- It may amaze you how many lawyers fumble the introduction of exhibits into evidence.
- Failing to lay a foundation for an exhibit is a typical failing of even experienced trial lawyers.
- The following is a checklist to do it right.
Obviously you have to know how to introduce exhibits into evidence. Yet you would be amazed at how many lawyers fumble around and botch the job.
Here’s a check list for how to do it right.
Say, “I request that this be marked as (plaintiff’s) (prosecution’s) (defendant’s) exhibit for identification.” Technically, identifying the object or document in more than very general terms violates the rule against unsworn testimony. While you may or may not be challenged by the opposition, it is improper to identify the exhibit as, for example, “a picture of the plaintiff’s car taken after the collision.” Further, you should permit the reporter or clerk to assign the appropriate exhibit number or letter. That is his domain, and he may well resent any intrusion on it. Of course, if he makes a mistake, it should be called to his attention. Typically reporters or clerks keep a list of the numbers or letters used, and are less likely to make a mistake than you are.
When the case is one with a large number of exhibits, especially where they are similar in nature, it makes sense to agree to the numbering and lettering of exhibits in advance, and even to stipulate to their admissibility. There are many situations, to be sure, when you do not want your adversary to know you have a particular document or exhibit, particularly if its chief value is for impeachment. It is essential, therefore, to know the entire process well for use at trial.
Professor Keeton suggests that the exhibit be offered into evidence before it is shown to opposing counsel. R. Keeton, Trial Tactics and Methods 63 (2d ed. 1973). However, waiting until that time is an invitation to a pointed request from the other side to see the document, which can be embarrassing.
Failing to lay a complete foundation for an exhibit (or for other testimony, for that matter) is a typical failing of even experienced trial lawyers. Unless one is blessed or cursed with total recall, the best method is to have a foundation checklist in the trial notebook for each type of exhibit you plan to use. While the subject of foundations justifies an entire volume, a few of the more typical problems are covered here.
For a photograph of a scene, all that is required is the statement of a witness that the picture is a true and accurate representation of the scene, and testimony that the scene is relevant to the case. The simplest way to lay such a foundation is through an ordinary fact witness. There are instances, however, when one is not available for this purpose. Then the photographer can establish at least part of the foundation, describing the technical details of her photographic process to help show that the picture is a true and accurate representation of the scene it portrays. Laying this foundation does not guarantee the admissibility of the picture, however, because its probative value may be out-weighed by some prejudicial aspect of it. But the foundation is an essential step to its admissibility.
Models and charts are somewhat simpler. For example, in a head injury case, a plastic model of a skull and brain might make a neurologist’s testimony more understandable. The proper foundation for the use of such an exhibit is that the object is an accurate reproduction of the human skull and brain for the purpose of illustrating the testimony of the witness. Absolute accuracy is not the test, and the model or chart need only be as detailed and accurate as required by the function it is to serve.
Some courts take a relaxed approach to such exhibits and do not even require a foundation to be laid to permit their use. Others, however, insist on their being marked, a foundation laid, and formal introduction into evidence. This is an important step to have a complete record and to allow the exhibit to be taken to the jury room. Thus, it is often the better practice to take the trouble to make a formal introduction. With the court’s permission, a description or picture can be substituted for the exhibit for inclusion in the record at the close of trial.
When something is used to refresh a witness’s recollection, it is not itself introduced into evidence. Nevertheless, some courts require such items—typically documents—to be marked for identification, and it often is best to do so. This is especially true since the foundation for the admissibility of past recollection recorded includes the inability of the witness to have his recollection refreshed by the document. Stated briefly, the require- ments for the admissibility of past recollection recorded are:
With real evidence—such as murder weapons, defective machinery in a products liability case, and other such exhibits that are the things themselves—the foundation may be complicated by the need to show a chain of custody. The requirement is to show from whose custody the object is produced, who had custody in a continuous chain from the relevant time, and that the object is in the same condition as when originally received. The trial court has discretion, when the object is readily identifiable and not subject to easy tampering, to admit the object on merely a foundation that it is in substantially the same condition as at the relevant time. The court, however, can require a meticulous chain of custody when the object is subject to change, is not easily identifiable, or may easily have been tampered with.
When you cannot establish a chain of custody, all is not necessarily lost. The trial court may exercise its discretion to admit a model or duplicate for the purpose of illustrating testimony. The object that fails to pass the chain of custody test may qualify for these purposes.
Too often this step is overlooked, with the result that the jury cannot take the exhibit to the jury room with them, or they do so improperly. It can be a fatal omission.
The offer should be as follows: “Defense exhibit 14 for identification is offered into evidence.” Some courts prefer all exhibits to be offered into evidence at once, usually near the time the party rests. This practice saves time and makes an accidental omission less likely. This procedure, however, keeps the exhibit from the jury until admission or blinks at the prohibition against testimony concerning an exhibit—as opposed to testimony authenticating it—until it is formally admitted in evidence. Arguably, therefore, it is the better practice to offer the exhibit directly after authentication and examination by opposing counsel whenever you want the jury to view the exhibit right away or when there is to be additional testimony concerning it.
If the judge does not already have a copy of the exhibit, the right time to show it to him is simultaneously with the formal offer into evidence.
Because it is possible to have laid a prima facie foundation for the admissibility of an exhibit that is nonetheless inadmissible, opposing counsel can conduct a preliminary examination of the witness on the apparent foundation. Whether such an examination will be permitted usually lies within the discretion of the trial court.
When done properly, this form of examination is not preliminary cross-examination of the witness generally, but only as to those matters that relate to the apparent foundation that is being tested. Moreover, it is usually better not to ask for a voir dire examination unless you feel there is a good chance that the exhibit will be excluded as a result. Should the court rule that the objection goes to the weight rather than to the admissibility of the exhibit, there is the danger that the jury will interpret the ruling as a statement that your attack was legally without force and should be ignored. Therefore, unless you feel you have a good chance to exclude the exhibit, it is better to save your attack for cross-examination.
While some trial lawyers feel to the contrary—that two cross-examinations of a witness are better than one—use of the voir dire examination of a witness for that purpose is impermissible. And while some judges have never heard of a voir dire examination of a witness, others know the procedure well and are quick to cut off examination that goes beyond its appropriate scope.
If the judge forgets to make a ruling, ask for one.
Any testimony about the exhibit not necessary as a foundation to its introduction should only come after it has been admitted into evidence.
Trial courts usually permit copies of pictures and documents to be distributed to the jury. When you want the jury to look at something during the testimony concerning it, it is useful to have a copy for each juror or an exhibit large enough for all jurors to see at once. Giving the jury exhibits is important, since they are permitted to take them into the jury room for use during their deliberations—a procedure that heightens the impact of demonstrative evidence considerably. However, testimonial exhibits, such as depositions, are usually not permitted in the jury room, on the theory that the jury will give disproportionate weight to that testimony. See H. H. Spellman, Direct Examination of Witnesses 98–107 (1968).
If only a portion of an exhibit is relevant, such as one entry in an entire log or record, it is customary to request the court’s permission to read from the exhibit, identifying what excerpt is being called to the jury’s attention. The rule of completeness, the antidote to unfair selectivity, permits the opposition to present explanatory or modifying materials from the same exhibit.
This piece is an excerpt from McElhaney's Trial Notebook (4th ed. 2006).