Also known as: direct evidence · derivative evidence · direct vs derivative evidence
Written by attorneys · grounded in primary & secondary sources — see below
Evidence of a donor's intention consisting of the donor's own declarations, documents, or testimony, as distinguished from circumstantial evidence drawn from surrounding facts and circumstances.
Dominic Drake executed a will devising property to my cousin John. After Drake's death, extrinsic evidence showed he had no cousin named John but had a nephew named John. Drake's letter to his lawyer stating he meant the nephew supplies direct evidence of intention that the court may consider to resolve the latent ambiguity without contradicting the text's plain meaning.
Deborah Dunn created a trust stating income to my son but her lawyer's file notes and her signed memo both record her intent to benefit her daughter instead due to a scrivener's error. Clear and convincing direct evidence of her intention allows reformation of the trust document to match that intent.
Select any source to read its text and confirm it supports the definition.
In a criminal trial, an expert relies on an out-of-court lab report to conclude that a defendant's DNA matched a sample. The report itself is direct evidence of the match while the expert's opinion derived from it constitutes derivative evidence whose admissibility turns on whether the underlying statements are testimonial.
Police illegally interrogate a suspect who leads them to a victim's body. Direct evidence of the body's location is excluded, but derivative evidence of the same location is admissible when the prosecution proves by a preponderance that a separate search team would have found the body anyway.
Officers execute a search warrant later found invalid. Direct evidence seized during the search is admissible because the officers relied in good faith on the warrant, and any derivative evidence obtained from that seizure is likewise not subject to exclusion.
After receiving Miranda warnings, a defendant remains silent when asked about an alibi. Prosecutors may not use that silence as direct evidence of guilt or as derivative evidence to impeach the defendant's later trial testimony.
Direct evidence consists of the donor's own declarations, letters, memoranda, or statements to the drafting agent. Other extrinsic evidence includes circumstantial facts surrounding execution or post-execution events that do not contradict the text's plain meaning.
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No. Direct evidence of intention that contradicts the plain meaning does not create a latent ambiguity. Reformation under a separate rule may still be available if clear and convincing evidence shows mistake and the donor's true intent.
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Post-execution statements may be considered when they relate back to the donor's intention at the time of execution. Such statements function as direct evidence and are admissible alongside circumstantial evidence from surrounding circumstances.
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…application of the Confrontation Clause to unsworn testimonial statements a moot point, that would merely change our focus from direct evidence of original meaning of the Sixth Amendment to reasonable inference. We find it implausible that a provision which concededly condemned trial by sworn ex parte affidavit thought trial by…