Many people who are not lawyers get their “knowledge” of the law from legal dramas and procedurals. That’s why you’ll hear comments like, “They don’t have any physical evidence, only testimony.” Some shows give the impression that convictions are impossible without physical evidence. In this article, we will be examining the nature of physical vs. testimonial evidence. We will also explain why people believe that physical evidence is automatically better than testimonial evidence may be a misconception.
Different Types of Evidence
Many people are surprised to find out what is really meant by terms like “physical evidence” and “testimonial evidence.” As we’ll see, how the terms are used on TV can be confusing.
What Is Physical Evidence?
Very simply, physical evidence is any physical object or item that may be introduced in a court proceeding to prove or disprove a particular aspect of a case. Physical evidence is also called “real” or “material” evidence.
Physical evidence examples include:
- objects a suspect may have left at a crime scene, such as used tissues, gloves, mask, and cigarette butts
- so-called “forensic evidence” collected by scientific means and subject to DNA testing, such as blood, semen, and tire tracks
- things in the environment, such as leaves, insects, and broken windows
People also ask how strong physical evidence is. Physical evidence can be extremely powerful, depending on what information can be gleaned from it, and is often considered reliable. This is because, assuming it hasn’t been tampered with and can provide information, physical evidence itself isn’t affected by memory or personal prejudices.
What Is Testimonial Evidence?
Testimonial evidence is information provided by a person on the stand, in court, under oath. Through the testimony of different witnesses, the court is given the story — sometimes more than one version — of what happened during the incident or how the investigation came to certain conclusions.
Testimonial evidence examples include:
- witnesses relaying what they observed — for example, shoppers describing a robber and what happened during a robbery, acquaintances describing a suspect or victim’s behaviors at particular times, or people talking about fights between parties that occurred in the past
- police officers relaying how the investigation unfolded, what was discovered at a crime scene, explaining the chain of custody to prove that evidence wasn’t tampered with
- experts explaining scientific principles and techniques — forensic or psychological states, for example — or the history behind a particular practice
People also ask, “How is testimonial evidence collected?” Those involved in the investigation, such as the police officers, know that providing testimony is part of their job. Witnesses either come forward or are discovered during the course of the investigation. They may decide to testify willingly, or if necessary, subpoenaed by the prosecution.
As we’ll see in the next section, the strength of testimonial evidence depends on the circumstances. So, instead of asking, “Is physical evidence less reliable than testimonial evidence?” the focus should be on how much each piece of evidence can actually contribute to proving one version of events or another.
What Is the Strongest Type of Evidence?
What may be surprising to many is that the type of evidence is not the only consideration relating to its strength. Finding a ski mask on a property doesn’t mean much if it isn’t able to either link a suspect to an incident or rule someone out. Let’s look at this in the context of some commonly asked questions.
- Is testimonial evidence reliable? That depends on factors such as the credibility of the witness (criminal history, bias, vested interests), physical capabilities of the witness (infirmary or disabilities, age, intelligence), and consistency of statements.
- What is more reliable: testimonial or physical evidence? As the saying goes, “to err is human.” What a witness thinks has happened may be affected by things like memory or bias. There has been a lot of research done on eyewitness identification, for example, and how problematic it can be. For these reasons, physical evidence tends to carry a lot of weight — presuming that it is well-preserved, free from interference, and relevant.
- Can you be convicted without physical evidence? It has happened, yes. Although rare, murder cases have proceeded even when bodies haven’t been found. Historical sexual abuse cases often hinge upon the testimony of victims about events that occurred decades ago.
The bottom line: The strongest type of evidence is direct evidence that is reliable and corroborated by other pieces of evidence. Physical evidence that directly speaks to the commission of the crime is excellent. However, so is eyewitness testimonial evidence from a credible, reliable witness that is supported by other evidence or accounts.
Testimonial evidence can be as reliable in some circumstances as physical evidence, although in most cases, physical evidence is preferred. What is most important is how solid, consistent, and well-supported the evidence is, not necessarily what type of evidence is. Want to know more? Visit our resources page to learn about other legal and evidentiary topics.