Evidence and Proof - Competent and Material
“Evidence” includes all the means by which any alleged matter of fact, the truth of which is submitted to investigation, i.e. established or disproved. Proof is the belief or conclusion arrived at by a consideration of the evidence.[1] “Evidence is the medium of proof; proof is the effect of evidence.”[2]
Evidence is “competent” if it is not subject to an exclusionary rule, such as the rule against hearsay.[3] The term “material evidence is commonly used to mean evidence of a fact in issue or evidence probative of a fact in issue. If the evidence is relevant to establish or disprove a proposition, but the proposition is neither in issue nor probative of a fact in issue, then the evidence is immaterial. The term “material evidence” is also used where the evidence is of such slight probative value as to be of no practical importance in determining the issue, and is sometimes referred to as “immaterial”.[4]
Evidence can be either direct or circumstantial. Facts may be proved either by direct or circumstantial evidence or by a combination of both.[5] Direct evidence is evidence of what a witness saw, heard, or did which, if believed by the trier of fact, proves a fact. Circumstantial evidence is evidence of a fact which does not directly prove a fact in dispute but which permits a reasonable inference or conclusion that the fact exists. Those facts which form the basis of an inference must be proved and the inference to be drawn must be one that may be reasonably drawn.[6]
The “credible evidence” means the testimony or exhibits that the trier of fact finds to be worthy of belief.[7] A “preponderance” of the evidence means the greater part of the evidence. That does not mean the greater number of witnesses or the greater length of time taken by either side. The phrase refers to the quality of the evidence, that is, its convincing quality, the weight, and the effect that it has. The law requires that in order for a plaintiff to prevail on a claim, the evidence that supports the claim must appeal to the trier of fact as more nearly representing what took place than the evidence opposed to the claim. [8]
Testimonial evidence is oral evidence given by a witness under oath.[9] Documentary evidence is evidence in the form of a writing.[10]
[1] Prince, Richardson on Evidence (Eleventh Edition, Farrell) §1-101; People v Beckworth, 108 NY 67, 73, 15 NE 53, 55.
[2] Prince, Richardson on Evidence (Eleventh Edition, Farrell) §1-101; Dibble v Dimick, 43 NY 549, 554, 38 NE 724.
[3] Richardson, Evidence § 4, at 4 [Prince 10th Ed.]; Prince, Richardson on Evidence § 4-102, at 137 [Farrell 11th Ed.]; People v. Swamp, 84 N.Y.2d 725, 730, 622 N.Y.S.2d 472, 474, 646 N.E.2d 774 (1995) see also, People v. Oakley, 28 N.Y.2d 309, 314, 321 N.Y.S.2d 596, 270 N.E.2d 318) (“evidence inadmissible because incompetent (e.g., hearsay) is different from evidence competent prima facie, rendered inadmissible only by extrinsic, subsequent proof.” )
In Prince, Richardson on Evidence § 4-102, at 137 [Farrell 11th Ed.] Professor Farrell states: The term “competant evidence” as generally used in practice means relevant evidence admissible in a particular action; that is relevant evidence not subject to the operation of any exclusionary rule. People v. Swamp, 84 N.Y.2d 725, 730, 622 N.Y.S.2d 472; People v Brewster, 100 AD3d 134, 473 NYS2d 984, aff’d 63 NY2d 419, 482 NYS2d 724. Conversely, incompetent evidence is relevant evidence inadmissible because it falls under the ban of some exclusionary rule, e.g. the rule against hearsay.
In People v Brewster, 100 AD3d 134, 473 NYS2d 984 (2d Dept), aff’d 63 NY2d 419, 482 NYS2d 724 the Appellate Division stated that: “The term “competent evidence” is defined as relevant evidence which is admissible in a particular action, i.e., relevant evidence which is not subject to the operation of any exclusionary rule (Richardson, Evidence [Prince, 10th ed], § 4; see, also, 1 Bender's New York Evidence, § 1). Thus, for our purposes “competent” evidence is, by definition, “admissible” evidence.”
[4] Prince, Richardson on Evidence § 4-102, at 137 [Farrell 11th Ed.]
[5] N.Y. Pattern Jury Instr.--Civil 1:70 (3d Ed.)
[6] N.Y. Pattern Jury Instr.--Civil 1:70 (3d Ed.)
[7] See Meyer v. Board of Trustees of the New York City Fire Dept., Article 1-B Pension Fund by Safir, 90 N.Y.2d 139, 681 N.E.2d 382 (1997) (credible evidence is evidence that proceeds from a credible source and reasonably tends to support the proposition for which it is offered).
[8] N.Y. Pattern Jury Instr.--Civil 1:23 (3d Ed.)
[9] Dibble v Dimick, 43 NY 549, 554, 38 NE 724.
[10] White v Merchants Despatch, 256 App Div 1044, 10 NYS2d 963.
“Evidence” includes all the means by which any alleged matter of fact, the truth of which is submitted to investigation, i.e. established or disproved. Proof is the belief or conclusion arrived at by a consideration of the evidence.[1] “Evidence is the medium of proof; proof is the effect of evidence.”[2]
Evidence is “competent” if it is not subject to an exclusionary rule, such as the rule against hearsay.[3] The term “material evidence is commonly used to mean evidence of a fact in issue or evidence probative of a fact in issue. If the evidence is relevant to establish or disprove a proposition, but the proposition is neither in issue nor probative of a fact in issue, then the evidence is immaterial. The term “material evidence” is also used where the evidence is of such slight probative value as to be of no practical importance in determining the issue, and is sometimes referred to as “immaterial”.[4]
Evidence can be either direct or circumstantial. Facts may be proved either by direct or circumstantial evidence or by a combination of both.[5] Direct evidence is evidence of what a witness saw, heard, or did which, if believed by the trier of fact, proves a fact. Circumstantial evidence is evidence of a fact which does not directly prove a fact in dispute but which permits a reasonable inference or conclusion that the fact exists. Those facts which form the basis of an inference must be proved and the inference to be drawn must be one that may be reasonably drawn.[6]
The “credible evidence” means the testimony or exhibits that the trier of fact finds to be worthy of belief.[7] A “preponderance” of the evidence means the greater part of the evidence. That does not mean the greater number of witnesses or the greater length of time taken by either side. The phrase refers to the quality of the evidence, that is, its convincing quality, the weight, and the effect that it has. The law requires that in order for a plaintiff to prevail on a claim, the evidence that supports the claim must appeal to the trier of fact as more nearly representing what took place than the evidence opposed to the claim. [8]
Testimonial evidence is oral evidence given by a witness under oath.[9] Documentary evidence is evidence in the form of a writing.[10]
[1] Prince, Richardson on Evidence (Eleventh Edition, Farrell) §1-101; People v Beckworth, 108 NY 67, 73, 15 NE 53, 55.
[2] Prince, Richardson on Evidence (Eleventh Edition, Farrell) §1-101; Dibble v Dimick, 43 NY 549, 554, 38 NE 724.
[3] Richardson, Evidence § 4, at 4 [Prince 10th Ed.]; Prince, Richardson on Evidence § 4-102, at 137 [Farrell 11th Ed.]; People v. Swamp, 84 N.Y.2d 725, 730, 622 N.Y.S.2d 472, 474, 646 N.E.2d 774 (1995) see also, People v. Oakley, 28 N.Y.2d 309, 314, 321 N.Y.S.2d 596, 270 N.E.2d 318) (“evidence inadmissible because incompetent (e.g., hearsay) is different from evidence competent prima facie, rendered inadmissible only by extrinsic, subsequent proof.” )
In Prince, Richardson on Evidence § 4-102, at 137 [Farrell 11th Ed.] Professor Farrell states: The term “competant evidence” as generally used in practice means relevant evidence admissible in a particular action; that is relevant evidence not subject to the operation of any exclusionary rule. People v. Swamp, 84 N.Y.2d 725, 730, 622 N.Y.S.2d 472; People v Brewster, 100 AD3d 134, 473 NYS2d 984, aff’d 63 NY2d 419, 482 NYS2d 724. Conversely, incompetent evidence is relevant evidence inadmissible because it falls under the ban of some exclusionary rule, e.g. the rule against hearsay.
In People v Brewster, 100 AD3d 134, 473 NYS2d 984 (2d Dept), aff’d 63 NY2d 419, 482 NYS2d 724 the Appellate Division stated that: “The term “competent evidence” is defined as relevant evidence which is admissible in a particular action, i.e., relevant evidence which is not subject to the operation of any exclusionary rule (Richardson, Evidence [Prince, 10th ed], § 4; see, also, 1 Bender's New York Evidence, § 1). Thus, for our purposes “competent” evidence is, by definition, “admissible” evidence.”
[4] Prince, Richardson on Evidence § 4-102, at 137 [Farrell 11th Ed.]
[5] N.Y. Pattern Jury Instr.--Civil 1:70 (3d Ed.)
[6] N.Y. Pattern Jury Instr.--Civil 1:70 (3d Ed.)
[7] See Meyer v. Board of Trustees of the New York City Fire Dept., Article 1-B Pension Fund by Safir, 90 N.Y.2d 139, 681 N.E.2d 382 (1997) (credible evidence is evidence that proceeds from a credible source and reasonably tends to support the proposition for which it is offered).
[8] N.Y. Pattern Jury Instr.--Civil 1:23 (3d Ed.)
[9] Dibble v Dimick, 43 NY 549, 554, 38 NE 724.
[10] White v Merchants Despatch, 256 App Div 1044, 10 NYS2d 963.
The material on our website is from the New York Matrimonial Trial Handbook , by Joel R. Brandes of the New York Bar. It focuses on the procedural and substantive law, as well as the law of evidence, that an attorney must have at his or her fingertips when trying a New York matrimonial action or custody case. It is intended to be an aide for preparing for a trial and as a reference for the procedure in offering and objecting to evidence during a trial. There are numerous questions for the examination and cross-examination of witnesses.
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The New York Matrimonial Trial Handbook is available in Kindle ebook editions and epub ebook editions for all ebook readers in our website bookstore and in hard cover at our Bookbaby Bookstore.
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This website is published by Joel R. Brandes Consulting Services, Inc., and written by Joel R. Brandes of The Law Firm of Joel R. Brandes. P.C. Mr. Brandes has been recognized by the Appellate Division* as a "noted authority and expert on New York family law and divorce.” He is the author of the treatise Law and The Family New York, 2d (9 volumes),Law and the Family New York Forms 2d (5 Volumes), Law and the Family New York Forms 2019 Edition (5 volumes)(Thomson Reuters), and the New York Matrimonial Trial Handbook. Click here to visit New York Divorce and Family Law ™ the definitive site on the web for New York divorce and family law, presented by Joel R. Brandes of the Law Firm of Joel R. Brandes, P.C., 43 West 43rd Street, New York, New York 10036. (212) 859-5079.
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