Definition
A demurrer to evidence is a procedural device, historically available at common law in jury trials, by which a party concedes the truth of all evidence presented by the opposing party but contends that such evidence is legally insufficient to sustain the issue or support a verdict in that party's favor. The party demurring, in effect, says: "Even if everything you have shown is true, it does not amount to a legally cognizable case."
Upon joinder in demurrer — that is, when the opposing party formally accepted the challenge — the jury was discharged and the question was referred entirely to the court for legal determination. The demurrer to evidence was thus a mechanism for obtaining a ruling of law on the sufficiency of proof without requiring the jury to deliberate.
The device is now practically obsolete in American courts, having been supplanted by the motion for directed verdict (and its modern successor, the motion for judgment as a matter of law) and, in criminal practice, by motions for acquittal at the close of the prosecution's evidence.
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Common Language
Wiktionary defines "demurrer" in this context as: "A stop or pause by a party to an action in order to ask the court to determine the question of whether the evidence as it stands ought to be admitted, based on the law of admissibility of evidence."
Webster's 1913 defines "demur" generally as: "To delay; to pause; to suspend proceedings or judgment in view of a doubt or difficulty; to hesitate; to put off the decision of a question."
Editorial note: The Wiktionary definition conflates the demurrer to evidence with an evidentiary objection going to admissibility — two entirely distinct proceedings. The demurrer to evidence does not concern whether evidence should be admitted; it accepts the evidence as admitted and true, then challenges its legal sufficiency to sustain the case. Researchers who encounter either definition in popular or secondary sources should be cautious about this mischaracterization.
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Common Confusion
DEMURRER TO EVIDENCE vs. DEMURRER TO PLEADING: A demurrer to a pleading challenges the legal sufficiency of what an opposing party has alleged on the face of the pleadings, before any evidence is introduced. A demurrer to evidence operates after proof has been presented at trial and challenges the sufficiency of that proof. The two share the same underlying logic — accepting what is offered as legally true while denying its sufficiency — but they arise at entirely different stages and address entirely different materials.
DEMURRER TO EVIDENCE vs. MOTION FOR DIRECTED VERDICT: These are functionally equivalent devices that replaced one another across time. The critical historical difference is procedural: under the strict common law form, a party joining in demurrer to evidence waived the right to dispute the facts and was bound by the evidence as presented. A motion for directed verdict carries no such waiver and is far more flexible. Researchers reading older American decisions may find "demurrer to evidence" where modern practice would use "motion for directed verdict" or "motion for judgment as a matter of law."
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Why It Matters in Research
The demurrer to evidence is a trap for researchers working with American cases from roughly 1780 through the mid-nineteenth century. During this period the term appears with some frequency in both state and federal decisions, particularly in jurisdictions that retained close adherence to common law forms. After roughly 1850, it fades progressively from primary sources, though it persists in treatises and digests well into the twentieth century as a historical reference point.
Three specific research hazards:
First, older digests and encyclopedias often discuss the demurrer to evidence under the general heading "demurrer," without clearly distinguishing it from the pleading demurrer. Researchers running keyword searches across historical corpus materials should expect both devices to appear under the same headwords.
Second, the device had real bite: the party who tendered a demurrer to evidence, if overruled, could face judgment against them on the very evidence they had conceded as true. This procedural consequence is not always clearly explained in older case summaries, and can produce confusion about why a party that seemed to prevail on the facts nonetheless lost on appeal.
Third, the demurrer to evidence has never been fully abolished by statute in all jurisdictions — it lingered in a few states' procedural codes and case law long after federal practice moved on. Virginia, in particular, retained the demurrer to evidence in civil practice well into the twentieth century. Corpus researchers working with Virginia materials will encounter the device as live procedure in sources where it would be purely historical curiosity elsewhere.
For researchers working in the criminal law space, the functional successor devices — motions for acquittal and motions to suppress — are covered in the Encyclopedia entries cross-referenced below, but neither is a direct analog. The demurrer to evidence was a trial device going to sufficiency, not admissibility, and not to constitutional suppression.
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Historical Dictionary Support
Burrill's Law Dictionary provides the most precise and useful definition among historical sources, describing the device as an objection "to the evidence produced by the opposite party on the trial, as being insufficient in law, (admitting it to be true in fact,) to maintain or overthrow the issue; and referring it to the court to determine what the law is upon the facts as shown in evidence." Burrill's parenthetical — "admitting it to be true in fact" — is the crucial phrase, and it is the element most often dropped or obscured in secondary references. The citations Burrill offers (Blackstone's Commentaries, Stephen's Commentaries, and H. Bl.) confirm this as settled common law doctrine.
Black's Law Dictionary is consistent with Burrill but adds the significant label "now practically obsolete," a characterization that was accurate at the time of Black's earlier editions and which correctly signals to corpus researchers that primary law sources after a certain date will not employ the device in live practice.
Rapalje & Lawrence, as reflected in the available excerpt, adds nothing specific to this entry and redirects to their general demurrer treatment.
What historical dictionaries collectively underemphasize: the joinder requirement. A demurrer to evidence required the opposing party to formally join before the jury was discharged. If the opposing party refused to join, the demurrer could not proceed in its strict form. This procedural detail matters for reading cases where a demurrer to evidence is attempted but does not result in a court ruling on sufficiency — the explanation is often that joinder was refused or the court declined to treat the motion in its formal common law character.
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Jurisdictional Note
Virginia's retention of the demurrer to evidence in civil practice is the most significant jurisdictional outlier. Several Southern states preserved common law forms longer than Northern and Midwestern jurisdictions, and researchers working with those materials should not assume the device is purely historical. In federal practice, the demurrer to evidence was effectively displaced by the directed verdict mechanism under the Federal Rules of Civil Procedure.
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Encyclopedia Cross-Reference
The Law Mind Criminal Law Encyclopedia: Rules of Evidence in Criminal Cases (Overview) — for the modern framework governing sufficiency of evidence challenges that replaced the demurrer to evidence in criminal practice.
The Law Mind Criminal Law Encyclopedia: Pretrial Motions — Motion to Suppress Evidence — context for distinguishing the demurrer to evidence (sufficiency, at trial) from suppression motions (admissibility, pretrial).
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