Term
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Definition
| anything, other than testimony, that can be perceived by the senses and be presented in the courtroom as evidence |
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Term
| common rules about admitting exhibits |
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Definition
| usually exhibits may only be entered into evidence by party currently presenting evidence (e.g. during plaintiff's case in chief) however some jurisdictions allow other side to admit on c/e |
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Term
| when to call foundation witness |
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Definition
| early in the case; get your exhibits in front of the jury as soon as possible |
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Term
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Definition
| very first step; can mark however you want; if they are not marked before trial, a court clerk will mark them |
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Term
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Definition
1. have it marked
2. show it to opposing counsel
3. ask court's permission to approach witness
4. show exhibit to the witness
5. lay foundation for the exhibit
6. offer exhibit into evidence
7. have the exhibit "marked" into evidence by the clerk
8. have the witness use or mark the exhibit
9. obtain permission to show or read exhibit to jury
10. publish the exhibit |
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Term
| what to do when there is a highly objectionable exhibit |
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Definition
| ask the judge to have the foundation laid outside the presence of the jury so they cannot be improperly influenced by it |
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Term
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Definition
| when opposing counsel moves to enter exhibit into evidence |
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Term
| it is improper for a lawyer to make an evidentiary objection in front of the jury in a way that is calculated to influence the jury |
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Definition
| just note this general rule |
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Term
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Definition
| if you have a serious objection or can destroy foundation, ask judge for permission to examine the witness on the exhibit's foundation |
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Term
| have exhibit marked into evidence |
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Definition
| (often not required anymore) the clerk marks the exhibit as "admitted" and noes the date and time it was admitted; if it was marked "for identification" that is crossed out and it now has a name; refer to it by its name |
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Term
| know local practice about marking exhibits |
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Definition
| some allow marking; some require it to be readmitted into evidence after being marked; some don't allow it at all |
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Term
| three basic requirements of a foundation |
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Definition
1. witness must be competent
2. exhibit must be relevant and reliable
3. exhibit must be authenticated |
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Term
| relevance and reliability |
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Definition
| relevance can usually be established by the witness; reliability is involved whenever documentary exhibits are offered and involves showing that the exhibit is either nonhearsay or fits a hearsay exception |
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Term
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Definition
| FRE 901 and 902; is the primary problem at trial; involves establishing that the exhibit is what it purports to be |
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Term
| lay foundation in a way that helps your case |
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Definition
| your foundation must be technically accurate for the judge but also factually persuasive for the jury |
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Term
| four basic categories of evidence |
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Definition
NOTE: basic foundation requirements are the same within these four types
1. real evidence (tangible objects)
2. demonstrative evidence
3. writings
4. records |
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Term
| foundation for real evidence |
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Definition
| must show that object is actually what it purports to be; so must show it is the actual object and not a substitute, and that it is substantially the same condition that it was on the relevant date |
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Term
| foundation for demonstrative evidence |
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Definition
is not the actual object itself, but something that represents it, e.g. photograph or diagram or map;
it is admissible if it fairly and accurately represents the real thing and if it helps the trier of fact understand the real thing |
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Term
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Definition
writings are documents that have legal significance so are nonhearsay (e.g. contracts, letters that form contracts; wills)
these writings are admissible if they were in fact executed by the person they appear to be signed by. Hence the signatures must be identified as being genuine before these writings are admissible. |
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Term
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Definition
are hearsay and admissible only if requirements of 803(6) are met
can be shipping documents; invoices; telephone memos and diaries
1. must be made at or near the time by a person with knowledge if kept in the course of regularly conducted business activity
2. if it was the regular practice of that business activity to make the memorandum, report, record, or data compilation |
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Term
| leading questions are proper |
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Definition
| no nonleading way to appropriately lay foundation |
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Term
| foundation for tangible objects |
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Definition
1. exhibit is relevant
2. exhibit can be identified visually or through other senses
3. witness recognizes the exhibit
4. witness knows what the exhibit looked like on the relevant date
5. exhibit is in the SAME OR SUBSTANTIALLY THE SAME condition as when the witness saw it on the relevant date |
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Term
| tangible objects - chain of custody |
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Definition
two methods:
1. show that exhibit has been in one person's continuous, exclusive, and secure possession at all times
2. show that the exhibit was in a uniquely marked, sealed, tamperproof container at all times |
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Term
| photographs, motion pictures, videotapes |
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Definition
1. photograph is relevant
2. witness is familiar with scene portrayed
3. witness is familiar with the scene at the relevant date (and time, if important)
4. photograph FAIRLY AND ACCURATELY shows the scene as it appeared on the relevant date |
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Term
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Definition
1. is relevant
2. witness is familiar with scene on diagram, model, or map
3. witness is familiar w/ scene at relevant time/date
4. diagram is reasonably accurate or to scale
5. diagram is useful in helping witness explain his testimony (not required in many jurisdictions) |
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Term
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Definition
1. relevant
2. witness is familiar with scene at relevant date
3. drawing is reasonably accurate and not misleading
4. drawing is useful in helping witness explain what he saw (not required always) |
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Term
| demonstration by witness (e.g. demonstrate a physical act) |
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Definition
1. demonstration is relevant
2. probative value exceeds any prejudicial value |
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Term
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Definition
| must fulfill business records requirements AND photograph (fairly/accurately) requirements |
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Term
| sound and video recording |
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Definition
1. relevant
2. recording machine was tested before use and was in normal operating condition
3. recording machine that was used can accurately record/reproduce sounds and images
4. operator was experienced and qualified
5. witness heard/saw what was being recorded
6. after recording was made, operator replayed tape and it had accurately recorded
7. tape was labeled, sealed, placed in secure place
8. recording machine in court is in normal operating condition
9. witness recognizes and can identify the voices on tape/images on tape |
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Term
| transcript for sound recordings |
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Definition
| where sound recordings are involved, usually advantageous to enter into evidence a copy of a transcript for the jury |
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Term
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Definition
1. document is relevant
2. bears a signature or is handwritten
3. signature or handwriting is that of party or his agent
4. document is in same condition as when executed |
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Term
| how to authenticate signature/handwriting |
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Definition
1. call witness who saw person sign it
2. call witness who is familiar with signature and can identify it
3. call signing party as an adverse witness
4. call handwriting expert to testify based on comparison that it was made by the party |
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Term
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Definition
1. relevant
2. witness received the letter
3. witness recognizes the signature as the other party's
4. letter in same condition as when recieved |
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Term
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Definition
1. record is relevant and reliable
2. witness is "custodian or other qualified witness"
3. record is a memorandum, report, record, or data compilation
4. record was made by a person with knowledge of the facts
5. was made at or near the time of acts, events, conditions, opinions, or diagnoses
6. was made as part of the regular practice of that business activity
7. was kept in the course of regularly conducted business |
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Term
| objection to business records |
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Definition
| can object on lack of trustworthiness |
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Term
| watch for hearsay within hearsay in business records |
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Definition
| e.g. an accident report, even if admissible under 803(6) if it contains statements of witnesses, those must be admissible under a hearsay exception too for the whole thing to be admissible |
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Term
| entering opposing party's business records into evidence |
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Definition
| may be an admission by party opponent so don't have to lay business record foundation; and if turned over during discovery may establish a foundation as well. |
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Term
| summary charts admissible at trial |
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Definition
two types:
1. summary charts of evidence produced at trial
2. summaries of voluminous records |
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Term
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Definition
| should be marked as an exhibit when written |
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Term
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Definition
| when they contain admissions they may be read to the jury; since they were previously filed in court they have been authenticated as coming from a particular party so they only need to be published to the jury |
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Term
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Definition
| generally everything unless it is dangerous (guns); some judges retain demonstrative exhibits on the theory that it is just illustrative; visual aids made during opening/closing etc. generally do not go |
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