The following is a chapter from the ebook Defending Your Dog.

Evidence: Your Gunpowder

By this time, you have figured out what the elements of the charge against you are, and what the elements of your defense are. To prove those elements, you need evidence. Evidence is to your case as to what gun powder is to a bullet. Without evidence, your case goes nowhere, just like a bullet that is not propelled by gun powder.

Oral Testimony

There are several kinds of evidence. One of the best is oral testimony from a witness. In other words, testimony that is spoken inside the room where the hearing or court trial is held, by a witness who is present.

The live testimony of a witness is the most powerful evidence that you can have in a case. A live witness enables you to not only tell the story you want to tell, but also respond to things that the opposing side brings up. Your live witness can help you avoid the impact of surprising, last minute testimony by the other party, because your witness is there at the hearing and can be called upon to refute the points that an opposing witness or the prosecutor raised.

The general rule is that a live witness can testify as to anything that he saw or heard, other than hearsay. If he perceived something happening, he can testify because the event was within his personal knowledge. If he heard somebody say something, he usually can testify to it, but not if it is hearsay. If he read something and he isn't an expert witness, he probably can't testify to it, because it definitely is hearsay. Be sure to carefully read the chapter on hearsay so you plan your case thoroughly, and respond convincingly to any hearsay objection made by your opponent.

Relevant Evidence

This is a good time to talk about the concept of relevancy. In order to be admitted into evidence, the offered evidence has to be relevant to an issue in the case. It is relevant if it sheds light on something that is at issue in the case. It is relevant if it helps the judge or hearing officer decide a fact that is essential to the case. If the evidence is not hearsay and it helps the hearing officer or judge decide whether a certain fact is true or not, then that evidence is relevant. Otherwise, it is not relevant and therefore not admissible.

Let me give you examples of irrelevant and relevant evidence. If the issue is whether your dog is vicious, evidence of a temperament test two years before the incident is not relevant, because it doesn't help the hearing officer or judge to decide whether your dog was vicious at the time of the incident or the time of the hearing. A temperament test shortly before the time of the hearing, on the other hand, is relevant to the determination as to whether your dog currently is vicious.

You need to use your common sense here. If the evidence that you would like to introduce is something that clearly should be relied on in figuring out the answer to a question in the case, then the evidence probably is relevant unless it is hearsay.

Hearsay: a Quick Review

I discussed the hearsay rule in a separate chapter in this book, but will summarize it here. Hearsay is a statement (either oral or written) that was made out of court (meaning not in the courtroom or the hearing room) that is offered to prove the truth of whatever is mentioned in the statement. For example, if you were charged with a leash law violation, and the prosecutor produced a witness who said that the leash was more than six feet in length (assuming it was a violation for the leash to be that long or longer), it would be hearsay for a witness to say that they heard somebody other than you say that the leash was more than six feet in length. If the accusation was that a dog was vicious, it would be hearsay for the prosecutor to produce a witness for the purpose of testifying that he heard that the neighbors were afraid of your dog. To get that kind of evidence in, one would have to produce the neighbors themselves who would have to testify about their feelings regarding your dog.

Without trying to summarize the entire chapter on hearsay evidence, I need to point out that hearsay can be contained in things that are written. Documents that refer to facts are often inadmissible because they are hearsay. If the prosecutor tries to prove his case through a police report that summarizes what the police officer saw, the use of the report is an attempt to introduce hearsay. That's because the report is filled with observations about things that happened outside the courtroom, which observations are being introduced for the purpose of attempting to establish that those things actually did happen. One is supposed to actually produce the witnesses who saw those things happen, or other admissible evidence that, when added together, proves that those things happen.

Burden of Proof: Quick Review

I also want to summarize the rule pertaining to the burden of proof, because to win a case one's evidence must meet the burden of proof. There are different forms of evidence, but each form can have great weight or no weight, can have credibility or no credibility. In other words, even if evidence is admissible, it may be very slight evidence because of its lack of credibility, and it may not weigh as much as other evidence, especially evidence that has a great deal of credibility.

When you are considering what kind of evidence to produce in your case, try to make it evidence that has great credibility and that is as solid and trustworthy as possible, because such evidence is more weighty. Being more weighty, it goes a lot further in establishing the fact that you want to prove or disprove. Weighty evidence is what you need to meet your burden of proof.

Documentary Evidence

Another type of evidence (after oral testimony by a live witness) is written evidence, known also as documentary evidence. Make sure you have read the chapter on finding the procedural law for your dog court hearing. That's because there are essentially two standards for admitting documentary evidence. If your statute says that all relevant evidence is admissible, then just about anything in writing that sheds light on issues will be admitted into evidence. Remember, it might not be the best evidence because it's not live testimony, but at least it's admissible. On the other hand, if the court or hearing is governed by the usual rules of evidence that are applicable to civil and criminal proceedings, then you need to be aware of the fact that documentary evidence is sometimes admissible but sometimes not.

There are several kinds of documentary evidence that are usually admissible. One of them is medical records and medical billings. Another is official records such as a quarantine order or a judgment in a prior case.

By the same token, there are certain kinds of documentary evidence that are problematic. The most problematic is the animal control report itself. Yes, it is an official record because it summarizes an investigation, but it is also filled with hearsay. When an animal control officer observes something and writes it down, that isn't hearsay unless there is a rule that requires the officer to be in court or at the hearing. But when an animal control officer summarizes something that a witness told him, it is pure hearsay (in fact, it could be regarded as double hearsay, or hearsay on hearsay, the first level of hearsay being the fact that the statement came from a witness as opposed to the animal control officer, and the second level of hearsay being the fact that the summary itself is written down and not related by a live witness in open court). Similarly, police reports are frequently considered to be hearsay, because they summarize the observations of the officer (a single level of hearsay) and the statements of witnesses (double hearsay).

One of the most important types of documentary evidence in many cases is the expert witness report that establishes whether a dog is vicious, whether the barking was too loud, etc. Once again, you need to review the procedural rules applicable to your dog court proceeding. If all relevant evidence is admissible, then this kind of a report should be admitted. On the other hand, if the admissibility of evidence is governed by the rules applicable to civil and criminal court, then you have a problem; if you want to rely on the opinion of the expert, the expert probably should be present in court.

Graphic Evidence

Another major type of evidence is generally referred to as graphic evidence. It includes things like videos, sound recordings, photographs, and charts. If any of these things is relevant, it should be admitted.

Physical Evidence

Objects like leashes, dog tags, collars and other three-dimensional objects are all physical items of evidence. Anything that helps the hearing officer or judge decide what is true and what is false should be admitted, unless it is too bulky or dangerous. In a leash law case, the leash certainly should be admitted, because it is the best evidence of the actual thing that makes up an element of the offense, namely the length of the leash.

Best Evidence Rule

You might hear the term "best evidence" used from time to time. It does not mean what it sounds like, but refers to what might be called "original" evidence. For example, in a jurisdiction where the best evidence rule is followed, one cannot admit into evidence a copy of a document, unless there is a reason why a copy is more convenient than the original. The USA generally does not enforce the best evidence rule; Canada, however, does.

Duplicative and Time-Consuming Evidence

One of the most annoying rules in court is the rule against admitting evidence that is duplicative or too time-consuming. If you have ten witnesses on the same subject, such as your dog being calm and well mannered, don't expect the judge to allow you to introduce testimony from all ten of them. The best thing is for you to introduce one (your best) and then tell the judge that you have nine more that are going to say the same thing. If the judge wants to hear from them, then put them on the stand and let them tell their story. Odds are, however, that the judge will be duly impressed by their number, and will tell you to just move on to the other elements of your case or defense.

I mention this because a long video showing how sweet your dog is will not be well received at dog court. They simply don't have time to watch a long video. This is especially troublesome because a short video doesn't actually prove that your dog is wonderful 24-hours a day. So some documentary evidence works well while other forms don't.

You have to be very practical-minded when you are considering what evidence to introduce. If it is filled with hearsay, if it is about something too remote in time, if it would take a long time (as in the video), if it has to be viewed on an iPad or a cell phone (like a lot of photos that people keep), you might have problems with it because the hearing officer or judge won't want to look at it.

In conclusion, the very best evidence that you can produce in your dog court hearing is live testimony from a witness who is present, who talks about something that sheds light on an important issue in the case (i.e., relevancy), without taking up too much time and without duplicating what another witness has already testified about. The second most powerful evidence is an official written record, or a business document that was made in the ordinary course of things without reference to the fact that it was going to be used in litigation. Another great form of evidence is the pictorial, auditory or motion picture (video) which sheds light on an issue without taking too long or being duplicative of other evidence adding up to the same thing.