1450 Boyson Road Suite C-2A Hiawatha, Iowa 52233 

cedar rapids / iowa city criminal defense

What is evidence? 

by David Cmelik


To lay people and lawyers alike, it’s easy to overlook the exact definition of evidence. The proverbial “smoking gun” is evidence. That’s what people talk about colloquially to point to evidence of wrongdoing.  But what else besides the “smoking gun” is evidence in the State of Iowa? In short, it’s easy to understand that exhibits are evidence. Seized contraband, like marijuana, scales, baggies, ledgers, cash, for example, might all be considered evidence. There are actually two classifications of evidence under Iowa law with which most lay people will be familiar superficially—from television, mostly. So-called circumstantial evidence and direct evidence are defined by stock jury instructions in the State of Iowa and those definitions are commonly recited to juries: “Direct evidence is evidence from a witness who claims actual knowledge of a fact, such as an eyewitness.  Circumstantial evidence is evidence about a chain of facts which show a defendant is guilty or not guilty.  The law makes no distinction between direct evidence and circumstantial evidence.  Give all the evidence the weight and value you think it is entitled to receive.” Iowa Model Criminal Jury Instruction 100.6. From this definition, it becomes more clear that testimony from an eyewitness is also evidence—not just something a witness, like a police officer, found on the ground or seized from a defendant. So both testimony and exhibits are evidence.   It’s very important to note that the judge is the one who decides what is evidence and what is not evidence, not the prosecutor. Testimony that the judge allows or an exhibit that the judge indicates has been admitted is part of the record and may be considered by the jury if the judge instructs them that it may do so. The judge will instruct the jury on what is not evidence, too. For example, it may admonish the jury to “take back” anything it may have heard that crept into evidence too quickly. Sometimes an attorney will ask that the objection precede the answer and that the judge admonish the jury not to consider the answer if it was off-limits to ask the question and have the jury hear the answer before a valid objection could be lodged with the court. In addition to any specific admonitions during the jury trial, the judge will almost certainly give a stock instruction to the jury at the end of the trial that distinguishes evidence from things that are not evidence, for example: “The following are not evidence:  1.  Statements, arguments, questions and comments by the lawyers. 2.  Objections and rulings on objections. 3.  Any testimony [the judge] told you to disregard.  4.  Anything you saw or heard about this case outside the courtroom.” Iowa Criminal Law Model Instruction 100.5 Jury trials are both complex and unscientific. The jury will hear and see many things, some of which will be described as evidence, and others that will be specifically excluded from that definition.  If you or a loved one is facing a jury trial on a criminal matter in the Cedar Rapids, Iowa City, Vinton, Anamosa, Waterloo, or in Linn, Johnson, Benton, Jones, Black Hawk, or other Iowa counties, feel free to contact David A. Cmelik Law PLC in Cedar Rapids, Iowa, for a free, in-person initial consultation at 319-389-1889 or law@daclawfirm.com Remember, however, that a blog is not legal advice and that sending unsolicited information to an attorney over the Internet does not establish an attorney-client relationship.