You know you can get business records into evidence under an exception to the hearsay rule, but you’re not exactly sure how to do it. It’s simply a mechanical process—just get your witness on the stand and follow these nine steps.
1. Use questioning to set up the exhibit. For example, “What actions, if any, did you take to contact Mr. Jones on your concerns with the timing of the shipment that he was sending to you?”
2. Hand opposing counsel and the judge copies of the exhibit.
3. Briefly describe the exhibit on the record. When an exhibit is first handled, you should state, for example, “Your Honor, I would ask that this document be marked as Plaintiff’s Exhibit 1 for purposes of identification. It’s an October 7, 2015 email from the plaintiff to Mr. Jones.”
4. Provide the court clerk with the document and keep a copy of it for your own use. The clerk will return the marked exhibit to you.
5. Request permission from the court to approach the witness with the exhibit.
6. Show the exhibit to the witness and give him or her an opportunity to review it.
7. Question the witness about the exhibit. For example,
- Have you ever seen this document before?
- Please describe to the Court what this document is?
- Why did you prepare this email to Mr. Jones?
- Who is responsible at your company for preparing emails to suppliers?
- Did you have this responsibility at the time you prepared this email to Mr. Jones?
- Is there a procedure that you follow in preparing communications such as Exhibit 1?
- Please describe for the Court what that procedure is.
- Did you follow that procedure with respect to the preparation of this email to Mr. Jones?
- After you prepared this email to Mr. Jones, what did you do with it?
- Has this email been altered or modified in any way since the day that you prepared it and sent it to Mr. Jones?
8. Request that the exhibit be admitted into evidence. For example, “Your Honor, I would request that Plaintiff’s Exhibit 1 be admitted into evidence.”
9. Disclose the substance of the exhibit to the jury. For example, use an enlargement of the exhibit or projecting it on a screen.
For guidance on every aspects of admitting business records, including electronic information and images, turn to CEB’s Effective Introduction of Evidence in California, chap 13. And check out CEB’s program Evidence: The Procedure of Introducing Exhibits at Trial, available On Demand.
Other CEBblog™ posts you may find useful:
- Introducing Evidence? Make an Offer of Proof!
- CEB Question of the Month: Business Records as Evidence
- 10 Questions to Ask Yourself Before Presenting Evidence at Trial
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