exhibits
Post on 30-Dec-2015
22 Views
Preview:
DESCRIPTION
TRANSCRIPT
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 marked for identification as Exhibit 1”Exhibit 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
top related