STEP 1: Mark your exhibit for identification. The court clerk typically marks the exhibit while simultaneously logging it into the clerk’s record. The exhibit is then within the court’s custody and control.
STEP 2: Show your exhibit to opposing counsel. Disclose the exhibit when you ask that it be marked, unless you’ve shown it to opposing counsel as part of a pretrial marking/disclosure requirement, and hand opposing counsel a copy of the exhibit. If the exhibit can’t be copied or disclosing it to counsel would risk simultaneous disclosure to the jury, disclose it before displaying it in courtroom.
STEP 3: Show your exhibit to the judge. If an exhibit was copied, hand the clerk both the original exhibit to be marked and a copy of exhibit for the judge’s personal use.
STEP 4: Develop a factual basis for admitting your exhibit into evidence. Use methods developed during pretrial preparation to show the required factual basis, e.g. ask a witness questions you’ve prepared for this purpose, ask the court to take judicial notice, read the deposition or responses to interrogatories or requests for admissions, if they provide the factual basis.
STEP 5: Offer your exhibit into evidence. Offer the exhibit into evidence immediately after laying the foundation for introducing it into evidence. Offer an exhibit by either motion, request, or offer.
STEP 6: Meet objections to admitting your evidence. Use an “evidence memo” or other pretrial preparation to show the court that the opposing party’s objection or claim of privilege is without merit.
STEP 7: Present preliminary facts at the hearing, if appropriate. Present preliminary facts at the hearing when the court’s decision to admit or exclude proffered evidence depends on proof of a preliminary fact and opposing counsel objects to foundational proof of your proffered evidence.
STEP 8: Obtain a definitive ruling on admissibility. Get a definitive ruling so that you can make a clear record of the court’s ruling and thus preserve your client’s rights on appeal. Keep track of exhibits that the court admits or refuses to admit and follow up to make sure all of your evidence is admitted.
STEP 9: Make an offer of proof. Make an offer of proof when the court rules not to admit evidence to persuade the court to reverse its decision.
STEP 10: Disclose to the jury the substance of the admitted exhibit. Tell the jurors about the exhibit admitted in evidence to make them aware of the exhibit’s meaning and importance.Evidence: The Procedure of Introducing Exhibits at Trial
STEP 11: Verify the recorded admission of exhibits into evidence. Make certain that all proffered exhibits have been formally and unconditionally received into evidence and the clerk’s record reflects their receipt. Verify this by reviewing your exhibit log to ascertain whether the court has admitted all exhibits, comparing your exhibit log with the court clerk’s formal record, checking each exhibit to ensure that all “For purposes of identification” labels have been removed, and reoffering any exhibit for which there is any question (and obtaining a definitive ruling).
Get details on each of these steps in CEB’s Action Guide Laying a Foundation to Introduce Evidence (Preparing and Using Evidence at Trial) and CEB’s program Evidence: The Procedure of Introducing Exhibits at Trial, available On Demand. Also check out CEB’s Effective Introduction of Evidence in California, in which highly experienced attorneys take you through the preparation and presentation of evidence.
Other CEBblog™ posts you may find useful:
- Logging Your Exhibits Without Getting Logjammed
- What I Learned from Jury Duty About Introducing Exhibits
- Emojis in Evidence
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