Direct Examinations #5
This episode will deal with exhibits, one of the foundations of the common law system of evidence. Parties introduce evidence in two ways: through oral testimony (either live or recorded) and by exhibits.
Exhibits can take many different forms. The most common are records, where someone (or, these days, something) recorded data in writing. They may be the old-fashioned ink-on-paper or one of the many modern electronic forms. The rules of civil procedure for each jurisdiction provide the mechanics of introducing such records into evidence, with requirements for advance notice, copying and the like. This episode will not deal with such provisions, which generally accomplish the same objective – ensuring that everyone can review the same record before the decision-maker sees it.
Other forms of exhibits are real objects, such as tools, weapons, DNA samples, and so on. In the case of correspondence (the ink-on-paper kind), there may be a reason to produce the envelope in which the letter arrived. In that case, the envelope is both a written record and an object.
We include exhibits in Direct Examinations because this is how most exhibits find their way into the trial. In the modern era, however, it is customary that opposing counsel agree on 'exhibit briefs' which assemble all (or most) of the records that counsel want the decision-maker to consider. In that case, there should be an agreement, or at least a discussion, about whether the parties will agree that records are authentic, that their dates reflect when the record was either created or transmitted and by or to whom, that it was indeed sent or received and in the form produced.
It is fair – and commonplace - for counsel to object to some of the details pertaining to some of the records. In that case, counsel should identify which objections apply to which records. This discussion frees up court or tribunal time, as the decision-maker considers evidence and argument about the records in dispute but takes the rest as authentic.
The exhibit brief is often marked as an exhibit itself, with each component assigned an identification number, page, or tab. When counsel refers to a record in the brief, it might be "Tab 4 of Exhibit 1, the Joint Exhibit Brief." After hearing input from counsel, the decision-maker may rule that the components of the brief shall not be considered as evidence until duly identified by a witness.
What techniques should the direct examiner consider when dealing with exhibits?
· First, is this record or object what it appears to be?
· Second, what about the details? Should there be a dispute about whether it reflects what happened, is genuine, authentic, transmitted, or whatever other detail is germane? If so, counsel should prepare to deal with the dispute.
· Third, how does it fit into the story? More than one witness may be able to discuss it.
· Fourth, what impact will it have on the case analysis? Decision-makers love to rely on 'objective' evidence. Once admitted, the record or object becomes just that. But how would your party spin the exhibit to help your case or hurt theirs?
· Last, when should the exhibit find its way into the oral evidence? Just because it is Tab 4 in Book 8 doesn't mean anyone else has read it, digested it, or taken its impact into account. For the best impact, counsel should produce the exhibit to the most appropriate witness to identify and confirm its authenticity.
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