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What does "Probative" Mean?

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  • Written By: Jodee Redmond
  • Edited By: Bronwyn Harris
  • Last Modified Date: 29 October 2016
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Probative is a legal term used to describe evidence relied on a trial or a hearing. If it proves a fact or an issue before the court, then the evidence is probative. Any evidence admitted into the proceeding must be done in conjunction with the Rules of Evidence that are in effect in that jurisdiction.

When an attorney is attempting to build a case or put up a defense, he or she introduces evidence to convince a judge or a jury to accept his or her version of the facts. These probative facts help to do so. They include items collected at the scene of a crime, accident or other incident, as well as witness statements.

An expert in a specific area of knowledge may be called to appear in court to give evidence. The person will be asked to provide information about his or her credentials, including his or her educational and professional background. Once the fact that the expert is qualified to provide evidence has been entered in the official record, his or her answers are considered probative unless the other counsel objects. If the judge determines the oral evidence given is not relevant, it will be stricken from the official record.

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As long as the evidence presented in court can be used to prove a fact, it is probative. One of the lawyers acting for a party to the action or application can object to the evidence being put forward being admitted. The judge will then decide whether it is admissible and should be considered to make a decision.

Even if evidence is probative, it doesn't necessarily follow that it will be allowed to remain as part of the record. Lawyers for either party to the action or application can object to its inclusion on a number of grounds. For example, if the evidence as admitted would be unduly prejudicial to a person accused of a crime, the judge may rule that it should be not admitted.

Probative evidence may also be excluded if one of the attorneys can convince the court that it is not relevant to the matter at hand. Evidence may also be excluded if it is considered too remote from the issue being heard or a waste of the court's time to consider it. A ruling about whether to allow certain evidence to be part of the official record can be grounds for appeal due to a judicial error if one of the parties is not satisfied with how the matter was decided.

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