During trial, parties routinely introduce exhibits to illustrate their claims and defenses and capture the jury’s attention. Examples may include: photographs, maps, graphs, videos, contracts, letters, emails, and many more. Introducing exhibits can be very useful in developing a factual narrative (“a picture is worth a thousand words”), keeping the jury interested, and breaking up the monotony that sometimes arises when attorneys and witnesses limit their presentation to testimony alone. Introducing exhibits at trial is one of the most important and foundational trial techniques. It is therefore surprising that many future lawyers graduate from law school without learning it!
This article and video tutorial is an overview for introducing exhibits at trial. It is not state-specific. Each state has its own laws and court rules governing the proper procedure for introducing exhibits at trial. This article/video is not legal advice, is not state-specific, and may differ from the laws and court rules in your jurisdiction. Whether you are represented by an attorney or representing yourself pro se / pro per, always read and comply with the laws and court rules in your jurisdiction. Please read The Legal Seagull’s full disclaimer before proceeding.
Overview for Introducing Exhibits at Trial
- Mark exhibit for identification
- Show exhibit to opposing counsel
- Request permission to approach witness (or hand to bailiff)
- Show exhibit to witness
- Lay proper foundation for exhibit
- Offer exhibit into evidence
Now, let’s go over these five steps in more detail:
1. Mark Exhibit for Identification
In order to properly identify each exhibit, it must be marked for identification. Depending on your jurisdiction’s laws and court rules, this could be as simple as marking the exhibit number with a pen, using exhibit stickers, or having the court clerk mark the exhibit. Depending on court rules and the number of exhibits you have, these may be arranged by number (1, 2, 3…) or letter (A, B, C …)
2. Show Exhibit to Opposing Counsel
Show. Exhibit. To. Opposing. Counsel. Or, if your opponent does not have an attorney, show him or her the exhibit. In some states, court rules provide for the parties to exchange exhibit binders prior to trial, which may make this step unnecessary.
Generally, when this step is necessary, the proper procedure is to hand a copy of the exhibit (if possible) to your opponent.
3. Request Permission to Approach the Witness
Never approach a witness without requesting permission from the judge. Doing so may intimidate the judge and prompt the overzealous bailiff to tackle you! (Unlikely but anything could happen).
For example, you could ask: “Your Honor, may I please approach the witness?” In some courtrooms, the attorney hands the the exhibit to the bailiff, who then hands it to the witness.
4. Show Exhibit to the Witness
Show. Exhibit. To. The. Witness. In some jurisdictions, the witness hands the exhibit to the bailiff who then hands a copy to the witness.
5. Lay Proper Foundation for Exhibit
Laying a foundation means proving to the judge that the exhibit is relevant, complies with rules of evidence, and should be admitted into evidence. This is typically done by asking the witness questions to confirm that he or she is familiar with the exhibit, knows what it is, and can authenticate that it is genuine and relevant to the lawsuit. If you cannot demonstrate that the exhibit is properly admissible, you will not be able to enter it into evidence for the jury to consider. For that reason, you need to be do the necessary research regarding how to lay foundation for each exhibit long before you actually go to trial.
According, laying a proper foundation is by far the most important step for introducing an exhibit into evidence at trial. Laying a proper foundation requires reading and following the laws and court rules in your jurisdiction.
In the video above (at 04:14), we use the example of introducing a diagram into evidence, under the laws of the fictional U.S. state of Atlantis.
6. Offer Exhibit into Evidence
At this point, the exhibit is not yet in evidence. Depending on the jurisdiction, this may involve a statement to the effect of “Your Honor, I would like to offer Exhibit [number/letter] into evidence.” Your opponent will have the chance to object, if he or she wishes, and explain to the judge why the exhibit should not be admitted. Assuming you have followed all necessary steps and the judge is not convinced otherwise by your opponent, the judge will admit the exhibit into evidence.
Once the exhibit is in evidence, it may be shown to the jury and the witness may be questioned regarding its and its contents.
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