The Definition of Extrinsic Evidence in Legal Usage
Defining Extrinsic Evidence in Evidence Law
To fully grasp the breadth of extrinsic evidence and its role in the law, it’s essential to define it from an evidentiary standpoint. The term "extrinsic" is derived from the Latin root word "ex," the English derivative of which is "out of" or "from within." So extrinsic evidence is simply evidence that originates from outside the aspect of the claim at issue in directing the court or jury toward a proper resolution of that claim. In the realm of evidence, the claim at issue is whether the evidence can enter the courtroom and be considered by the decision-makers in reaching a conclusion regarding the verdict. Extrinsic evidence voices many forms, though it is typically divided based on the category of knowledge the evidence is trying to convey. To illustrate these categories, consider a document presented as evidence in a lawsuit—a deed for the sale of property, a will, an answer to interrogatories, a deposition, an affidavit, purchase orders, contracts, invoices, bills of lading, etc . Each of these "instruments" or "papers," as they are commonly known, only tell part of the story of what the parties think they have in their possession. The truth is that whether the document is written, printed, recorded and/or published, it is merely an instrument designed to memorize thoughts, oral statements and utterances into words. The meaning of the documents could be altered by language or intent and is therefore incomplete. The existence of a second form of understanding, however, is based in the meaning or intention of the parties and any shared understanding of the language used. In legal terms, this second category is known as the "extrinsic" meaning or intent that the parties had when they actually formed the contract or otherwise originated the piece of evidence being offered up for inspection. As a result of the difference between the two understandings, the distinction between "intrinsic" and "extrinsic" evidence is crucial to determining whether or not the document can be considered for purposes of reaching a verdict. Now that you understand how extrinsic evidence is defined, let’s look at how it is applied in the courtroom.
The Distinction between Intrinsic and Extrinsic Evidence
The primary difference between intrinsic evidence and extrinsic evidence is that, by definition, the former is, as the name implies, internal to the document itself. The cardinal example is a signature, which without more, would never be extrinsic evidence. Likewise, an attestation clause, which requires a subscribing witness to attest to the execution of a document, is intrinsic. By contrast, anything that is added to a document after its execution is extrinsic. A marking, notation, or other writing in the margin of a document added after its execution is extrinsic.
A classic example of extrinsic evidence are the initials of a subscribing witness that appear immediately after the signature of the person whose signature is being attested to is deemed to be extrinsic evidence. As alluded to above, an attestation clause is intrinsic; however, the signature of the subscribing witness is extrinsic because it appears long after the document was finalized. The reason why this is the case is because the effect of the initials on the legal enforceability of a document is simply to add another person who could be sued on the document. By contrast, an attestation clause is intrinsic evidence because it serves to create the conditions upon which the document should ever be discussed or interpreted.
An additional example of extrinsic evidence are notary acknowledgments. While a notary acknowledgment is outside the document, the presence of the notary on the document itself is intrinsic evidence. A notary acknowledgment and attestation clause both serve to confirm the authenticity of what is already contained within the document, while the initials of a subscribing witness are used to add additional parties on a document.
The Legal Tests for Extrinsic Evidence Admissibility
In the context of the US legal system, the term "extrinsic evidence" refers to evidence that is derived from outside of the contents of a legal document or statement, or from outside of the exact context of the situation being scrutinized by the courts. This can include documents and testimony regarding intent, or documents and testimony from which stipulations regarding the context of the subject may be inferred. In the context of property or deed law, for example, extrinsic evidence can be used to determine the actual grantor or grantee or to ascertain the specific meaning of a term in a deed or document, even when no explicit definition of that term is provided.
When the courts are faced with a precondition regarding the admissibility of extraneous evidence in order to establish a probative fact, they must first determine a number of associated factors which may ultimately decide whether or not the evidence is admissible. Some of these factors include the relationship of the extrinsic evidence to the action being examined, the intent of the parties relevant to the extrinsic evidence, the possible interpretation of the evidence, and the likelihood that the eventual decision by the courts will rest on circumstantial evidence rather than solely on the extrinsic evidence. When the evidence is admissible under the law, this is referred to as the "legal criteria for admissibility of extrinsic evidence."
Examples of Extrinsic Evidence in Court Judgments
One prominent case is Universal Pictures Corporation v. Harold Lloyd Corporation. In this case, a copyright infringement action was filed in order to determine whether alleged quotations and images from the movie Safety Last were copyrighted. Various Still frames compared with Safety Last showed that defendant’s films had the same camera angle and order of sequence as plaintiff, such that extrinsic similarities could be found by the court. Nevertheless, the court found that the use of the images were under the fair use exception as it was used for parodic purposes.
Another example can be found in Tanaka v. University Systems of Georgia. Here , students made a copyright infringement claim against a board and the university after course syllabi and other materials were provided without permission. The court found that because the syllabi were only provided to students individually and only to students, there was no infringement of copyrighted material.
A further example can be found in Mattel, Inc. v. MCA Records, Inc. Here, Mattel sued MCA records, the maker of "I’m Too Sexy", for infringement of their copyrighted "Barbie" doll image in the music video. The court found that the use of the "Barbie" image was clearly parody and therefore did not infringe on Mattel’s copyright.
How to Exclude and Provide Challenge to the Use of Extrinsic Evidence
A common approach to dealing with extrinsic evidence that is inadmissible on its face is to object to its admission. This objection may be based on statutory or common-law rules concerning evidence. It may also be based on an evidentiary ground that is subsumed by a general objection. Examples abound in the Federal Rules of Evidence, where hearsay is a relevant topic. See Delaware v. Van Arsdall, 475 U.S. 673, 679 (1986) (reversible error to allow objectionable hearsay evidence); United States v. Crumpton, 145 F.3d 126, 128-29 (2d Cir. 1998) (objectionable hearsay witnesses exceeded permissible scope of Rule 804(b)(1) by offering their own interpretations of extrinsic evidence); Campbell v. Greene, 440 F. App’x 759, 761 (10th Cir. 2011) (recognizing that district court erred by failing to adhere to hearsay rule, but issuing a harmless error analysis). Another ground on which extrinsic evidence may be excluded is attorney-client privilege; under Federal Rule 502, when there is a waiver of "the attorney-client privilege," such a waiver does not operate as a waiver of "the attorney-client privilege and the work product protection." (emphasis added). Fed. R. Evid. 502(a)(1)-(2); see, e.g., Hercules Inc., 303 F. Supp. 2d at 757 (finding attorney-client privilege waived for extrinsic evidence, but not as to work product, if underlying documents were subject to attorney-client privilege and were in control of litigant). A party may also object to extrinsic evidence that is cumulative or unduly burdensome; the Federal Rules of Evidence allows a court to limit the presentation of overly duplicative evidence. Fed. R. Evid. 403, 611(a). With respect to statutory grounds that may bar admission of extrinsic evidence, Federal Rule 609(a) permits a party to "impeach a witness with extrinsic evidence of a prior felony conviction" and provides a mechanism to preclude a party from introducing such prior convictions or evidence showing the conviction. See, e.g., Martinez v. Dawson, 120 Fed. App’x 529, 531 (10th Cir. 2005) (finding extrinsic evidence of impeachable witness should have been excluded); Spica v. Munoz-Zayas, 149 F.3d 648, 652 (7th Cir. 1998) (finding that extrinsic evidence of impeachable witness should have been admitted). Finally, a court may exclude extrinsic evidence under its inherent powers pursuant to the doctrine of res judicata or claim preclusion. Claim preclusion is an issue of law as well as an inherent power of a court. As the Seventh Circuit explained in G & H Distributors, Inc. v. Cont’l Motors, Inc., "[i]n all jurisdictions, claims that could have been brought in a prior suit are barred under the doctrine of res judicata, or claim preclusion."
The Impact of Extrinsic Evidence in a Dispute Regarding a Contract
Just as extrinsic evidence is used to clarify the meaning of terms in contracts, it also plays a critical role in resolving contract disputes. Here, the extrinsic evidence helps to resolve ambiguous situations such as latent or patent defects, and also is instrumental in determining whether there was common fraud or accident present. In the contract context, the addition of extrinsic evidence also aids in the resolution disputes of the effect of omissions of terms in cases of agreements that are ultimately not integrated. Integration refers to the final document or documents in which the agreement between the parties is set forth. Extrinsic consequently may play an important in establishing the meaning of the integration of the agreement. Similar to other areas of law, extrinsic evidence plays an important role in resolving ambiguities within the contract context. The application of extrinsic evidence in contract disputes or for the clarification of contract terms, is appropriately limited by the parol evidence rule . The parol evidence rule indicates that when a contract is intended to be integrated, that agreement and any prior understanding or contemporaneous external agreement may not be added to or supersede the writing, unless in the case of fraud or accident or to clarify the meaning of a term. However, even if an agreement is integrated, extrinsic may still be admissible for the purpose of determining the effect of the missing terms in the event that the agreement is no longer integrated. In the case of an integrated agreement, extrinsic evidence may only be used to resolve ambiguity within the contract. While courts will allow some amount of extrinsic evidence as it applies to the four previously-mentioned exceptions (i.e., fraud, accident, latent and patent defects) this is typically limited to the factual matters, and not for the purpose of adding on to or changing the term of the contract. In determining whether extrinsic evidence is admissible in contract disputes, courts consider the intent of the parties, determined by reference to the writing or writings involved, as well as other relevant circumstances. While extrinsic evidence is useful in contract disputes, if the contractual language is clear from extrinsic evidence, courts may deny the request for extrinsic evidence.