Updated: Feb 27, 2021
1. Preparation: If you are the Plaintiff or State, then you have a case in chief to present. You will know (or at least have an idea) of what your story/argument is for the trial and which witnesses you plan to call to tell that story. Along with each witness, will likely be evidence you plan on introducing. Besides their actual testimony, you will have physical exhibits. Go ahead and figure out which exhibits you plan on introducing. Whether it is a contract, incident report, lease, etc., lay each one out and put it with the witness you plan on trying to get it in through. Be prepared to lay a foundation with that witness AS WELL as a different witness if for some reason you can’t get it in through them. Here is an example:
2. Rules of Evidence: For each exhibit, place a sticky note on your copy and write down the rule of evidence you will need in case there is an objection. First, is it relevant? Cite 401 and explain why. Is it hearsay? What exception does it fall under? Is it not hearsay? Cite 801. Etc, etc, etc. If you show the court that you thought about it before hand, it will appear that you aren’t just making up rules as you go along, and that you know what you’re talking about. But don’t lose credibility by citing an incorrect rule or making an extremely thin argument.
3. Have at least 3 copies of exhibits: You need a copy for yourself, a copy for opposing counsel, and a copy for the judge. Make sure they are all the same. If you have co-counsel, make sure they have one too so that they can read along while you are conducting direct.
4. Share Share Share: Alright, this might be a more strategic thing, but in my experience it always looks good to share exhibits prior to court, or even the morning of. There are several reason why this helps. First, it can make the trial run smoother. It allows you and opposing counsel to figure out what they object to and what they don’t. If opposing counsel says they object to every single one and don’t have a good reason, well that won’t look good to the judge. (Side note: save your objections for when you need them. Otherwise the judge can’t tell the difference between an objection you really care about and one you are just trying to have stick to the wall). Second, while you still have to lay a foundation for the exhibits, it will help your direct examination run a little smoother if you are confident that there won’t be an objection. You can also help avoid objections by sharing exhibits and when opposing counsel says they are going to object, you read off your little sticky note and explain why they are incorrect; this will also show you are prepared and maybe they will accept your previous offer…
5. Practice: Whether you are trying a multi-million dollar civil case or a TIA speeding ticket, introducing exhibits can feel like actors having to say a specific line: “Do you recognize this? What is it? How do you know? Does it FAIRLY and ACCURATELY reflect….” It is very easy to get these words mixed up and make attorneys stutter. It happened to me all the time. The more you practice the more confident you become in understanding them and saying them. And remember, these are not just lines from a screen play. They mean something. Read articles on Authentication and SCRE 901 to see what your goal is and why we say these words when we attempt to introduce exhibits.
6. PROPERLY PUBLISH: This one needs to be in caps because I see it ruin a good exhibit quite often. Step 1 is to lay the proper foundation; Step 2 is to have the exhibit entered to evidence, which requires the judge to allow it; and Step 3 is to properly publish the exhibit. The two mistakes I see most often with publishing are #1, showing the exhibit to the jury before it has been introduced. This will cause an objection and potential mistrial if it is an extremely prejudicial piece of evidence and it does not actually get entered into evidence. Follow the steps, and remember, you can publish it later when it will have maximum effect. And this brings me to #2, publish it so that the jury gets the most out of it. This scenario happens in just about every trial: “Your Honor we move this photograph into evidence which is marked as Plaintiff’s #33 for identification only into evidence.” “Without objection, we will allow it into evidence as Plaintiff’s #12” “May I publish your Honor?” “Yes” Then what happens? Counsel hands the photo to the first juror. This means counsel can either sit there and wait for the photo to get passed along, or they can continue their direct examination. If counsel continues direct, then they have lost the attention of at least 2, but maybe 3, jurors - the one holding the photo is looking at it, the juror beside that juror is now looking over at it, and the juror who just passed it along is now looking at the reaction of the other two as they examine the photo. OR counsel sits there and waits for it to make its way down to the end and stops direct. This hurts the flow of the questioning and everyone loses their place. So what to do? If it’s a photo, hold it and walk it down the box showing each juror. Get close, but not too close (don’t ever invade a juror’s space). AND tell the jurors that this photo and every other one in evidence will go back with them for them to look at up close and for as long as they need. If it is an extensive contract with lots of words that they don’t need, then before it is entered into evidence, have your witness read the important parts and highlight it. (A witness should not mark a piece of evidence that is already in evidence; but this could be proper under SCRE 611; but try and avoid it). Do not hand juror #1 a big contract or other document and wait for them to read the good stuff. Help the jurors out and highlight when you can. Or better yet, have the entire 100 page contract entered into evidence, then have a copy ready of just Page 38 which is what you want. You can have Page 38 blown up or have copies to hand out (this would fall under demonstrative evidence, SCRE 611 or potentially SCRE 1006 or just enter it in as a separate exhibit to be safe).
7. Explain the exhibit: Sometimes attorneys have to fight to get an exhibit in. There can be a lengthy and scholarly debate about why the exhibit doesn’t comply with the rules of evidence. Jurors are paying attention, but that doesn’t mean that they understand what the exhibit is and why you are showing it to them. Have your witness explain the exhibit to the jurors. Explain what it is in basic terms and why it is important. Explain acronyms. Don’t assume the jurors know what it is. Make sure that the jurors can actually hear these answers too. You don’t want your back to the judge or jurors (but if you have to choose, the judge will lose). Depending on how your courtroom is set up, consider standing here to make sure that your witness’s voice reaches each juror, including the alternate (you never know):