ARKANSAS LEGAL AID OCTOBER 17, 2013 BY MICHAEL JOHNSON AND PAULA CASEY EXHIBITS

PURPOSE? Why do you want the exhibit? What will you say to the jury in closing about it? Who do you need as a witness to do that? What do you need to be true about the exhibit to do that? (Foundation)

Six Steps for Exhibits MARK it for identification SHOW it opposing counsel GIVE it to the witness LAY the FOUNDATION MOVE it into evidence PUBLISH it

1. MARK the EXHIBIT Pre-mark if the Court permits The exhibit becomes a distinct item, with a unique name for the record  “Marked for identification as Exhibit 1” Introducing exhibits in sequence does not matter

2. SHOW to opposing counsel Counsel has a right to see and examine exhibit “Let the record reflect that I am showing what has been marked for identification as Exhibit 1 to opposing counsel” Opposing Counsel: always physically take control of the exhibit and inspect it

3. GIVE to the witness Ask judge’s permission to approach the witness Tell the jury (and the record) what you are doing  “I am handing you what has been marked for identification as Exhibit 1” “WHAT IS IT?”  First Question: “WHAT IS IT?”

4. LAY the FOUNDATION Two admissibility requirements:  Relevance  Foundation pursuant to evidentiary rules  Authenticity  Hearsay/Best Evidence

5. MOVE exhibit into evidence “We move for admission of Exhibit 1 into evidence” “We offer Exhibit 1 into evidence”

6. PUBLISH the exhibit USE IT  Have witness testify about it  Show it to the jury  Display by computer, ELMO, etc.  Give it to the jury  Have witness read it

RELEVANCE FRE 401: “any tendency to make a fact [of consequence] more or less probable than it would be without the evidence” Connect the EXHIBIT to the case  Temporal connection  Party connection  Subject matter connection

AUTHENTICITY FRE 901(a): “…sufficient evidence to support a finding that the item is what the proponent claims it is.” FRE 901(b): 10 examples of authenticating items FRE 902: Evidence that is Self- Authenticating

AUTHENTICITY Uniqueness  Some items are “unique” by their nature  Only have to be “unique” to the witness identifying it  “Marking “ item makes it unique  Police procedures  “Bates” stamps Chain of custody  Proof that an item is what it is claimed to be by tracing  Also utilized for perishable items to prove the item is unaltered

FOUNDATIONS Real evidence  “same condition” as it was at “relevant time”  “unadulterated” if it is a perishable  Drugs  Products  “Fair and accurate representation” at relevant time for photograph

FOUNDATIONS Contents of documents  Purpose for admission?  Hearsay exception  Business record (FRE 803(6))  Public record (FRE 803 (8))  Best Evidence Rules (FRE )

OBJECTIONS TO EXHIBITS Relevance FRE 403: Balancing between PROBATIVE VALUE and  Unfair prejudice  Cumulative  Waste of time  Confusing and Misleading the Jury

OBJECTIONS TO EXHIBITS Curable Objections  Witness lacks personal knowledge  Improper Foundation Proponent has the right to know what is lacking—  Ask through the judge what aspect of foundation opposing counsel contends is missing

VOIR DIRE Opponent of exhibit may question witness as to foundational elements, including personal knowledge, before stating whether he/she objects to the admission of the exhibit Cross-examination technique Cannot go into substantive issues