ARKANSAS LEGAL AID

OCTOBER 17, 2013

BY MICHAEL JOHNSON AND PAULA CASEY

EXHIBITS

PURPOSE?

Why do you want the exhibit?What will you say to the jury in

closing about it?Who do you need as a witness to do

that?What do you need to be true about

the exhibit to do that? (Foundation)

Six Steps for ExhibitsSix Steps for Exhibits

MARK it for identificationSHOW it opposing counselGIVE it to the witnessLAY the FOUNDATIONMOVE it into evidencePUBLISH it

1. MARK the EXHIBIT1. MARK the EXHIBIT

Pre-mark if the Court permitsThe exhibit becomes a distinct item,

with a unique name for the record““Marked for identification as Marked for identification as

Exhibit 1”Exhibit 1”Introducing exhibits in sequence does

not matter

2. SHOW to opposing counsel2. SHOW to opposing counsel

Counsel has a right to see and examine exhibit

“Let the record reflect that I am showing what has been marked for identification as Exhibit 1 to opposing counsel”

Opposing Counsel: always physically take control of the exhibit and inspect it

3. GIVE to the witness3. GIVE to the witness

Ask judge’s permission to approach the witness

Tell the jury (and the record) what you are doing““I am handing you what has been I am handing you what has been

marked for identification as Exhibit marked for identification as Exhibit 1”1”

First Question: “WHAT IS IT?”“WHAT IS IT?”

4. LAY the FOUNDATION4. LAY the FOUNDATION

Two admissibility requirements:RelevanceFoundation pursuant to evidentiary rules Authenticity Hearsay/Best Evidence

5. MOVE exhibit into evidence5. MOVE exhibit into evidence

“We move for admission of Exhibit 1 into evidence”

“We offer Exhibit 1 into evidence”

6. PUBLISH the exhibit6. PUBLISH the exhibit

USE IT Have witness testify about itShow it to the jury

Display by computer, ELMO, etc. Give it to the jury Have witness read it

RELEVANCERELEVANCE

FRE 401: “any tendency to make a fact [of consequence] more or less probable than it would be without the evidence”

Connect the EXHIBIT to the case Temporal connection Party connection Subject matter connection

AUTHENTICITYAUTHENTICITY

FRE 901(a): “…sufficient evidence to support a finding that the item is what the proponent claims it is.”

FRE 901(b): 10 examples of authenticating items

FRE 902: Evidence that is Self-Authenticating

AUTHENTICITYAUTHENTICITY

Uniqueness Some items are “unique” by their nature

Only have to be “unique” to the witness identifying it

“Marking “ item makes it unique Police procedures “Bates” stamps

Chain of custody Proof that an item is what it is claimed to be

by tracing Also utilized for perishable items to prove the

item is unaltered

FOUNDATIONSFOUNDATIONS

Real evidence“same condition” as it was at

“relevant time”“unadulterated” if it is a perishable

Drugs Products

“Fair and accurate representation” at relevant time for photograph

FOUNDATIONSFOUNDATIONS

Contents of documentsPurpose for admission?Hearsay exception

Business record (FRE 803(6)) Public record (FRE 803 (8))

Best Evidence Rules (FRE 1001-1005)

OBJECTIONS TO EXHIBITSOBJECTIONS TO EXHIBITS

RelevanceFRE 403: Balancing between PROBATIVE VALUE and Unfair prejudiceCumulativeWaste of timeConfusing and Misleading the Jury

OBJECTIONS TO EXHIBITSOBJECTIONS TO EXHIBITS

Curable ObjectionsWitness lacks personal knowledgeImproper Foundation

Proponent has the right to know what is lacking—Ask through the judge what aspect of foundation opposing counsel contends is missing

VOIR DIRE VOIR DIRE

Opponent of exhibit may question witness as to foundational elements, including personal knowledge, before stating whether he/she objects to the admission of the exhibit

Cross-examination techniqueCannot go into substantive issues