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Preparing Your Exhibits For Court

 

As you prepare your case for trial much of your energy will be focused on keeping orderly track of the exhibits you intend to present to prove your case. This process of orderly presentation and authentication of evidence is so critical to the outcome of trial – the verdict literally resting on its success or failure – and the rules governing that process so intricate, that almost invariably, pro se litigants trip up and fall short.

 

Typically, this process comes to a boil at trial as the judge interrupts a party attempting to introduce an exhibit to say that the item is inadmissible due to some procedural lack. The judge will then often explain the requirements patiently to the pro se and ask if he has prepared whatever steps are needed to make the exhibit admissible. Often the sad scene ends with the offending litigant stumbling through an explanation while the bench issues a disheartening ruling that the exhibit be set aside and orders the pro se to proceed with the rest of his case, if he still has one.

 

Judges too are probably more frustrated by this one shortcoming – the inability of self-represented litigants to admit and authenticate exhibits – than perhaps any other single area of inexperience. Judges aren’t only interested in the process; they’re in business to see justice done. Few things are as frustrating for the bench as having to deny some little guy litigant a critical exhibit that would no doubt lock down his claim because it can’t be authenticated or is otherwise procedurally inadmissible.

 

The litigant is under no obligation to introduce exhibits but there are some clear benefits that weigh in favor of doing so. Drawing back to what we learned about persuasion in Chapter 2, exhibits contribute to the overall persuasiveness of your case, giving you an opportunity to tangibly show the judge or jury instead of merely telling them about some crucial element of your claim. Pictures of an accident scene or damaged property, for example, are far more persuasive than reams of narrative testimony. Additionally, exhibits can be held and examined by the jury or judge at the point of decision-making, when oral testimony may have already been forgotten. Witnesses too can benefit from exhibits, even those called to authenticate the exhibit itself, because people are almost always more confident and credible when discussing objects of concrete, material substance over ideas things that exist only in theory or concept.

 

Simply put, exhibits are the tangible objects offered at trial to help convince the judge or jury of the merits of your claim. They may be letters, contracts and other documents, photographs, tools, clothing, whatever physical object connects your claim to the actual events in dispute.

 

The process of admitting an exhibit into evidence generally follows a three-step process:

 

Step 1.             Mark the exhibit for identification, allowing your opponent to examine it.

Step 2.             Identify and authenticate the exhibit, directing questions toward the witness to establish foundation.

Step 3.             Ask that the exhibit be entered into evidence.

 

As you bring each exhibit to the attention of the court, in order for the judge to allow it to be recognized and admitted into evidence, it must be authenticated, or proven through testimony (yours’ or your witness’s) to be relevant, material to the proceedings and competent, as we discussed in the earlier section on evidence. This process of authentication is also known as “laying a foundation” or “foundational testimony.” The judge will weigh the technical adequacy of your foundations to determine admissibility.

 

Think about it…

Reach as many pre-trial stipulations with your opponent as possible and be willing to work with him on his stipulations. Stipulations can help reduce the time at trial by permitting exhibits to be entered into evidence without the need for testimony and authentication. Get your stipulations in writing to prevent your opponent from suddenly losing his memory in court. They can be easily composed one-sentence agreements: “Plaintiff ____ and Defendant ___ hereby stipulate that the ______ may be admitted into evidence in our case ___ v. ___.” Make a place for both of your signatures with a line for the dates and submit your stipulations to the judge at the pre-trial conference.

 

Establishing foundation for your exhibits can be a complicated affair since there are almost as many different sets of requirements as there are types of exhibits. For example, signed contracts, check stubs, business records and letters are document types commonly introduced in trials. It is likely that your own case will include one or more such exhibits. Yet, each has different foundational requirements. Tangible object exhibits, photographs and film, sound and video recordings, diagrams and maps – all are common types of evidence with their own rules for foundational authentication.

 

As a starting place to help you prepare your exhibits, refer to the chart below for foundation requirements for different types of exhibits. Since we can only cover a few of all the very many different types of evidence, chances are good that you will want to include something not covered in the appendix. In that case you have to do some additional research to discover authentication foundations.

 

Type 

Foundation Requirement 

Critical Question For Witness 

 

 

(Remember, most courts allow leading questions to establish foundation) 

 

 

 

Actual Evidence, Material Objects 

Item must be what it is reported to be. 

“Looking at the exhibit, is this item [what it is reported to be]?” 

Photographs 

Photo is an accurate reflection of the scene or situation on relevant date 

“Looking at the photograph, does it fairly and accurately represent what you saw?” 

Diagrams / Maps 

Witness is familiar with the scene and diagram is fair representation of scene or event. 

“Are you familiar with [place or situation depicted on the map / diagram]?” 

“Looking at the exhibit, does it fairly represent what you are familiar with?” 

Signature documents, Letters, Contracts, Checks, Wills, Promissory notes, (Non-hearsay)  

Establish that letter is the same as when the witness received or sent it. The signature must be that of the individual who appears to have signed it. 

“Looking at the exhibit, do you recognize this as the letter you [sent or received]?” 

“Do you recognize the signature at the end of the letter?” 

Business Records, Invoices, Government and Computer records, Telephone memos, etc., * 

Establish that the witness is qualified to testify about the record. Establish that the record was created during the normal course of business. Establish that it was prepared around the time of the events in question. And establish that the way the business creates its records suggests the document is trustworthy. 

“Are you employed by [the business which generated the record]?” 

“Did your company create the [business record] which is being offered as an exhibit and when did they create it?” 

“Can you explain how such records are generated by your firm and how those records are maintained?” 

Copies 

Establish that an executed original actually existed, that it is unintentionally lost or otherwise unavailable, that copies of that original were made and that the exhibit is a true and accurate copy. 

“Your honor, the original version of this document is unavailable because …” 

(To the witness) “Looking at the exhibit, did you make this copy from the unavailable original?” 

“Did you have personal contact with the original document in question, and is this a fair and exact replica of that original?” 

 



*(Refer to Federal Rule of Evidence 803 (6), New York Code of evidence § 803 (c) (5), California Evidence Code § 1271

 

Generally, introducing an exhibit begins with the party asking the court to admit whatever item is being considered as “exhibit number one.” Then, you will begin your questioning to establish foundation. Once that is complete – and usually if you have additional points to be made concerning the exhibit, such as marking a diagram to illustrate the timing of an auto accident – you will do those things at this time and close by asking that the exhibit be entered into evidence.

 

Remember to keep from running afoul of the other rules of evidence, (e.g., hearsay, best evidence) because at the end of your presentation, when you ask that your exhibit be admitted, the judge will likely ask your opponent if he or she has any objections. If your exhibit doesn’t square up with these requirements, it won’t be admitted.

 

If you lose track your train of thought during questioning or become stuck trying to authenticate an exhibit, settle down and try to recall the basic steps necessary in establishing evidentiary foundations:

·       Show that the witness is familiar with the exhibit you are trying to introduce into evidence.

·       Have the witness authenticate the item, validate that it is what it is purported to be.

·       Demonstrate that the exhibit is directly relevant to the case.

 

 

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