EXHIBITS
ARKANSAS LEGAL AID
OCTOBER 17, 2013
BY MICHAEL JOHNSON AND PAULA CASEY
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 Exhibits
 MARK it for identification
 SHOW it opposing counsel
 GIVE it to the witness
 LAY the FOUNDATION
 MOVE it into evidence
 PUBLISH it
1. MARK the EXHIBIT
 Pre-mark if the Court permits
 The exhibit becomes a distinct item, with a
unique name for the record
 “Marked for identification as Exhibit
1”
 Introducing exhibits in sequence does not
matter
2. 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 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
marked for identification as Exhibit 1”
First Question: “WHAT IS IT?”
4. LAY the FOUNDATION
 Two admissibility requirements:
Relevance
Foundation
pursuant to evidentiary
rules
Authenticity
Hearsay/Best Evidence
5. MOVE exhibit into evidence
 “We move for admission of Exhibit 1 into
evidence”
 “We offer Exhibit 1 into evidence”
6. PUBLISH the exhibit
 USE IT
 Have
witness testify about it
 Show it to the jury
Display
by computer, ELMO, etc.
Give it to the jury
Have witness read it
RELEVANCE
 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
AUTHENTICITY
 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 SelfAuthenticating
AUTHENTICITY
 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
FOUNDATIONS
 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
FOUNDATIONS
 Contents of documents
Purpose
for admission?
Hearsay exception
Business record (FRE 803(6))
Public record (FRE 803 (8))
Best Evidence Rules (FRE 1001-1005)
OBJECTIONS TO EXHIBITS
 Relevance
 FRE 403: Balancing between
PROBATIVE VALUE and
Unfair prejudice
Cumulative
Waste of time
Confusing and Misleading the Jury
OBJECTIONS TO EXHIBITS
 Curable Objections
Witness
lacks personal knowledge
Improper 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
 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 technique
 Cannot go into substantive issues