INTRODUCTION OF EXHIBITS AT TRIAL THE BASICS

INTRODUCTION OF EXHIBITS AT TRIAL THE BASICS What are exhibits? Exhibits are types of evidence that are tangible. There are basically four types of exhibits. First, there is real evidence (the gun involved in the shooting, the stolen necklace). Second, there is documentary evidence (correspondence between parties, interoffice memoranda, check stubs, contracts). Third, there is demonstrative evidence (photographs of the scene of the accident or crime, or of the cars involved in the accident, or a diagram of the scene of the accident prepared, say, by the investigating officer on the scene). Fourth, effective trial lawyers use demonstrative aids (diagrams of an intersection prepared by the lawyers, computer simulations of accidents, models of the human anatomy, models of buildings or structures, timelines, etc.). One big difference between demonstrative evidence and demonstrative aids is that evidence goes back with the jury during deliberations, whereas aids don t. These aids often require less of a foundation, and sometimes only the judge s permission for use. Why introduce exhibits? Exhibits are wonderful. They break up the monotony of testimony and they allow the jurors to visualize the case in a way that verbal testimony does not. They help transport jurors to the scene of the crime or the accident, where they can see the evidence for

themselves, instead of having to take a witness word for it. All of us have, at some time or another, read a book and later seen the movie. Often we are surprised at how differently the producers have portrayed the characters and the scenes than the images we had in our minds. Exhibits help jurors to see the scene, the characters, the injuries, and the mangled car as they really were. Exhibits also lend credibility to witness statements. Consider the following bit of testimony: The man who fired the gun was unique looking blue suit that had a sheeny kind of fabric to it. If I saw that suit again I d recognize it anywhere! As a juror you would probably still have some doubts. But suppose the lawyer then brought in the suit itself, and it was made of a bright electric-blue velvet with glitter woven in. If the witness then said yep, that s the suit alright, most jurors, having seen the crazy-looking suit, would lose many of their doubts. They would also hold on to the image of that suit as they saw it, and they would be entertained by the break from monotonous questions and answers. Similarly, I could tell you that I saw a horrible wreck on the interstate last week. No amount of verbal description could make you feel how horrible what I saw was like video footage or photographs would. Nor would my verbal description be as exciting or interesting in court as the video or pictures. Documentary exhibits help jurors visualize and therefore remember often-complex contractual, scientific, or medical terms.

We know what exhibits are, and we know why we want to use them, so how do we get them in? The procedure Regardless of the type, when it is time to introduce an exhibit at trial, follow these steps, in this order: Mark the exhibit. Show the exhibit to opposing counsel (most common omission in this sequence). Show the exhibit to the judge or ask her if she wishes to see the exhibit. Ask the judge s permission to approach the witness. Show the exhibit to the witness and lay the foundation (insert the questions you prepared when you determined how the exhibit would come into evidence). The basic four questions to lay a foundation are I m showing you defendant s Exhibit A for identification. Do you recognize this? <yes> What is it? < > How do you recognize it Is it [authenticate with your own description of the exhibit]? This may seem confusing now, but foundation questions are crucial, and are discussed in detail below! Offer the exhibit into evidence (this is the point at which you will have to address the objections you anticipated). I now offer what has been marked for identification as State s exhibit A into evidence. Handle any objections that come up (hopefully you have anticipated them).

Ask the judge for permission to publish the exhibit to the jury. Ask the witness any relevant questions about the exhibit remember that your foundation must establish why the witness is qualified to answer these questions. Quirks in this procedure First, get used to these words: what is marked as Exhibit A for identification purposes this is a weird phrase to use, but once you are dealing with ANY exhibit, you will identify it by the exhibit number/letter for identification from there on during questioning of the witnesses. For example, in a trial the gun is no longer referred to as the gun. It becomes State s exhibit A for identification. The letter is no longer referred to as the letter. It becomes defense exhibit K for identification. A photograph of the scene is no longer referred to as a photograph of the scene. It becomes plaintiff s exhibit 2 for identification. Susie s medical records are no longer referred to as Susie s medical records. They are simply Defense exhibit C for identification. I will show you examples of this, and you will get used to it quickly. This is important because rather than a lawyer telling the jury what an exhibit is, the witness does it and the lawyer is effectively stepping out of the picture. In your closing arguments you will be able to refer back to the evidence by it s normal name like the gun. Second Quirk - Eliminate I d like to from your vocabulary. E.g.

Not I d like to show you I d like to offer Exhibit A for identification purposes into evidence. THIS IS WORNG. Get used to saying At this time I offer Exhibit A for identification purposes into evidence. Do not use I d like to show opposing counsel what I ve marked as Exhibit A for identification purposes into evidence. Rather, use I m showing opposing counsel what has been marked as Exhibit A for identification purposes. Your honor, I d like to ask for your permission to approach the witness should be an authoritative question Permission to approach, your honor? The answer will be yes if you take command of the courtroom. Anything less will irritate the judge. In order to execute the procedure shown above you must practice, and you must prepare. First, ask yourself What Exhibits do I want to get in? List each document, photograph, deposition, diagram of the product, or anything else that you want the jury to see. Then, decide through which witnesses testimonies that exhibit can be introduced into evidence. There may be more than one witness who can do the job. If so, choose the best one and have the other ones as back up. There is always the possibility that, despite your best effort at preparation, the witness will not say what he needs to say to get the exhibit introduced. It is always best to have alternatives available.

Second, ask yourself Why Is the Exhibit Being Used? Determine the purpose for which the exhibit will be used. If the exhibit itself contains information that proves a fact at issue in the case and will be introduced for substantive purposes, then the lawyer needs to think about evidentiary matters such as relevance, authenticity, and hearsay. For example, a lawyer who wants to introduce medical records or business accounting records should be very familiar with evidentiary rule 803(6), which provides for the introduction of records of regularly conducted activity. Have the precise questions you will use to lay the foundation for this exception written out, with a few alternatives, in the event of an objection. Third, ask yourself How would I object to the introduction of this exhibit? Anticipate objections from your opponent and be prepared to explain to the judge why the evidence is relevant, why it should come in, and certainly be prepared to discuss hearsay exceptions when you know they re headed your way. Look at your Federal Rules of Civil Procedure BEFORE you get to trial. Trial Foundations in more detail. As mentioned above, before evidence may be introduced certain evidentiary foundations must be established. A lawyer may have the best "proof" in the world, but if it is not admitted into evidence for lack of foundation, it will be of no use.

What, then, is a foundation? Simply put, a foundation is a series of simple questions that builds support. You can see from the following example how to lay a foundation in direct examination. (Note: This is not a foundation for an exhibit. It simply shows how foundations are built in questioning) Let s say you want to ask a witness What was the color of the light at Perkins and Acadian when the accident occurred? If you simply asked this question, you would draw the objection No foundation. To build a proper foundation you would first have to ask a series of questions like this: Were you at the intersection of Perkins and Acadian at 3:30 in the afternoon on January 28 th of 2005? <yes> Where exactly were you at that intersection? <I was standing on the southeast corner> What were you doing there? <I was waiting to cross Acadian to the north side> Did you see the light controlling the northbound traffic on Perkins at 3:30? <yes> What was the color of the light controlling the northbound traffic on Perkins at 3:30 the afternoon of January 28th, 2005? <it was red> You can see that these questions explain to the jury WHY the witness is able to answer the question, WHY it could be considered reliable, and lead to WHY the evidence is relevant (it must tend to prove or disprove an issue in the case). When the evidence is presented as an exhibit, the foundation

establishes 1) that the witness recognizes the exhibit; 2) that the witness knows what the exhibit is; 3) how the witness knows about the exhibit; 4) that the witness is qualified to talk about the exhibit; and 5) the relevance of the exhibit. You will come to see this and understand it better when you read through the examples that follow. As I said above, there are basically four types of exhibits: real evidence, documentary evidence (writings), demonstrative evidence, and demonstrative aids. Regardless of the type of evidence, whether records, bills, photographs, letters, diagrams, or charts, weapons, contraband, or other a lawyer must lay the proper foundation before an exhibit may be introduced at trial as evidence. Here are several examples of how to lay a foundation. Read them ALOUD, over and over again, and soon enough you will begin to grasp what is going on, and you will understand the reasons (remember that we want the jury to be able to trust that both the evidence being offered and the witnesses testimony about the evidence are reliable)! Real evidence - the foundation is simple What is your name Officer Smith. Were you called to the Chimes Bar on October 31, 2008? Yes. I show you what has been marked as State s exhibit A for identification. Do you recognize it? Yes. What is it? It s the gun I found at the scene. How do you recognize it? I put a tag on it and labeled it. Whose signature is there at the bottom

of the label? Mine. Is State s exhibit A the gun you confiscated at the Chimes Bar that night? Yes. Your honor, I offer State s exhibit A for identification into evidence. (now be prepared to handle any anticipated objections). Documentary evidence similar format. The lawyer must show that the writing is what it purports to be and that it tends to prove or disprove some issue in the case What is your name? Joe Smith. Do you know Sally Lightfoot? Yes. How do you know her? She was my roommate for four years. Do you recognize Sally Lightfoot s signature? Yes, I do. I show you what has been marked as State s exhibit A for identification. Do you recognize this document? Yes. What is it? It s a letter I received from Sally in June of 2005. Do you recognize the signature? Yes. How do you recognize the signature? Sally and I have corresponded by letter every month for the past five years, and that s hers. Is State s exhibit A the letter that Sally sent you in June of 2005 concerning a possible divorce with her husband, Moe? Yes, it is. Your honor, I offer State s exhibit A for identification into evidence. (again, be prepared to handle any anticipated objections). Documentary evidence, while straightforward, can get tricky. More examples are listed at the end of this memo for you to practice with. Demonstrative evidence (say, a photograph) same general concept. The lawyer must show that the photograph can be identified by a

witness who can testify that the photograph is what it purports to be and that it tends to prove or disprove some issue in the case. For example, consider laying a foundation through an investigator testifying against a plaintiff who claims disability in a personal injury case. What is your name? Joe Smith. Do you know Sally Lightfoot? Yes. How do you know her? You showed me a picture of her. Did you see Sally Lightfoot on January 1, 2005? Yes, I did. Where did you see her? At the Country Club of Louisiana. Was she doing anything? Yes. What did you see her do? I saw her play tennis. I show you what has been marked as Defendant s exhibit 1 for identification. Do you recognize this? Yes, I do. What is it? It s a photograph I took. When did you take it? On January 1, 2005. Does the Defendant s exhibit 1 fairly and accurately show us what you saw Ms. Lightfoot do on that date? Yes, it does. Your honor, I offer Defense exhibit 1 for identification into evidence. (again, be prepared to handle any anticipated objections). Documentary evidence, while generally straightforward, can get tricky. More examples are listed at the end of this memo for you to practice with. Demonstrative aids The sky is the limit on types of demonstrative aid. Some are used with witnesses. For this to happen the foundation must show that the witness is competent and that the witness has knowledge of the

subject. The witness must testify that the demonstrative aid fairly and accurately represents what it purports to represent. Last, the judge should be convinced that the aid will assist the witness in explaining a testimony to the jury or will assist the jury in understanding what is being said or demonstrated. Consider using a model of the human spine in a personal injury case. Doctor, I show you what has been marked for identification as Plaintiff s exhibit X. Is this a model of the human spine? Yes. Doctor, does this model fairly and accurately illustrate what the human spine looks like? Yes, it does. Doctor, will the use of this exhibit assist you in explaining a testimony to the jury? Yes. Demonstrative aids are generally not offered into evidence. A prudent lawyer will show these aids to opposing counsel (and perhaps to the judge) before the trial, so as to circumvent any objections in advance. Demonstrative aids can also be used effectively in opening and closing arguments. Some examples: a blowup of the jury verdict form where you can fill in the blanks to show the jury how you hope they will fill them in; a blown-up checklist of points that had to be proven or disproven during the trial. You can check each off as you go through closing to visually show that you have met your burden. Note: Be careful about leaving these aids up after you use them.

They may be used by your opponent to sting you! more on documentary evidence foundations, as promised. Business Records: You should ask the following questions in order to establish the foundation for business records to be admitted into evidence and be considered an exception to the Hearsay Rule: Are you familiar with Exhibit "A" (business records) for identification? Can you identify these documents? Were these documents prepared in the ordinary scope of the business of your company? Where are these documents stored after they are prepared? Where were these documents retrieved from? Is it a regular part of your business to keep and maintain records of this type? Are these documents of the type that would be kept under your custody or control? Offer the documents into evidence.

Tape Recordings: You should ask the following questions in order to establish the foundation for tape recordings to be admitted into evidence: Have you had the opportunity to hear the voice of Mr. X before? How many times have you heard his voice? Tell us how you are familiar with Mr. X's voice? Have you heard the recording marked as Exhibit "B" for identification? Do you recognize the voice? To whom does the voice belong? Move the recording into evidence. Photographs: You should ask the following questions in order to establish the foundation for photographs to be admitted into evidence: I am showing you what has been marked as Exhibit "C" for identification. Do you recognize what is shown in this photograph? Are you familiar with the scene (person, product, etc.) portrayed in this photograph? How are you familiar with the scene portrayed in the photograph? Does the scene portrayed in the photograph fairly and accurately

represent the scene as you remember it on (date in question)? Move the photograph into evidence. Authenticating a Letter: You should ask the following questions in order to establish the foundation for a letter to be admitted into evidence: Are you familiar with the signature of Mr. Smith (person who signed letter)? How are you familiar with Mr. Smith's signature? Show the witness plaintiff's Exhibit "D" for identification. Do you recognize the signature at the bottom of this letter? Whose signature is it? Move the letter into evidence. Diagrams: You should ask the following questions in order to establish the foundation for diagrams to be admitted into evidence: I am showing you what has been marked as Exhibit "E" for identification. Are you familiar with the area located at 16th Street and 12th Avenue in Dade County, Florida? How are you familiar with this area? Based on your familiarity with the area, can you tell us whether the scene depicted in this diagram fairly and accurately represents

the area as you recall it on the date in question? Move the diagram into evidence. Refreshing Recollection: To refresh an individual's memory on a particular matter, you should first establish that the witness does not remember something. Then ask the following questions: Did you at sometime remember this? Did you at anytime prepare a document setting out what happened? Would a review of this document assist you in remembering the matters that we are concerned about today? I am handing you Exhibit "F" for identification. Please review it and tell me if it helps you to remember. Does that document refresh your recollection? Do you now have an independent recollection of the facts? Tell us what happened. Authenticating Handwriting in a Document: You should ask the following questions in order to establish the foundation for a handwritten document to be admitted into evidence: Are you familiar with the handwriting of Mr. Smith? How are you familiar with Mr. Smith's handwriting?

I show you Plaintiff's Exhibit "G" for identification. Do you recognize the handwriting in this document? To whom does it belong? Offer exhibit into evidence. If you are "stuck" in attempting to introduce documentary evidence at trial and do not remember how to do it, just recall the basic steps necessary to establish an evidentiary foundation. Show that the witness is familiar with the document that you are attempting to admit into evidence. Have the witness authenticate the document. Establish that the document is what it purports to be. Demonstrate the documents relevance to the case. After you have accomplished the above steps, chances are that you have laid the proper foundation for the exhibit to be admitted into evidence. You should then boldly offer it as your next exhibit in the case.