Testimonial
Evidence
Testimonial evidence is evidence which comes to the
court, during pre-trial procedures and trials, through witnesses speaking under
an oath or an affirmation. Many times in many texts and in conversations the
word “testimony is used synonymously with the word evidence. However, when examining
both words it is pretty clear that evidence can be and is many things such as
writing, guns, glass, hammers or photographs and testimony is actually oral
evidence and is actually part of evidence. In fact it is critically important
to understand that real evidence cannot be admitted into evidence without
testimonial evidence. The person who actually took the items into evidence is
the person who has to testify that this is the exact items that they saw and
then impounded (took or placed) into evidence and that this is that exact item.
In the case of a photograph then the person who looked at the item through the
lens of the camera and then took the photograph must be available to testify to
the fact that they saw the item when looking through the lens of the camera and
took the picture. They must also be able to testify to the fact that the item
in the photograph that they are identifying is the same thing that they saw
when they took the picture and it accurately reflects that they saw when they
saw it. Without the testimonial evidence the real or demonstrative evidence
cannot be admitted into a trial and if for some reason it is then it is
susceptible to be suppressed via a motion to suppress.
EXAMPLE OF TESTIMONIAL EVIDENCE
As an example of testimonial evidence would be if a
prosecutor wants to have a hammer entered into evidence that was used in an
aggravated battery or a murder case the prosecutor will need the officer or
detective who located and impounded the item to testify, (provide testimonial
evidence), regarding their actions and the fact that the item offered to be
presented into evidence is the items they located, collected and impounded and
it is directly related to this criminal proceeding. It would be the same it the
item was a gun or a knife or a photograph that was presented to be admitted
into evidence in a legal proceeding or a trial. If the prosecutor does not have
the testimonial evidence of the law enforcement official they will not be able
to introduce the item.
