Civil Litigation Evidence Litigation Strategy Pretrial Matters

The When and How of Marking Exhibits

evidence_87349294The first step when you want to offer something into evidence at trial is to have it marked for purposes of identification. Do you know when and how to mark exhibits?

Marking an exhibit for identification, once it’s formally logged by the court clerk, places it under the court’s custody and control until it’s released by court order or destroyed. See CCP §§1952-1952.3. Once an exhibit is marked, it becomes part of the clerk’s record and can be designated as part of the record on appeal.

When to mark an exhibit. When should you mark your exhibits varies from court to court? Traditionally the court clerk marked an exhibit when a witness was first to be asked about it. You’ve seen this on old TV shows: while the witness is on the stand, the attorney asks the clerk to mark the item “for purposes of identification,” and then everyone waits while the clerk places an identifying mark on the exhibit and logs it in the clerk’s record. The attorney then could take the item, show it to opposing counsel—and possibly to the court—and finally ask the witness questions about it.

This slow and dull process led many courts to now require that exhibits be premarked, i.e., marked before trial begins or when the court is not in session and before counsel begins questioning the witness.

How to mark an exhibit. The specific way in which to mark an exhibit depends largely on its individual characteristics and local practice. Here are some general rules for marking exhibits:

  1. For two-dimensional exhibits: Mark them on their face by using an exhibit stamp, a gummed label, or a written notation. It’s best to consistently locate the mark as near as possible to the bottom of the exhibit. Using this location speeds up subsequent identification of the exhibit, especially when copies or exhibits are bound together at the top. Make sure that the identification mark doesn’t cover entries in the exhibit.
  2. For three-dimensional exhibits: Consider using gummed labels and tags wired to the exhibit. The identifying mark should be firmly attached to the exhibit so that constant handling will not remove the mark during trial or afterwards.

What to include in the identifying mark. What to include in an identifying mark can depend on local court practice, but to preserve a record for appeal, you should make sure to include the following on the exhibit tag:

  • Case name;
  • Case number or docket number;
  • Sponsoring party;
  • Letter or number identification; and
  • An indication of whether the exhibit was admitted into evidence or is marked only “for identification.”

The exhibit mark may also include the date of marking, the clerk’s name, and the court’s department number.

Before marking any exhibit, always check whether there are any local rules or policies on the manner and content of marking exhibits. For example, some courts require that numbers be used for exhibits offered by the plaintiff and letters be assigned to items offered by the defendant. But even when specific local rules or policies apply, the parties may be able to stipulate with court approval to another marking system, or a judge may prefer that you use another system, such as a straight numerical system for all exhibits.

For everything you need to know about preparing and using exhibits in California trials, turn to CEB’s California Trial Practice: Civil Procedure During Trial, chapter 13. Preparation of exhibits is just one of the useful topics covered in CEB’s program Everything You Need To Know To Be Ready For Trial, available On Demand.

Related CEB blog posts:

© The Regents of the University of California, 2013. Unauthorized use and/or duplication of this material without express and written permission from this blog’s author and/or owner is strictly prohibited.

6 replies on “The When and How of Marking Exhibits”

Great article and thanks for all the outstanding trial tips! As you mention, always check the local rules. Here’s another tip- also always check the specific judge or dept rules. Each judge may have different preferences in the same court so save yourself some time and aggravation by doing this. Looking forward to your next tip!

Agree with Mitch — this is useful information — and it’s the kind of practical “nuts ‘n’ bolts” info they never teach you in law school!!!

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