Chapter 8: Exhibits

Well-planned exhibits help witnesses and attorneys present an interesting, persuasive case — combining verbal and visual evidence makes the case more likely to be understood and remembered, and proper foundation determines admissibility across real, demonstrative, and visual-aid categories.

Chapter 8

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8.1 Introduction

A. Real Evidence

B. Demonstrative Evidence

C. Visual Aids

8.2 Preparation of Exhibits

A. Identifying Exhibits

B. Assessing Utilization

C. Planning the Presentation

D. Disclosing Exhibits

E. Managing Exhibits

8.3 Modern Technology

A. Introduction

B. Technology Systems

C. Technological Equipment

D. Communication Devices

8.4 Evidentiary Considerations

A. Relevancy and Unfair Prejudice

B. Levels of Foundation

C. Contemporary Exhibits

D. Challenging Evidentiary Issues

E. Chain of Custody

F. Demonstrative/Illustrative Evidence

G. Limited Purposes

H. Redacting an Exhibit

I. Decision Maker Discretion

8.5 Introduction of Exhibits

A. Legal Terminology

B. Steps for Admissibility of Exhibits

C. Additional Ways to Admit Exhibits

8.6 Elements of Evidentiary Foundation

A. Physical Objects and Properties (Products, Clothing, Appliances, Weapons)

B. Documents (Electronic Documents, Contracts, Digital Data, Leases, Signed and Printed Documents)

C. Personal and Business Correspondence (Letters, Memos, Notes, Files, Bills, Mail)

D. Electronic Business and Personal Correspondence (Emails, Text Messages, Blog Entries, Chat Room Comments, Web and Wi-Fi Communications)

E. Internet Communications and Information (Websites, Social Networks, Search Engine Data, Internet Archives, Cloud Server Data)

F. Business Records (Memoranda, Reports, Writings, Electronic Files, Data Compilations)

G. Copies/Duplicates

H. Electronic Recordings (Audio, Video, Digital, Computer)

I. Test Results (DNA, MRI Exams, CT Scans, Medical Images, X-Rays, Laboratory Work, Computer Analyses)

J. Digital Images, Photos, Social Network Pictures, and Electronic Depictions (Videos, DVDs, Film, Movies, Recordings)

K. Summary Exhibits

L. Judicial/Arbitral/Administrative Notice

M. Past Recollection Recorded

N. Real Evidence Highlighted

8.7 Demonstrative Evidence and Visual Aids

A. Illustrative Designs

B. Exhibit Composition

C. Admissibility of Graphics

D. Effective Demonstrations

8.8 Displaying Evidentiary Exhibits

A. Courtroom/Hearing Room Technology

B. Visual and Illustrative Displays

8.9 Objections to the Introduction of Exhibits

A. Preparing for Objections

B. Responding to Objections

C. Questioning the Witness

D. Common Objections

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REFLECTING ON ADVOCACY

I ask not for any crown, but that which all may win; Nor try to conquer any world, except the one within.

― Louisa May Alcott

*A pleasant illusion is better than a harsh reality. *

—Christian Nestell Bovee

Introduction

Well-planned and well-presented exhibits help witnesses and attorneys communicate and present an interesting, persuasive, and compelling case. Judges, jurors, arbitrators, and administrative law judges (ALJs) expect to see captivating visual and illustrative graphic evidence as well as hear convincing oral testimony. Exhibits vividly and creatively meet these expectations.

Outside the court and hearing rooms, learning is often accomplished through images and illustrations. People view astonishing websites, flashy magazines, amazing television programs, dazzling movies, digital worlds of the Internet, and the wonders of AI. They expect to learn and to be entertained.

It often takes more than the spoken word to keep people interested and focused. It takes illustrative aids to help people learn and remember. This is just as true in the courtroom and hearing room as it is anywhere else.

An exhibit is anything other than oral testimony that can be perceived by the senses and presented as evidence. A presentation that combines verbal and visual evidence is more likely to be understood and remembered. There are three major categories of exhibits: real evidence, demonstrative/illustrative evidence, and visual aids.

Evidence rules determine the admissibility of exhibits in judicial forums and influence or control the admissibility of relevant and reliable exhibits in arbitrations and administrative hearings. The foundation examples in this Chapter establish the proper foundation for the admissibility of exhibits in these forums.

A. Real Evidence

Real evidence consists of exhibits that are objects, writings, communications, images, visuals, and data containing relevant facts. Real evidence includes such things as: physical objects, written documents, electronically stored information, videos, recordings, social network communications, printed papers, and digital evidence. Examples include: the knife used in a homicide, DNA material found on a victim, the blender involved in a product liability case, a written agreement in a contract case, defective merchandise in a warranty dispute, an email in a fraud case, a social media photo in a property action, and an authentic video in a tort case. Relevant items of real evidence are inherently probative. Proper foundation establishes their admissibility.

Example:

Examining Lawyer:

Q: I have just handed you an exhibit that has been marked for identification as Exhibit No. 1. Do you recognize this Exhibit?

A: Yes.

Q: How do you recognize Exhibit No. 1?

A: I own this book. I recognize it by its title, my initials on the title page, and my handwritten notes. I picked it up off the floor after the defendant threw it.

Q: What is Exhibit No. 1?

A: It’s the book entitled Ghandi that I saw the defendant use to whack the plaintiff.

Q: Is Exhibit No. 1 in the same condition as it was when you saw the defendant smack the plaintiff with it?

A: Yes.

To the Court:

I offer what has been marked for identification as Exhibit No. 1 into evidence.

Real evidence adds another dimension of proof in a case. A physical object or document provides the fact finder with a lasting impression of the facts. For examples: the claw hammer murder weapon can be seen; the defective medical implant can be touched; the emailed libelous statement can be read; the terms on the small print contract can be highlighted; the controversial toxicological results can be explained; the video taken by a wearable or mountable camera can show the horrors of the event.

B. Demonstrative Evidence

Demonstrative evidence, also known as illustrative evidence, refers to those exhibits that are not part of the “real” event or transaction but are a representation of an object, event, or data. They are based on the evidence and are usually created after the fact. Demonstrative or illustrative evidence includes: photos, graphics, diagrams, computer generated data, drawings, maps, videos, animation, simulation, models, AI creations, and basically anything that represents an object and augments verbal testimony. These exhibits are admissible if they:

• Assist a witness in testifying, or
• Help the fact finder understand the evidence.

Example:

Examining Lawyer:

Q: I show you Exhibit F marked for identification. Do you recognize it?

A: Yes.

Q. How?

A. I witnessed the original being created.

Q: What is Exhibit F, Ms. Michelangelo?

A: It is a three-dimensional model of the legendary sculpture.

Q: Is the model a fair and accurate depiction of the renowned sculpture that was created over five hundred years ago?

A: Yes.

Q: Would this model assist you in explaining your family’s participation in the development of the Renaissance?

A: Yes, it would.

To the Court:

Your Honor, at this time, we offer Exhibit F as illustrative evidence, and ask that the witness be allowed to use it during her testimony.

Demonstrative/illustrative evidence adds a powerful visual dimension to the case. For examples: a diagram can provide an overview of an event; a digital photo can bring to life the details of a scene; a video recording can show the deliberate path the defendant took to the murder scene to establish premeditation; a working model with movable parts can mimic a product; a diagram of an intersection with magnetic cars can assist a witness in describing an accident; a route may be followed on a map with a laser pointer; a social media collection may portray sequential communications; a computer generated recreation of an airline accident can bring to life the final fatal moments; an animated video can portray the tragic re-enactment of a car crash; and generative AI can restore comparative images of events before and after a bridge disaster collapse. See § 8.7.

C. Visual Aids

Visual aids are created and used to effectively communicate information to the fact finder and to help the fact finder understand the presentation. Visual aids do not constitute real evidence, generally differ from demonstrative exhibits, and are not evidence. Visual aids may be used during summation, opening statement, and direct and cross-examination.

Examples of visual aids include: a printed or digital outline of an opening statement; summary charts of witness testimony; details of expert testimony prepared on a display board; a chronological list of occurrences; a poster board or easel paper listing computations; summarized information presented with a document camera; digital image displays; graphs summarizing commodity trades; a computer generated flowchart of results and amounts; AI digests of comparative evidence, and an enlarged verdict form for use during final argument. Although there is no evidentiary foundation that usually must be established to use visual aids, it is necessary to either have described what will be utilized or obtain permission to use the exhibit from the judge, arbitrator, or ALJ.

Example:

To the Arbitrator:

We have prepared a list of each transaction between the Wookiees and the R5-Droid4 involved in this case. We can display this “new hope” summary evidence on the monitor screen. It will help us present our summation and assist you in understanding the multi-galactic transactions.

Arbitrator:

You may use it. I trust it will.

Visual aids can persuasively emphasize evidence in opening statements and summation. For examples: a line or bar graph can display metadata; summaries of testimony can highlight evidence; a software program can condense a story time line; a photo or video may portray an event; printed words displayed on a chart can create a summation outline; generative AI images can compare exhibits; digital slides can list reasons to support a verdict.

Preparation of Exhibits

Planning the use of exhibits includes several considerations:

• Identifying potential exhibits.
• Assessing the use of exhibits.
• Choosing the best witness(es).
• Planning a professional presentation.
• Managing exhibits.
• Practicing to effectively introduce and use the exhibits.

A. Identifying Exhibits

The identification of exhibits occurs during investigation, discovery, and continues throughout the case. Real evidence is located, gathered, and preserved. Demonstrative evidence is created before and during the trial or hearing. Visual aids are developed at a reasonable time before they are needed. Some exhibits could be either illustrative evidence or a visual aid.

B. Assessing Utilization

Advocates select exhibits that effectively communicate the case theory, tell a compelling story, present persuasive information, highlight essential evidence, and convincingly refute the opponent’s evidence. The following questions help evaluate the use of exhibits:

• Will the exhibit improve the ability of the witness to testify more effectively? Will it enhance the ability of the advocate to present evidence?
• Will the fact finder better understand and remember the evidence portrayed by the exhibit? If it may be distracting or confusing, it should not be introduced.
• Will the fact finder expect the exhibit to be introduced? The failure to introduce it may have the fact finder draw an adverse conclusion from its absence in the case.
• Can the exhibit foundation be established through the testifying witness? Some exhibits involve a chain of custody foundation, and require more than one testifying witness before an exhibit is introduced or used. See § 8.4(E).
• Will the exhibit be admitted into evidence or used for demonstrative purposes or as a visual aid?
• Will the exhibit take too long to introduce or use? The examining attorney should efficiently refer to the exhibit.
• Will the relevant, probative value of the exhibit outweigh any unfair prejudicial impact? If the exhibit shocks the fact finder, is vulgar or in bad taste, or is unnecessarily cumulative or repetitive, it should not be offered.
• What is the cost and amount of time needed to make or obtain the exhibit? The expense, in dollars and time, should not exceed the exhibit’s overall usefulness and impact.
• Will electronic, digital, computer, or AI based evidence be easily presented and understood? Technology can either enhance or weaken evidence presentation.
• How can GenAI effectively and affordably craft demonstrative and illustrative exhibits? Successive developments of GenAI can provide the means to create persuasive and captivating exhibits.
• Will the exhibit be perceived by the fact finder as unfair? Expensive, elaborate, or numerous exhibits used by one side may create the perception that the party with significant resources is overwhelming the party with lesser resources.
• What are the rules for disclosing exhibits to opposing counsel, the judge, arbitrator, or ALJ prior to the trial or hearing?
• What technical problems might there be with the exhibit? Does the court or hearing room have facilities and equipment to present the exhibit? Have adequate steps been taken to ensure any problems can be overcome?

Advocates need to decide what type of exhibit is or may be available and whether it should be used. Client resources, available preparation time, the length of the trial or hearing, and available technology are major factors that affect the use of exhibits. Multiple exhibits can be instructive and fascinating, but they can divert attention from compelling evidence and be a distraction. Simple presentations may be just as persuasive.

C. Planning the Presentation

Advocates need to prepare in advance and rehearse the use of exhibits to effectively present them. A qualified witness or witnesses must identify and lay a foundation for the admission of the evidence. A stipulated agreement with opposing counsel may also be the basis for the introduction of exhibits. A GenAI and an LLM program can assist in the development and use of relevant and persuasive exhibits. See § 1.1[C].

D. Disclosing Exhibits

The timing and requirements to disclose exhibits to opposing counsel, judges, arbitrators, and ALJs depend on the type of exhibit and the applicable rules. The existence of real evidence is usually known to all the parties. Demonstrative/illustrative evidence is typically generated after the relevant events and a reasonable time before its use. Visual aids may be produced during case preparation or shortly before their use.

The rules and fairness will determine when an advocate must advise opposing lawyers and the decision maker of the availability and use of exhibits. Pretrial and pre-hearing rules commonly require the advocates to identify and list the exhibits they plan to introduce or use, including all types of exhibits. This prevents an opposing party from being unfairly surprised. The procedural rules or case order usually include a deadline for the notification and disclosure of exhibits. If a lawyer decides to use an exhibit after a deadline, permission from the judge, arbitrator, ALJ, or perhaps the opposing attorney will be needed.

The decision to use an exhibit must be made far enough in advance so the exhibit can be prepared or created and disclosed to avoid objections to its use. This notice permits an opponent to make timely objections, informs the proffering attorney that the exhibits are not objectionable, and allows the decision maker an opportunity to rule on the admissibility of exhibits before the trial or hearing. Subsequent sections in this Chapter explain these procedures.

Demonstrative evidence and visual aids may not be known about or anticipated to be used in a case by opposing parties. To avoid problems with their utilization and illustration, the advocate may seek timely permission to use them. Decision makers have discretion in admitting or rejecting these types of exhibits and may have their own views on how these exhibits are to be handled. See § 8.5. Typically, illustrative exhibits are marked and introduced, and visual aids need not be as they are not considered evidence, unless preferred by the decision maker. Some exhibits may be classified as either demonstrative evidence or visual aids and processed accordingly.

In jury trials, real evidence may be made available for a jury to view during deliberations. Demonstrative/illustrative evidence may be made available if it would assist the jurors in their deliberation and not unfairly influence them. Visual aids are usually not available for deliberations. Judges have discretion in deciding what goes to the jury room.

E. Managing Exhibits

Organization is of particular importance in introducing and using exhibits. Exhibits may be too easily misplaced, and foundation questions overlooked. Advocates can prepare specific electronic or paper lists and files itemizing and containing the exhibits to be used, the necessary foundation for those exhibits, and the witnesses who will provide that foundation. An LLM platform can assist in managing exhibits. All exhibits should be labeled with a sticker, or marked, or barcoded with an exhibit number, reference name, or tag, whether or not they are admitted into evidence. Technology provides efficient ways to scan and manage exhibits using electronic labels, stickers, and codes.

An organized format helps assure the exhibit is introduced and received in evidence. Forms 8.1 and 8.2 illustrate an effective system. Exhibits can be included in an exhibit case notebook or electronic file with duplicates provided to the fact finder, opposing lawyer, and witnesses.

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Modern Technology

A. Introduction

Modern technology assists advocates in effectively and efficiently presenting exhibits and arguments and allows fact finders to understand and remember evidence. When used well, it can explain facts and opinions and enhance presentations. When used poorly, technology can inhibit effective communication. AI can change the way exhibits can be readily prepared and effectively presented. See § 1.1[C].

Advocates need to understand the technology available, when its use is most appropriate, and how to lay the necessary foundation and present the electronic and digital evidence. Lawyers may have law firm technology staff assist them or can retain consultants. IT personnel, AI experts, and forensic animators can provide innovative exhibits.

Many court and hearing rooms are equipped with modern equipment and multimedia systems, but some are not. Judges, arbitrators, and ALJs commonly use or have access to computers and monitors during cases. Clerks and reporters may use electronic, digital, and AI systems to track exhibits.

To learn about available technologies before a trial, arbitration or hearing, advocates can contact administrators for information or visit the courtroom or hearing space. Judicial, arbitral, and administrative websites may also contain information about available technology. It’s also wise to make sure the equipment is in working order and to schedule a time to test it. Confirmation that the system is still operational can be made shortly before it’s needed.

B. Technology Systems

Technology systems generally fall into two categories: permanently installed equipment and portable equipment.

Permanent. Courtrooms and hearing rooms may have an existing technology system, which can be viewed and verified.

Portable. If a room doesn’t have proper technological equipment, portable equipment will be needed, such as: laptops, monitors, speakers, document cameras, projectors, and power supplies. A layout or drawing of the space helps decide what equipment and supplies are necessary and the best setup. It’s crucial that the equipment is installed and working a reasonable time before it’s needed. The following list explains preparatory work:

• Dimensions. Obtain measurements. This will help with decisions on what equipment will fit in the room, easel placement, and selection for what presentation system to utilize (monitors, projector, flat panel displays).
• Line of sight issues. Check line of sight views from the counsel tables, bench, jury box, or arbitrator or ALJ position to ensure the equipment placement will not inhibit viewing.
• Power and connectivity. Confirm location of power outlets, internet and wireless connections, and system cabling.
• Approval. Obtain permission. Authorization is usually required from an administrator for delivery and installation.
• Equipment security. Confirm how secure the room will be when empty. Determine if the equipment and materials can remain in the room to avoid daily setup.

C. Technological Equipment

The use of proper technology equipment depends on the choices made by the advocates and the discretion of the judge, arbitrator, or ALJ. Exhibit and room limitations also shape the appropriate apparatus.

• Monitors/screens. Many court and hearing rooms are outfitted with flat panel displays or computer monitors or have screens allowing the participants to view the evidence. Judges have ultimate control over jury viewing, through override switches controlled from the bench. For a bench trial, arbitration, and administrative hearing four or fewer monitors may be sufficient (one for the judge/arbitrator/ALJ, the witness, and each advocate). For a jury trial, six or more monitors may be necessary. In some cases, one large monitor or screen may be used if it can be seen by all. An amplifier may also be necessary to broadcast the signal.
• Document cameras/projectors. If using monitors, a projector is not necessary. With a screen, a projector is needed.
• Smart boards. The court or hearing room may be equipped with a smart board (electronic display panel) that is connected to computers and can project images. The board can be written on with special marking pens producing an image that can be preserved in a computer file. Printed copies can be made for display and for the record.
• Sound systems. Audio equipment may be needed depending upon the size of the room and the number of participants. Many rooms have sound projection equipment and may have battery powered lapel or pendant microphones. Speakers and an amp may be needed to show video depositions.
• Power lecterns. Rooms may have adjustable lecterns for the comfort of advocates. Tall or short advocates can adjust the height of the lectern.
• Computer assisted transcription (CAT). Reporters in some court and hearing rooms enter evidence into viewable, real-time files, which can be searched, reviewed by counsel and witnesses, and referenced during the proceeding. Arrangements for computer assisted or AI based real-time reporting can be made in advance.
• Bar code technology. In a case with numerous exhibits, bar code and scanning technology permit an advocate to select a labeled document and quickly reference a specific page and line appearing for all to see simultaneously.
• GenAI and *LLM programs. *An AI platform can assist in

managing, searching, and presenting relevant exhibits.

See § 1.1[C].

Supplies augment both technological and traditional equipment, including easels with flip charts and white boards with markers. Advocates may need to bring extension cords, scissors, tape, white-out, correction tape, post notes, laser pointer, and highlighters.

D. Communication Devices

Exhibits may be presented using the following systems, and related methods as advanced technology evolves.

1. Document Camera Presentations with Prepared Exhibits

Document cameras, also referred to as visual presenters, are devices that combine a video camera with projection equipment. As the witness examines a document during testimony, the exhibited document is placed on the document camera and is shown to the fact finder. The advocate may also display exhibits during opening or summation.

Typically, the document camera is either hooked up to a projector that reflects the image onto a screen, or is connected to monitors in the room. There is no need to scan documents and photos ahead of time. Printed or reproduced documents, as well as tangible exhibits, can be placed on the document camera surface, and can highlight witness testimony.

There are limitations. Document cameras are often formatted with landscape (11″ x 8.5″) orientation, making it difficult to see detailed portrait (8.5″ x 11″) documents without zooming in on particular data. And, this process can be cumbersome to compare documents.

2. Digital Exhibit Presentations Using Computers

Electronic evidence presentations most commonly include a computer with files to display case information through the use of a projector or monitor. Original exhibits, such as documents and photographs, are scanned and made into digital files, loaded into a computer, and viewed with a presentation software application. Effective systems, including AI tools, allow retrieval of documents in any order (not just sequentially), permitting multiple document comparisons and zooming, highlighting, and marking the materials during the presentation.

Once documents and other evidence are digitized, files can be stored in multiple directories and searchable formats. When presenting evidence using a computer or AI system, there is no paper shuffling or document rummaging. Exhibits may be maintained on a laptop in separate lists or files and readily opened when needed. This method is useful in cases with a modest number of exhibits.

In cases with numerous exhibits, presentation software allows lawyers to scan with a code or use a bar code reader to retrieve documents, making their use smooth and efficient during evidence presentation. Features allow the advocate to bring up more than one document at a time, zoom in when needed, focus on several areas at once, and compare documentary evidence. Presentations can be prepared with GenAI to display facts serially.

Streaming and recorded video can present evidence. Live witnesses who are not present may appear on a monitor by using a telecommunications software application. Recorded evidence can be presented through electronic media. Relevant images from smart phones or tablets can be readily displayed. Prior deposition, trial or hearing testimony can be presented as previously recorded.

Video evidence can be replicated onto an optical memory device or storage source and synchronized with a transcript so the two can be shown simultaneously. Attorneys can present computer-generated simulations and animations to supplement the testimony of expert and fact witnesses. These presentations help fact finders understand complex events.

Software presentation and graphic programs that produce these various uses of exhibits are available online at no or a reasonable cost or from proprietary vendors. LLM systems can assist with the production and use of exhibits. See § 1:1[C]. It takes practice, time, and experience to develop the knowledge and skills to produce these exhibits. It’s not rocket science, and technologically challenged advocates can readily become proficient.

3. Presentation Podiums and Integrated Lecterns

Court and hearing rooms may be equipped with digital podiums and lecterns that can integrate with computer equipment. These apparatus contain control devices to display and present electronic visuals projected on monitors or screens. Counsel can use these devices to present seamless streams of evidence.

4. Animated Recreations of Disputed Events

Animations can transform complex facts and difficult issues into visual relevant, memorable, and imaginably unforgettable exhibits. These forensic and 3D depictions can simulate events such as automobile driving, weather related conditions, product manufacturing, surgical operations, aviation pilot maneuvers, and accident reconstructions. They can be used in complex cases, medical malpractice, construction disputes, toxic torts, engineering disasters, patented inventions, and virtually any accident or catastrophe.

Evidentiary Considerations

Real and demonstrative exhibits are subject to the rules of evidence. Some exhibits, like physical objects, may be easy to introduce. Other exhibits, such as documentary evidence, may have to satisfy rules regarding the admissibility of hearsay and original writings before being received into evidence. Chapter 4 on Evidence and Objections described the applicable evidentiary procedures and rules for all forums including jury and bench trials. Exhibits in administrative hearings and arbitrations may be subject to less rigid and more informal admissibility requirements.

The following sections discuss additional exhibit issues:

• Relevancy and unfair prejudice.
• Levels of foundation.
• Contemporary exhibits.
• Challenging evidentiary issues.
• Chain of custody.
• Demonstrative/illustrative evidence.
• Exhibit for limited purpose.
• Redaction of an exhibit.
• Exercise of discretion by the judge, arbitrator, or ALJ.

A. Relevancy and Unfair Prejudice

An exhibit must be relevant to be admissible. An exhibit is relevant if it has any tendency to make more or less probable the existence of any fact that is of consequence to the case determination. See § 4.9.

Example:

Examining Attorney:

Q: I am showing you what has been marked for identification as Exhibit No. 10. Do you recognize it, Mr. Dumbo?

A: Yes.

Q: How?

A: I brought it with me.

Q: What is it?

A: It’s a peanut shell. I ate the peanut part before I took the stand.

Q: Why did you eat the peanut?

A: To help my memory so I can testify better.

To the Court:

Your Honor, I offer Exhibit No. 10.

Opposing Counsel:

Your Honor, I object. This has nothing to do with this case and is beyond irrelevant.

Judge:

Really. Indeed it is. Objection sustained.

Even when an exhibit is relevant, it may be excluded from evidence if it tends to confuse the issues or mislead the fact finder, causes undue delay, wastes time, is cumulative, or if the probative value of the exhibit is substantially outweighed by its unfairly prejudicial impact. A motion in limine can obtain a ruling regarding inadmissible or unfairly prejudicial exhibits. See § 4.5(A).

Some exhibits may be susceptible to a claim of undue prejudice because of their visual impact. This impact may indeed be prejudicial to the opponent, but the harm is not necessarily unfair. For example, a photo or video showing injuries that a plaintiff has suffered demonstrates the extent of the injury and communicates the pain and suffering the plaintiff endured. The impact of this image is undoubtedly more harmful to the defendant’s case than if the plaintiff verbally described the injuries. This harm does not rise to the level of unfair prejudice unless the exhibit is unnecessarily shocking or gruesome. Some exhibits may be excluded because of the needless impact they have in a case or the way they distort the evidence.

Example:

In a criminal trial, presume the prosecution is introducing a series of photos of the deceased victim through a police officer.

Examining Attorney:

Q: Detective Chief Leigh Johnson, I am showing you what has been marked for identification as State’s Exhibit No. 23. It is a digital photo. Do you recognize it?

A: Yes, I do.

Q: What is it?

A: It’s another photo in the series you have just shown me of the body of the victim at the crime scene.

Q: Is Exhibit 23 like the other photos—Exhibits 20 through 22—we have introduced, a fair and accurate representation of the victim’s body as it appeared on the day of the murder?

A: Yes, it is.

To the Court:

Your Honor, I offer State’s Exhibit No. 23.

Opposing Counsel:

Your Honor, I object on the grounds that a fourth photo of the same body is unduly prejudicial, a waste of time, and cumulative.

Judge:

It shows another angle. I’ll accept it as the last photo of the victim.

Example:

In a civil trial, presume the witness is an eyewitness to a trolley accident that occurred at 8:45 p.m. on a summer night.

Examining Attorney:

Q: Officer Shibuya, I show you what is marked for identification as Exhibit C. Do you recognize this photo?

A: Yes.

Q: What does it show?

A: It shows a pedestrian at the Rodeo Drive intersection where the accident happened.

Q: Is Exhibit C a fair and accurate representation of the scene of the intersection that you saw?

A: Yes, for the most part, except it’s brighter.

To the Court:

Your Honor, I offer Defendant’s Exhibit C into evidence.

Opposing Counsel:

I object, your Honor, to the introduction of Exhibit C. This photo was apparently taken during the day and doesn’t show the intersection at dusk, as the sun was setting. It distorts the facts and is confusing.

Judge:

Sustained.

B. Levels of Foundation

There are two levels of foundation for exhibits that must be met during a case. The first is the legal foundation that must be established before the exhibit can be admitted as evidence, and the second is the persuasive foundation. The judge, arbitrator, or ALJ always determines whether the minimum legal foundation has been met and whether the exhibit is admitted in evidence. The fact finder, including the jury in a jury trial, determines the persuasive weight and decides whether the exhibit is really what it claims to be. See § 4.2(B).

The threshold legal foundation is the minimum requirement for the admissibility of an exhibit. While this admissibility foundation can be minimal, the advocate must expand or clarify the foundation to increase the weight the fact finder will give to that exhibit. This is the persuasive foundation. Detailed facts must be established so that sufficient evidence exists to satisfy both levels of foundation.

1. Legally Sufficient Foundation

The judge, arbitrator, or ALJ decides whether there is sufficient evidence to support a finding that the exhibit is what it purports to be. The foundation for real evidence is established by a witness testifying that the tangible object or document is what it is claimed to be. Fed. R. Evid. 901(b)(1). There are two primary types of real evidence:

• Evidence that is readily identifiable because it is unique or singular. It becomes, in effect, relevant and admissible because it is one-of-a-kind.
• Evidence that is fungible and which lacks unique or identifiable characteristics. To demonstrate that a fungible exhibit is relevant, the offering attorney must establish a chain of custody from the incident to the courtroom. See § 8.4[E].

The minimum evidentiary foundation is established for real evidence when a witness can identify the object by its distinctive characteristics and can state that the object is in the same or substantially the same condition as it was at a relevant time. Federal Rule of Evidence 901(b)(4) permits identification by “distinctive characteristics” such as “appearance, contents, substance, internal patterns, or other . . . characteristics.”

Example:

Examining Attorney:

Q: I show you what is marked for identification as Exhibit No. 101. What is it?

A: It’s my rubber duckie.

Q: How do you recognize it?

A: It looks identical to my rubber duckie. It’s the same shape and color. It feels the same. It has the same exact watermarks on it from the last time I used it, and I recognize the missing paint from its beak.

Q: Ms. Kwakk Wakk, is Exhibit 101 in the same, or substantially the same, condition now as it was when you last saw it in your bathtub at the time of the accident?

A: Yes.

To the Court:

Your Honor, we offer Exhibit No. 101 into evidence.

Judge:

Received.

Evidence law does not require that a witness be completely sure or state with absolute certainty that an exhibit is the identical object. An exhibit will be admitted as long as there is reasonable evidence to support a finding that the exhibit is what it is claimed to be. A qualified identification of an exhibit may affect the weight (persuasive value) the fact finder gives to the exhibit but may not affect admissibility.

2. Persuasive Foundation

After a ruling that sufficient evidence has been established to admit an exhibit, additional testimony may be needed to convince a fact finder that the exhibit is real, accurate, complete, or true, depending on the type of exhibit. The more detailed the facts are to support the authenticity or accuracy of an exhibit, the more likely the fact finder will conclude the exhibit is what it is claimed to be.

The following example illustrates levels of evidentiary and persuasive foundation regarding an expert’s opinion about an exhibit.

Example:

Presume Clarice Starling has been qualified as an expert crime laboratory analyst and has analyzed two separate bullets: one from the body of the deceased and the other from the crime scene gun.

Examining Attorney:

Q: You have told us that you examined Exhibit A—a bullet from the body of the deceased?

A: Yes.

Q: Did you also examine Exhibit B, which is the bullet you told us was fired from the tested gun found at the crime scene?

A: Yes.

Q: Did you compare the bullets?

A: Yes.

Q: How did you do that?

A: With a comparison electronic microscope.

Q: What is that type of microscope?

A: A comparison electronic microscope is an instrument that determines whether different bullets were fired from the same gun.

Q: How does it operate?

A: In two ways. It allows me to place two bullets under separate eyepieces so they can be rotated, and I can look for similarities in both the vertical and horizontal bullet markings. And, it also involves a computerized system to independently compare the markings on the two bullets.

Q: Based on your examination with the comparison microscope, do you have an opinion whether the bullet from the body of the deceased matches the bullet fired from the tested gun?

A: Yes, I do.

Q: What is it?

A: The bullets, Exhibits A and B, match identically.

Q: Describe how this comparison was made.

A: The markings on both bullets, which are known as striations, matched.

Q: What caused the striations?

A: Striations are caused by scratches and imperfections in the barrel of the pistol that in turn causes marks or striations on the bullet.

Q: How do these striations help you make bullet comparisons?

A: These striation markings will be the same on every bullet fired from the same gun.

Q: Do you have an opinion whether the bullets, Exhibits A and B, were fired from the same gun?

A: Yes.

Q: What is the opinion?

A: They were definitely fired from the same gun.

Q: How do you know?

A: I rotated the bullets so I could see that the marks on the two bullets were identical. And the computer software ballistics program confirmed that the striations were identical.

C. Contemporary Exhibits

The rules of evidence were composed at a time before modern communication methods were developed. Common documents previously included letters, written records, and other paper sources. Common document formats today are often electronic and digital. These contemporary types of documents affect the nature and extent of evidence needed to meet foundation, authentication, hearsay, and original writing requirements.

Authentication can be commonly established: (1) through testimony that describes the creation of the document, (2) by the contents of the document itself, with an explanation of the electronic or digital source that was used to create the document, (3) through the use of the reply doctrine that shows there was a receipt or a response, and/or (4) by the inherent reliability of the document source. Hearsay issues can often be resolved because the electronic/digital document is a party admission, or a business record, or falls within an exception. Original documents can be authenticated by the accuracy and ease of producing duplicate originals.

Emails, electronic transmissions, and website content can be readily admitted into evidence. An email address can be linked to a recipient party or witness, with proof of a sent message or an automatic receipt notice. A digital transmission can be proven through the identification or number appearing on the document, along with proof of it being sent and received. Website contents can be established through the URL (universe resource locator) site and by an inscription or logo or relevant content. A GenAI or LLM program may be able to locate and confirm exhibit sources. Forensic modern communication experts can provide procedures, tests, and testimony to support the introduction of the exhibit.

Section 8.6 describes in detail the foundation needed for the introduction and use of these and related contemporary exhibits.

D. Challenging Evidentiary Issues

A variety of images, characters, and abbreviations provide challenging proof and interpretation issues.

*Emoticons: *These are representative facial expressions formed by using keyboard character and symbol combinations, such as :-) (representing a smile). The numbers of possible emoticons reflect the numerous combinations of characters available on a keyboard.

*Emoji: *This is a small digital image or icon representing an idea or emotion, such as a smiley face. 😎 There are thousands of emojis regulated by the Unicode Consortium that attempts to standardize them and their meanings, with criteria to establish an expression or uniqueness.

*Texting acronym/online abbreviation: *There are abundant abbreviations and acronyms that abound in the netspeak world. These categories include casual or idiomatic forms of printed or written language, including internet slang and digital jargon characterized by contractions such as LOL (laugh out loud). These messages are also known as cyber-slang or chatspeak.

A user employs these images, characters, and abbreviations for various purposes: to send a text, explain a meaning, express a feeling, make a point, set a tone, or enliven a message. An Internet dictionary, such as NetLingo, is a reference guide for these cryptic culture codes. It is this assortment and range of possible meanings that creates the evidentiary challenge of proving and accurately interpreting what the user meant, intended, or implied. Is the netspeak ambiguous? Was the fuzzy emoticon a joke? Does the acronym have multiple meanings? Was the correct emoji intentionally selected? Is the abbreviation a typo?

Fact finders and decision makers interpret these messages in the context of the evidence presented. These printed marks, symbols, and images have limited sources of interpretation compared to spoken or written words. Visual clues and paraverbal clues assist in interpreting spoken language encounters. A listener can observe the facial expressions and body language of a speaker and decipher the sound, tone, and pitch of a statement. Written words commonly have a distinct explicit meaning, or may have different meanings depending on the specific circumstances or conditions of their use.

These factors are not or may not be available to translate or decode internet speak. Is that text slang a cultural expression? (What does it mean in Mandarin?) Is that emoticon equivocal? (Does it mean Lots of Love?) Is that emoji smiling or frowning? (Is the image crisp or blurry?) Is that acronym puzzling? (DOA or DOB?)

Messages often use or include webspeak, emoticons, emojis, or abbreviations. These characters may assist the recipient to better understand the message, or may confuse or contradict the meaning. The reader or viewer may correctly interpret or incorrectly decipher the message.

Evidence may need to be offered that supplements, bolsters, or augments the images or letters. Alternative sources of proof may be required to ascertain the real meaning. The extent of the needed foundation to establish relevancy and authenticity will depend, of course, on the details of the communication. Section 8.6 provides explanations and examples of the foundation and proof to consider messages in their totality.

E. Chain of Custody

The foundation for most exhibits can be established through a witness who testifies that an exhibit looks or feels like the real thing. Some exhibits may not be readily identifiable. Objects that are not unique, that do not have distinctive characteristics, or that have not been marked in any identifiable way may require a chain of custody foundation to make the exhibit admissible.

A chain of custody accounts for the whereabouts of the exhibit during all relevant times of the case. Examples include: in a drug case, the bag containing the drug needs to be accounted for from the time the bag was seized from the defendant until its transport to the courtroom; in a criminal case, a bloody glove found at the scene must be carefully marked and preserved; in a contaminated beverage case, the bottle needs to be accounted for from the time of consumption until the time of trial.

There are two ways of establishing an unbroken chain of custody:

• The exhibit has been at all times in the continuing, safe, and sole possession of one or more individuals; or
• The exhibit itself was distinctively identified, or was sealed and placed in a safe, tamper-proof container or preserved in a secure, virus proof device.

Testimony from one or more witnesses must show there have been no significant breaks in the links of the chain of custody. Typically, evidence need not establish a perfect unbroken chain or the whereabouts of an exhibit over the entire period of relevant time. Decision makers recognize that a chain of custody is flexible and that a reasonable amount of relevant evidence is sufficient to meet the admissibility foundation. Additional evidence may be necessary to meet the persuasive foundation and convince the fact finder that the exhibit is the actual real evidence and there has been no loss, misplacement, mix-up, unexplained changes, or tampering.

Example:

This example shows how the chain of custody is established when the exhibit was in the continual possession of individuals.

Examining Attorney (First Witness Establishing Foundation):

Q: On July 4, at 12:00 noon, where were you?

A: I was at the Mudville Ball Park.

Q: What were you doing there?

A: I was there with my spouse, Leslie, and we were having a picnic before the team began batting practice for the big game.

Q: What happened?

A: One of the baseball players was walking out toward home plate before anyone else even arrived.

Q: Did you know who it was?

A: Yes.

Q: Who?

A: Casey.

Q: How do you know it was Casey?

A: I recognized the uniform number, and I had seen Casey many times before at games and in town.

Q: What was Casey doing?

A: Limbering up and signing autographs.

Q: Then what happened?

A: After a short while, I heard the sound of a crack of a big bat.

Q: Then what?

A: Well, I was quite surprised.

Q: Why?

A: Because it was long before any batting practice or the game.

Q: What happened next?

A: I was suddenly hit on the head by a ball.

Q: What happened to you?

A: I ended up with a big, ugly cut and a very painful bruise on my head, and it felt like a severe concussion.

Q: What did you do?

A: I was able to pick up the ball.

Q: Then what did you do with it?

A: I handed it to Leslie.

Q: Did you look at it carefully?

A: No, I was bleeding and dizzy.

Q: Can you identify the baseball that hit you on the head?

A: Not specifically. It looked like any baseball.

Examining Attorney (Second Witness Establishing Chain):

Q: Leslie, are you married to the plaintiff, Chris, who was hit in the head with the baseball?

A: Yes.

Q: Describe for us what happened.

A: I was enjoying the pre-game festivities when I heard a cry, and I turned, and Chris then handed me a baseball.

Q: Did you see your Chris get hit with the ball?

A: Not really.

Q: What did you do with the ball?

A: I’ve kept it in my possession since that time.

Q: Why did you do that?

A: Well, I watch Court T.V. and thought we might have a good lawsuit.

Q: How did you keep it?

A: I carried it home with me.

Q: Then what did you do with it?

A: I locked it in my desk drawer, and put the key on a chain that I have since carried around my neck.

Q: Does anyone else have a key to your desk drawer?

A: No.

Q: When did you remove the baseball?

A: I took the key from around my neck today, unlocked the desk drawer, removed the baseball, and brought it with me to court today.

Q: Do you have that baseball with you right now?

A: Yes, I do.

Q: Will you hand it to me, please?

A: Yes.

Q: I am showing you what has been marked for identification as Exhibit No. 1. What is it?

A: It’s the baseball with a red stain that I kept in my possession since Chris gave it to me and that I just took out of my pocket and gave to you.

Q: By the way, how did Casey do that day?

A: Sadly, Casey struck out.

Example:

This example deals with an exhibit that cannot be specifically identified but which has not been tampered with because it has been kept in a sealed container.

Examining Attorney:

Q: What were you doing on November 5?

A: I was in my dorm room with a professor.

Q: Who was that?

A: Professor Kingsfield.

Q: What were you doing?

A: We were snorting ecstasy.

Q: What did you do after you took ecstasy?

A: I scooped up the remaining substance from what the Professor had used.

Q: What did you do with it?

A: I placed it in an envelope, sealed the flap, wrote my name over the seal, and the date and the time.

Q: Why did you do that?

A: Well, I thought that someday Professor Kingsfield might be considered for an appointment to the World Court, and the use of ecstasy might be relevant.

Q: I am showing you what has been marked for identification as Exhibit No. 1. Do you recognize it?

A: I do.

Q: How?

A: I recognize my signature, and the marked date.

Q: What is it?

A: It’s the envelope that contained the remaining ecstasy, on which I wrote my name and the date.

Q: What did you do with this envelope, Exhibit No. 1?

A: I placed it in a secure box in my house in the attic.

Q: Where has Exhibit No. 1 been for the past year?

A: In that box in my house in the attic.

Q: Has the envelope been opened?

A: No, it has not.

Q: How do you know?

A: It is still sealed and has my name over the flap. The envelope is intact. It’s in the exact same condition as when I stored it.

F. Demonstrative/Illustrative Evidence

Demonstrative/illustrative exhibits are not real evidence. However, they may involve issues relating to authenticity depending on the nature of the particular exhibit. Witnesses must be able to testify that they are familiar with or know that the information portrayed or contained in or on the exhibit is accurate. Demonstrative exhibits that are plainly visible, including prepared diagrams and models, can be described by the witness. Exhibits such as a video recording, DVD, digital streaming, animations, and computer generated illustrative data require a witness to establish that the image or information has been reviewed and is accurate. See § 8.7.

G. Limited Purposes

An exhibit, like any other form of evidence, may be admitted for a limited purpose. Federal Rule of Evidence 105 and similar state rules authorize evidence to be offered for a limited purpose. See § 4.5(E). The contents of some exhibits may be admissible for one purpose but inadmissible for other purposes. In these situations, the offering lawyer should indicate the limited purpose the exhibit serves.

Example:

Presume the plaintiff artist has testified the injuries she sustained in an accident due to the defendant’s negligence caused her to lose physical control over her hand and arm and she is now unable to draw freehand. A defense witness has testified he saw the plaintiff during the trial draw a sketch now being introduced as evidence.

Defendant’s Counsel:

Your Honor, I offer Exhibit X.

The Court to Plaintiff’s Counsel:

Do you have any objections?

Plaintiff’s Attorney:

Perhaps we can’t object to the creation of the drawing, Your Honor, but we do to its depiction of Your Honor that is quite . . . well Judge . . . very unflattering. May we have an instruction that Exhibit X is being offered for a very limited purpose?

Judge:

Yes, you may. (To the jury): Members of the Jury, I am instructing you that Exhibit X is being offered for the limited purpose to show that Ms. Catherine of Bologna could now draw freehand. The content of the sketch itself is not evidence in this case and should not be considered by you as such.

Example:

Presume the defendant consumer testified that she paid for repairs for her Hard Candy Purple Trike and she has identified a $945 repair bill, Exhibit No. 2, as the copy of the bill that she received marked “Paid.”

Defendant’s Counsel:

I offer Exhibit No. 2 into evidence for the limited purpose of proving that the defendant paid this bill.

Plaintiff’s Attorney:

Objection. This bill contains hearsay that repairs were done on the defendant’s trike and is inadmissible.

Defendant’s Counsel:

Your Honor, we don’t offer the bill to prove the repairs were performed, but only to prove that the defendant paid money and received a receipt.

Arbitrator:

Overruled. Exhibit No. 2 is received for that limited purpose.

H. Redacting an Exhibit

Some exhibit documents contain both admissible and inadmissible evidence. The examining attorney should offer only those parts of the documents that are clearly admissible. In jury trials, when the judge sustains an objection to part of a document, the ruling will require that the inadmissible portions of the document be redacted or removed before the jurors see the document. The examining attorney may anticipate such objections and prepare an alternate exhibit, which does not contain the inadmissible statement, and which can be shown to the jury in lieu of the original document.

Example:

Examining Attorney:

Your Honor, we offer Exhibit No. 13 into evidence, which is a copy of the manuscript, *Paradise Lost in Law Studies: An Empirical Survey *written by John Milton XIII. My client, the plaintiff, wrote a few comments in the margins that contain statements that are irrelevant to this case. Counsel for defendant has seen those comments and agrees with us that they are inadmissible. We eliminated those comments from this exhibit.

Opposing Counsel:

Your Honor, we have no objection to the admissibility of Exhibit No. 13 with those written comments removed.

Administrative Judge:

Exhibit No. 13 is received.

There are a number of ways that inadmissible portions of a document may be eliminated. If only a few words or phrases need to be redacted, they may be easily obliterated by using white-out tape or a marking pen. If substantial portions of a document need to be deleted, those parts can be covered up with a piece of paper and a copy made of the document, or the document can be scanned, word processed, and edited. If the form of the document is unimportant, the admissible portion of the contents may be recreated on a blank page and that new document admitted into evidence. Emails, tweets, social network communications, and videos may be edited to remove inadmissible contents. Whatever method is employed, jurors should be allowed to review only the admissible portions of the exhibit.

Example:

Examining Attorney:

Your Honor, we offer Exhibit No. 7, a dental report prepared by the plaintiff’s dentist, Doc Holliday, into evidence.

Opposing Counsel (At the Bench):

Your Honor, we object to the second and third sentence of the first paragraph of the report. Those sentences contain inadmissible hearsay because those statements were not made to the good Doctor for purposes of diagnosis or treatment.

Judge:

Sentences two and three of the first paragraph of Exhibit No. 7 are ruled inadmissible. The remainder of the exhibit is received into evidence. Counsel, before you show this exhibit to the jurors, you must remove those two sentences.

Examining Attorney (At the Bench):

Yes, your Honor. We have redacted them on this copy.

Opposing Counsel (At the Bench):

Your Honor, we ask that the court instruct the jurors to disregard the removed portion of the dental record and that they not guess about what it contained.

Judge:

Members of the Jury, you will have the dental record of the plaintiff, but you are not to consider statements that were deleted. You are not to draw any inference or guess about what was deleted or why it was removed.

I. Decision Maker Discretion

The judge, arbitrator, or ALJ has discretion in ruling on the admissibility and use of exhibits. This discretion is limited with real evidence. Since the admissibility of real evidence is determined as a matter of law, it is admissible if the proper foundation is made.

Discretion is broader in regard to demonstrative evidence and visual aids. The determination is primarily one of fact rather than of law regarding the admissibility of these types of exhibits. They will be permitted if the decision maker decides that the illustrative evidence or visual aid assists the witness or helps the fact finder.

Introduction of Exhibits

A. Legal Terminology

Many exhibits require the examiner to use precise legal terminology for their introduction and use. Specific questions, which are often technical and formalistic, must be asked to establish the proper foundation. Most witnesses would never be able to come up with these words by themselves, and so the attorney is allowed—and required in many situations—to state the foundation words in the form of leading questions. This “litany” of questions elicits the precise elements of foundation necessary for the introduction and use of exhibits and reduces the time a witness would need to testify to such matters if leading questions were not used. Other reasons may also justify the use of leading questions in laying the foundation for exhibits. See § 7.7(B).

Examples:

Q: Is this photo a fair and accurate representation of the scene as you saw it on February 14, Ms. Valentine?

Q: Are these records made in the ordinary and regular course of your travel business, Mr. Gulliver?

Q: Is this musket in substantially the same condition as it was the day you saw it at the scene of the shooting, Ms. Crockett?

B. Steps for Admissibility of Exhibits

The introduction of exhibits requires several steps that must be mastered, committed to memory, and followed. The witness must provide testimony that establishes the necessary foundation for the particular exhibit. Specific illustrations of the foundation required for various types of exhibits appear in Section 8.6. While the precise steps vary among decision makers and differ among types of exhibits, the following directions provide a general format:

• Qualify the witness by laying the foundation to identify the exhibit.
• Make certain the exhibit has been pre-marked before the trial or hearing or before the witness testifies, or have the item marked as an exhibit during the examination.
• Ask permission from the judge, arbitrator, or ALJ to approach the witness. (Many do not require this.)
• Show the exhibit to opposing counsel. (This step is optional and is not required if counsel has seen or is familiar with the specific exhibit, but may be done as a matter of courtesy.)
• Request that the witness examine and recognize the exhibit by explaining how they know what it is.
• Have the witness identify the exhibit by its name, description, designation, or other identity.
• Offer the exhibit into evidence by referring to its exhibit number or letter.
• Provide opposing counsel the opportunity to review the exhibit if not done previously. (Counsel may want to examine the exhibit and make an objection.)
• Respond to any objections made by opposing counsel, if requested or if necessary.
• Obtain a ruling from the judge, arbitrator, or ALJ, on the record if recorded.
• If admitted, display the exhibit to the fact finder in an appropriate way.

ILLUSTRATION OF ADMISSIBILITY STEPS

Examining Attorney:

Q: What is your name?

A: Ms. Little.

Q: Where were you last June 1 at 3 o’clock in the afternoon?

A: Out in the chicken yard.

Q: What happened?

1. FOUNDATION

A: A brick fell into my yard and nearly hit me.

Q: What did you do?

A: I kept it.

Q: Why?

A: I thought the sky was falling.

Q: What did you do with the brick you kept?

A: I scratched my name on it with my claw.

2. MARKED

To the Reporter:

May I have this marked for identification as Exhibit No. 1?

Reporter:

Your exhibit has been marked for identification as Exhibit No. 1.

3. APPROACH

To the Court:

Your Honor, may I approach the witness?

Judge:

Yes, you may.

4. SHOW TO OPPOSING COUNSEL

Would you care to look at Exhibit No. 1?

Opposing Counsel:

No. I’ve already seen it.

5. EXAMINE AND RECOGNIZE

Q: I have just handed you an object marked for identification as Exhibit No. 1. Do you recognize it?

A: Yes.

Q: How?

A: I recognize the size, shape, and color, and I recognize my name that I scratched on it with my claw.

6. IDENTIFY

Q: What is Exhibit No. 1?

A: The brick that fell in my yard last June 1.

Q: Is Exhibit No. 1 in the same condition as it was on June 1?

A: Yes.

7. & 8. OFFER AND REVIEW

To the Court:

Your Honor, at this time I offer Exhibit No. 1, and I am handing it to opposing counsel.

9. RESPONSE

Opposing Counsel:

No objection, your Honor.

10. RULING

Judge:

Exhibit No. 1 is admitted.

11. SHOW TO FACT FINDER

Examining Attorney:

May the brick be shown to the jurors?

Judge:

Yes. You may pass it to them.

Examining Attorney:

Your Honor, may I wait a moment before I ask any further questions of this witness so the jurors can look at the exhibit?

Judge:

You may have a moment, counsel, and then proceed.

The following paragraphs explain each of these steps in detail.

1. Qualifying the Witness (Foundation)

Questions need to be asked of the witness to lay the foundation for the witness to identify the exhibit. The witness must testify that the witness saw the exhibit and is able to recognize it. Naming the exhibit or briefly describing it is usually sufficient.

Example:

Q: What happened after the agreement was completed at the Conference?

A: I attended the signing and saw Prime Minister Chamberlain sign the Pact.

Example:

Q: What did you see?

A: I saw the defendant, Ma Barker, holding the machine gun.

In these two examples, after the witness testifies to the existence of the evidence, counsel can begin asking questions to introduce the exhibit.

2. Marking the Exhibit

Most exhibits will be pre-marked before the trial or hearing or before the witness testifies. Many judges require the attorneys to have all the exhibits marked by the court reporter or clerk before the start of the trial, and administrative judges and arbitrators typically ask counsel what exhibits they plan to introduce before the hearing and mark them at that time. In cases with few exhibits or where an exhibit is not pre-marked, counsel can have an exhibit marked during the trial or hearing.

Exhibits will be marked either by a number or a letter. The practice among tribunals varies. In most forums, the exhibits are marked with consecutive numbers. In other forums, exhibits of one party are marked with numbers and the other party’s exhibits with letters. The person marking will know the proper system, or counsel could agree on whether a number or letter should be used. The judge, arbitrator, or ALJ or reporter will also usually maintain a list and keep track of the sequence of exhibits, and will know the next letter or number that should be used.

3. Approaching the Witness

Some judges, arbitrators, and ALJs require a lawyer to request permission before approaching the witness with an exhibit. Some expect the attorney to ask permission only with the first exhibit, or the first witness. Many do not require or expect permission to be sought, because they recognize the lawyer must approach the witness in order to show the exhibit to the witness. In arbitrations and administrative cases, counsel may be able to remain seated and hand an exhibit to the witness. The advocate can ask the decision maker about the preferred practice if uncertain whether a request should or need be made. See § 3.5.

4. Showing to Opposing Counsel

There is no formal rule requiring that the exhibit be shown to opposing counsel at this point, and many advocates do not. However, as a matter of courtesy, some attorneys will show the exhibit to counsel at this time. This assures what the exhibit is and avoids an interruption by the opposing lawyer who may want to be sure what exhibit is being used.

5. Examination and Recognition of Exhibit by the Witness

The lawyer needs to describe on the record (if there is one) the handing of the exhibit to the witness. The lawyer should always refer to the number or letter marked on the exhibit to identify the exhibit for the record. There are several alternative phrases that may be used:

Examples:

I hand you what has been marked as Exhibit No. 6 for identification, Valentina Tereshkova.

I am handing you . . . Or, You have in your hands . . . Or, I’ve just given you . . . I show you . . . Or, I am showing you . . .

Or, Here is . . . Or, oops, I dropped it.

The witness must recognize the exhibit and explain how the witness is able to do so.

Example:

Q: Do you recognize Exhibit No. 6 for identification?

A: Yes.

Q: How?

A: I wore these night vision goggles while on surveillance. They are the same size, shape, and brand. And my initials are on the strap.

Q: Anything else?

A: Oh, yes. They remind me of my years of service in the military.

Q: You have our most profound and deepest gratitude.

Some judges, arbitrators, and ALJs require references to an exhibit not yet received in evidence include the phrase “marked for identification.” Most decision makers consider this an unnecessary technicality and do not require the use of this phrase.

The attorney should not describe the exhibit that is being shown and should refer to it by its exhibit number or letter to avoid improperly leading the witness. Some exhibits may be generically described by counsel when handed to the witness: if it is obvious to everyone what the exhibit is, or if the identification of the exhibit is not in issue, or if leading questions are permissible.

Examples:

Q: I hand you what has been marked as Exhibit No. 6. Do you recognize this telescope, Mr. Galileo?

Q: Here is Exhibit No. 3. It is an iPad, Ms. Apple.

6. Identification of Exhibit by the Witness

The witness identifies the exhibit with a brief, accurate description.

Example:

Q: Please look at Exhibit C, Mr. Daguerre, and tell us what it is.

A: It’s a photo I took of the cathedral of Notre Dame de Paris.

Example:

Q: Mr. Fitzgerald, what is Exhibit 919?

A: It is a note I received from Zelda from our Montgomery home.

It is improper for the lawyer to describe an exhibit that is not identifiable by sight or is an issue in controversy.

Example:

Examining Attorney:

Q: I show you Exhibit No. 1, which is a Bar Exam Interactive Video game made by E-Fun.

Opposing Counsel:

Objection, Counsel’s testifying. There is no basis for that identification.

Arbitrator:

Objection sustained.

7. Offering the Exhibit into Evidence

The attorney must offer the exhibit into evidence. The attorney must refer to the exhibit by the assigned number or letter and direct the offer to the judge, arbitrator, or ALJ.

Examples:

Your Honor, Claimant offers Exhibit No. 1 into evidence.

I offer the fire tablet marked as Exhibit E, Ms. Arbitrator.

Counsel should avoid using unnecessary words in making the offer, such as “I would like to offer into evidence” because it does not matter what the lawyer “would like” to do. A short, simple declarative statement is sufficient: “We offer into evidence Exhibit. . . .”

8. Examination of the Exhibit by Opposing Counsel

After the exhibit is offered by the proponent, the opposing attorney may object to its admission. The opposing attorney must usually wait until the proponent has offered the evidence before an objection regarding admissibility can be made, unless there is a reason for making an earlier objection. Early objections to an exhibit may be made through a motion in limine, or before the witness testifies, or before the exhibit is shown to the witness. See § 4.5[A]. The opposing attorney may also need to object to an exhibit if displaying it is unfairly prejudicial or otherwise objectionable, or if the examining lawyer asks improper questions trying to lay a foundation for the introduction of a questionable exhibit.

Some advocates show the exhibit to opposing counsel at the same time they offer the exhibit into evidence. The examining lawyer may hand it to counsel if the lawyer wants the opposing counsel to look at the exhibit, or if the opposing counsel wants to review the exhibit. The offering lawyer may remark that counsel has been provided with an opportunity to previously see the exhibit. The attorneys will have seen the exhibits, and it may be unnecessary to physically show the exhibit to opposing counsel because of counsel’s familiarity with it.

In some jurisdictions the exhibit may be shown to opposing counsel at an earlier or later stage of the offer. In some tribunals, the exhibit is shown to opposing counsel before it is shown to the witness. In these jurisdictions, it may be necessary for the examining lawyer to show the exhibit to the opposing attorney before showing it to the witness. In other forums, the exhibit is shown to the opposing attorney after it is shown to the witness but before it is offered in evidence. Whatever the requirements are in a jurisdiction, the examining lawyer should follow them.

The nature and type of exhibit determine how and when opposing counsel can see and review the exhibit. Many will be easily reviewable, as described previously. Electronically stored information and digital evidence may not be readily observable before it is displayed during a case, and the attorneys will have had to review it ahead of time to make sure the evidence is admissible and to ascertain whether the computer or AI device that contains the information will properly and timely display it. See § 1.10[E]. All counsel will have had to review it before it is introduced to make certain it is the evidence that is to be introduced. This process requires trust by all parties that the proffering lawyer will not attempt to introduce something that opposing counsel does not know about or has made objections that have been sustained.

9. Responding to Objections

The judge, arbitrator, or ALJ often rules immediately without wanting or expecting any response from the proffering lawyer. An advocate may need to or want to respond to objections interposed by the opposing attorney to the introduction of the exhibit. Or the decision maker may invite a response from the proffering lawyer.

If a response is expected or if the examining lawyer believes the objection may be sustained, counsel should ask to be heard and explain why the exhibit is admissible. The objecting attorney may be able to explain the objection grounds. If an objection is sustained, the examining lawyer should ask additional questions to remedy the evidentiary deficiency or make an offer of proof if the exhibit is excluded. See § 4.5(B).

10. Ruling

The judge, arbitrator, or ALJ will make a ruling. Occasionally a decision maker will fail to rule on the admissibility of an exhibit. Advocates can and should insist on a ruling. If the exhibit is not received in evidence, it is not a part of the case, not a part of the record, and may not be used in final argument or as part of an appeal. If an exhibit is overlooked or not timely received in evidence, counsel may re-offer it later in the case and receive a ruling before resting.

11. Displaying the Exhibit to the Fact Finder

How an exhibit is shown to the fact finder depends upon the forum, the type of exhibit, the exhibit’s importance to the case, how the attorney prefers to present the exhibit, and how the judge, arbitrator, or ALJ wants the exhibit presented. In bench trials, administrative hearings, and arbitrations, the decision maker may be able to easily and readily review the exhibit. In jury trials, a number of options may be available.

a. Tangible Objects

Objects that are large, easily seen or dangerous need not be handed directly to the jury. The jurors can see these tangible objects while the witness is on the witness stand. For example, it is sufficient for the jurors to see a gun from a distance, and it may be unnecessary or inappropriate for them to handle the gun.

Some tangible objects may need to be handled and individually seen by the jurors. Objects that are small or difficult to see from a distance may need to be shown to the jurors up close. If the actual weight of an object is in issue, or if the use or function of an object is in dispute, the jurors may need to handle the object.

i. Documents

There are a variety of ways a document may be displayed. It may be:

• Read or described to the jury by the attorney or clerk (a neutral person),
• Passed among the jurors,
• Copied, with a duplicate distributed to each juror,
• Enlarged and placed on an easel.
• Revealed on a monitor screen or on a device before the jurors, or
• Shown with relevant portions highlighted.

The attorney should decide which method will be the most effective and efficient and plan for that distribution or display.

ii. Photos and Videos

Photos may be used for a variety of purposes. In accident cases, photos of the scene, the vehicles, and injuries to the parties are common. A video recording of the day in the life of a severely disabled plaintiff may be shown. Photos of the scene of the crime are typical in criminal cases. Aerial photos may be used in condemnation proceedings. Drones may capture relevant scenes. Computer generated and GenAI videos may display recreations of events with three dimensional, rotating views.

Photos and videos are usually demonstrative evidence, while some constitute real evidence. A recording of a bank robbery taken with a surveillance camera is actual evidence of facts. A video taken by a helicopter camera depicts an event. A wearable or mountable camera captures videos of real life incidents and crimes.

The foundation for real or demonstrative photos and videos is usually the same. Testimony that the photo or video of a relevant event accurately depicts what appears is sufficient to establish foundation. In some cases, a witness may have to testify regarding how the video recording or presentation was made, if the making affects authenticity or accuracy. Animated demonstrative videos that re-create events need to be based on the facts introduced during the case.

iii. Diagrams, Drawings, and Computer Displays

A witness may use a prepared diagram or may create a freehand drawing on a whiteboard, on an easel paper using marking pens, or on a computer or tablet screen using a mouse or stylus. While freehand drawings may be used because of time or financial constraints, prepared diagrams are more effective because few witnesses draw well. A GenAI program may produce relevant images based on descriptions made orally. See § 1.1[C].

iv. Visual Aids

During opening statement and summation, a lawyer may use a prepared chart of key facts, a list of damages, or a summary of evidence. This information may be presented on a board or a monitor screen. Or, an LLM system may prepare a summary directly from the opening and summation presented by counsel.

In a jury trial, during final argument, an attorney may refer to an enlarged copy of the jury instructions or the verdict form, which are placed on an easel in front of the jury or shown on a monitor. During a witness examination, the advocate may write key words of the testimony or have an expert summarize opinions on a pad or monitor. Again, an AI system can create a visual aid that assists counsel in presenting information to the decision maker. See § 1.10[E].

b. Displaying Exhibits

How long an exhibit is displayed depends upon the type of exhibit. Items of real evidence are usually left on counsel’s table or on the clerk’s desk during a case, unless their presence is unfairly prejudicial or otherwise objectionable or because of space limitations. Demonstrative evidence is displayed during the testimony of a witness who uses the exhibit. If an opposing counsel does not want the evidence or visual aid to be continually displayed, counsel may either physically move the exhibit, ask the examining lawyer to put the exhibit away, or ask permission to have the exhibit removed.

c. Attention of Fact Finders

Examining attorneys should provide fact finders with sufficient time to understand, view or touch evidence before continuing with the examination of a witness or the introduction of other evidence. If an exhibit is being read by a judge, arbitrator, or ALJ or if jurors are reviewing exhibits, counsel should delay continuing until the fact finders can devote their full attention to the evidence. Some judges may limit or not permit a delay in testimony for jurors to individually examine an exhibit.

C. Additional Ways to Admit Exhibits

1. Stipulations

Advocates may stipulate to the foundation of an exhibit to avoid the need to ask detailed questions during the case and may agree on the procedures to be used in presenting exhibits. Stipulations can significantly reduce trial and hearing time and should be voluntarily entered into between counsel if there is no real dispute concerning the authenticity or accuracy of the exhibits. Counsel will usually prefer to stipulate to the admissibility of exhibits, particularly those with difficult foundation requirements, in cases where both lawyers have similar exhibits to introduce, including, for example, social network or computer data evidence.

Judges in bench trials and arbitrators and administrative judges encourage or expect certain types of evidence to be admitted by stipulation. For example, hospital records will often be entered into evidence by stipulation because these records are usually reliable. A prepared stipulation should be introduced during the trial or hearing, or an oral agreement summarized on the record. In jury trials, the offering attorney must request permission to introduce the stipulation by reading it or have someone read the stipulation. Stipulations are more common and expected in civil cases, and less so in criminal cases when the defense insists that the prosecution prove all elements for the introduction of an exhibit.

Example:

Claimant’s Attorney:

Ms. Arbitrator, at this time we offer Exhibit No. 11. It is a print duplicate of a GiveMeHope email lyric sent between the parties on May 30, the admissibility of which both Respondent’s counsel and I have agreed to through stipulation.

Arbitrator (To Counsel for Respondent):

Is that correct, counsel?

Respondent’s Counsel:

Yes, your Honor.

Arbitrator:

Exhibit No. 11 is received.

Even when an opposing attorney is likely to be cooperative and agree to stipulate to the admission of an exhibit, there are occasions when laying the foundation is advantageous and may be important for persuasive foundation. In these situations, counsel should ask questions that establish a complete foundation for the exhibits. Counsel may need to reject a proffered stipulation from the other side or resist the urgings of the judge, arbitrator, or ALJ to accept such a stipulation. In rejecting a stipulation, the examining lawyer must decide that laying the foundation is strategically necessary for its persuasive value.

2. Pleadings, Admissions, and Discovery Responses

Pleadings and discovery documents are a part of the case but are not considered as evidence by the fact finder unless or until an attorney affirmatively offers such information as evidence during the case. The evidence may be offered during the direct or cross-examination of the witness who originally provided the information, or may be introduced during the offering party’s case in chief or on cross-examination.

Example:

Plaintiff’s Attorney:

Your Honor, we offer Exhibit No. 1, the letter containing the libelous statement made by the defendant about Oscar Wilde. The authenticity of the letter was admitted in Defendant’s Answer, paragraph three, making it admissible.

Example:

Defendant’s Counsel:

Your Honor, I offer Exhibit 25. It’s an electronic copy of the home page of the Four Fabs vs. Beatles Website relevant to this case. Plaintiff admitted to its authenticity in a discovery admission that appears in Plaintiff’s Response to Defendant’s Request for Admissions No. 4.

3. Abbreviating the Foundation

When there is a series of exhibits for which the foundations are similar, the attorney may abbreviate the process of laying foundation after the initial exhibit or exhibits have been introduced. The attorney can ask the witness whether the responses given to the foundation questions for the previous exhibits would be essentially the same for subsequent exhibits. Once the judge, arbitrator, or ALJ and opposing lawyer know the attorney is prepared to present an extensive foundation, the evidence may not be necessary or may prompt a stipulation regarding admissibility.

Example:

Presume the witness has testified that she seized ten relevant items from the defendant’s airplane hangar and that she used a marker or a tag to identify each item.

Examining Attorney:

Q: I am showing you what has been marked for identification as Exhibit No. 1. Do you recognize it?

A: Yes.

Q: How do you recognize it?

A: I recognize it because I marked my initials and the date on the fuselage.

Q: What is Exhibit No. 1 for identification?

A: It’s the drone I found in the defendant’s Kitty Hawk hangar.

Q: Where did you first see Exhibit No. 1?

A: I saw this confounding discovery in the defendant’s hangar.

Q: When did you put the markings on it?

A: At the time I seized it from the defendant, Mr. Wright.

To the Court:

Your Honor, we offer Exhibit No. 1.

Judge:

With no objection, it is received.

Examining Attorney:

Q: I show you Exhibit No. 2. What is it?

A: It’s a photo of the first drone I also found in the hangar.

Q: What did you do next?

A: I was flabbergasted, of course. I placed my initials and date on the back.

Q: Are those your initials on Exhibit No. 2 with the date you discovered it?

A: Yes.

To the Court:

Your Honor, we offer Exhibit No. 2.

Judge:

Received.

Examining Attorney:

Q: I hand you Exhibit No. 3. What is it?

A: It’s an unopened bottle of champagne.

Q: Is that also an exhibit you found in the defendant’s hangar and marked in the same way as Exhibits No. 1 and 2?

A: Yes.

And so on with the following seven exhibits.

4. Self-Authenticating Documents

Some exhibits are self-authenticating. Federal Rule of Evidence 902 and similar state rules make it unnecessary to introduce evidence authenticating these exhibits:

• Domestic public documents under seal.
• Domestic official public documents not under seal.
• Foreign public documents.
• Certified paper or electronic duplicates of public documents.
• Official publications issued by public authorities.
• Original newspapers and periodicals, or exact reproductions.
• Trade inscriptions, or accurate digitial copies.
• Acknowledged and notary public documents.
• Commercial paper and related documents.

After the attorney establishes that a relevant exhibit falls into one of these categories, the attorney need not introduce any other evidence to establish its authenticity. The exhibit may be offered, unless some other evidence rule has not been met or there exist genuineness issues.

Example:

Examining Attorney:

I offer Exhibit F for identification into evidence. It is a computer flash drive officially distributed by the government. It has the trade name “X-Files” inscribed with “The Truth is out there.” This exhibit is self-authenticating.

Administrative Law Judge:

It’s received, Ms. Scully.

Elements of Evidentiary Foundation

The necessary evidentiary foundation questions vary from exhibit to exhibit. Generally, responses are sought that establish the exhibit’s existence, identity, authenticity, and completeness or accuracy. The following checklists of foundation elements and examples demonstrate the legal grounds for introducing various exhibits.

A. Physical Objects and Properties (Products, Clothing, Appliances, Weapons)

To admit a tangible object into evidence, the following elements must be proved:

• The exhibit is relevant to the case.
• The witness recognizes and can identify the exhibit.
• The witness can recall what the exhibit looked like at the previous relevant time.
• The exhibit is now in the same or substantially the same condition as when the witness saw it at the previous time.

Example:

Examining Attorney:

Q: When you entered the Borden house, where did you go?

A: The bedroom.

Q: What did you see?

A: I saw an axe.

Q: Where was it?

A: On the floor.

Q: What did you do?

A: I called out to my colleague to take pictures of it.

Q: And did you see that it was photographed?

A: Yes, from several angles.

Q: Then what did you do.

A: I picked it up carefully with my gloved hands.

Q: Why?

A: Because it was covered with blood.

Q: Was there anything else you noticed about the axe?

A: Yes, it had a chip on the handle.

Q: What did you do with it?

A: I bagged it and marked the bag with my police ID. Then I took it with me to the police department and put it in a secure evidence locker.

Q: How long was it there?

A: Until today.

Q: What did you do with it today?

A: I took it out of the evidence locker, brought it to court, and handed to you.

Q: Officer, I have just removed from the bag you gave me and placed on the table in front of you what I have had marked as State’s Exhibit A. Do you recognize it?

A: Yes. It’s the axe.

Q: How do you recognize it?

A: I recognize the chip on the handle, the size, and the red stain.

Q: What is it?

A: It is the same axe I found in the living room of the Borden house.

Q: Does it appear to be in the same condition as it was when you picked it up?

A: Yes, except the red stain is now dry.

To the Court:

Your Honor, we offer State’s Exhibit A into evidence.

B. Documents (Electronic Documents, Contracts, Digital Data, Leases, Signed

and Printed Documents)

To admit documents into evidence the following elements must be proved:

• The document is relevant to the case.
• The document was composed on a computer or typed or handwritten and contains a signature or other identifying characteristics.
• The electronic or handwritten signature, handwriting, composition, or characteristic belongs to or identifies a person.
• The witness saw the person sign, write, or compose the document; or
• The witness knows, is familiar with, or can recognize the characteristic; or
• The witness recognizes and can identify the content; or
• The witness is a party and admits signing, writing, or composing it; or
• A handwriting expert states that the signature or writing is by a certain person or that the document can be identified by its characteristics; or
• A computer expert states that the document was created on a computer accessible to or used by the relevant person; or
• A qualified witness can testify to the process and system that was used to create, store, and produce the information; or
• The document contains unique characteristics or distinctive information.
• The document is authentic.
• The document is an original or an admissible duplicate or other reliable copy.
• The document is now in exactly the same or substantially the same condition (if exactness is not required) as when it was made and has not been altered.

Example (Signed Document):

Examining Attorney:

Q: Tell us your name please.

A: John Hancock.

Q: Where were you on July 4, 1776?

A: I was in Constitution Hall in Philadelphia.

Q: Why were you there?

A: To attend a meeting of the signing of the Declaration of Independence.

Q: Did you see the document being signed?

A: Yes.

Q: Who did you see sign the Declaration?

A: Some other founding fathers and myself.

Q: Would you recognize the Declaration if you saw it again?

A: Yes.

Q: How?

A: By my signature on it, and I remember the words of the document.

Q: I have just given you what has been marked for identification as Exhibit No. 4. Do you recognize it?

A: Yes.

Q: How?

A: I recognize the words and I recognize my signature.

Q: Your signature is rather large, isn’t it?

A: Yes.

Q: How come?

A: I was feeling particularly revolutionary that day.

Q: Tell us please, what is Exhibit No. 4?

A: It is the same Declaration of Independence that I signed on July 4, 1776.

Q: Has it been changed or altered in any way?

A: No.

To the Court:

Your Honor, I offer Exhibit No. 4.

Example (Contract):

Examining Attorney:

Q: You said you entered into a contract for employment as a first year associate?

A: Yes, I did.

Q: How was that contract created?

A: Brachman, the senior partner of the firm, sent me an email that detailed the terms of the contract, including the starting salary.

Q: How much was the starting salary?

A: $250,000 a year.

Q: Did you accept the contract terms?

A: Oh, yes. Quite happily.

Q: I have just handed you what I have marked for identification as Exhibit No. 9. It is a printed document. Do you recognize it?

A: Yes, I do.

Q: How do you recognize it?

A: It’s the email I received from Brachman, the senior partner, which contained the contract terms and salary.

Q: How do you know it’s from Brachman?

A: It has his email address; it refers to terms we had previously discussed in person; it has the law firm’s information; and it’s in the same format as other emails I received.

Q: What is his email address?

A: [email protected]

Q: What did you do after you received this email?

A: I immediately replied that I accepted the terms and position as a first year associate, and then I went to celebrate.

Q: Did you later determine that your reply was sent to Brachman?

A: Yes.

Q: How did you do that?

A: I reviewed the “sent” folder in my system and saw it had been sent to him.

Q: Did you also learn whether the email you sent was opened?

A: Yes, I received a “read receipt” reply that same day when the email was sent.

Q: Have there been any changes to this email since you accepted it?

A: No.

Q: What is Exhibit No. 9?

A: It’s the contract that I agreed to last year on April 18.

To the Arbitrator:

We offer Exhibit No. 9.

C. Personal and Business Correspondence (Letters, Memos, Notes, Files, Bills, Mail)

Personal or business correspondence has similar foundation requirements as legal documents. A witness may recognize the writing, signature, or content of the document. Some business correspondence may require additional foundation evidence to prove it was sent or received. In these instances, the additional elements include:

• The correspondence was addressed or routed to a person.
• The witness saw or signed the original, duplicate original, or an authentic copy.
• The witness placed the correspondence in an accurately addressed delivery envelope; or sent the message through an email account to a current email address; or the witness supervised a person who in the normal course of business mailed or otherwise sent it.
• The envelope was placed in a mailbox or given to a private delivery carrier; or the message was sent through the regular email network; or the witness supervised a person who in the normal course of business sends such correspondence.
• The copy of the original is an accurate duplicate.
• The original correspondence was received by the addressee or never returned to the sender, or a reply receipt was reported.

Example (Correspondence):

Examining Attorney:

Q: Ms. Heloise, do you know a man by the name Abelard?

A: Yes.

Q: How do you know him?

A: We have been quite good friends.

Q: How long?

A: We met twenty years ago. Then I went into a convent and he went into a monastery.

Q: How was your relationship continued?

A: Through correspondence over twenty years.

Q: How often did you correspond?

A: Frequently. Often on a weekly basis.

Q: Did you write to him?

A: Yes.

Q: Did he write to you?

A: Yes.

Q: Can you recognize his signature?

A: Of course.

Q: How?

A: Well, I had seen him sign his name before I went into the convent, and I received hundreds and hundreds of his handwritten notes over the past twenty years.

Q: I have just given you a piece of paper with handwriting on it which I have had marked for identification as Exhibit G. Do you recognize it?

A: Yes.

Q: How do you recognize it?

A: By the signature, Abelard, handwriting, and by the date. And I recall the poetry.

Q: What is it?

A: The last love note I received from Abelard.

To the Court:

Your Honor, we offer Exhibit G.

Example (Business Document):

Examining Attorney:

Q: Tell us your name.

A: Colonel Tom Parker.

Q: For whom did you work?

A: Elvis Presley.

Q: What did you do?

A: I was his business manager.

Q: You are holding a paper that has been marked for identification as Exhibit No. 3. Do you recognize it?

A: Yes, I do.

Q: How do you recognize it?

A: I typed it, and I remember the words. These are my initials on the bottom, and I recognize Mr. Presley’s signature.

Q: How?

A: I have seen him sign his name many times.

Q: What is Exhibit No. 3?

A: It’s the letter that I prepared suggesting a personal interview for Elvis which he signed and I mailed.

Q: Do you remember what you did with that letter that you prepared after it had been signed by Elvis?

A: Yes. I mailed it.

Q: How did you mail the letter?

A: I placed it in an envelope and sealed the envelope.

Q: Did the envelope have any writing on it?

A: Yes.

Q: What was the writing?

A: It had my return address, and it was addressed to: Publisher, National Enquirer, Eden, MN 55347.

Q: Do you know how the addresses got on there?

A: Yes.

Q: How?

A: I wrote them on myself before I placed the letter in it.

Q: What did you do next?

A: I affixed a stamp in the upper right-hand corner.

Q: Then what did you do?

A: I walked outside to a U.S. postal service mailbox.

Q: Then what?

A: I dropped it in the mailbox and went back to work.

Q: Did you ever get the envelope and letter returned to you?

A: No. Never.

To the Court:

Your Honor, Plaintiff offers Exhibit No. 3.

Example (Oral Contract Reduced to Print):

Examining Attorney:

Q: On March 19, Sir, did you receive a phone call around 16:00 hours?

A: Yes.

Q: Did the caller give any form of identification?

A: Yes. She identified herself.

Q: What did the caller say?

A: The caller said she was calling from D.C. where she worked for the husband of the President. She said that the First Gentleman had a hobby workshop in the basement of the White House and he wanted to start making carbon fiber replicas of the Presidents.

Q: Did she say anything else?

A: Yes. She said she wanted to order a digital force power titanium implanter.

Q: What do you do for a living, sir?

A: I manufacture hammers.

Q: What did you do next?

A: I told her I needed an order, preferably done on our website, from the person ordering the goods from my company.

Q: Did you ever receive such an order?

A: Yes. Our company received a website order for a hammer with an email name and address bearing information from the White House.

Q: Showing what is marked for identification as Claimant’s Exhibit No. 1, do you recognize it?

A: Yes, I do.

Q: How do you recognize it?

A: Well, it has a White House logo, and it reads that it’s from the office of the First Gentleman and contains an electronic signature with the name of the First Gentleman.

Q: Anything else?

A: Yes. It is an order for a digital force power titanium implanter for $2,997.

Q: How did you obtain this document, marked for identification as Claimant’s Exhibit No. 1?

A: I made a printed copy of the email order.

Q: After you received the email order, what did you do?

A: I sent an email reply confirming the order.

Q: Handing you what is marked for identification as Claimant’s Exhibit No. 2, do you recognize that?

A: It’s a printed email reply that confirmed the hammer order.

Q: How do you recognize it?

A: It’s exactly what I emailed in reply to the order, and it has the confirmation number: 1600.

To the Administrative Law Judge:

We offer Claimant’s Exhibits No. 1 and 2.

Administrative Law Judge:

Received.

Examining Attorney:

Q: What did you do after that?

A: Well, our company staff worked creatively for a couple weeks and came up with a modified hammer model. We packaged this hammer in a designer container and included a bill for $2,997.

Q: How was the package delivered?

A: I addressed the package to the First Gentleman at the White House and completed the Express Delivery form. Then I put it in the “Delivery” box on my desk.

Q: What is the pick-up and delivery procedure in your office?

A: Our company procedure is that all packages are picked up periodically by our messenger, who goes through all the offices, picks up everything from the “Delivery” boxes, and sends them.

Q: Did you ever notice in your “Delivery” basket that the package was no longer there?

A: Yes, I did. Later that same day, the basket was empty.

Q: I am showing you what has been marked for identification as Claimant’s Exhibit No. 3. Do you recognize this?

A: Yes, I do.

Q: How?

A: By its contents.

Q: What is it?

A: This Exhibit is a duplicate of the bill that I sent to the First Gentleman along with the hammer.

Q: Who made the duplicate?

A: I did. I had prepared this bill on our computer database system, and in preparation for this trial, I printed a duplicate of the bill from our computer database.

Q: How else do you recognize this bill?

A: The $2,997 amount and terms are the same as the bill I had prepared and placed in the package that was sent to the First Gentleman.

To the Administrative Law Judge:

Claimant offers Exhibit No. 3.

D. Electronic Business and Personal Correspondence (Emails, Text Messages,

Blog Entries, Chat Room Comments, Web and Wi-fi Communications)

Courts have developed foundation requirements for electronically stored information including emails and other digital documents. These foundation elements include:

• The message was addressed to a certain person.
• The message was sent electronically to that person.
• The message was received by that person, or the system used to send the message operated properly, or the system receiving the message verified the message was received.
• The duplicate of the message introduced is an accurate copy.

Other foundation elements may include:

• The receiver acknowledged receiving the electronic message.
• The receiver sent back a reply.
• The receiver forwarded a copy of the digital message.
• The sender and receiver communicated about the contents.
• Meta-data of the e-document establishes that it was received.

Example (List Serve Messages):

Examining Attorney:

Q: Are you a member of a club?

A: Yes.

Q: What club?

A: The Long Distance MC Ironbutt Riders.

Q: Does the group have a list serve?

A: It does.

Q: What is the list serve?

A: It’s a way that members can communicate with each other about topics of mutual interest regarding endurance motorcycling.

Q: Are you a Long Distance MC list serve member?

A: Indeed, I am.

Q: How does it operate?

A: We basically send e-messages to other members, and all members who are registered for the service receive them, and can read and reply.

Q: How long have you been a list serve participant?

A: Over 3 years.

Q: How often do you read list serve messages?

A: Very frequently.

Q: Did you receive a list serve message relating to a party in this case last July?

A: I did. I got an e-message from TooFast. He’s an Ironbutt member and a regular contributor to the list serve.

Q: How do you know?

A: I am a friend of TooFast, and know him personally. And I see his messages routinely on the list serve.

Q: How do you know the messages are from him?

A: They have his trademark emoji and electronic signature, and over the years, I’ve talked to him about many of his messages.

Q: Please view the monitor for what has been marked as Exhibit No. 2, and tell us what it is.

A: I see the message TooFast sent to me and other Ironbutt members.

Q: How do you know?

A: It has my address on the “To” line, and the subject line reads “Coast to Coast Nonstop.” I remember it really well because I was shocked.

Q: Why was that?

A: I didn’t think that TooFast could do that ride in less than 50 hours, as the message boasted.

To the Arbitrator:

I offer Exhibit No. 2.

E. Internet Communications and AI Information (Websites, APPS, Social Networks, Search Engine results, Internet Archives, Cloud Server Data, LLm content)

Foundation requirements for electronically stored, created, and produced information on the Internet include:

• The party or witness is the owner of the website or source or is otherwise responsible for its contents.
• The witness entered the website URL in a reputable search engine and the website was accessed.
• The witness reliably sourced the app, network, or data and the information appeared.
• The witness logged on and reviewed the relevant information on the site or location.
• The exhibit accurately reflects the contents of what the witness reviewed (the exhibit could be a print out, a hard copy, or displayed on a monitor screen or other display).

The possibility exists that the website information had been manipulated and is not authentic or accurate. The opposing party can offer evidence challenging the contents or claiming a hacker created or tampered with the information. In determining these challenges, decision makers consider whether:

• The challenges or claims have merit.
• The information is still on the website.
• Other sources prove or disprove the website contents.
• Others saw or relied on the website contents.
• The information is consistent with the website purposes.
• The information is otherwise published or republished.
• Meta-data proves the information was on the website.

Example (Website):

Examining Attorney:

Q: How did you first learn about the defendant’s business?

A: From her website.

Q: How did you locate her website?

A: I used a search engine to find businesses that sold cakes and confectioneries on line. I came across her Paczzzki site.

Q: What do you recall about her website?

A: I especially remember that it listed a testimonial from me.

Q: On the laptop in front of you, please search for the Paczzzki website.

A: Ok . . . here it is.

Q: Please describe what is displayed on the large monitor.

A: That is the Paczzzki website.

Q: How do you know that?

A: It obviously says Paczzzki, and I recognize it because it’s the same website I first saw.

Q: How did you locate the testimonial you mentioned earlier?

A: I clicked the “Reviews” window and saw it.

Q: Please do what you had previously done.

A: Alright . . . there it is. That’s what I had read last year.

Q: Is that statement exactly the same as you first read it last year?

A: It’s identical.

To the Administrative Law Judge:

We submit an exact printed duplicate of the display shown on the website screen as Respondent’s Exhibit P.

Administrative Law Judge:

Received.

To the Administrative Law Judge:

Respondent requests that the witness read the testimonial review as it appeared on the website screen.

Administrative Law Judge:

Proceed.

A: It reads: “At best, the so-called ‘squishy substance’ snack, with its poorly defined viscosity, was a bit tastier than the Wall-E Twinkie might have tasted.”

F. Business Records (Memoranda, Reports, Writings, Electronic Files, Invoices,

Data Compilations)

Records maintained in the ordinary course of business may be introduced through a witness who does not have personal knowledge of the recorded information but does have personal knowledge concerning the business recording process. The introduction of this type of relevant information is allowed through the foundation elements detailed in Federal Rule of Evidence 803(6) and similar state rules. The term “business” includes any business, hospital, institution, organization, association, profession, occupation, and nonprofit. The content of “records” includes facts, events, conditions, opinions, or conclusions. The elements to be proved include:

• The report must have been “made at or near the time” of the occurrence which gave rise to the report.
• The record was made by “a person with knowledge” of the information or was made “from information transmitted by” a person with knowledge.
• The record was made “in the regular practice of that business activity.”
• The record was kept “in the course of a regularly conducted business activity.”
• The witness is the “custodian” of the documents or a “qualified witness.”

Example (Medical Records):

Examining Attorney:

Q: What is your name, sir?

A: Carla Espinosa.

Q: Where do you work?

A: Scrubs Hospital Clinics.

Q: What is your current job?

A: I am the medical records librarian.

Q: As a medical records librarian, what do you do?

A: I am the custodian in charge of all the records at Scrubs.

Q: Do you have a staff working for you?

A: Yes. They all work at my direction and control.

Q: Do you have a policy in your hospital concerning the making of records?

A: Yes, we do.

Q: What is that policy?

A: All medical records must have been made at or near the time of the occurrence of the information contained in them. The record must be made by a person with knowledge of the information or from information given to that person by someone with knowledge.

Q: I am showing you what has been already marked for identification as Exhibit 22. Tell us what it is.

A: Yes, these are medical records obtained from our medical records library of a patient with the patient number M23-45-67, which corresponds with the name Denise Mahoney.

Q: Are these records kept under your control?

A: Yes.

Q: You reviewed these records?

A: Yes.

Q: Reviewing these records, did you determine whether these records were made at or near the time of the occurrence of the listed information.

A: Yes, they were.

Q: How do you know that?

A: The different occurrences are dated and timed and the time the information was recorded is also dated. My examination of both the records and the notes shows that they were made at or near the time of the occurrences.

Q: Looking at these records, can you determine whether the records were made by a person who had knowledge of the record information?

A: Yes, I can.

Q: How?

A: In each of these cases the person making the record was a doctor, and the doctor was assigned to the case by patient name and number.

Q: Are these records kept in the course of the regularly conducted business of your hospital?

A: Yes, they are.

Q: Was this record made in the course of a regularly conducted hospital and clinical activity?

A: Yes, it was.

To the Court:

Defendant offers Exhibit 22.

Computer data may readily qualify as business records. When computer records will not initially qualify as business records, additional foundational questions relating to the input, storage, and retrieval methods of the computer system and its reliability will be necessary. Decision makers generally permit these exhibits to be admitted unless there exists a genuine issue regarding their authenticity or unfairness regarding their admission or unless there are issues regarding accuracy, hacking, tampering, or unreliability.

Example (Computer Data):

Examining Attorney:

Q: Ms. Mandarin, at Guangzhou Fidelity Company has it been the regular practice that a person with knowledge of the data enters that information in your computer database?

A: Yes.

Q: As custodian of your Fidelity’s computer records are you familiar with the method of entry, storage, and retrieval of data in the system?

A: Yes, I am.

Q: Is that system reliable?

A: Yes.

Q: How do you know it is reliable?

A: We have established reliability protocols that meet or exceed the standards established by the ITU—the International Transmission UN Agency—and the ATM Forum—the Asynchronous Transfer Mode Industry Consortium.

Q: Are there safeguards that detect and correct systemic errors?

A: There are.

Q: Does the computer produce reliable retrieved data?

A: Yes.

Q: Is the information necessary for notices of delinquent accounts programmed into the computer at or near the time invoices are emailed?

A: Yes, on the first working day of each month.

Q: Do you know Fidelity’s procedure for keeping records of the delinquent accounts and its notifying customers in default in March of last year?

A: Yes.

Q: Please explain those default procedures.

A: The data reflecting all activity on the account are verified by a staff person. Then the verified data is keyed into the terminal and copied on a hard drive. Every working day the processor merges the new data with the information already on the accounts record for the month. The system, by the 15th of the month, finds all accounts not currently paid. To find these accounts, the computer uses instructions from a program to search and identify delinquent accounts.

Q: Please continue and describe the notification procedures.

A: As previously explained, the computer system produces the default accounts. This data is held five days. If the account is paid up within that time, no additional interest is assessed; but additional interest is assessed if the account remains unpaid. As programmed, all the accounts, delinquent or otherwise, are put into monthly statements. Using the program, the computer produces the statement for each Fidelity account, confirms the next payment’s due date, and forwards this data to our server where it is transferred electronically to individual accounts and then sent directly to individual account holders. Millions of accounts are handled monthly.

Q: What steps does Fidelity take to ensure the computer finds and identifies delinquent accounts so accurate notices of default notify customers?

A: Special control procedures are built into the system. Transcriptions of data are verified by two different terminal operators. Accounts identified as unpaid by the 15th are rechecked. If these accounts remain unpaid during the next five days, notices are produced and included with the proper statement. Our data system re-verifies the accuracy of this information.

Q: Here is Exhibit No. 8. It’s labeled a delinquency notice and it’s attached to a Fidelity statement. What is this document?

A: It’s Charles Ponzi’s delinquency notice.

Q: How do you recognize it?

A: This is a duplicate of the statement on our computer system.

Q: Was this duplicate made in the regular course of business?

A: Yes.

Q: Was this notice and statement prepared by the computer system you have described for us this afternoon?

A: Yes.

Q: Is the information on Exhibit No. 8 correct?

A: It is correct for the date stated.

To the Arbitrator:

I offer Respondent’s Exhibit No. 8.

Opposing Counsel:

Your Honor, may I examine the witness for the purpose of laying a foundation for an objection?

Arbitrator:

Yes, you may.

Opposing Counsel:

Q: Ms. Mandarin, Exhibit No. 8 was completed on March 20 of last year, correct?

A: Yes.

Q: You did not yourself make any data entry on this statement from which Exhibit No. 8 was made, did you?

A: No. The accounts receivable operators and the computer system read the data, and the computer program carries out the accounting procedure.

Q: Does the computer itself read documents like the statement, Exhibit No. 8?

A: Only if the computer is equipped with an optical scanner.

Q: But your computer did not use such a scanner in this case?

A: There was no need to.

Q: Your computer cannot read this statement, can it?

A: No. It retrieved the accurate data stored on the drive.

To the Arbitrator:

We object. Exhibit No. 8 is unreliable hearsay. The witness admits no personal knowledge of input or retrieval.

Arbitrator:

Overruled. This is a business record produced in the regular course of Claimant’s financial business. Exhibit No. 8 is received.

G. Copies/Duplicates

Modern copying, reproduction, and computer equipment creates accurate copies of original documents and records. These “duplicate” originals are admissible. However, the original may be the most persuasive and, if available, should be offered to prove its content. See Fed. R. Evid. 1002. A duplicate original may be routinely admitted unless it is of questionable authenticity or it would be unfair to admit a copy. See Fed. R. Evid. 1003. A copy may also be admissible if the original has been lost or destroyed, or is in the possession of the opponent, or is otherwise not obtainable. See Fed. R. Evid. 1004.

Example:

The witness has testified that the witness saw and read the original agreement.

Examining Attorney:

Q: Brother Timothy, I am showing you Exhibit No. VII. Do you recognize it?

A: Yes.

Q: What is it?

A: It’s a duplicate of the rental agreement for the Abbey.

Q: How do you know?

A: I recognize the names and terms. It has my signature on it as well.

Q: How was this duplicate made?

A: Immediately after we both signed the lease, I saw the estate agent scan and produce this duplicate that was handed to me. I brought this lease home and put it in the Abbey vault.

Q: Has it changed in any way?

A: No.

Q: Is this the lease, Exhibit No. VII, that you removed from your vault?

A: Yes.

To the Chancery Court:

Your Honor, We offer Exhibit No. VII.

H. Electronic Recordings (Audio,

Video, Digital, ANIMATED, Computer, GENAI)

The elements to establish a foundation for the introduction of relevant recordings include the following:

• The witness heard or saw the event being recorded.
• The witness can recognize and identify the sounds or images on the recording.
• The recording is in the exact same condition at the time of trial or hearing as it was at the time of the recording.

OR

• The operator was qualified to run the equipment.
• The recording equipment was checked before its use and operated normally.
• After the event had been recorded, the witness reviewed the device and determined that it had accurately and completely recorded the event.

Example (Video Event):

Examining Attorney:

Q: Sheriff, where were you on the 24th day of November 1963?

A: I was in the Dallas jail.

Q: Where in the Dallas jail?

A: I was in the basement garage by the exit ramp.

Q: What did you see?

A: I saw a man I later learned was Jack Ruby point a gun in the direction of Lee Harvey Oswald and shoot him.

Q: Sheriff, I have given you a video recording that has been marked for identification as State Exhibit No. 155. Do you recognize it?

A: Yes, I do.

Q: How do you recognize it?

A: Well, I wrote my initials on the label of the recording that I saw before coming into this courtroom today. After I saw it, I also wrote my initials on a card that indicates that I have seen the recording.

Q: What is on the recording?

A: It’s a recording of what I just described . . . of the shooting I saw on the 24th day of November in 1963.

Q: Is this video a complete and accurate representation of what you saw?

A: Yes, it is.

To the Court:

We offer State Exhibit No. 155.

Example (Sound Recording):

Examining Attorney:

Q: Mr. Jagger, what do you do for a living?

A: I install electronic digital sound recording devices with my partner, Mr. Richards, all over the world.

Q: Have you ever installed sound recording devices in corporate offices?

A: Yes, I have, as well as for royalty.

Q: Where have you installed recording devices?

A: In the First National Bank in New York.

Q: Why did you do so?

A: At the direction of the head of security, a Ms. Marshall.

Q: Where did you do the installation?

A: In the office of an employee, Teresa Doolittle.

Q: What did that consist of?

A: I set up a secret electronic digital recording device in her desk. I put the receiving device in another room.

Q: Did you ever test the device?

A: Yes, I did.

Q: How did you do that?

A: I started the recording equipment in her office when she was conducting a meeting. After one hour, I stopped the recording to verify it was operating properly.

Q: How did you do that?

A: I listened to the one-hour conversation that I had just digitally recorded.

Q: Whose voice did you recognize on the recording?

A: I recognized the distinctive voice of Ms. Doolittle.

Q: Did you later record another event in her office?

A: Yes.

Q: What did you do with that recording?

A: I created an electronic file for it, marked with my name and date, and secured it in a password-protected server, where it has been until I downloaded a duplicate on a USB drive that I brought with me to court today.

Q: Did you listen to the recording before you came in here?

A: Yes.

Q: Whose voices are there?

A: There is only one voice.

Q: Whose voice is it?

A: The USB drive just contains the voice of Ms. Doolittle, as she was speaking to others on her cell phone, and then singing to herself.

Q: Have you made any additions or subtractions or changes to that recording, or tampered with it in any way?

A: No, I haven’t.

Q: You have in your hand Exhibit No. 9. Do you recognize it?

A: Yes, that’s the recorded jump drive.

Q: How do you recognize it?

A: I marked it with the identifying character “Jack” and placed it in a secure USB case I carried with me to court.

Q: What did you do with it?

A: I unlocked the case in chambers before trial started today, then gave the flash drive to you.

To the Court:

I offer Exhibit No. 9. Counsel, this is the recording that we gave to you in discovery before this trial started.

Judge:

Exhibit No. 9 is received.

Examining Attorney:

Q: May I play relevant parts of the recording at this time, your Honor?

Judge:

Yes, you may.

I. Test Results (DNA, MRI Exams, PET/CT Scans, Medical Images, X-Rays, Laboratory

Work, Computer Analyses)

Exhibits containing results from tests, exams, scans, and other procedures require specific foundation information to be introduced. These are the elements to be proven:

• The exhibit is relevant to the case.
• The witness is qualified to operate the equipment.
• There exists a procedure that regulates the testing or analysis process.
• The witness personally conducted or supervised an operator who conducted the testing, produced the results, or completed the analysis.
• The equipment was in normal operating condition.
• The witness can identify the results or conclusions.
• The results or analysis are in the same condition as when they were completed.

Example (MRI):

Examining Attorney:

Q: Mary Shelley, what is your position?

A: I am an MRI Radiologist employed by Arkham Asylum Health Services.

Q: Were you working Friday, July 3, at the Igor Medical Clinic?

A: I was.

Q: Ms. Shelley, I’m handing you what’s been marked for identification as Exhibit No. 2. Do you recognize it?

A: Yes, I do.

Q: What is it?

A: It’s a magnetic resonance image I generated on July 3.

Q: How do you know?

A: My name, the date and location, and the patient’s identifying number are affixed to the MRI. That number is on the medical record at the Igor Clinic.

Q: Ms. Shelley, I’m handing you Exhibit No. 1, already stipulated as Mr. Frankenstein’s medical chart and received into evidence. What is the medical record number?

A: (Reading) 01133026.

Q: Now I’m handing you what’s been marked as Exhibit No. 2, the MRI. What number indicates the patient’s chart?

A: It’s next to the date.

Q: What is that number?

A: (Reading) 01133026.

Q: Are you a certified radiologist and MRI operator?

A: Yes.

Q: How was the image prepared?

A: An MRI machine created a detailed internal image of the patient’s body including the brain.

Q: Was the machine functioning properly?

A: Yes, it had been periodically tested to ensure its accuracy and reliability, and there was no problem in its operation.

Q: After the image was made, what did you do?

A: I retained the original image, put my ID, the date, location, and patient’s ID on it. Then I began to read and review it.

To the Court:

We offer Exhibit No. 2.

J. Digital Images, Photos, Social Network Pictures, and Electronic Depictions (Videos, DVDs, Film, Movies, ANIMATIONS, Recordings)

The elements to be proven to admit digital and electronic images into evidence are:

• The image or images are relevant to the case.
• The witness is familiar with the scene displayed in the image at the relevant time of the event.
• The image fairly and accurately depicts the scene at the time of the event.

There is no need to establish the sources of the image, or the video or photo sharing site, or the type of equipment used, or other imaging details, or even when the image was created, unless these facts are an issue in a case. Images from a variety of sources may be used including cameras, smart phones, websites, and image sharing networks. Section 8.8 describes and displays these exhibits.

Example (Facebook Page):

Examining Attorney:

Q: How did you and the defendant become friends?

A: It all started on Facebook.

Q: How did it happen?

A: Both of us were users. He asked me to befriend him. I did.

Q: What happened after that?

A: Well, one day I went to my home page and saw that he had updated his photo on his profile . . . and that’s when I noticed the tuffet and the web . . .

Q: Ms. Muffet, I’m going to stop you there. Take a moment and compose yourself . . . Now, please use the laptop in front of you to locate your Facebook page.

A: Alright . . . I have it here.

Q: Is that photo of the defendant, that you just mentioned, on your page, in his profile?

A: Oh my . . . yes it is.

Q: Is that the same photo you first saw of him?

A: It’s the same.

To the Court:

Your Honor, we have a digital photo that is exactly the same as the one Ms. Muffet just identified, which we previously provided counsel. We now offer Exhibit 6, which is that photo.

Judge:

Hearing no objection, it’s received.

Example (Instagram App):

Examining Attorney:

Q: How did you first meet the claimant?

A: We met online, sort of. I had an Instagram account and shared pictures on Tumblr and Flickr and the Plaintiff apparently was a user as well. I was especially attracted to the hashtag. We shared photos and messages and began following each other online.

Q: What were the shared photos?

A: We did mostly goofy things that we captured with our phone camera and posted the photos.

Q: Did you exchange photos on April 1 last year?

A: Of course. That is a special day.

Q: You have your smart tablet that is connected to the monitors here. Please go to your Instagram app and account.

A: It takes a moment . . . here it is opening and there. . . .

Q: Please identify the April 1 photo the plaintiff posted that day.

A: Here it is.

Q: Before you describe it, can you identify it as the photo the claimant posted that day?

A: Yes.

Q: How?

A: I recognize the claimant on the beach at Malibu with the trademark surfboard and wave.

To the Arbitrator:

This photo has been previously disclosed and marked as Exhibit H. It appears in the Exhibit Files we provided you and counsel.

Q: Mr. Koohona, is the photo marked as Exhibit H the April 1 photo you just described?

A: Yes.

To the Arbitrator:

We offer Exhibit H.

Arbitrator:

Received.

Examining Attorney:

Q: Tell us what the wave the Claimant Gidget is trying to catch in this Exhibit H photo?

K. Summary Exhibits

Summaries of evidence may be introduced as an efficient and effective means to explain evidence to the fact finder. For examples, summary exhibits may include a chart detailing the testimony of one or more witnesses or a summary description of documents. Federal Rule of Evidence 1006 and similar state rules permit summaries to be introduced as evidence. The elements for introduction of summaries include:

• The information summarized must be relevant.
• The witness has knowledge concerning the information contained in the summary.
• The witness has reviewed the exhibit and verified that it is an accurate summary.

Example:

Examining Attorney:

Q: You’ve told us you’re an Informational Technology Expert, Ms. Cleopatra?

A: Yes.

Q: What have you done in preparing this case for this hearing?

A: I searched King Tut’s tomb for artifacts, and I discovered an ancient CD-ROM disk.

Q: What did you do with it?

A: I preserved it and reviewed its contents, which listed all other artifacts located in the tomb.

Q: And what did you do next?

A: I transferred to a dedicated private server the complete contents of the 457 exhibits containing a photo of each of the relics admitted in this case as having come from King Tut’s tomb.

Q: I am showing you what has been marked for identification as Exhibit No. 458. Are you familiar with this document?

A: Yes.

Q: How are you familiar with it?

A: I personally prepared the entire database on this link as listed on the document labelling it “Modern KT Discoveries.”

Q: What does it contain?

A: Photos of the 457 exhibits indexed with an adjunct bar code system.

Q: Does it contain a fair and accurate portrayal of each of the exhibits?

A: Yes.

To the Administrative Law Judge:

Your Honor, at this time we offer Exhibit No. 458, the exhibit summary of all Plaintiff’s exhibits introduced into evidence.

L. Judicial/Arbitral/Administrative Notice

A judge, arbitrator, or ALJ may take notice of facts, at any time during a proceeding, that are accurate, verifiable by reliable sources, and undisputable. See Fed. R. Evid 201 and § 3.6(L). These facts may appear in an exhibit.

Example:

Defendant’s Attorney:

Your Honor, it is crucial to this case that we prove what day September 11, 2001 fell on, as well as the days of the week upon which other dates fell in 2001. I have marked a 2001 calendar as Exhibit C. At this time, I ask that evidentiary notice be taken of the accuracy of this calendar and admit Exhibit C in evidence.

Judge:

I will take judicial notice of Exhibit C and admit it into evidence.

M. Past Recollection Recorded

A witness who, at the time of trial or hearing, does not have an independent recollection of an event may have previously made a record of the event and that record may be introduced as an exhibit of real evidence. The elements to establish the foundation of past recollection recorded exhibits appear in Section 4.16(D) and include:

• The witness has no present recollection of the event.
• The witness once had knowledge of the event.
• The witness made a record of the event when the matter was still remembered.
• The recorded recollection accurately reflects the knowledge of the witness.
• The exhibit is in the same condition now as when made.

Example (Lack of Memory):

Examining Attorney:

Q: Ms. Lovelle Wentworth Howell, do you remember what happened to you after you boarded the S.S. Minnow?

A: I was severely injured in a boating accident when the tiny ship was tossed, and if not for the courage of the fearless crew the Minnow would have been lost.

Q: Do you remember any other details of that accident?

A: No. I haven’t been able to recall the details since the day after my accident, because of the delayed injury to my brain.

Q: The day of the accident, did you give a statement to anyone?

A: Yes, I did.

Q: To whom did you give a statement?

A: I gave a statement to a Coast Guard officer.

Q: At the time you gave the statement, did you remember the details of what occurred to you at the accident?

A: Yes, I did.

Q: Do you have a memory of those details now?

A: I really don’t.

Q: At the time you gave the statement to the Coast Guard officer, what did you do?

A: I read it, and I signed it.

Q: Showing you what has been marked by the court reporter as Exhibit No. 5—it’s a two-page handwritten, water-stained statement with your signature on each page and the date—do you recognize this document?

A: Yes, I do.

Q: What is it?

A: It is a statement I wrote and signed the day of the accident.

Q: Would you please read the statement silently to yourself?

A: Yes.

Q: Having read the statement, does it refresh your recollection as to the details of what happened in the accident?

A: Not really. I still can’t recall the details.

Q: Would you have signed this statement if it had not been complete?

A: No, I would not have.

Q: Would you have signed this statement if it had not been accurate?

A: No.

To the Court:

Your Honor, at this time we offer Exhibit No. 5 as past recollection recorded.

Judge:

Received.

Example (Detailed Facts):

Examining Attorney:

Q: Ms. Stephen, do you recall going to Bloomsbury Warehouse on November 27 last year?

A: Yes, I do.

Q: You accompanied Minny Thackeray, the Defendant, who was inventorying books shipped from her mother’s Hyde Park, Kensington home?

A: Yes.

Q: How did you assist Ms. Thackeray?

A: As she opened each box and told me the contents and condition of each book, I used a digital dictation recorder to record the information.

Q: Each box was inventoried?

A: Yes.

Q: What did you do after you completed the inventory?

A: We returned to the office, and I downloaded the recording to my computer system in a spreadsheet format.

Q: Does the data include all the information from the recorder?

A: Yes, and it includes the value for each title based on its condition.

Q: When did you obtain the value?

A: That day, after I entered the information. Ms. Thackeray told me what value to put by each book, and I did so.

Q: Do you remember the valuation of the volumes written by Virginia Woolf?

A: Not really.

Q: Would it help you to look at the data for those valuations?

A: Yes, it would.

Q: Ms. Stephen, here is Exhibit 59. Do you recognize it?

A: Yes, this is the list I printed from the book database and these are the values I inserted next to each title after Ms. Thackeray’s appraisal.

Q: Is the list in the same condition as when you prepared it?

A: Yes, it looks the same.

To the Arbitrator:

I offer Exhibit 59 into evidence.

Arbitrator:

Received.

Examining Attorney:

Q: Ms. Stephen, please read the Virginia Woolf titles and their values as set out on page four of Exhibit 59.

N. Real Evidence Highlighted

Real evidence exhibits can be selectively used and highlighted to emphasize relevant evidence. During the examination of a witness, after a real evidence exhibit has been introduced, offered, and received into evidence, the witness can be asked questions about the most relevant portions of the exhibit. This can be done by combining some of the techniques used with demonstrative evidence, discussed in the next section, with questions relating to portions of real evidence exhibits.

Common uses of this approach include highlighting portions of exhibit documents by using marking pens or software designed to highlight in color or create larger font portions of an electronic document. The witness can point to, further explain, and emphasize the highlighted portions of the document. The examining lawyer can operate the software and highlight the portion the witness describes. These highlights can also be used during opening and summation to remind the fact finder of the evidence.

Additional techniques allow documents or charts listing events and times to be compared and contrasted on a screen or monitor. This approach can be used to buttress or rebut other evidence. These images can have a positive effect on how evidence is understood by the fact finders, especially regarding conflicting testimonies.

Gen AI systems and software are available to produce these images. See § 1.10[E]. The facts can be entered into a platform or program and the relevant data can be displayed, compared, and contrasted. Also, laser pointers, highlight marking pens, and paper charts may be used to augment real evidence.

Cameras on smart phones, selfie sticks, wearable and mountable devices, and other apparatus make many sources of photos and videos available of actual events. These displays can show what really happened augmented by testimony of witnesses. Images can be paused, enlarged or highlighted, allowing witnesses to describe what is happening.

Demonstrative Evidence

and Visual Aids

A. Illustrative Designs

Various types of demonstrative evidence may be useful during the presentation of a case. Witnesses may testify more accurately and effectively with illustrative aids described in Section 8.1(B). Many fact finders are accustomed to witnessing compelling visual presentations. Poorly prepared exhibits and those that do not meet expectations may have an adverse impact on the decision makers.

Exhibits should be designed in such a way that they are user friendly and visually informative. Advocates can learn to prepare and use these types of exhibits by exploring web sites that explain their use, by obtaining software programs that create these exhibits, and by retaining independent graphic designers or professional trial and hearing consultants. Contemporary technology and GenAI can also readily assist in the construction and presentation of illustrative evidence. See 1.10[E].

There are three pertinent questions to ask when designing demonstrative evidence:

• What does the fact finder need to know from the exhibit?
• What is the amount and type of evidence needed to provide this information?
• Which type of exhibit is the most effective and affordable?

*Photo and Digital Recordings. *These exhibits should be sufficiently large and clear to be seen by the fact finders. A digital photo may be enlarged so that it can be easily viewed. Photos may be displayed on a monitor screen. A digital recording or computer file may be created to show a procedure or to recreate an event.

Diagrams, Drawings, and Computer Displays. Enlargements of simple diagrams can be made inexpensively and quickly. Displays of lists or transactions may be presented with a computer program and monitor.

Charts/Graphs. There are several types of charts and graphs:

• Line—This graph is helpful to display timelines, trends, and prices. Avoid placing information too close together or including too much information.
• Pie—This chart is best used for a division of one number or percentages. Avoid pie charts with too many slices and charting numbers that are so small they disappear when compared to other pie pieces.
• Bar—This graph has a wide variety of uses, including comparisons for multiple numbers, events, or groupings of data. Make sure the labels and colors are distinct.

Exhibit Boards. Minimum size for a board is 30″ x 40″, and recommended sizes are 36″ x 48″ for an average-sized room and 45″ x 60″ for a large room. The greatest benefit of using boards is that unlike computer and document camera exhibits, boards can remain displayed during other evidence presentations. The disadvantage of using boards is the difficulty of placing them where they can be seen by everyone.

Computer Slide/Video Projectors. Portable projectors are available that can be connected directly to the laptop, and also to camera equipment or video or digital players, to display various sizes of exhibits. Projectors can display accurate renditions, while old style slide projectors may distort part of an exhibit and require the room to be darkened.

Notebooks for Written/Printed/Digital Exhibits. Some exhibits can be duplicated and placed in individual notebooks with tabs for use by the fact finders, lawyers, and witnesses or available as electronic files displayed on computer monitors.

*Animated Recreations of Events. *As described previously, simulated depictions, forensic recreations, and animated portrayals can present explanatory and compelling “evidence.” See § 8.3[D].

B. Exhibit Composition

Factors to consider in composing demonstrative exhibits are:

Format. Proper formatting creates the right size, not too small or too large.

Font. Big is often better, to be easily read from a distance.

Lines. Too many lines clutter the exhibit. Several lines with several words is reasonable.

Spacing. The use of white space and margins is important to keeping the viewer focused on the display contents.

Color. Color tends to hold a viewer’s attention longer than black-and-white and has more retention value. Whether the presentation is on a board or the computer, contrast is the key to good visibility. Certain colors signify different things to different people. Some colors have natural messages, such as green and red—go and stop, fast and slow. Too many colors on an exhibit distract from the key message and should be avoided.

Contrast. Viewers need to be able to distinguish the contents. Light or white backgrounds with dark text or dark or black backgrounds with light text increase readability.

Orientation. Either a landscape (11″ x 8.5″) or a portrait orientation (8.5″ x 11″) can be used, or in varying proportions. It depends on what is being depicted.

Visual Output. When designing an exhibit, the visual output determines the best format—computer screen, large format exhibit board, or projector screen. Certain items that are too small for an exhibit board may look fine on a large projection screen. In the alternative, some images may be best viewed on multiple exhibits if the writing is too small for a single exhibit.

Size. Exhibit size may depend on the limitations or advantages of the room size for easels, boards, monitors, and other displays.

Computer Displays. Additional displays for computer exhibits include: (1) split screens (side-by-side presentations of conflicting testimony/documents), (2) call-outs (highlighted text segments on a displayed document page in larger font or prominent color), or (3) builds that display visual evidence along with oral testimony (sequential additions to a mixed graphic exhibit).

C. Admissibility of Graphics

The introduction and use of demonstrative evidence is subject to a variety of approaches depending upon the practice in a jurisdiction and the preferences of the judge, arbitrator, or ALJ. See § 8.2(C).

In some forums, the examining attorney need not formally offer an illustrative exhibit into evidence but need only ask permission of the judge, arbitrator, or ALJ for the witness to use the exhibit. In these tribunals this permission makes the exhibit part of the file or record. In other forums, a demonstrative exhibit is not offered into evidence until after the witness has used it during testimony or has marked on it. The record, if there is one, should indicate what the demonstrative evidence is and how it is being used.

In cases where more than one witness uses or marks a demonstrative exhibit, the procedures for its introduction may also vary. If a second witness uses or marks the exhibit, the demonstrative evidence may have to be re-offered because new information now appears on the exhibit. The markings may be distinguished by the use of a different color or by the placement of a clear cover over the drawing or chart that the witness draws on to distinguish those markings from the marks of the first witness.

The following examples demonstrate the admissibility and use of major demonstrative exhibits.

Digital Photos/Digital Recordings

The elements to be proven to admit photos/digital recordings into evidence are:

• The exhibit is relevant to the case.
• The witness is familiar with the scene displayed in the photo/‌digital recording at the relevant time of the event.
• The photo/video fairly and accurately depicts the scene at the time of the event.
• The photo/video will assist the witness in describing/‌explaining what happened.

There is no need to establish the source of the image or the photo or video sharing site, the type of camera used, focal lens, shutter speed, lens opening, other photography details, or even when the picture was taken, unless these facts are in issue or would enhance the exhibit.

Example (Photograph):

Examining Attorney:

Q: Ms. Brough, on May 13, 1935, were you near Clouds Hill in the morning?

A: Yes, I was.

Q: What did you see at that time.

A: I saw a motorcycle swerve across the road to avoid two pedal bicyclists, and then I saw the horrific crash.

Q: Did you recognize the motorcycle?

A: Oh, yes.

Q: How do you recognize it?

A: It appeared to be the cycle that I saw my Dad sell to T.E. Lawrence.

Q: I show you what has been marked as Exhibit No. 7 and ask you to examine it. What is it?

A: It’s a photo of the motorcycle accident after it happened.

Q: Is the scene on the photo in any way different from the scene that you observed on May 13, 1935?

A: No.

Q: Is the photo, Exhibit 7, a fair and accurate depiction of the scene of the motorcycle accident that you observed that day?

A: Yes, sadly, it is.

Diagrams, Charts, Drawings

The foundation elements for the introduction of a diagram, chart, or drawing are:

• The witness is familiar with the scene or event.
• The witness recognizes the facts depicted in the diagram or chart or is familiar with the exhibit.
• The exhibit will assist the witness in explaining testimony or will aid the fact finder in understanding the testimony.
• The exhibit is reasonably accurate (or is drawn to scale) and is not misleading.

A copy of the diagram may be introduced as part of the record. A photo may be made of a freehand drawing and included in the record.

Example (Prepared Diagram):

Examining Attorney:

Q: Ms. Monroe, are you familiar with the intersection of Hollywood and Vine?

A: Yes, I am.

Q: Do you recall what happened there on January 1?

A: Yes, I do.

Q: What did you see?

A: As I was leaving the drugstore, I saw wayward Rose Parade vehicles float by.

To the Court:

Your Honor, may I approach the witness?

Judge:

Yes, you may.

Examining Attorney:

Q: Ms. Monroe, I show you a diagram marked as Exhibit No. 7 that has already been prepared. Have you seen it before?

A: Yes, I have.

Q: Is this diagram a fair and accurate representation of the location of the streets and the buildings at the intersection of Hollywood and Vine on January 1, 2 years ago?

A: Yes, it is.

Q: Would this diagram assist you in describing what you saw that day?

A: Yes, it would.

To the Court:

Your Honor, I offer Exhibit 7 for demonstrative purposes.

Judge:

It is received.

Examining Attorney:

Your Honor, may I place it on the easel and have the witness approach?

Judge:

Yes, you may.

Examining Attorney:

Q: Ms. Monroe, there is an arrow on the diagram indicating that north is to the top of the diagram. Is that correct?

A: Yes.

Q: Which way does Vine Street run?

A: It runs from north to south.

Q: And that is from top to bottom on the diagram?

A: Yes.

Q: Would you take the red marker and mark an “M” to indicate where you were at that intersection when you saw the floats?

A: I was right here.

Q: You have placed an “M” on the northeast corner of the intersection. Is that right?

A: Yes.

Q: Now, what did you see?

A: I saw one floating from the east and another from the west.

Q: What was the float coming from the east?

A: It was the Cat Fanciers’ Association, in the shape of catnip.

Q: What about the one from the west?

A: It was the American Kennel Club, in the shape of a milk-bone.

Q: Will you label the one from the east and the one from the west with the initials C and D, placed in the center of the floats?

A: What did you next see?

Q: They collided near the middle of the intersection, a veritable cacophony of cats and dogs.

Q: Will you mark with an “X” the spot of the crash?

A: All right.

To the Court:

Your Honor, at this time I re-offer this marked Diagram as Exhibit 7A.

Judge:

It is received.

Example (Model):

Examining Attorney:

Q: Dr. Pierce, did you have the opportunity to examine the knee of Ms. Houlihan?

A: Yes, I did.

Q: Did you later perform surgery on her knee?

A: Yes, I did.

Q: Would a model of a knee assist you in explaining what you saw during the visual and surgical examinations of her knee?

A: Yes, it would.

Q: You have in your hand Exhibit K. What is it?

A: It is an anatomical model of a person’s knee.

Q: Is that an accurate model of a person’s knee?

A: Yes, it is.

Example (Freehand Drawing):

Examining Attorney:

Q: Now you said earlier that you had an idea for some kind of cartoon character?

A: Yes, I did.

Q: What kind of character?

A: A rodent.

Q: Would it assist you in explaining your idea if you drew your idea on this whiteboard using the black marking pen?

A: Yes, it would.

Q: Now sir, I see you have drawn some sort of animal.

A: It’s a rodent.

Q: Are you sure that’s a rodent, it looks like a rat?

A: It is a rodent.

Q: What are you drawing on the rodent?

A: Pants and shoes.

Q: And now what are you drawing?

A: Three-fingered gloves.

Q: Do you have a name for this character?

A: Yes, I do.

Q: And what is that name?

A: I have been thinking about Oswald.

Examining Attorney:

Your Honor, may I take a photo of the drawing to preserve it and have the photo marked as an exhibit?

Arbitrator:

You may.

D. ANIMATIONS

The elements to be proven to admit animated recreations and depictions are:

• The exhibit is relevant to the case.
• The animation fairly and accurately depicts the event.
• The animated exhibit will assist the witness in describing/‌explaining what happened.
• An explanation by a forensic animator describing how the animation was factually created, or a stipulation by counsel that the simulation may be introduced, or a ruling by the judge that the proper foundation has been established.

Examining Attorney:

Q: Ms. Jetson, on July 1, 2988, at approximately 2:00 sundial time, were you at the SkyPad and Orbit Lanes intersection?

A: Yes, I was.

Q: What were you doing there?

A: I was waiting for the space shuttle.

Q: While you were waiting for the shuttle, what did you observe?

A: I saw two autonomous vehicles, a Masarocket and a Lambomissle, enter the intersection and collide.

Q: I show you on the monitor what has been marked as Exhibit No. 13 and ask you whether you have examined it previously.

A: Yes, I did.

Q: How do you recognize it?

A: It appears to be an animated recreation of the accident.

Q: When have you seen this animation previously?

A: Just before this trial.

Q: Is Exhibit 13 a fair and accurate depiction of the accident that you observed on July 1?

A: Yes, it is.

E. Effective Demonstrations

Live demonstrations and experiments in court are difficult and dangerous. They may work well in rehearsal, but can fail too easily. An effective alternative is to prepare a video recording of the experiment or demonstration or a computer generated recreation, and if it works and is persuasive, show it during the case.

A simple demonstration that can be easily performed may be conducted if appropriate. A witness who displays an injury or shows how an object was held can assist the fact finder in understanding what happened. Anything more complex should be recorded or recreated before the trial or hearing, or, if resources are unavailable, not done at all.

Problematic Example (Demonstration):

Examining Attorney:

Q: Ms. Chiquita, where were you on August 6, two years ago?

A: I was in the produce department of the Foods Unlimited supermarket.

Q: Did anything happen to you there?

A: Yes.

Q: What?

A: I was walking down the aisle when I slipped on a banana peel that was lying on the floor.

Q: Did you see the banana peel before you slipped?

A: Yes.

Q: When?

A: Just as I stepped on it, I looked down and saw it under my left foot.

Q: What happened?

A: Both feet went out from under me. My feet went up in the air and I came down hard on my right and left elbows.

Q: What happened to you?

A: I felt terrible pain in my elbows and saw a bone sticking out of my left arm and lots of blood.

Q: Would you be able to demonstrate how you fell in the store?

A: Yes.

Q: Would that assist you in explaining to us what happened?

A: Yes.

To the Court:

May the witness please demonstrate what happened?

Opposing Counsel:

I have absolutely no objections.

Judge:

Are we insured for this kind of thing?

Displaying Evidentiary Exhibits

A. Courtroom/Hearing Room Technology

The layout and available technology in the courtroom or hearing room shape the planning and presentation of exhibits. Advocates need to know the room arrangement and the location of equipment, movability of furniture, electrical outlets, sight lines, and acoustics. Wiring and cabling installation may be needed for necessary devices. It can help to be an authorized legal and electronic interior decorator.

B. Visual and Illustrative Displays

Advocates also need to thoroughly prepare for the use of exhibits:

• Plan well enough ahead to select real evidence and create demonstrative and illustrative exhibits.
• Review the resources available for exhibit development.
• Select the best medium for your presentation.
• Prepare exhibits that are simple, clear, and understandable.
• Be familiar with the court or hearing room and preferences of the decision maker.
• Use relevant, descriptive, persuasive, and professional exhibits.
• Practice and rehearse using the equipment and exhibits.
• Test run the technology to display exhibits.
• Double check viewing distance, readability, and comprehension.
• Present the information confidently and as a seamless evidence introduction.

C. EXHIBIT EXAMPLES

As described throughout this chapter, myriad of exhibits can provide real, demonstrative, and illustrative evidence. Examples of exhibits used in trials and hearings appear online and in other traditional and modern sources. The black and white pages in this text cannot bring to life - nor do justice to - these real-world informative and compelling evidentiary submissions.

You can enter the descriptive phrase “trial advocacy exhibits” or similar terms on a search engine, and view samples of exhibits from cases, with explanations of how they were created and introduced. These include examples of photos, videos, diagrams, charts, models, illustrations, drawings, maps, call outs, comparisons, graphic depictions, animated recreations, and other realistic and three-dimensional exhibits. You can also direct GenAI to generate various types of exhibits. Further, you could apply your research and imaginative talents and search for or create your own.

Objections to the Introduction

of Exhibits

A. Preparing for Objections

Advocates need to prepare for possible objections to the introduction of an exhibit. An objection, whether sustained or overruled, slows the presentation of the evidence, and protracted legal arguments interrupt the flow of the presentation. Anticipating potential objections and planning a response or an alternative exhibit help in obtaining the introduction of persuasive and compelling evidence. A motion in limine may be brought before the trial or hearing challenging the introduction of objectionable evidence. See § 4.5[A].

B. Responding to Objections

If an objection to the introduction of real evidence is sustained, advocates may:

• Make an offer of proof explaining the exhibit and the grounds for its admissibility. See § 4.5(B).
• Offer the exhibit for a limited purpose. See § 4.5(E).
• Offer the exhibit as demonstrative evidence, and not as real evidence.

The foundation for illustrative evidence is less than that required for the introduction of real evidence and may permit the exhibit to be received for demonstrative purposes. For example, in an assault case, if the offering attorney cannot prove the actual hockey stick used during the assault is the stick offered as real evidence, the attorney could offer the hockey stick as illustrative evidence to assist the witness in testifying and to help the fact finder understand what happened.

C. Questioning the Witness

Opposing counsel may question the witness after an exhibit has been offered to determine if there is a basis for an objection or to lay a foundation for an objection. Counsel may ask questions (witness voir dire) to determine whether the foundation is lacking.

Example:

Q: Your Honor, may I ask some questions of this witness for the purpose of laying a foundation for an objection to the introduction of this Pokémon Song Puppet exhibit?

Section 4.3(J) explains this questioning procedure. The scope of this voir dire examination is very limited. The questions should not be about the weight to be given the exhibit but only about the foundation. Voir dire examination should not be used unless the exhibit is likely to be excluded. Cross-examination is a more effective tool to reduce the evidentiary effect of an exhibit. The proponent of the exhibit has the right to object if the witness voir dire questioning goes beyond permissible questioning. An in limine motion can be employed to challenge an exhibit before it’s offered.

D. Common Objections

Exhibits are subject to appropriate evidentiary objections, including:

• Irrelevant. Fed. R. Evid. 401 & 402.
• Unfairly prejudicial or gruesome. Fed. R. Evid. 403.
• Misleading or inaccurate. Fed. R. Evid. 403.
• Waste of time or undue delay. Fed. R. Evid. 403.
• Exhibit does not assist the witness or aid the fact finder. Fed. R. Evid. 401.
• Cumulative or repetitious. Fed. R. Evid. 403.
• Lack of foundation, authentication, or identification. Fed. R. Evid. 901 & 903.
• Inadmissible hearsay. Fed. R. Evid. 801 & 803.
• Violation of original writing rule. Fed. R. Evid. 1002.
• Constitutional objections in criminal actions (i.e., denial of right to cross-examine).

The following examples explain objections to improper or questionable exhibits.

1. Unfairly Prejudicial Exhibits

Example:

The prosecutor wishes to introduce a three foot by four foot color photograph displaying the victim’s dead body found at the scene of the crime.

Prosecutor:

Your Honor, the State offers Exhibit No. 5, a photo of the victim’s body, showing there were two shotgun blasts: one to the head, and one to the knees.

Defense Counsel:

Objection, your Honor, may I be heard at the bench?

Judge:

Please approach the bench.

Defense Counsel:

Under Rule of Evidence 403, this exhibit is not admissible. Any probative value is substantially outweighed by the unfairly prejudicial nature of the exhibit. It is revolting, unnecessary, gruesome, and unfairly prejudicial. It has minimal probative value because the state’s medical expert already testified to the cause of death. There is no reason for the jury to be shocked by this photo.

Prosecutor:

Your Honor, may I be heard?

Judge:

Yes, Mr. St. James.

Prosecutor:

This photo establishes there were two separate shots, supporting the State’s claim of premeditation. It’s essential for the jurors to see this exhibit.

Judge:

The objection will be sustained as to Exhibit No. 5. It is unnecessarily large and unfairly prejudicial.

Prosecutor:

Your Honor, we have a smaller photo of the same scene which we now offer as Exhibit No. 6.

Defense Counsel:

We continue to object, your Honor. There is no need for this photo to be introduced and no need for it to be in color.

Judge:

Objection overruled. Exhibit No. 6 is received.

Defense Counsel:

Your Honor, we request that the photo be briefly shown to the jurors and that it not be used by the State again during the trial.

Judge:

I will allow each individual juror to view the photo and permit the State to refer it during final argument. Proceed Counsel.

Problems can be anticipated and resolved in advance. The offering attorney can:

• Prepare alternative pieces of demonstrative evidence if the initial exhibit is held not to be admissible. Some attorneys will prepare a proportional black and white photo as an alternative, if the judge refuses to admit a color photo.
• Explain to the judge the exhibit provides the jury with relevant and realistic facts that are essential to an understanding of the case.
• Bring a motion in limine to obtain a preliminary ruling as to its admissibility.

2. Emotionally Laden Exhibits

Example:

The plaintiff lost both legs in an accident. The defendant provided plaintiff with prosthetic devices as artificial legs. The plaintiff claims the devices are defective.

Examining Attorney:

Your Honor, we offer as evidence Exhibit No. 12, a video that shows the real life difficulties the plaintiff has in wearing the prosthesis and the operational defects with its design.

Objecting Lawyer:

Objection, your Honor. This video recording is unfairly prejudicial as it plays to the passion and prejudice of the jury, which substantially outweighs its minimal probative value. Further, your Honor, this evidence is repetitive because the plaintiff has already testified to the difficulty she has had with the prosthesis. However, we are willing to stipulate to the introduction of a still photograph of her wearing the prosthesis.

Judge:

Overruled. The plaintiff, Ms. Cairo-Thebes, is entitled to show the jury her experiences with the prosthesis.

In preparing the exhibit, the attorney may:

• Prepare a realistic video and not an exaggerated staged effort.
• Introduce the exhibit before substantial evidence has been introduced to avoid an objection on the grounds of repetition.
• Have the witness perform a live demonstration, if possible, instead of the video demonstration. This is problematic because live demonstrations can fail, and the demonstration may not establish what is sought to be proved.

3. Misleading or Time Consuming Exhibits

Demonstrative evidence may mislead or confuse the fact finder or distort the facts. Drawings not drawn to scale, photos taken at a time far removed from the incident, and models not similar to the real evidence are examples of misleading evidence.

Example:

In a wrongful death action in which the plaintiff died from injuries sustained in a mountaineering accident, the defendant’s accident reconstruction expert witness re-created the calamity with a computer program.

Examining Attorney:

Your Honor, Defense offers Exhibit No. 10, a computer software program recreating the events prepared by our expert witness reconstructing the incident with CGI animation.

Opposing Counsel:

Objection, Your Honor. This recreation is misleading and misrepresents the facts. The expert who recreated this event has no personal knowledge of the incident; this distorted depiction is not a precise scale reenactment; and the recreation does not include all of the relevant evidence concerning the event.

Examining Attorney:

Your Honor, in response to the objection, this animated re-creation is based on the evidence and will help our expert testify and help the jury understand the facts.

Judge:

Overruled. Exhibit No. 10 received.

Examining Attorney:

May we have the forensic expert witness, Tenzing Norgay, explain what is depicted on the monitors as it’s being shown?

Judge:

Yes, you may.

Sometimes a presentation of demonstrative evidence may be time consuming or require extensive preparation. In these instances, the value of the illustrative evidence must be weighed against the cost of time and delay. A demonstrative exhibit that is not informative or helpful may be rejected. An illustrative exhibit that does not assist the fact finder in understanding testimony or interpreting facts is objectionable and ought not to be allowed or used.

4. Vague or Ambiguous Exhibits

Images, symbols, or marks may be subject to varying interpretations. The depictions may not be understandable or clear. This may occur with emoticons, emojis, and acronyms. Defending counsel may object if there is insufficient testimony to support the assertions of what the characters or representations mean that is consistent with other evidence.

Example:

Opposing Counsel:

Objection, Your Honor. This exhibit contains emoticons and emojis which are offered to buttress the testimony of the defendant; but, in fact, these symbols and characters are vague and ambiguous as to their meaning. There is insufficient supporting evidence to allow their introduction.

Arbitrator:

Sustained. I will allow Respondent the opportunity to offer additional evidence to explain and support their introduction.

5. Unconstitutional Exhibits

In criminal cases, the introduction of exhibits may be objectionable as a violation of the defendant’s constitutional right to cross-examine witnesses. The defendant may not be able to cross-examine the person who created the exhibit. This objection is best used in conjunction with another ground supporting an objection.

Example:

Prosecutor:

Your Honor, I offer State’s Exhibit N—the police report.

Defense Counsel:

Objection, your Honor. This is not within the public record hearsay exception. The report is conclusory, and my client has a right to cross-examine Officer Cagney who prepared this report.

Prosecutor:

Your Honor, we wish to use the diagram prepared by Detective Lacey on the lower third of the report as demonstrative evidence of the burglary scene and offer that portion of Exhibit N.

Judge:

The diagram part of State’s Exhibit N is admitted as illustrative evidence. The remarks and conclusions surrounding the diagram by Detective Lacey must be redacted.

Prosecutor:

Your Honor, we have digitally scanned the diagram so it can be displayed on the monitors without showing the redacted comments.

Judge:

You may proceed.

6. Objections to Computer Exhibits

Objections regarding computer created or digital exhibits may involve issues regarding authenticity and the original writing/best evidence rule. See Fed. R. Evid. 1001-1006.

• Computer generated originals presented in a digitized alternative format (e.g., in a standard file server format) are admissible if it can be shown that the conversion of the original was accurately reproduced from the original.
• Scanned documents of electronic materials and images are admissible if they can be authenticated and do not distort the original evidence.
• Charts summarizing data not itself introduced into evidence are admissible if the underlying voluminous data was made available to the opposing parties for review and a witness has laid the proper foundation.
• The rule of completeness for writings or recorded statements may require that the entire exhibit be introduced if the computer software only displays part of the relevant evidence in a document or recording.
• The rule of completeness may also apply to digital photos that have been cropped or partially enlarged and require the contemporaneous introduction of other scenes.

7. Alternative Responses to Contemporary Exhibits

Modern technology provides novel means and methods for the creation and use of exhibits to augment a case story. Proponents of evidence can benefit from the use of contemporary developments in presenting persuasive and compelling evidence. Opponents of proffered evidence can rely on the requirements of evidence law to provide appropriate objections. An alternative response to objecting to innovative approaches is to create and use similar exhibits to defend a claim or defense.

INTERACTIVE ADVOCACY

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You can now employ GenAI to effectively manage and introduce exhibits. Our specially designed AI instrument integrates the comprehensive content of this chapter, allowing you to interact with LLMs, augmented by the text of this book, to optimize your advocacy strategy. By inputting the specifics of your case, you can direct this AI system to develop exhibit lists, propose admissibility strategies, and assist you in planning the submission and presentation of exhibits. This integration offers a modern, interactive approach to the use of exhibits, enhancing your advocacy skills through advanced technology.

Each section of this chapter — from identifying and preparing exhibits to introducing and displaying them — provides detailed guidance. The LLM-backed tool can support your efforts by generating draft exhibit outlines, suggesting strategies for effective presentation, and helping you anticipate and address potential objections. By engaging with this system, you can prompt it with specific queries and directives, review its responses, and refine them to harmonize with the needs of your case. The final decisions and strategies will remain under your control, ensuring that your presentation aligns with your own approach, method, and goals.

Your professor may provide additional instructions on what can or cannot be accomplished using this AI enhanced feature.

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