Definitions and interpretation of “real evidence”
• [Real evidence is] [p]hysical evidence (such as clothing or a knife wound) that itself plays a direct part in the incident in question.
Black’s Law Dictionary ? (10th ed. 2014)
• Present writers use “real evidence” to include tangible items having some active role in the transaction at issue . . . .
6 Terrence L. Smith & Adrian P. Smith, Indiana Practice, Trial Handbook for Indiana Lawyers § 31:1 (2015)
• There is a virtually infinite list of kinds of real evidence that may be admissible in the trial.
6 Terrence L. Smith & Adrian P. Smith, Indiana Practice, Trial Handbook for Indiana Lawyers § 31:2 (2015)
Admissibility: In general
• The admission of physical evidence is governed by the same rules of relevancy and materiality that govern the admission of testimonial evidence.
• For information about relevancy, please review Relevancy.
• A party seeking to make physical evidence a part of the record must lay a proper foundation for its admission.
• A foundation for physical evidence is established where (1) a witness can testify that the exhibit is “like” an item associated with the crime, and (2) there is a showing that the exhibit is connected to the defendant and the commission of the crime.
See Scott v. State, 632 N.E.2d 761, 765 (Ind. Ct. App. 1994)(citing Andrews v. State, 532 N.E.2d 1159, 1162-63 (Ind. 1989), reh’g denied)(“An adequate foundation for the admission of an item of physical evidence involves two showings. First, the witness who observed the particular instrumentality must be able to at least state that the item shown is ‘like’ the one associated with the crime. Second, there must be a showing that the item is connected to the defendant and the commission of the crime.”)
See also Kilpatrick v. State, 746 N.E.2d 52, 57 (Ind. 2001)(citing Bell v. State, 610 N.E.2d 229, 233 (Ind. 1993), reh’g denied)(“A proper foundation for the introduction of physical evidence is laid if a witness is able to identify the item and the item is relevant to the disposition of the case.”)
Cf. Granger v. State, 946 N.E.2d 1209, 1215 (Ind. Ct. App. 2011)(quoting Wray v. State, 547 N.E.2d 1062, 1066 (Ind. 1989))(“[T]here is proper foundation for the introduction of physical evidence where 1) the characteristics of the exhibit ‘can be identified by eyewitness identification’; 2) the witness can identify the item; and 3) the item is relevant to the issues in the case.”)
• However, the physical evidence need only constitute a small but legitimate link in the chain of evidence connecting the defendant with the crime.
See Winbush v. State, 776 N.E.2d 1219, 1223 (Ind. Ct. App. 2002), trans. denied(citing Malone v. State, 700 N.E.2d 780, 782 (Ind. 1998))(“To be admissible, real evidence must only constitute a small but legitimate link in the chain of the evidence connecting the defendant to the crime.”
• The trial court need not require absolute identification of an exhibit; admission may be proper even where there is only a slight tendency to connect the defendant with the offense.
See Winbush v. State, 776 N.E.2d 1219, 1223 (Ind. Ct. App. 2002), trans. denied(citing Malone v. State, 700 N.E.2d 780, 782 (Ind. 1998))(“Evidence may be admitted even where there is only a slight tendency that it connects the defendant to the crime.”)
• Where the witness is unable to say for certain the object he is shown at trial is the same instrumentality associated with the crime, such consideration goes only to the weight of the evidence and not its admissibility.
Admissibility: Chain of custody
• Physical evidence is admissible “if the evidence regarding its chain of custody strongly suggests the exact whereabouts of the evidence at all times.”
• For information about chain of custody, please review Chain of Custody.