Converting Information Into Evidence

By Clayton T. Robertson (Criminal Defense/Civil Rights Attorney)

An essential link between a pretrial investigation and discovery and trial is, in very simple terms, the following: the conversion of favorable information into evidence, and the exclusion of negative information and evidence. What do I mean by this?

In prior posts, you'll notice that I make the bold claim that "everything is relevant." What I mean by that statement is in an attorney's pretrial investigation and related discovery, they cannot put blinders on to information that, while not immediately relevant, may lead to other critical information. You need to be a blank slate. The success of some defenses turns on a single fact.

Information, however, isn't enough. The attorney needs to convert information into evidence through the formal rules of evidence to make it admissible at trial. This in turn may affect how the attorney, typically through their investigator, collects the information, who they interview, the questions asked, and other tactics. In other words, an attorney can have a universe of information, but what ultimately matters is converting it into admissible evidence to use in the defense of their client at court.

There is a flip side to this process. It is the technique of excluding or limiting information to be used at trial by the state. This is done through what are called "motions in limine" that seek to curtail or exclude information the prosecutor intends to introduce at trial or at a hearing. These may be heard orally or in writing. Your chances of prevailing increase when your attorney can convince a court to admit more of your favorable evidence and exclude more of a prosecutor's negative evidence against you.

What if the attorney is negotiating with the prosecutor without a trial? The same dynamic is at play. A prosecutor will often know or argue what is admissible or not. The negotiations may stall if you refer to information, albeit helpful, that will never see the light of day in a courtroom because of problems with its admissibility as evidence. For these reasons, an attorney with a sophisticated knowledge of the rules of evidence will be better able to advance your case and prevail.