Applying the Rules of Evidence to Your Kids

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“It’s not fair!” is an oft-heard refrain when there are kids in your house.

In school, your kids may constantly complain about how their teachers, other kids, their siblings, and even you are not fair to them. It’s the precursor to “No one understands!” as a teenager…

What if, whenever possible, we applied the rules of evidence to our kids’ situations? And taught them the rules of evidence in the process? Why reinvent the wheel when lawyers and judges have already crafted, revised, and perfected these rules for hundreds of years?

We use these rules for defendants, victims, and witnesses in courtrooms to ensure that we are fair and that we, inasmuch as possible, get to the truth. Why not with our children?

Applying the Rules of Evidence to Your Kids

The rules of evidence contain tried and true methods of discovering the truth while remaining fair to all sides in a dispute.

Applying the rules of evidence – and talking to our children about what we are doing and why – can help us to 1) cut through the bull hockey and get to the truth, and 2) teach our children about logic and critical thinking…


For example, Rule 402 covers what should be a basic assumption about any interrogation or decision-making process – relevant evidence is admissible, while evidence that is not relevant is not admissible.

If little Billy is in trouble because his teacher says that he hit a girl in his class, information about how it happened, why it happened, and the aftermath of the incident will probably be relevant – we want to discover this information from all available sources.

Information about how little Billy’s teacher is just awful and mean, on the other hand, is probably not relevant to the current situation. Keeping a child focused on the relevant information may prevent a child from engaging in “defenses” like “whataboutisms.” “But the teacher is mean,” might be something we need to discuss, but not in the context of why your classmate says that you hit her…

Character Evidence and Prior Bad Acts

Character evidence is generally not relevant to the question of whether and why little Billy hit his classmate – if the teacher tells us that “little Billy is just a bad kid,” for example, that is not information that is going to help us determine whether little Billy hit his classmate on this particular occasion.

Rule 404 provides several exceptions, however:

  • If there is evidence that the little girl in Billy’s class has repeatedly attacked him in the past, that character trait of the “victim” may be relevant in deciding whether little Billy was acting maliciously or defending himself,
  • If a witness – a classmate, the little girl, or Billy’s teacher, has a proven history of lying about Billy, that may be relevant just as a witness’s criminal record for crimes of dishonesty would be relevant in court, or
  • Evidence of little Billy’s prior “bad acts” at school may be relevant – not to show little Billy’s bad character, but when they tend to show “motive, identity, the existence of a common scheme or plan, the absence of mistake or accident, or intent.”

If little Billy has repeatedly hit the same girl in his class in the past, that arguably may show “the existence of a common scheme or plan,” “the absence of mistake or accident,” or “intent” if little Billy claims it was an accident or he did not mean to hit the other child. If there is an ongoing situation where little Billy is mad at the girl, that may show a “motive” for him to hit the girl.

On the other hand, if little Billy got into trouble for fighting with little Tommy last month in an unrelated incident, that has no bearing on whether little Billy hit the little girl in his class on this occasion.

Evidence of Bias

Under Rule 608, evidence of a witness’s bias is almost always relevant and admissible – “[b]ias, prejudice or any motive to misrepresent may be shown to impeach the witness either by examination of the witness or by evidence otherwise adduced.”

If little Billy says that he did not hit the little girl, and there is evidence that the little girl has repeatedly told other students that she hates little Billy and is going to get him into trouble, that is worth considering.

If little Billy says that his teacher hates him and always wants to get him into trouble, that is also something that should be considered (but with a grain of salt, because most kids are likely to claim that their teacher hates them and that’s not necessarily relevant to whether he hit his classmate or not).

Personal Knowledge

A basic rule in the courtroom is that the witness (unless they are an expert witness) must have personal knowledge of the events they are describing.

We do not allow a police officer to testify about what he or she thinks another police officer did at the crime scene, or how the officer thinks the crime may have happened – we want to hear from people who saw the crime, or we want to hear what the officers personally did to investigate the crime.

Testimony from a witness who does not have personal knowledge of the events is inadmissible under Rule 602.

Similarly, we don’t want to hear what little Billy thinks happened in the next room just before he hit his classmate, and we don’t necessarily want to hear what the teacher thinks happened in the hallway. We want to hear reliable information from people who witnessed the events in question.


Under Rule 802, hearsay is inadmissible in court unless an exception applies. Similarly, we should take care to discount (or confirm) little Billy’s, the teacher’s, or other witnesses’ accounts of what other people told them happened.

What is hearsay?

Rule 801 says hearsay is any “statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.”

If the teacher says, “I saw little Billy hit that girl,” that’s the teacher’s statement based on his or her personal observations. If the teacher says, “little Tommy told me that little Billy hit the girl,” that’s hearsay and, unless the statement falls within one of the hearsay exceptions found in Rules 803 and 804, we may need to hear from little Tommy directly or find other information to corroborate what the teacher says little Tommy says.

Of course, we don’t interrupt the teacher and say, “Objection! Hearsay…,” but we may choose to discount hearsay testimony when there are not sufficient “indicia of reliability” for us to reasonably believe the hearsay statement is truthful.

Impeachment – Prior Inconsistent Statements

When a witness – including little Billy – has made a prior inconsistent statement, that is certainly relevant and should be used. Similar to the provisions found in Rule 613, it makes sense that:

  1. The contents of the prior inconsistent statement should be disclosed to the witness (teacher, little Billy, or little Tommy) so they know what you’re talking about, and
  2. There is no need to prove the prior statement “with extrinsic evidence” if the witness admits making it, but, if they do not admit the statement, you may need to prove where the statement was made, to whom it was made, and when it was made.

If the teacher told your husband that little Billy was defending himself, for example, but now the teacher is telling you that little Billy’s attack was unprovoked, you should give the teacher a chance to explain that prior inconsistent statement.

If little Billy told his sister that he hit the girl because she is ugly, but now he is telling you that he was defending himself, you may want to confront him with that prior inconsistent statement to explore and discover the truth.

Applying the rules of evidence to situations that arise with the kids may be helpful because:

  • Teachers and school administrators don’t always apply similar principles, and their information may be unreliable as a result,
  • It can help you to arrive at the truth while being fair to everyone, and
  • It can help your kids to learn critical thinking and problem-solving skills.

Criminal Defense Lawyers in Columbia, SC, and Myrtle Beach, SC

The criminal defense attorneys at the Thompson & Hiller Defense Firm focus exclusively on criminal defense cases in SC. We have obtained dismissals, pre-trial diversion resulting in dismissals, or acquittals following trial in hundreds of criminal cases, and we have a record of proven results.

If you have been charged with a crime in SC or if you think you may be under investigation, call us now at 843-444-6122 or contact us through our website for a free initial consultation to find out if we can help.