimony from the agent that each of the defendants was guilty of the conspiracy charged.

U.S. v. Yazzie 一 Since age is a matter on which everyone has an opinion, it is particularly appropriate for a lay witness to express an opinion on the subject. When the issue is whether the defendant’s opinion about another person’s age was reasonable, it is relevant that others having a similar opportunity to observe that person formed an opinion as to their age that was similar to the opinion that the defendant claimed to have formed.

Asplundh Manufacturing Division v. Benton Harbor Engineering 一 A proponent of technical lay opinion testimony must show that the testimony is based on sufficient experience or specialized knowledge and also show a sufficient connection between such knowledge or experience and the lay opinion, such that the testimony may be fairly considered to be rationally based on the perception of the witness and truly helpful to the jury.

Expert Witnesses

Rule 702 provides that a qualified expert witness can testify about scientific, technical, or other specialized matters that will assist the jury if their testimony is based on sufficient facts or data, and it is a product of reliable principles and methods reliably applied to the case. Meanwhile, Rule 703 provides the bases for an expert's opinion testimony. Rule 704 describes expert testimony related to ultimate issues.

U.S. v. Figueroa-Lopez 一 Trial courts must ensure that experts are qualified to render their opinions and that these opinions will assist the jury.

Frye v. U.S. 一 While courts will go a long way in admitting expert testimony deduced from a well-recognized scientific principle or discovery, the thing from which the deduction is made must be sufficiently established to have gained general acceptance in the particular field in which it belongs.

Daubert v. Merrell Dow Pharmaceuticals, Inc. 一 Faced with a proffer of expert scientific testimony under Rule 702, the trial judge must make a preliminary assessment of whether the testimony’s underlying reasoning or methodology is scientifically valid and properly can be applied to the facts at issue. Considerations that bear on this inquiry include whether the theory or technique in question can be and has been tested, whether it has been subjected to peer review and publication, its known or potential error rate and the existence and maintenance of standards controlling its operation, and whether it has attracted widespread acceptance within a relevant scientific community.

General Electric Co. v. Joiner 一 Abuse of discretion is the proper standard by which to review a district court’s decision to admit or exclude expert scientific evidence.

Kumho Tire Co. v. Carmichael 一 The Daubert gatekeeping obligation applies not only to scientific testimony but also to other expert testimony. In determining whether particular expert testimony is reliable, the trial court should consider the specific Daubert factors when they are reasonable measures of reliability.

U.S. v. Baines 一The Rule 702 analysis is flexible, and the Daubert factors are meant to be helpful, rather than definitive. Not all of the factors will be pertinent in every case.

Nimely v. City of New York 一 Expert opinions that constitute evaluations of witness credibility are inadmissible under Rule 702, even when rooted in scientific or technical expertise.

Berry v. City of Detroit 一 The issue with regard to expert testimony is not the qualifications of a witness in the abstract, but whether those qualifications provide a foundation for a witness to answer a specific question.

U.S. v. Ferri 一 Any objections to the "novelty" of the methods used by an expert witness go not to admissibility, but to the weight to be accorded their opinion by the factfinder.

Bogosian v. Mercedes-Benz of North America, Inc. 一 The facts of the case must be tied to the opinion proffered by the expert. (An expert witness could not testify when their testimony essentially contradicted the testimony of the party who called them.)

Westberry v. Gislaved Gummi AB 一 While precise information concerning the exposure necessary to cause specific harm to humans and exact details pertaining to the plaintiff's exposure are beneficial, such evidence is not always necessary to demonstrate that a substance is toxic to humans given substantial exposure and need not invariably provide the basis for an expert's opinion on causation.

In re Paoli RR Yard PCB Litigation 一 When doctors based their conclusion as to a plaintiff's symptoms solely on the plaintiff's self-report of illness in preparation for litigation, the district court acted within its discretion in excluding the testimony as based on an unreliable source of information.

U.S. v. Scop 一 An expert's repeated statements embodying legal conclusions exceeded the permissible scope of opinion testimony.

U.S. v. Buchanan 一 Opinion testimony was admissible when it was a mere explanation of the expert's analysis of facts that would tend to support a jury finding on the ultimate issue.

Defining the Hearsay Rule

Under Rule 801, hearsay is an out-of-court statement that is offered to prove the truth of the matter asserted. Evidence that falls within this category generally is not admissible unless a Federal Rule of Evidence or a federal law provides otherwise. An out-of-court statement may be offered for purposes other than proving its truth.

U.S. v. Brown 一 The unrefreshed, sometimes borrowed memory of a witness testifying on the basis of what they had been told by others is inadmissible under the hearsay rule.

Vinyard v. Vinyard Funeral Home, Inc. 一 The hearsay rule does not apply when, regardless of the truth or falsity of a statement, the fact that it has been made is relevant.

McClure v. State 一 When an utterance is offered to show the state of mind that ensued in another person in consequence of the utterance, no assertive or testimonial use is to be made of it, and the utterance is admissible under the hearsay rule.

U.S. v. Zenni 一 Subdivision (a)(2) of Rule 801 removes implied assertions from the definition of “statement” and consequently from the operation of the hearsay rule.

U.S. v. Freeman 一 An out of court statement is not hearsay if it is offered for the limited purpose of explaining why a government investigation was undertaken.

Hearsay Exclusions

Exclusions from the hearsay rule include prior inconsistent statements, prior consistent statements, and prior identification statements of witnesses. Exclusions also cover admissions by a party, admissions adopted by a party, or admissions by agents or co-conspirators.

Tome v. U.S. 一 Rule 801(d)(1)(B) permits the introduction of a declarant’s consistent out-of-court statements to rebut a charge of recent fabrication or improper influence or motive only when those statements were made before the charged fabrication, influence, or motive.

U.S. v. Owens 一 Rule 802 is not violated by the admission of a prior, out-of-court identification statement of a witness who is unable, because of memory loss, to explain the basis for the identification.

Mahlandt v. Wild Canid Survival & Research Center, Inc. 一 There is no implied requirement in Rule 801(d)(2)(D) that the declarant have personal knowledge of the facts underlying their statement.

U.S. v. Hoosier 一 Adoption or acquiescence may be manifested in any appropriate manner. When silence is the basis, the theory is that the person would, under the circumstances, protest the statement made in their presence, if untrue. The decision in each case calls for an evaluation in terms of probable human behavior.

Hill v. Spiegel, Inc. 一 The mere fact that each declarant was a manager within the employer’s organization was insufficient to establish that matters bearing upon an employee’s discharge were within the scope of their employment.

Pappas v. Middle Earth Condominium Ass’n 一 Circumstantial evidence may establish the scope, as well as the existence, of the agency relationship.

U.S. v. Bonds 一 To find an agency relationship, there must be at least some manifestation of assent to the principal’s right to control.

Bourjaily v. U.S. 一 When the existence of a conspiracy and the non-offering party’s involvement in it are disputed, the offering party must prove these facts by a preponderance of the evidence. In making a preliminary factual determination under Rule 801(d)(2)(E), a court may examine the hearsay statements sought to be admitted.

U.S. v. Tellier 一 For statements to be admissible under the co-conspirator exclusion, there must be some independent corroborating evidence of the defendant’s participation in the conspiracy.

U.S. v. Silverman 一 When the proponent of the co-conspirator's statement offers no additional proof of the defendant's knowledge of and participation in the conspiracy, the statement must be excluded from evidence. On the other hand, when some additional proof is offered, the court must determine whether such proof, viewed in light of the co-conspirator's statement itself, demonstrates by a preponderance of the evidence that the defendant knew of and participated in the conspiracy.

City of Tuscaloosa v. Harcros Chemicals, Inc. 一 A statement that merely discloses the existence of a conspiracy to a non-conspirator, with no intention of recruiting the auditor into the conspiracy, does not further the conspiracy.

U.S. v. Ciresi 一 A declarant's recorded statements to a third party about the defendant were admissible as non-hearsay when they were all made during the course of and in furtherance of an ongoing, multi-phase conspiracy in which the defendant was an active member.

U.S. v. El-Mezain 一 Admissibility under the co-conspirator exclusion does not turn on the criminal nature of the endeavor.

Witness Unavailability and Hearsay

Under Rule 804(a), a witness is unavailable when they are exempt due to a privilege, refuse to testify despite a court order, testify that they do not remember the subject matter, or cannot be brought to court for various reasons. If a witness is found to be unavailable, an exception to the hearsay rule applies if their testimony falls within one of the categories listed in Rule 804(b).

U.S. v. Pelton & Rich 一 The proponent of the evidence has the burden of establishing that the declarant will invoke their Fifth Amendment privilege and thus be unavailable to testify. They must give the court more than a speculative basis for determining whether the declarant is available.

U.S. v. Amaya 一 Although the duration of an illness is a proper element of unavailability, the establishment of permanence as to the particular illness is not an absolute requirement. The duration of the illness need only be in probability long enough so that, with proper regard to the importance of the testimony, the trial cannot be postponed.

U.S. v. Faison 一 The trial judge’s discretion in granting an adjournment for witnesses unavailable due to illness must be guided on the one hand by the policy of favoring live testimony and confrontation in the presence of the factfinder and, on the other, by the policy of prompt disposition of criminal trials.

Former Testimony and Hearsay

When a declarant is unavailable, their former testimony may not be considered inadmissible hearsay if it was provided at a proceeding at which the party against whom the testimony was offered had an opportunity and a similar motive to develop the testimony. In civil cases, former testimony may be offered against a successor in interest.

U.S. v. Salerno 一 There is no implicit limitation in Rule 804(b)(1) permitting the “similar motive” requirement to be waived in the interest of adversarial fairness.

U.S. v. DiNapoli 一 The test of similar motive turns not only on whether the questioner is on the same side of the same issue at both proceedings, but also on whether the questioner had a substantially similar interest in asserting that side of the issue.

In re Johns-Manville / Asbestosis Cases 一 Congress did not intend to use “predecessor in interest” in the strict sense of corporate privity.

U.S. v. Duenas 一 When a defendant challenged the substance of statements at a second proceeding after challenging the circumstances in which they were given at the first proceeding, their motives were substantially dissimilar.

Dying Declarations and Hearsay

A statement that would otherwise be considered hearsay will be admissible in a homicide case or a civil action if the declarant is unavailable, and the statement is a dying declaration. This means that the declarant made the statement under a belief of imminent death, and the statement involved the cause or circumstances of the death.

Shepard v. U.S. 一 To make out a dying declaration, the declarant must have spoken without hope of recovery and in the shadow of impending death, and this state of mind must be exhibited in the evidence, and not left to conjecture.

People v. Nieves 一 In deciding whether a statement was a dying declaration, a court may consider any statements made by the declarant as to their condition or their expectations, any statements made by medical personnel to the declarant as to the severity of their injury, the nature and severity of the wound as it appeared to the declarant, whether their condition appeared to be improving or declining when the declaration was made, and whether any actions associated with an expectation of imminent death were taken.

State v. Quintana 一 What is required for a dying declaration to be admissible is that the declarant have such a belief that they are facing death as to remove ordinary worldly motives for misstatement. The court may consider the totality of the circumstances, including the presence or absence of motive to falsify and the manner in which the statement was volunteered or elicited.

Statements Against Interest and Hearsay

A statement that would otherwise be considered hearsay is admissible if the declarant is unavailable, and the statement is so adverse to their interest that a reasonable person in their situation would not have made the statement unless they believed that it was true.

Williamson v. U.S. 一 Rule 804(b)(3) does not allow the admission of non-self-inculpatory statements, even if they are made within a broader narrative that is generally self-inculpatory.

U.S. v. Katsougrakis 一 While the statement of an unavailable declarant will be excluded under the Confrontation Clause unless the court is satisfied that it bears adequate indicia of reliability, a hearsay statement that satisfies the penal interest exception usually will survive Confrontation Clause scrutiny.

U.S. v. Silverstein 一 The corroboration requirement in Rule 804(b)(3) probably allows a judge to look beyond the evidence offered in corroboration of the statement to evidence either directly contradicting the statement or contradicting the evidence offered to corroborate it.

Forfeiture of Hearsay Objection

A statement that would otherwise be considered hearsay will be admissible if the declarant is unavailable because the party against whom the statement will be offered engaged in misconduct to ensure that the declarant was unavailable.

U.S. v. Cherry 一 A defendant may be deemed to have waived a hearsay objection if they participated directly in planning or procuring the declarant’s unavailability through wrongdoing, or the wrongful procurement was in furtherance, within the scope, and reasonably foreseeable as a necessary or natural consequence of an ongoing conspiracy.

Present Sense Impressions and Hearsay

Regardless of whether a declarant is available, a statement that otherwise would be considered hearsay may be admissible if it describes an event or condition perceived by the declarant, and the statement was made while or immediately after the declarant perceived it.

U.S. v. Campbell 一 Substantial contemporaneity of event and statement negatives the likelihood of deliberate or conscious misrepresentation.

U.S. v. Parker 一 There is no per se rule indicating what time interval is too long under Rule 803(1).

Meder v. Everest & Jennings, Inc. 一 A statement cannot be admitted as a present sense impression when it is impossible to determine whether the maker of the statement was an eyewitness of what occurred at the scene.

Excited Utterances and Hearsay

Regardless of whether a declarant is available, a statement that otherwise would be considered hearsay may be admissible if it was related to a startling event or condition, and the statement was made while the declarant was still under the stress of excitement of the event.

U.S. v. Boyce 一 For the excited utterance exception to apply, the proponent must demonstrate that a startling event occurred, the declarant made the statement under the stress of the excitement caused by the startling event, and the declarant’s statement related to the startling event.

U.S. v. Napier 一 Although in most cases the startling events that prompt spontaneous exclamations are accidents and assaults, there is no reason to restrict the exception to those situations.

U.S. v. Marrowbone 一 To determine whether a declarant was under the stress of excitement when they made a statement, a court should consider the lapse of time between the startling event and the statement, whether the statement was made in response to an inquiry, the age of the declarant, the characteristics of the event, the physical and mental condition of the declarant, and the subject matter of the statements.

Miller v. Keating 一 Statements by unidentified declarants are not ipso facto inadmissible, but a party seeking to introduce such a statement carries a burden heavier than when the declarant is identified to demonstrate the statement’s circumstantial trustworthiness.

State of Mind and Hearsay

Regardless of whether a declarant is available, a statement that otherwise would be considered hearsay may be admissible if it concerns a physical, mental, or emotional condition that existed at the time of the statement. However, this exception generally does not cover statements of memory or belief that are used to prove the fact remembered or believed.

Adkins v. Brett 一 When the intention, feelings, or other mental state of a certain person at a particular time, including bodily feelings, is material to the issues under trial, evidence of that person’s declarations at the time that indicated their mental state may be admitted.

Mutual Life Ins. Co. v. Hillmon 一 The intention of a person, when material, may be proved by contemporaneous declarations in their letters written under circumstances precluding a suspicion of misrepresentation.

Shepard v. U.S. 一 Declarations of deceased persons that may be used to show their intentions for the future must be sharply distinguished from declarations of memory merely, and from those that recite the past conduct of other persons.

U.S. v. Lawal 一 Relevant declarations that fall within the parameters of the state of mind exception are categorically admissible, even if they are self-serving and made under circumstances that undermine their trustworthiness.

Business and Public Records and Hearsay

Reports and records kept in the course of regularly conducted business activities may be admissible if a custodian or qualified witness can establish a foundation that the records were properly kept, and the circumstances of their preparation do not suggest that they are untrustworthy. In addition, the hearsay rule generally does not prevent the admission of reports by public officers and agencies.

Johnson v. Lutz 一 The business records exception was not intended to permit the receipt in evidence of entries based on voluntary hearsay statements made by third parties not engaged in the business or under any duty in relation to it.

U.S. v. Vigneau 一 The business records exception does not embrace statements contained within a business record that were made by a person who was not a part of the business if the embraced statements are offered for their truth. (This case essentially reaffirmed Johnson .)

U.S. v. Bland 一 Records kept pursuant to federal regulations governing firearms transaction records satisfy the requirements of Rule 803(6) that the record be made at or near the time of the event, recorded by a person with knowledge, and kept in the regular course of business.

Palmer v. Hoffman 一 The fact that a company makes a business out of recording its employees’ versions of their accidents does not put those statements in the class of records made “in the regular course” of the business.

U.S. v. Oates 一 Police and law enforcement reports are not admissible against defendants in criminal cases.

U.S. v. Grady 一 Law enforcement reports were admissible in a criminal case when they did not concern observations by officers of the defendants’ commission of crimes but simply related to the routine function of recording serial numbers and receipt of certain weapons.

Beech Aircraft Corp. v. Rainey 一 Statements in the form of opinions or conclusions are not by that fact excluded from the scope of the public records exception.

The Confrontation Clause

The Sixth Amendment of the U.S. Constitution provides that a defendant in a criminal case has a right to “be confronted with the witnesses against him.” The U.S. Supreme Court has further articulated this right, explaining that it applies only to testimonial statements and defining the scope of these statements.

Crawford v. Washington 一 When testimonial statements are at issue, the only indicium of reliability sufficient to satisfy constitutional demands is confrontation.

U.S. v. Owens 一 The Confrontation Clause guarantees an opportunity for effective cross-examination but not successful cross-examination. It is satisfied when the defendant has a full and fair opportunity to bring out the witness’ bad memory and other facts tending to discredit their testimony.

Davis v. Washington 一 Statements are testimonial when the circumstances objectively indicate that the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution.

Melendez-Diaz v. Massachusetts 一 Affidavits reporting the results of forensic analysis are testimonial, rendering the affiants “witnesses” subject to the defendant’s right of confrontation under the Sixth Amendment.

Michigan v. Bryant 一 An identification and description of a shooter and the location of a shooting were not testimonial statements for Confrontation Clause purposes because they had a primary purpose to enable police assistance to meet an ongoing emergency.

Bullcoming v. New Mexico 一 If an out-of-court statement is testimonial in nature, it may not be introduced against the accused at trial unless the witness who made the statement is unavailable, and the accused has had a prior opportunity to confront that witness.

Williams v. Illinois 一 Out-of-court statements that are related by an expert solely for the purpose of explaining the assumptions on which that opinion rests are not offered for their truth and thus fall outside the scope of the Confrontation Clause.

Ohio v. Clark 一 The Confrontation Clause does not necessarily bar the introduction of all out-of-court statements that support the prosecution’s case. Instead, a court asks whether a statement was given with the primary purpose of creating an out-of-court substitute for trial testimony.

Bruton v. U.S. 一 The conviction of a defendant at a joint trial should be set aside even though the jury was instructed that a co-defendant’s confession inculpating the defendant should be disregarded in determining their guilt or innocence.

Tennessee v. Street 一 The non-hearsay aspect of an accomplice's confession (not to prove what happened at the murder scene but to prove what happened when the defendant confessed) raises no Confrontation Clause concerns.

Cruz v. New York 一 When a non-testifying co-defendant's confession facially incriminating the defendant is not directly admissible against the defendant, the Confrontation Clause bars its admission at their joint trial, even if the jury is instructed not to consider it against the defendant, and even if the defendant's own confession is admitted against them.

Gray v. Maryland 一 A confession that substituted blanks and the word “delete” for the defendant’s proper name fell within the class of statements to which the Bruton rule applies.

Richardson v. Marsh 一 The Confrontation Clause is not violated by the admission of a non-testifying co-defendant’s confession with a proper limiting instruction when the confession is redacted to eliminate not only the defendant’s name but also any reference to their existence.

Coy v. Iowa 一 A screen placed between the defendant and the complaining witnesses, which blocked the defendant from their sight, violated the defendant’s Sixth Amendment right to confront the witnesses against him.

Maryland v. Craig 一 The right to confront accusatory witnesses may be satisfied without a physical, face-to-face confrontation at trial only when the denial of such a confrontation is necessary to further an important public policy, and only when the testimony’s reliability is otherwise assured.

Giles v. California 一 Unconfronted testimony may not be admitted on a theory of forfeiture without a showing that the defendant intended to prevent a witness from testifying.

Impeachment

A witness may be impeached by strategies such as showing that they have a history of lying, their prior statements are inconsistent with their testimony, other facts contradict their testimony, or they have a motive to provide false testimony. In limited situations, jurors can testify to impeach their verdict.

U.S. v. Abel 一 Relevant, competent evidence that tends to show bias on the part of a witness is not inadmissible just because it also tends to show that the witness is a liar.

Luce v. U.S. 一 To raise and preserve for review the claim of improper impeachment with a prior conviction, a defendant must testify.

Ohler v. U.S. 一 A defendant who preemptively introduces evidence of a prior conviction on direct examination may not challenge the admission of such evidence on appeal.

Doyle v. Ohio 一 A prosecutor may not seek to impeach a defendant’s exculpatory story, told for the first time at trial, by cross-examining the defendant about their failure to have told the story after receiving Miranda warnings at the time of their arrest.

Davis v. Alaska 一 The right of confrontation is paramount to a state policy of protecting juvenile offenders, and any temporary embarrassment to a witness by the disclosure of their juvenile court record and probation status is outweighed by the defendant’s right effectively to cross-examine a witness.

Delaware v. Van Arsdall 一 A criminal defendant states a violation of the Confrontation Clause by showing that they were prohibited from engaging in otherwise appropriate cross-examination designed to show a prototypical form of bias on the part of the witness. However, the constitutionally improper denial of a defendant’s opportunity to impeach a witness for bias is subject to harmless error analysis. Whether an error is harmless depends on factors such as the importance of the witness’ testimony, whether the testimony was cumulative, the presence or absence of evidence corroborating or contradicting the testimony on material points, the extent of cross-examination otherwise permitted, and the overall strength of the prosecution’s case.

Olden v. Kentucky 一 Speculation as to the effect of jurors’ racial biases cannot justify the exclusion of cross-examination with strong potential to demonstrate the falsity of a witness’ testimony.

U.S. v. Caldwell 一 When weighing the probative value against the prejudicial effect under the Rule 609 balancing test for prior felony convictions offered to impeach a witness who is also the defendant in a criminal trial, a court should consider the kind of crime involved, when the conviction occurred, the importance of the defendant's testimony to the case, and the importance of the credibility of the defendant.

U.S. v. Brackeen 一 For the purpose of the rule allowing impeachment of a defendant by any crime involving dishonesty, the meaning of dishonesty covers only those crimes that involve deceit.

U.S. v. Beauchamp 一 Extrinsic evidence to disprove a fact to which a witness testified is admissible when it satisfies the Rule 403 balancing test and is not barred by any other rule of evidence.

U.S. v. Pierre 一 In deciding whether a prior consistent statement may be used to rehabilitate the credibility of a witness, the issue ought to be whether the statement has some rebutting force beyond the mere fact that the witness has repeated on a prior occasion a statement consistent with their trial testimony.

Tanner v. U.S. 一 Substance abuse is not an improper outside influence about which jurors may testify to impeach their verdict.

The Attorney-Client Privilege

Communications between an attorney and a client are shielded if the client is seeking legal advice from the attorney, and there is a reasonable expectation of confidentiality. A client can waive the attorney-client privilege implicitly or explicitly, or through an inadvertent disclosure.

Upjohn Co. v. U.S. 一 The attorney-client privilege exists to protect not only the giving of professional advice to those who can act on it, but also the giving of information to the lawyer to enable them to give sound and informed advice. However, the privilege only protects disclosure of communications, rather than disclosure of the underlying facts.

U.S. v. Kovel 一 What is vital to the attorney-client privilege is that the communication be made in confidence for the purpose of obtaining legal advice from the lawyer.

Calvin Klein Trademark Trust v. Wachner 一 The attorney-client privilege protects communications between a client and an attorney, but not communications that prove important to an attorney’s legal advice to a client.

Garner v. Wolfinbarger 一 While a corporation is not barred from asserting the attorney-client privilege merely because those demanding information enjoy the status of stockholders, the availability of the privilege in a lawsuit between the corporation and its stockholders is subject to the right of the stockholders to show cause why it should not be invoked.

Swidler & Berlin v. U.S. 一 The attorney-client privilege survives the death of the client.

In re County of Erie 一 The privilege of non-disclosure is not lost merely because relevant non-legal considerations are expressly stated in a communication that also includes legal advice. A court must consider whether the predominant purpose of the communication is to render or solicit legal advice.

In re Sealed Case 一 The attorney-client privilege is lost even if the disclosure is inadvertent.

In re Shargel 一 Client identity and fee information are not privileged, outside special circumstances.

U.S. v. Bilzerian 一 The attorney-client privilege may implicitly be waived when a defendant asserts a claim that in fairness requires an examination of protected communications.

Spousal Privileges

The adverse testimonial spousal privilege shields a person from being forced to testify against their spouse. Meanwhile, the confidential communications spousal privilege covers these communications between spouses.

Trammel v. U.S. 一 The witness-spouse alone has a privilege to refuse to testify adversely; they may be neither compelled to testify nor foreclosed from testifying.

In re Witness Before the Grand Jury (Carter) 一 Since the purpose of the adverse testimonial privilege is to protect vital marriages from the possible harmful effect of compelled testimony, the privilege has no relevance to marriages that are over or damaged beyond repair.

U.S. v. Neal 一 Without a showing that the defendant was aware that someone besides his wife was listening, the government cannot overcome the presumption of confidentiality that attaches to marital communications.

The Psychotherapist-Patient Privilege

The psychotherapist-patient privilege covers communications between patients and psychiatrists, psychologists, and licensed social workers in the course of psychotherapy.

Jaffee v. Redmond 一 A privilege protecting confidential communications between a psychotherapist and their patient promotes sufficiently important interests to outweigh the need for probative evidence.

Tarasoff v. Regents of the University of California 一 When a therapist determines, or pursuant to the standards of their profession should determine, that their patient presents a serious danger of violence to another person, they incur an obligation to use reasonable care to protect the intended victim against such danger.

The Executive Privilege

A limited privilege may extend to communications regarding high-level policy issues in the executive branch, but this privilege may be overcome by countervailing concerns.

U.S. v. Nixon 一 When a claim of presidential privilege regarding materials subpoenaed for use in a criminal trial is based on a generalized interest in confidentiality, this generalized assertion of privilege must yield to the demonstrated, specific need for evidence in a pending criminal trial and the demands of due process in the fair administration of criminal justice.

The First Amendment and Reporter Shields

The First Amendment does not create a privilege for members of the media who seek to shield their sources during a criminal investigation.

Branzburg v. Hayes 一 The First Amendment does not relieve a newspaper reporter of the obligation to respond to a grand jury subpoena and answer questions relevant to a criminal investigation. Therefore, the First Amendment does not afford a reporter a constitutional testimonial privilege for an agreement that they make to conceal facts relevant to a grand jury’s investigation of a crime or to conceal the criminal conduct of their source or evidence of it.

In re Miller 一 There is no First Amendment privilege that protects journalists’ confidential sources in the context of a grand jury investigation. If any federal common law privilege exists, it is not absolute.

Authentication of Documents and the Best Evidence Rule

U.S. v. McGlory 一 Authentication based on circumstantial evidence requires only a prima facie showing to the court of authenticity.

U.S. v. Grant 一 A break in the chain of custody will not necessarily lead to the exclusion of evidence. The ultimate question is whether the authentication testimony is sufficiently complete to convince the court that it is improbable that the original item had been exchanged with another or otherwise tampered with.

DeMarco v. Ohio Decorative Products, Inc. 一 When a party conducted a reasonably diligent search for the original copies of a contract in good faith, the futility of the search provided sufficient proof that all the copies were lost or destroyed.

This outline has been compiled by the Justia team for solely educational purposes and should not be treated as an independent source of legal authority or a summary of the current state of the law. Students should use this outline as a supplement rather than a substitute for course-specific outlines.

Last reviewed August 2023

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State of the ACT Evidence

The CBS tradition is committed to a high standard of empirical evaluation. This includes not just controlled assessment and evaluations of outcomes but also the specification and evaluation moderations and of the putative processes of change. Furthermore, we also seek to understand the links between these processes of change and basic functional behavioral and evolutionary science principles, including those drawn from RFT. As the best known applied wing of CBS, all of these features are important to ACT research.

One web page is unable to collect together the growing evidence for all of the above areas at one time point or to keep it up to date going forward. More modestly, the three sections below aim to provide information on:

1. Organizations that describe ACT, or areas of ACT, as evidence based 2. Links to peer reviewed assessments of the ACT evidence base including evidence on measures and processes of change 3. Links to various summaries of particular kinds of research

This page is normally updated every month. The date of last update: August 2021. If you are aware of missing data, please contact the ACBS staff: [email protected]  or send a note to [email protected]

1. Organizations that describe ACT, or areas of ACT, as evidence based:

A number of different organizations, external to ACBS, have stated that ACT is empirically supported in certain areas or as a whole according to their standards. These include:

i. The World Health Organization

Pain (Children and Adolescents) - WHO lists ACT as empirically supported ("moderate certainty") in the reduction of functional disability in children and adolescents with chronic pain (click here for the report).

Based on several successful randomized trials it conducted with South Sudanese and Syrian war refugees, WHO also now distributes ACT-based self-help for free in 21 languages and says on its website that ACT self-help is good for “anyone who experiences stress, wherever they live, and whatever their circumstances.”  (click here for the free program)

ii. American Psychological Association, Society of Clinical Psychology (Div. 12), Research Supported Psychological Treatments :

Chronic Pain - Strong Research Support Depression - Modest Research Support Mixed anxiety - Modest Research Support Obsessive-Compulsive Disorder - Modest Research Support Psychosis - Modest Research Support For more information on what the "modest" and "strong" labels mean, click here

iii. California Evidence-Based Clearinghouse for Child Welfare (click here for the report)

Depression Treatment (Adult) - Scientific Rating 1 (Well Supported by Research Evidence)

iv. U.S. Dept of Veterans Affairs / U.S. Dept of Defence  (click here for the report)

Clinical Practice Guideline for the Management of Major Depressive Disorder

v. US Department of Justice - Office of Justice Programs (click here for the report)

ACT for Partner Aggression: Evidence Rating: Effective

vi. Washington State Institute for Public Policy - WSIPP systematically assesses all high-quality studies from the United States and elsewhere to identify evidence based policy options that have been tested and found to achieve improvements in outcomes.

Schizophrenia/psychosis Adult anxiety Children with anxiety Children with depression

vii. Title IV-E U.S. Department of Health and Human Services (HHS) Prevention Services Clearinghouse (under review, 2021: mental health; substance use).

viii. SAMHSA's National Registry of Evidence-based Programs and Practices , ACT, last review July 2010. (NREPP has since been shut down, so this will not be updated unfortunately)

ix. The UK National Institute for Health and Care Excellence (NICE)

Pain - NICE recommends ACT for people aged 16 years and over with chronic primary pain. (click here for the full report). Tinnitus - NICE recommends group-based ACT for tinnitus-related distress. (click here for the full report).

x. Australian Psychological Society, Evidence Based Psychological Interventions in the Treatment of Mental Disorders (2018):

Adults Anxiety disorders - Generalised anxiety disorder – Level II Evidence Anxiety disorders - Social anxiety disorder – Level II Evidence Anxiety disorders - Panic disorder – Level II Evidence Borderline personality disorder – Level II Evidence Depression – Level II Evidence Hypochondriasis – Level II Evidence Obsessive compulsive disorder – Level II Evidence Pain Disorders – Level II Evidence Psychotic disorders – Level II Evidence Substance use disorders – Level II Evidence Binge eating disorder – Level IV Evidence Body dysmorphic disorder – Level IV Evidence

Children (age 10-14 years) Pain Disorders – Level II Evidence

xi. Netherlands Institute of Psychologists: Sections of Neuropsychology and Rehabilitation, Richtlijn Neuropsychologie Revalidate (2017)

The Netherlands Institute of Psychologists (NIP) recommends ACT for patients with MS with depressive symptoms

xii. Netherlands National Institute for Public Health and the Environment,  Rijksinstituut voor Volksgezondheid en Milieu (RIVM) (2020)

The Netherlands National Institute for Public Health and Environment (RIVM) states "Voluit Leven" has strong evidence of effectiveness and is primarily intended for adults with mild to moderate depression symptoms. The intervention "Voluit Leven" is based on Acceptance & Commitment Therapy and has been spatially researched and found to be effective both nationally and internationally.

xiii. Sweden Association of Physiotherapists , Fysioterapi Profession och vetenskap (2016)

The Swedish Association of Physiotherapy (physical therapy) includes ACT as a physiotherapeutic theory and practice in the definition of the profession.

xiv. American Headache Society,  The American Headache Society Consensus Statement: Update on integrating new migraine treatments into clinical practice (2021)

2. Peer reviewed assessments of the ACT evidence base

A list of meta-analyses, systematic or narrative reviews of the ACT evidence base , either overall or in specific areas, can be found here . (a child page to this webpage). The list is presented in reverse chronological order, by year of publication. There are now a handful of meta-analyses of meta-analyses (e.g., Gloster et al., 2020) -- a kind of a super summary. As of mid 2023, there are over 440 meta-analyses, systematic reviews, and narrative reviews on the list and it is growing very rapidly..

3. Mediational analyses

ACT is a process-oriented approach and the list of studies testing mediation or moderation is quite large. This list is rapidly growing. A partial list can be found here (a child page to this webpage). A recent review of the entire world's literature of successful mediational analyses of all forms of psychosocial intervention for mental health outcomes found that psychological flexibility (including closely related concepts such as mindfulness) accounted for well more than half of all replicated research findings (https://pubmed.ncbi.nlm.nih.gov/35863243/). 

4. Qualitative Research

After the first three RCTs in the early 1980's ACT research turned toward transcript analysis and qualitative research. Examples are the first ACT dissertations done at the Univeristy of Nevada by Sue McCurry and Durriyah Khorakiwala. This work in turn lead to the first item set for the AAQ, and to the commonly used ACT adherence measures, in addition to the protocol described in the first ACT book in 1999. Thus qualitative work has been important in the ACT journey from the beginning.

Qualitative work is hard to do but it has continued throughout the ACT research program. Examples can be found here (a child page to this webpage). If you find any more send them to ACBS staff to add to the list.

5. ACT Randomized Controlled Trials

Click here for details of each of these ACT RCT studies, along with links to the original research articles. As of mid 2023 there are nearly 1,050 ACT randomized controlled trials.

Click here for the Snapshots of the ACT RCT Evidence Base subject guide (last updated December 2019). Updating this list becomes more difficult as the list expands rapidly but a team is working on a new and comprehensive summary which we hope will be available in late 2023.

6. Negative Findings

It is important to consider negative findings to learn from mistakes and to improve methods. For many years we have listed negative findings here on our website. See the daughter page to this page for examples, but look also at the meta-analysis page. There is clear evidence of moderation in several areas of research in which ACT is not at good as other methods with some persons and perhaps better than these same methods with other persons. It is also important to look over time to see if deficiencies grow or are ameliorated. Note the differences between non-superiority and outright negative findings. And consider the individual and look for studies that go beyond averages to carefully document for whom ACT methods are helpful and for whom they are not. Terms like "non-responders" will help dive into these issues more deeply.

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Top 50 Questions From the Indian Evidence Act

The Indian Evidence Act, 1872 originally passed in India by the Imperial Legislative Council in 1872, during the British Raj, contains a set of rules and allied issues governing admissibility of evidence in the Indian courts of law.

The Evidence Act is an important part of a number of important competitive exams for law students and young graduates. Moreover, a thorough knowledge of the Evidence Act is required for those who are planning to venture into litigation or the judiciary.

In this article, YLCC brings you some of most important questions from the Evidence Act to prepare for your exam or interview. Read on!

• Does Evidence law talk about ‘fact’? If yes, what is ‘fact’ as construed from the Evidence Act?
• What is proved and disproved fact?
• What is ‘evidence’ as per the Evidence Act?
• What is conclusive proof? How is its evidentiary value different from other kinds of presumptions?
• What does Section 5 say about the kind of evidence admissible in court of law?
• What is meant by ‘facts in issue’ and ‘relevant facts?’ Are they one or the same thing, or are they different?
• Is it necessary that a relevant fact has to be admissible in court of law?
• Why is hearsay evidence not given credit in Evidence Act? Why do you think Res Gestae is an exception to this rule?
• What kind of facts is relevant under the Indian Evidence Act? (Ans: Section 6-55)
• Are those facts also relevant which are the occasion, cause or effect of facts in issue?
• When do facts otherwise irrelevant become relevant? Give an example. (Ans: Alibi)
• What does Section 8 say about motive and preparation?
• What is the relevance of conspiracy under the Evidence Act?
• Conspiracy is based on the principle of ‘Agency.’ Comment.
• As per the Act, how does the relevance of facts come into question when rights and customs are involved?
• How important is the intention to commit a crime relevant as per the Act? What does Section 14 and 15 say about it?
• How is admission defined under the Evidence Act? How is it different from confession?
• What type of admission is admissible in Criminal Court?
• “Admission cannot be proved by or on behalf of any person who makes it.” Comment.
• Are oral admissions as to the content of the document relevant? (Ans: Section 22)
• What is the state of admission in case of civil cases?
• What does Section 24 say about confession caused by inducement, threat or promise?
• What does the Evidence Act say about confession made before police officer? Can it be proved in any case?
• Is a relevant confession made under promise of secrecy irrelevant?
• Can a proved confession against the person making it affect others jointly under trial for same offence?
• Are admissions conclusive proof? Which section talks about it?
• What are the circumstances under which statement of relevant fact made by person who is dead or cannot be found is relevant? Explain with an example.
• How important is the opinion of experts as per the Act? Who is an expert in this regard? When can the court take these opinions?
• What kind of opinions is relevant to the court?
• How far is character relevant and admissible in evidence in civil and criminal cases?
• Explain motive, preparation, and conduct as expounded in the evidence act.
• As per the Evidence Act, what facts are not required to be proved? (Ans: Section 56-58, and 114)
• Comment upon the admissibility of oral evidence as per the Act.
• What is primary evidence and secondary evidence?
• How is documentary evidence admitted in the court of law?
• What is privileged communication?
• What are the popular assumptions as to the documents as set out in the Evidence Act?
• How is the burden of proof determined? Comment upon chapter VII of the Act.
• What does the Act talk about dowry death?
• In certain cases court assumes existence of certain facts. State some such instances.
• Why do you think the Act provides for presumption as to absence of consent in certain prosecution for rape?
• What does the Act say about estoppel? What are different types of estoppels?   
•  How is estoppel different from promissory estoppel and waiver?  
• Who is competent to testify?
• How does the Act interpret confidential communications with legal advisors?
• What do you understand by ‘accomplice’? Which section of the Evidence Act talks about it?
• “An accomplice is unworthy of credit unless his statement is corroborated with material particulars.” Comment.
• Do you think an accused person be convicted on the basis of an uncorroborated dying declaration alone?
• Explain stages of examination of a witness.
• What does the Act say about improper admission or rejection of evidence?

YLCC would like to thank Shivani Bharti for her valuable insights in this article.

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Evidence Review of the Adverse Effects of COVID-19 Vaccination and Intramuscular Vaccine Administration

Vaccines are a public health success story, as they have prevented or lessened the effects of many infectious diseases. To address concerns around potential vaccine injuries, the Health Resources and Services Administration (HRSA) administers the Vaccine Injury Compensation Program (VICP) and the Countermeasures Injury Compensation Program (CICP), which provide compensation to those who assert that they were injured by routine vaccines or medical countermeasures, respectively. The National Academies of Sciences, Engineering, and Medicine have contributed to the scientific basis for VICP compensation decisions for decades.

HRSA asked the National Academies to convene an expert committee to review the epidemiological, clinical, and biological evidence about the relationship between COVID-19 vaccines and specific adverse events, as well as intramuscular administration of vaccines and shoulder injuries. This report outlines the committee findings and conclusions.

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• Digital Resource: Evidence Review of the Adverse Effects of COVID-19 Vaccination
• Digital Resource: Evidence Review of Shoulder Injuries from Intramuscular Administration of Vaccines
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Fewer than 1% of federal criminal defendants were acquitted in 2022

Former President Donald Trump pleaded not guilty this week to federal criminal charges related to his alleged mishandling of classified documents after his departure from the White House in 2021. The unprecedented charges against Trump and his subsequent plea raise the question: How common is it for defendants in federal criminal cases to plead not guilty, go to trial and ultimately be acquitted?

The U.S. Justice Department’s indictment of former President Donald Trump, and his subsequent plea of not guilty, prompted Pew Research Center to examine how many defendants in federal criminal cases are acquitted in a typical year. The analysis builds on an earlier Center analysis that examined trial and acquittal rates in federal and state courts.

All statistics cited in this analysis come from the Judicial Business 2022 report by the Administrative Office of the U.S. Courts. Information about the total number of defendants in federal criminal cases in the United States, as well as how their cases ended, is drawn from Table D-4 . Information about defendants in the Southern District of Florida is drawn from Table D-7 and Table D-9 .

The statistics in this analysis include all defendants charged in U.S. district courts with felonies and serious misdemeanors, as well as some defendants charged with petty offenses. They do not include federal defendants whose cases were handled by magistrate judges or the much broader universe of defendants in state courts. Defendants who enter pleas of “no contest,” in which they accept criminal punishment but do not admit guilt, are also excluded.

This analysis is based on the 2022 federal fiscal year, which began Oct. 1, 2021, and ended Sept. 30, 2022.

In fiscal year 2022, only 290 of 71,954 defendants in federal criminal cases – about 0.4% – went to trial and were acquitted, according to a Pew Research Center analysis of the latest available statistics from the federal judiciary . Another 1,379 went to trial and were found guilty (1.9%).

The overwhelming majority of defendants in federal criminal cases that year did not go to trial at all. About nine-in-ten (89.5%) pleaded guilty, while another 8.2% had their case dismissed at some point in the judicial process, according to the data from the Administrative Office of the U.S. Courts.

These statistics include all defendants charged in U.S. district courts with felonies and serious misdemeanors, as well as some defendants charged with petty offenses. They do not include federal defendants whose cases were handled by magistrate judges or the much broader universe of defendants in state courts. Defendants who entered pleas of “no contest,” in which they accept criminal punishment but do not admit guilt, are also excluded. The 2022 federal fiscal year began Oct. 1, 2021, and ended Sept. 30, 2022.

The U.S. Justice Department indicted Trump earlier this month on 37 counts relating to seven criminal charges : willful retention of national defense information, conspiracy to obstruct justice, withholding a document or record, corruptly concealing a document or record, concealing a document in a federal investigation, scheme to conceal, and false statements and representations.

Trump’s case is being heard in the U.S. District Court for the Southern District of Florida, where acquittal rates look similar to the national average. In fiscal 2022, only 12 of 1,944 total defendants in the Southern District of Florida – about 0.6% – were acquitted at trial. As was the case nationally, the vast majority of defendants in Florida’s Southern District (86.2%) pleaded guilty that year, while 10.7% had their cases dismissed.

It’s not clear from the federal judiciary’s statistics how many other defendants nationally or in the Southern District of Florida faced the same or similar charges that Trump is facing or how those cases ended.

Broadly speaking, however, the charges against Trump are rare . In fiscal 2022, more than eight-in-ten federal criminal defendants in the United States faced charges related to one of four other broad categories of crime: drug offenses (31%), immigration offenses (25%), firearms and explosives offenses (16%) or property offenses (11%). In Florida’s Southern District, too, more than eight-in-ten defendants faced charges related to these four categories.

Trump, of course, is not a typical federal defendant. He is the first former president ever to face federal criminal charges and is running for president again in 2024. The federal case against Trump is still in its early stages, and it’s unclear when – or whether – it will proceed to trial.

• Criminal Justice
• Donald Trump
• Federal Government

8 facts about Black Lives Matter

#blacklivesmatter turns 10, support for the black lives matter movement has dropped considerably from its peak in 2020, before release of video showing tyre nichols’ beating, public views of police conduct had improved modestly, for black history month, a look at what black americans say is needed to overcome racial inequality, most popular.

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A Unified General Education Pathway

"...the transfer process is still unnecessarily complex, confusing and difficult for the majority of students to navigate." — Assembly Bill 928, The Student Transfer Achievement Reform (STAR) Act 2021

More than 50% of CSU students are transfer students, arriving primarily from the California Community Colleges system. In an effort to simplify their pathway to a four-year degree, the Student Transfer Achievement Reform Act (AB 928) creates a singular, lower-division General Education (GE) pattern for both California State University and University of California transfer admissions. This pattern, called Cal-GETC, was approved by all three higher education intersegmental partners via the Intersegmental Committee of Academic Senates in spring 2023. When Cal-GETC is implemented in fall 2025, it will become the only transfer GE pattern offered by California community colleges.

The STAR Act is meant to support student success and equity, helping to ease access, simplify advisement across segments, eliminate barriers and carve a clear path to a four-year degree across California's educational segments.

Recognizing a growing trend of first-time, first-year students arriving to the CSU with college credit, including 60% of CSU first-year applicants who have earned college credit, the Chancellor's Office has recommended a unified pathway. Historically, the CSU has had one unified GE pattern for all students—CSU GE Breadth. Changes to Title 5 California Code of Regulations ensure the CSU continues to provide one unified GE pattern whether students enroll as first-time, first-year students or transfer students.

GE Informational Webinar, April 15, 2024

An informational webinar was held on Monday, April 15, 2024 hosted by Interim Associate Vice Chancellor of Academic and Faculty Programs Laura Massa and Assistant Vice Chancellor and State University Dean Brent Foster. Questions posed in this webinar will be posted shortly.

On March 27, 2024, the CSU Board of Trustees approved proposed changes to Title 5 CSU General Education that modify CSU GE Breadth to mirror the Cal-GETC pattern and units.

The Chancellor’s Office will support campuses and faculty through the implementation processes, including through resources to support faculty release, written guidance and stipends for faculty effort during off-contract periods. Each campus will determine the application of units that are not included in Cal-GETC.

Changes to CSU General Education

The update to CSU GE removes five units from the GE pattern. It does this by:

• Including a one-unit laboratory for Biological or Physical Sciences
• Not including one of three Arts or Humanities courses (in Area C)
• Not including Area E, Lifelong Learning and Self-Development

The five units removed from GE will be returned to campuses to determine how to utilize.

About the Student Transfer Achievement Reform Act

Authored by Assemblymember Marc Berman and approved in 2021, Assembly Bill 928 consolidates two existing general education pathways for California Community College students into a single pathway to either the CSU or UC system. It also requires that community colleges place incoming students on an Associate Degree for Transfer (ADT) pathway, if one exists for their major, on or before August 1, 2024.

Key Terms and Definitions

What is Cal-GETC? Cal-GETC is a new GE pattern that will be implemented in fall 2025. As a result of its implementation, California Community Colleges will no longer offer the current CSU GE Breadth and Intersegmental General Education Transfer Curriculum (IGETC) patterns.

What is IGETC? The Intersegmental General Education Transfer Curriculum, or IGETC, is designed for the community college student who wants to be eligible to transfer to either the CSU or the UC systems. 

What is CSU GE Breadth? CSU GE Breadth is the current General Education pattern for all CSU students whether they are first-time first-year students or transfer students. Following the approval of the CSU Board of Trustees on March 27, 2024, starting in fall 2025 CSU GE will mirror Cal-GETC in areas and units.

What is an ADT? The Associate Degree for Transfer (ADT) allows California Community College students who meet the CSU's minimum eligibility requirements guaranteed priority admission to the CSU, though not necessarily to a particular campus or major. Students earn a two-year associate degree (no more than 60 units) that is fully transferrable towards a CSU bachelor's degree.

Additional Resources

GE Informational Seminar May 2023

AB 928 Bill Text

ADT Intersegmental Implementation Committee

The Intersegmental Committee of the Academic Senates (ICAS)

Frequently Asked Questions

Watch CBS News

Supreme Court appears divided over obstruction law used to prosecute Trump, Jan. 6 rioters

By Melissa Quinn

Updated on: April 16, 2024 / 1:37 PM EDT / CBS News

Washington — A divided Supreme Court wrestled on Tuesday with  the scope of a federal obstruction statute  used to prosecute hundreds of people who breached the  Capitol on Jan. 6, 2021 , in a legal battle that could have ramifications for the election interference case against former President Donald Trump.

At  issue in the court fight  known as Fischer v. U.S. is whether federal prosecutors can apply a law passed in the wake of the Enron scandal to the Jan. 6 assault. The measure makes it a crime to "corruptly" obstruct or impede an official proceeding, and defense attorneys argued that the Justice Department has turned the measure into a "dragnet."

The first provision of the law prohibits altering, destroying, mutilating or concealing a document. Before the Jan. 6 attack, prosecutors had never used the statute in cases that did not involve evidence tampering. But since the unprecedented assault on the Capitol, it has been levied against more than 350 defendants who breached the building where Congress had convened a joint session to tally states' electoral votes. More than 1,380 people have been charged in connection with the Jan. 6 attack.

It is also among the charges that Trump is facing in the case brought in Washington, D.C. , by special counsel Jack Smith last year. The former president  pleaded not guilty to one count of obstructing Congress' counting of Electoral College votes, one count of conspiring to obstruct the proceeding and two others.

Oral arguments

The case is the first in which the Supreme Court has been tasked with tackling the fallout from the Jan. 6 attack head-on, and Solicitor General Elizabeth Prelogar, who argued on behalf of the government, repeatedly sought to remind the justices of the unprecedented nature of the events that day.

"The fundamental wrong committed by many of the rioters, including petitioner, was a deliberate attempt to stop the joint session of Congress from certifying the results of the election," she said in opening remarks to the justices. "That is, they obstructed Congress' work in that official proceeding."

Justice Clarence Thomas, who was absent from arguments Monday, was back on the bench. The justices focused much of the first half of arguments on the language of the statute, including the use of the word "otherwise." Prelogar argued that the obstruction provision functions as a "classic catchall" designed to cover all other acts that obstruct an official proceeding.

Justice Elena Kagan seemed to agree, noting that Congress drafted the measure to fill gaps in the law that were exposed after the Enron scandal. 

"This is their backstop provision," she told Jeffrey Green, who is representing Joseph Fischer, the man charged with obstructing an official proceeding on Jan. 6 and is seeking to have the count dismissed. 

But during the second half, when Prelogar defended prosecutors' use of the statute in cases arising out of the Capitol breach, several of the conservative justices seemed concerned that the Justice Department is applying the law too broadly and could use it to prosecute people who participate in sit-ins or other demonstrations.

"What happened on Jan. 6 was very, very serious," Justice Samuel Alito said after asking whether a protester who disrupts a Supreme Court argument could be charged with violating the obstruction law. "But we need to find out what are the outer reaches of this statute under your interpretation."

The outcome of the case is being closely watched because of the possible impacts to the charges against Trump, which stem from what Smith alleges was a multi-pronged plot to reverse the outcome of the 2020 presidential election. If the court sides with Fischer, Trump could seek to have the two counts related to obstruction of an official proceeding dismissed.

Trump's case has been paused for months as he seeks to have all four charges tossed out on the grounds he is entitled to presidential immunity. The Supreme Court will consider that issue next week.

Separate from Trump, the obstruction dispute could also have repercussions for the Jan. 6 defendants who have already been convicted of the offense or pleaded guilty. A decision finding prosecutors' broad reading of the measure was wrong could prompt bids for new trials or lighter sentences. 

Prelogar said for 50 people, it is the only felony charge brought against them. The average sentence among those defendants is 26 months in prison.

The Jan. 6 case 

Fischer brought the case currently before the Supreme Court after he was charged in a seven-count indictment in early 2021. Then a police officer in Pennsylvania, Fischer attended the "Stop the Steal" rally outside the White House and later entered the Capitol around 3:25 p.m. on Jan. 6. Prosecutors claimed he encouraged rioters to "charge" and ran into a line of officers while yelling an obscenity.

His lawyers, though, said Fischer was pushed by the crowd into a police line. Fischer was in the Capitol for less than four minutes, they told the court.

Among the charges Fischer faced was assaulting a police officer, disorderly conduct and corruptly obstructing, influencing and impeding an official proceeding — Congress' certification of the Electoral College vote. The charge was enacted as part of the 2002 Sarbanes-Oxley Act, and violators face up to 20 years in prison.

Fischer moved to dismiss the count. U.S. District Judge Carl Nichols granted his request, determining that nothing in the indictment alleged that Fischer "took some action with respect to a document, record, or other object" in order to obstruct the congressional proceedings. Nichols has been the only district court judge out of 15 in D.C. hearing Jan. 6 cases to adopt a narrow reading of the statute.

The Justice Department appealed his ruling to the U.S. Court of Appeals for the District of Columbia Circuit, which ruled against Fischer in a divided decision last year. Lawyers for Fischer then asked the Supreme Court to review the D.C. Circuit's decision, and it agreed to do so in December.

During arguments Tuesday, Green urged the justices to reject the Justice Department's broad use of the law.

"The Jan. 6 prosecutions demonstrate that there are a host of felony and misdemeanor crimes that cover the alleged conduct," he said. "The Sarbanes-Oxley-based, Enron-driven evidence tampering statute is not one of them."

Green had warned in court filings that the government's definition of the law encompassed lawful acts like lobbying, advocacy and protest, a prospect that appeared to concern Alito and Justice Neil Gorsuch.

Gorsuch asked whether a sit-in that disrupts a trial or access to a federal courthouse would qualify as corruptly obstructing an official proceeding, or whether a heckler who disrupted a Supreme Court address could be charged under the law. He also seemed to reference an incident involving Democratic Rep. Jamaal Bowman of New York, who pleaded guilty to a misdemeanor charge after pulling a fire alarm in a Capitol Hill office building ahead of a vote on a government funding bill last year.

"Are those all federal felonies subject to 20 years in prison?" Gorsuch asked.

But Prelogar said the Justice Department has only brought the charge when there is evidence that a defendant had corrupt intent to disrupt Congress' counting of electoral votes. In response to Justice Brett Kavanaugh's question as to why prosecutors had to charge Fischer with the obstruction count when he was indicted for six others, she said those charges "don't fully reflect the culpability" of his actions on Jan. 6.

"One of the distinct strands of harm, one of the root problems with petitioners' conduct is that he knew about that proceeding, he had said in advance of Jan. 6 that he was prepared to storm the Capitol, prepared to use violence. He wanted to intimidate Congress. He said, 'They can't vote if they can't breathe,' and then he went to the Capitol on Jan. 6 with that intent in mind and took action, including assaulting a law enforcement officer," she said.

Prelogar said it is "entirely appropriately" for the government to seek to hold Fischer accountable "for that conduct with that intent."

She also drew distinctions between the events of Jan. 6 and a protester who interrupts a Supreme Court proceeding.

"It's in a fundamentally different posture than if they had stormed into this courtroom, overrun the Supreme Court police, required the justices and other participants to flee for their safety, and done so with clear evidence of intent to obstruct," Prelogar said.

Still, Chief Justice John Roberts and Thomas questioned whether the Justice Department has applied the obstruction statute before in situations that did not involve specific documents. 

"There have been many violent protests that have interfered with proceedings," Thomas said. "Has the government applied this provision to other protests in the past and has this been the government position throughout the lifespan of the statute?"

Roberts, meanwhile, seemed skeptical that the provision could be interpreted to broadly prohibit a defendant from corruptly engaging in conduct to obstruct an official proceeding.

"You can't just tack it on and say, look at it as if it's standing alone, because it's not," Roberts said.

The impacts of a decision

The Supreme Court said in December it would take up the case, and its decision to do so reverberated swiftly. Some defendants who were convicted of violating the obstruction statute but not yet sentenced sought to pause their proceedings until the justices rule, likely by the end of June.

If Fischer prevails and the high court finds the law narrowly covers corrupt evidence-related conduct, there could be dozens of defendants who have been convicted and seek resentencing, withdraw guilty pleas or ask for a new trial.

As for the impact on Trump's case, the special counsel told the Supreme Court in a filing in the immunity case last week that regardless of how it rules, the charges against Trump are still valid.

Smith has accused Trump of deceitfully organizing fake slates of electors in seven battleground states and urging state officials to send the false certificates to Congress. The creation of the phony documents, he said, "satisfies an evidence-impairment interpretation."

Melissa Quinn is a politics reporter for CBSNews.com. She has written for outlets including the Washington Examiner, Daily Signal and Alexandria Times. Melissa covers U.S. politics, with a focus on the Supreme Court and federal courts.

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