Exhibits in the Courtroom - Prof. Paul Zwier, Emory University School of Law

all right I wanted to give you some tips for the workshop that's coming up about how to deal with exhibits and when we're thinking about exhibits really there are three ways to think about exhibits and prepare for them first you've got to have an idea of what the technical steps are and what I mean by that is really what the dance steps are from the time that you grab that piece of paper until you can move it into evidence and want to walk you through each one of those steps second I want to talk to you about what we'll talk about is the legal foundation I mean that's the place where we as lawyers live we're worried about what are the magic words that we need to say over the top of the document to make sure that we can get them into evidence and get the maximum use out of them ideally what we want is not only for the legal foundation is to get them into evidence but presumably if we can get them back with the jury then we want to do what we need to do legally to get them back with the jury and then finally we want to give you some suggestions about how to use them persuasively that getting them into evidence is just half the battle for the jury what they want you to do is to show them to them and to have them see what it is that's important for them to see none of this well we'll wait for you to go ahead and think about it later if you go on through all of this trouble to get it in then the idea is how can you display it to them in the course of your examination so that they can get the maximum benefit about what it is that the exhibit shows so let's start with the technical foundation and the dance steps that you need now the importance of this is that you show yourself as being someone who is in control in control of the courtroom and in fact it gives you a way to increase the drama of what it is that you're doing if you handle the exhibit with some alacrity some speed and with some precision so let's go through each one of the steps and then I'll give you an example with a couple of specific exhibits just to get you to to see what it might look like so what are the different steps for picking up the exhibit and getting it into evidence at the point where you pick up the exhibit you first need to know that what you're having in your hand is going to be one of two things either and this is in most commercial cases and it will be the way that we will assume you'll work in BMI versus Minnie come is that what you have in your hand is a document that's already been pre marked for identification and given an exhibit number how does that come about well pretrial you're in with the judge and the judge is saying I don't want to take the time to have you go over and give it to the court reporter and have the court reporter market with an identification number and then have the document put into evidence and then have the identification numbers stricken from it and then a new exhibit number put on it we're not going through that what we're going to do is we're going to pre mark the exhibits we're going to pre mark them in a way so I will know what you're talking about your opponent will know what you're talking about and that will give us a lot more speed as we go through it now notice that then when you pick up the document what you're saying is I have in my hand a document that's been marked for identification and you give it that number and the announcement is for the court to in a sense go to the trial bundle or to go to their notebook and look in it and see what it is that you're attempting to do if you're dealing in electronic setting then of course the court can look at that and know what it is it's going on the screen and be prepared if they want to hit the kill switch to make sure that doesn't get shown because the court has some problems with it so you say I have in my hand a document I've marked for identification as exhibit one and then often what you also do is you say what appears to be the price list for BMI something that gives it also beyond that exhibit number something that gives it an identification in the case now know how it changes however if what you have is no pre marking and recognized for those of you that are future prosecutors and public defenders that the court may in fact not have a pre marking routine then and what you do is I have in my hand a document I would like to have marked for identification and handing it to the core reporter could I have the document please mark then we're giving it that pre identification and anything that's referred to in the court room needs an identification number and identification marking if for example this exhibit is not allowed in the evidence despite the fact that you have lated proper legal foundation then the documents identification number for the appellate record will identify it for the court to then review that evidentiary decision down the road so let's just assume for our purposes that the document has been pre marked for identification so your first step in your dances I have what has been pre marked for identification as exhibit 15 the second step is to in some ways let the opposing counsel take a quick review of what it is that you've done what what you have in your hand now notice that the opposing counsel is not just being a jerk if they interrupt you as you're heading out toward the witness by saying counsel can I take a look at it you remember that the Federal Rules of Evidence provide that under 612 anything that's shown a witness for the purposes of refreshing their recollection is something that needs to be produced to the other side and so when you're heading up there the opposing counsel has every right to say can I see what you're about to show to the opposing counsel so to take the opposing counsel out of the picture one way to deal with this second dance step is just to say showing it to opposing counsel now some lawyers don't like to say it out loud they just like to go over and hand it to them there is in fact a little bit of a debate about whether or not that gives too much credit to your opposing counsel to in fact say it showing it to opposing counsel but in any event I like to do it because if the court is worried about whether this is something opposing counsel has seen remember in our pretrial conference if we're all on the same page that shouldn't be a problem but you want to go ahead and say I would say to the court showing it to opposing counsel notice also that opposing counsel should look at the document and examine to see if it's in its good condition because if it has been marked on or highlighted as what we are want to do as young lawyers we take a yellow highlighter and highlight the key part if that's on there before the document has been admitted into evidence then of course it's not in its original condition and so opposing counsel can also check the document to ensure that its condition is the way it's supposed to be and if it's not can object on that basis number three is the step of asking to approach the witness now why go through the politeness of doing that Your Honor may I approach the witness that's what you're going to say and you want to do that because you do not know or you may not know what the bailiff has been told and frankly in Criminal Court's and certainly this is a serious issue in Georgia if you approach the bench without permission the bailiff may tackle you so what you need to know is is that by asking may I approach you are in a sense giving the court notice that you're heading in their direction now a court might say to you counsel you may move freely about the courtroom and if you've been given that instruction then asking to approach is not something that you need to do but I like it as part of my dance step routine at least at the beginning so that I can make sure that I show the jury I'm respecting the court and make sure that I don't get tackled by the bailiff so the third step is Your Honor may I approach the witness on the fourth step is to hand the exhibit to the witness and what you're doing here is you're handing it and naming it I hand what's been marked for identification as exhibit 16 and asking the witness do you recognize exhibit 16 and can you tell us generally what it is the idea here is is that what you want to do is to establish that the witness has the foundation to be able to testify about the document now if the documents have been pre admitted then this step is not necessary and in fact creates a really nice little wrinkle but again in traditional courtroom settings if the document hasn't something this witness has seen you don't lay that foundation your opposing counsel can object on a lack of foundation basis so you take care of that by saying I hand you what's been marked for identification is Exhibit one do you recognize it yes this is the price list of BMI and so generally what kind what kind of document it is it's the price list that BMI has that at hand that sends out to its customers now there is then the foundation and leads to the next step now the next step in the foundation is the legal words and what the court likes and is assisted by is the ability to have right next to the place where they're going to rule the key components of the legal foundation for the exhibit now let me give you a little tip here the best way to handle this if you've looked at this document and you've seen it and you've figured out what the magic words are going to be that you go to the rule and you take out God's gift to trial lawyers which is post-its little yellow post-its and you take the post-it and you write out the elements of the magic words from that rule that allow you to go ahead and get that at that exhibit into evidence and you put it on the document and so if you're walking up with that post-it and you take that off and you read that you are guaranteed to make sure you have the precision that you need to lay the foundation for a business record or whatever it is my suggestion to you is is then that what you do is you prepare a trial notebook and when you have the exhibits that you're going to use for Virginia young in your exhibit book that you have those exhibits listed with the yellow post-its that describe the legal foundation for each one of the exhibits that you're going to use when you Rach it and grab it I have in my hand show it to opposing counsel may I approach canning you it's been marked for identification is exhibit one you've got your yellow posted in your hand do you recognize that yes I do now is this document a document that's prepared by a person with knowledge at or near the time that it's recording the events and is it done as a part of the business record-keeping of the business and is a part of a regularly conducted business activity and is the policy of the business to keep these records yes yes yes yes yes you ask those questions notice you can ask them in a leading format because these are preliminary questions for a legal ruling and when you get those answers then you may move the document into evidence notice here don't be tentative at all about the the foundation in which you're moving it in you have the legal right now to have this document into evidence and so I move Exhibit one into evidence I offer Exhibit one into evidence watch for the kind of openness to or pleading with the court that can creep into your voice here or not I would like to at this time with the court's permission now the reason I recommend against that kind of phrasing at this time with the court's permission I would like to is that the court might say Oh counsel do we have to can't we just move all the documents in at the end of your case and then the jury can look at which ones they want to look at and of course your position is oh I want them in right now I've gone through this whole problem I want the document in and so I offer exhibit one in the evidence I move exhibit 1 into evidence is a more assertive way of trying to ensure that you control the order and the mode of proof even though the court has some discretion in this matter and then of course the last piece of it is to use it and let me just say that when you're using with a visual display electronically visual display displays of your documents it's very easy for you at this point just to simply say I would like the operator to give slide 15 or slide 2 which is exhibit 1 all right and the slide number as you remember is different from the exhibit number you asked for the slide number and you do not need to lay a separate foundation for the exhibit as long as that exhibit is as an officer of the court it should be exactly in the same condition that it was in when you had your pre-trial conference now if you are going to annotate it or if you're going to do a call-out of the document what you should state that that that's something that's going to come when you do the call-out but at this point your steps are these as follows Your Honor I move exhibit one and evidence for the purposes of showing it to the jury could I have slide to thank you and then what you need to do is you need to decide where's the witness going to stand in relationship to that exhibit and how is the exhibit going to be used but we'll say a few words more about that when we get to the persuasive use of the exhibit in just a second so a quick review I know we've gone fast here but you can see how quickly you could do this if you can get this into your into your lexicon into your habit or mantra of dealing with an exhibit the steps are as follows I have in my hand a document of marked for identification as exhibit one showing it to opposing counsel counsel Your Honor may I approach I hand you what's been marked for identification is exhibit one here's to be the priceless do you recognize this yes yes I do how do you recognize it well this is the price list that I send out to all of our customers and is this containing the operative facts that condition the business that BMI will do with its customers I don't know what what you mean by operative facts well are there terms in it legal terms which condition the way that you'll do business well yes there are I move exhibit one into evidence for purposes of publishing exhibit one to the jury I'd like slide two to be shown to the jury at this time now those magic words you see we're not the business record those magic words are a legally operative fact the document presumably has this condition in it by which it will not do business without the written orders and therefore there's an argument that it comes in because the document has independent legal significance we'll return to that issue when we talk about the legal foundation in just a minute but in any event there needs to be some magic words cast over the document that's the place you cast it you move it and then you show it so let's talk about magic words and first of all let me tell you that in BMI versus mini-com you are not given an opportunity to do what you would be given in any automobile accident case and likely you would be given in any kind of a crime scene case where what you need to do is you need to show to the jury a diagram or some kind of a layout of the the scene of what it is that you're talking about the legal foundation for diagrams illustrative exhibits are very simple and the illustrative exhibit is will exhibit a assists you in explaining your testimony to the jury exhibits that are lustrated in the way of diagrams and intersections are then helpful to the jury as long as it assists the witnesses to is asked whether it assists and as long as it's not unfair as long as what happens is that it doesn't distort in some fundamentally unfair way illustrative exhibits do not need to be to scale and in fact illustrative exhibits could be just a set of bullet lists that help us understand the testimony they can be prepared by the witness themselves like an expert witness who lays out a chart or a graph to help explain the calculations that he made or it can be a set of bullet points of a doctor who is testifying as to the things that were important in his diagnosis what you have then is you have an ability to work with a witness to prepare an illustrative exhibit for the purposes of helping teach the jury what this witness has to say and the foundation is that the exhibit needs to be illustrative helpful and it cannot be misleading now notice that in a demonstrative exhibit in an exhibit where you are going to mark on it and show right where the point of the collision was or you're going to demonstrate something that's that issue in the case a little further foundation needs to be laid when you have that kind of an exhibit what you're doing is you have to ask when the exhibit is so marked whether or not fairly inaccurately shows the relevant point of the collision and the fair and accurate language is the language then that is needs to be additionally added as a foundational element for a demonstrative exhibit same about pictures same about anything that presumably shows a view that folks have and your magic words over that document are fair and accurate now I put these up together because I just want to show you that for the most part illustrative exhibits are not going out with a jury they're mainly teaching aids they stay up for as long as the witness is up a demonstrative exhibit though might go with the permission of the court out to the jury and since that's the courts discretion the court needs a little more of our foundation to be able to get it out because there is not a lot of clarity in many courts minds between the difference between luster of exhibits and demonstrative exhibits often lawyers will try to get the exhibit out by saying fair and accurate over a luster Diggs ìbut also what they're just doing is is they're trying to up the offer into evidence by giving it the chance to get it out with the jury so very often what you hear is a two-part magic word whenever you're dealing with an illustrious exhibit or a diagram or a diagram that's going to be marked and the two part is will this assist you in giving your testimony to the jury and number two is this a fair and accurate depiction of a chart of your calculation that you made in this case or is this a fair and accurate list of all of the factors that you took out into consideration now if you're on your toes you should say if it's moved into evidence you are objecting that it not be let go out with the jury but it is merely illustrative if you're opposing the exhibit but that combination is what you often hear in many courtrooms is will it assist and in addition is it fair and accurate notice that when you have a written exhibit it's no need for you to say fair and accurate the fair and accurate piece of it is not something that is at issue in the case with an exhibit that is a written document like a BMI price list all you need to do is you need to give a legal foundation for the document you don't need to ask whether it is a fair and accurate condition from what it was in before as long as there are no writings on it that issue is not an issue for you with the writings now what are the legal issues that you should be aware of whenever you're grabbing a piece of paper in the courtroom they are fundamentally these and you can think of them as Oprah if you need a mnemonic the Oprah mnemonic tells you that you need to be concerned in a very few cases with original writings and you should check the one thousand one to one thousand eight section about original writings you remember that basically what they provide is is that when the contents of the original are an issue in issues of forgery when we are worried about what the condition of the document really looked like when it was first created then in those situations where that issue is prominent before the court the court may be requiring an original as opposed to a copy now if the person who is offering the document can account for the original well I sent it to the other side so all I have is a copy that will be sufficient and the original writings problem will be taken care of now privilege privilege is something that again doesn't doesn't often show itself but if in fact the communication is between lawyer and client there is one last place here for opposing counsel to object on attorney-client privilege and certainly if the document has not been discussed in pretrial and out pops a letter from the client to the lawyer on the opposing side the opposing counsel needs to be aware recognize privilege issues in accounting privilege issues was like psychiatrists or medical doctors also can present themselves and the privilege sections under 501 are the places that remember the Federal Rules says that the law privilege in the state courts will dictate what is privileged and what is not privileged and so you should be aware of the privilege issues now this relevance section is the document relevant is something to be concerned about and let me just say a quick word about that relevance we often think of as 401 through 403 it could be that what's on the document is something that indicates Oh 403 problem the document has information on it you might describe it in some ways as the race just I of the case or they have minimal relevance because it explains something in the history but it's overly prejudicial for its appropriate value take a look at some of the exhibits that you'll be examining for this weekend and what you'll see is is that there are some notes and telephone logs that have real questionable relevance and certainly under 403 will be overly prejudicial for Probert of value I want to also mention to you that into the 100 sections what you should be aware of is there is the conditional relevance piece to be concerned about just because BMI has a price list doesn't mean that it was seen by mini-com and that they in fact understood that that was the way that they did business this is especially true because of course Michael Lou Bell said I tried to place the order they didn't say it was a condition upon doing business they did tell me to send up a follow-up in writing but they didn't make it legally a condition precedent well how do you deal with that is that pricelist in fact notice that this is the condition upon which BMI does business and there needs to be at least some showing under the 104 sections that in fact it was received and that in fact this document then is relevant as putting mini-com on notice of the conditions upon which it does its business so when you look at the condition irrelevant sections you realize this is just a question upon which a jury could conclude and the threshold is quite low and when you look at the documents in the materials you'll see that the depositions indicate something about Lu Bell's having picked up the document the price list maybe as a source for the telephone number to call BMI is that enough well we certainly could have a nice little argument about that it seems to me that the the better argument is is that it will be will be something a jury could conclude that that Liu Bell was then on notice that he needed to look and send his orders in writing now having said that then your threshold step with every document is to say do I have a relevance problem and again the main issue here is for your pretrial practice obviously in the deposition it is important for a litigator who has a view of what the trial is like to try to lay the evidentiary foundations that they can lay in the deposition so that in fact we won't be bogged down and bothered by it when we hit the trial so you can imagine back in the deposition it's important to say to Lou bail and try to figure out psychologically how most likely you could get him to say that as the vice-president for purchasing he is under an obligation and a duty to read what's sent to him by potential buyers or sellers of products and that he did that in this case and that of course he would read the price list and understand the terms when he was picking it up and if you could in a sense use that logic that either he was not doing his job or he did in fact do his job and read it that in fact he is likely to admit that he did get the price list and did read it and did see these terms now here under the a is authentication recognize that there are problems with documents about the signatures and whether the signatures are in fact authentic again the nine oh one through nine or three sections of authentication have taken care of a lot of the problems in this area that used to arise what you have now is the ability to get self authentication from the fact that you send notice to the other side that you're intending to use this document and that you're presuming that the signatures are right unless they tell you otherwise and then it puts the obligation on them to contest the authentication of the signatures and that is a tremendous tool that can really assist you and move you forward in being able to get the authentication in if the other side says no that's not my signature well then look in the 901 and 902 sections you can do comparisons of signatures the court can do it the jury can be asked to compare the signatures and typically then you do not have a signature problem in most commercial cases hearsay is the last step here it's important to realize that when you're looking at a document the document is often an out-of-court statement by somebody else and and the question is is it being offered for the truth of the matter asserted and when you're thinking about that the overwhelming exception you're working at with commercial cases is the business records exception in medical malpractice cases the document may be a medical record and so it could be a business record of a medical establishment and the statements within it could also be exceptions under the exceptions to statements that are made for the purpose of medical diagnosis and treatment recognize that when you look at a document there may be multiple layers of hearsay in the document business records cover multiple layers of this that hearsay as long as the employees who are speaking to the document have duties to speak on behalf of the company in the creation of the record but if there's somebody that's outside of that you may have in here say within hearsay problem that arises even in a business record context so you have to cover yourself on hearsay now these issues that I've talked about in Oprah hour things that frankly many of us just don't spend the time enough time in the courtroom to be able to see these things on the spot and on the fly let me tell you that again the way that to deal with these evidentiary issues is in your preparation when you're getting ready to move certain documents in and you're thinking about it the night before say well do I have original writings problem here do I have a privilege issue is there potential that I've got some relevance problem or authentication or hearsay and that as you're preparing again your notebook on that document that you should just account for Oprah as a way of bulletproofing that document and making sure that you're going to be able to get it into evidence okay so finally then let me just say a word well let me let me go ahead and end and lay out the business records exception because it is so common you'll need a memo report a record made at or near the time by or from information transmitted by a person with knowledge kept in the course of a really conducted business activity and a regular practice of the business to keep the record and if you just list that out in your in your post it you're in good shape for your business records situation now the persuasive use finally the last step of this is something to be concerned about when do you do this and what does it show when you take this exhibit out affects the story do you want the document to be the way that the story is told or do you want the witness first to tell the story and have the document corroborate what the witness has just said is the telephone log the story of what it is that he did or is the telephone log corroborate the fact that michael Lubell in fact did request insurance and so you're asking yourself when do I show the document and what does it show why do I want to show it why does the telephone log for example confirm the fact that Lubell probably asked for insurance on that day and then what is the persuasive use of it what do I need to say about persuasively so the jury doesn't think that this is something that was cooked up or that is in fact created after the fact why would it be that in fact Lubell would keep a telephone log and if you incorporate into your examination then of a person like Lubell what it is that he usually does in creations of telephone logs and why he does it and who checks it and why he checks it and why the business really relies on these kinds of things you can hence the persuasive foundation of the document that's being used and if you can incorporate some of that in your planning then the document can really sing for you finally the last thing is how you display it and there again I'm going to give you a little bit of a heads up for something we will come back to later and that is the persuasive use of a document is just not enough to have you say see members of the jury here it is the document to make it helpful is going to have to be large enough for the jury to be able to read it and frankly if what you can do is you can annotate it in some way or highlight it in some way to draw the jurors attentions please notify me immediately if the goods are in any way unsatisfactory or if there is any error appears in your statement this is something that in fact remember that Virginia Young says when she sends the letter back to mr. Lubell and the argument is as you remember in this case that if in fact he had done that we would not have had this problem and the insurance could have been ordered so the use of the document is not just well there's the document members of the jury but that in fact you have a teaching obligation to call it out and to highlight it and to have it read so that the jury can understand the importance of what it is that you're doing and that's where the creative use of the document is so important back to illustrative exhibits this is the place where you want the witness on their feet the police officer marking on the document if you're demonstrating something or showing something then what you want to do is to have that show that that enactment and then have something in the record that will capture it in a way that allows it to be maintained for the purposes of these kinds of annotations if you want to keep that annotation and if in fact that's something the court allow for the jury to go ahead and do you're going to have to have a preservation option for you frankly that's what we'll talk about a little bit more when we talk about how you use visuals in electronic format to be able to make sure your record keeps what it is that is done to the exhibits by the witness for the purposes of illustrating a testimony so those are some tips for you about if you remember the technical foundation I have in my hand document marked for identification as exhibit one showing it to opposing counsel man approach handing you what's been marked for identification is exhibit one do you recognize it can you tell us generally what it is will this document assist you in giving your testimony or is this a business record and the business records requirements I move exhibit 1 into evidence for the purposes of showing it to the jury I'd like slide 15 that's the technical steps you'll be drilled in that in your workshops so that everybody will have a chance to be able to get on their feet and do that your job in addition is to think about the legal foundations what objections do I need to make when I'm opposing this exhibit and what is it that I need to prepare for in terms of Oprah to get it in and then finally in addition your preparation should include how am I going to use it who's going to use it what witness will I call when will I show it to them and that that's part of your preparation for the use of an exhibit in a persuasive way so thank you you

Channel: EmorySchoolofLaw

Views: 59,937

Keywords: Emory, Trial practice, courtroom practice

Id: gaoMOTjC9ws

Length: 34min 45sec (2085 seconds)

Published: Fri Feb 05 2010