The Meaning of Court Exhibits
Exhibits are documents, photographs, diagrams, computer print-outs, or other tangible items which are presented in evidence at a trial or hearing in court. Courts will typically have a general rule that exhibits must be "pre-marked" before they can be introduced as evidence. This means that the exhibit needs to be marked with an identifying letter or number prior to being presented to a witness. For example, in a trial or evidentiary hearing involving the dissolution of a marriage, the attorney for either party might state that they wish to show a photograph to a witness that has been marked as Plaintiff’s Exhibit 1 or Respondent’s Exhibit 4, for example. This practice may differ from case to case, and from lawyer to lawyer . The method to determine if there is a pre-marking requirement is to inquire about this with either the lawyer appearing at court on your behalf, or the court clerk before the courtroom doors open to the public.
There are many types of exhibits which are presented in court. Typically in a family law court case, exhibits that might be presented include photographs, portions of birth and marriage certificates, periodic income statements for years prior to the court appearance, and bank records. In a criminal case, law enforcement officers’ reports and photographs of crime scenes might be presented. When court exhibits are entered into evidence they become part of the official court record and will be preserved with it even if they are not provided to one or both of the parties.
Categories of Court Exhibits
The diversity of court exhibits is virtually limitless. Anything that can be brought into the courtroom can be used as an exhibit – within certain guidelines, of course, such as relevance and materiality. Courts have been reasonably strict about requiring exhibits to be marked, and used as part of the record, to be actual things or documents. There has been considerable growth in the use of electronic exhibits. Some examples follow:
Physical Objects
These generally include items that readily fit into, or on, the evidence table in the courtroom. Examples are replicas or samples, models or cutaways, vehicles and equipment. These are tangible things that do not change during the course of litigation.
Documents
Documents may include written statements in the form of letters, memos, reports, forms, contracts, deeds, wills, etc. Such documents may exist in the form of printed paper or, increasingly, in digital or electronic form. Documents are often the Achilles’ heel of many a witness – they are tangible, they have a date of creation, and witnesses can be caught in inconsistency amongst documents.
Photographs
Generally accepted, photographs also can be subject to inconsistencies. Some may be able to be designated as relied upon by experts and introduced into evidence without the need for expert testimony.
Digital Evidence
Increasingly, data is being kept electronically, not on paper. As word processing and electronic spreadsheets are common, courts have dealt with them. Generally speaking, however, there are not yet the rules concerning authentication or foundation requirements. Nonetheless, courts are working on creating rules concerning things like spreadsheets, e-mail, and other computer-generated or computer-stored documents. Courts are becoming more willing to permit an "electronic copy" to be designated and provided, but each case is fact specific and should be evaluated according to the Court’s evidentiary rules.
The Procedure for Presenting Exhibits
The process of introducing exhibits at trial may seem complicated, especially to those who are not well versed in the law. The exhibit must be physically introduced in front of the judge and the jury and a proper foundation to introduce such an exhibit must be laid. Layman’s terms: you need to say that the exhibit is what it is – the contract, bill, email etc. – and the other side usually should not have an objection to its admission. That said, there are rules of evidence that guide the admissibility of certain evidence.
The Texas Rules of Evidence govern what evidence is admissible and what evidence is not. A common example is a statement in a court proceeding or a deposition is not admissible to the prove the truth of the matter asserted, but it is admissible to impeach (attack) the credibility of a witness. In other words, sometimes it is not enough to just introduce a document. It must be done in a way that is legally sound. We attorneys know this and follow proper procedures (for the most part).
Exhibits can be introduced by the attorneys as representatives of their respective clients. A special procedure is used when parties are introducing something like a written contract. How this works depends on your judge and your jurisdiction, but you may see something like this:
Plaintiff (or Defendant) calls Bob Smith to the witness stand.
Attorney: I wish to introduce Plaintiff’s Exhibit 1-10. They are the contract and all amendments, objections, and notices given to the Defendant prior to the incident. I offer Plaintiff’s Exhibit 1 at this time.
Judge: Swap …
Plaintiff calls Mary Doe to the witness stand.
Attorney: I wish to introduce Plaintiff’s Exhibit 11. Defendants previously designated the tax statement and its annexures as an exhibit and filed it with the court. I offer Plaintiff’s Exhibit 11 at this time.
Judge: Swap …
The above is an over-simplification of how things generally work in court. Just because you have exhibits does not mean you will win your case. Your exhibits just further the cause you are trying to establish. Re-read the above Example 1. The Plaintiff listed evidence that goes to the Plaintiff’s theory of accident AND theory of no accident. Bepop and Rocksteady hunt down and kill turtles. If you list evidence that goes to killing turtles, you are supporting the proposition this is in fact a photo of Shredder holding a photo of himself and not the defendants. You better hope your Plaintiff can tell the jury this IS the photo in Exhibit 1 and tell the judge that it is admissible. If she cannot because of hearsay or some other legal technicality, then my friend, you are out of luck.
In the Example 2 above, notice the Plaintiff simply said the statement was previously produced. This tells the Judge that it is in the file and ready as a business record and thus will be admissible. Without identifying the document, the Judge would have heard the "I offer Plaintiff’s Exhibit 11 at this time" and known nothing about the content of Exhibit 11. Knowing that information, the Judge would probably have thought "Okay, I’ll go through the contents of Exhibit 11 to see if it compares to Exhibit 8, which is the item identified as a tax statement at issue." He would have taken Exhibit 11 and compared exhibits 11 and 8. Then he would have had to go back and compare him to exhibits 5, 6, and 7.
Ideally both sides will agree on what the documents are and they will not fight about the typographical error on page 28. Or more realistically neither side will fight on what the documents are, but each will pay attention to the contents of the documents.
Standards and Admissibility of Exhibits
Legal standards govern the admissibility of exhibits in a case. Pursuant to FRCP 402, only relevant evidence is admissible. Evidence is relevant if it tends to prove or disprove some issue in the case. Under this rule, a document is an exhibit. A photograph is not, absent a witness to authenticate it in court. A witness’s statement of fact is not inadmissible evidence, because the witness must be subject to both cross- and direct examination on the stand. The evidence must also be reliable, which means it cannot be prejudicial. Objections to the admission of evidence are made under FRE 402. Objections are made by a party when they believe that the admissibility of a piece of evidence in question should be precluded. Admissibility is left up to the strict interpretation of statutory law in the Third Circuit.
Authentication is the process of demonstrating and establishing the validity of a piece of evidence. Authentication of an exhibit is accomplished through the use of a proper foundation. A proper foundation for the exhibit requires that a witness testify to the authenticity of the exhibit in court. The proponent of the exhibit must also establish why the exhibit is reliable by precluding all possible alternative explanations of how the exhibit could have come into being. A typical objection would sound like: "Plaintiff objects to the introduction of Exhibit A (e.g. the settlement agreement between the parties) on the grounds that it is not authenticated and not reliable." Authentication may be achieved several ways by a party, including:
For example, an email can be authenticated by a witness who testifies that the email was presented in their email application the same way that they normally appear, and the witness can testify to the time frame in which the email was sent. Authentication is meaningful only if it is clear that the exhibit also accurately reflects the pertinent subject matter.
The following exhibits require authentication pursuant to FRE 901:
For example, Exhibit A was sent by Defendant to Plaintiff. Plaintiff has not personally reviewed Exhibit A and does not know its authenticity. Plaintiff cannot show Exhibit A on the screen by displaying it on his computer. A proper foundation has not been established that would demonstrate to the Court that Plaintiff has knowledge of Exhibit A that was sent to him by Defendant, and that Exhibit A is a true and accurate depiction of the underlying subject matter. Without proper authentication, Exhibit A is not considered an exhibit.
When Exhibits Matter: Their Significance in Court Cases
Exhibits are a crucial component of all court cases. The more evidence you have to support your theory of the case, the more likely you—together with your attorney—are to be successful. While not every case calls for exhibits, most will, and being prepared ahead of time will make you much more comfortable. If the witness doesn’t remember what happened or doesn’t have a chart/photograph, etc. with them, you can usually present that evidence to supplement their testimony.
Exhibits are often pieces of paper with information, but they do not have to be. If, for example, you are suing someone because he damaged your car in a car accident, you would want to provide the judge with photos of the accident scene and your car, and receipts regarding the damage. Maybe the person you are suing is the person who rear-ended you, and you want the judge to see photos of the defendant’s damaged car so he or she will understand how fast he was driving when he struck you from behind.
It’s easy to think of things that could be used as exhibits . It’s not intuitive to think of what cannot be used as exhibits. An exhibit cannot be hearsay and cannot contain hearsay evidence. Hearsay is any statement made with the intent to communicate which is offered to prove the truth of the matter stated. Usually, a person must be available to testify about a statement the person made for you to include that statement as evidence. If, for example, a police officer arrests you, and the officer wrote in his report that he smelled alcohol, and you bring in his report (that is hearsay) – he must be available to testify in order for you to use that report against the other person in court. It is heard and respected English, but is not admissible evidence.
We have a saying and it goes like this – the three C’s: Clear, Concise, and Confirming. If your exhibit supports your position in a clear manner, is short and to the point – it’s valuable evidence. If your exhibit is ambiguous, added up can be hard to understand and lengthy, you may be undermining your position.
Challenges Related to Court Exhibits
Courts often forget that simply having a "paper" document is no guarantee that it has been preserved in one manner or another. While a copy of something can be admitted into evidence, it is often the document itself which remains on file with the court. There are a number of noted issues with respect to court exhibits. For example, where are they stored? They can be stored in boxes their natural habitats. Or, they are maintained electronically. What happens when they are downloaded? It is important to use an "S" drive which is secure. If a case is ongoing, particularly in an electronic medium, exhibits must be protected from tampering, and with all cyber-attacks such as ransomware, that is problematic. Consider that with respect to the Pennsylvania Rules of Civil Procedure, the rules concerning evidence codified at Rule 223. It must be remembered that in the Court of Common Pleas of Pennsylvania, as an example, only certified copies of exhibits are required to retain until after completion of the period for appeal, unless the court orders otherwise. The "rule" concerning exhibits does not account for issues such as storage. In order to maintain an exhibit, one needs to maintain control over it. This can be accomplished physically or electronically, but needs to be addressed. As mentioned above, in counties where there is a long history of exhibits being stored in old style files and in cardboard boxes, that practice does not lend itself well to the rules of evidence given the electronic age, and they should not be considered best practices. Moreover, judges, like everyone else, move around to locations where there is not a sufficient amount of space. So, while the day may come when courts will address what to do with paper exhibits, it remains to be seen how that will occur. Similarly, with exponential growth in appellate activity, the rules have not considered what the should be done with respect to the enforcement of exhibits. Consider that in the typical appellate court, the briefs are not available to anyone other than the judges in the appellate court for the appellate opinion. Simply put, if the same rule applies below, then in most cases the exhibits disappear. Simply put, they are either destroyed because they are deemed irrelevant post-appeal or are simply lost.
The Impact of Technology on Court Exhibits
The advent of technology in the courtroom and the availability or software has given rise to the use of digital exhibits at trial. A digital exhibit is a document or evidence that is stored electronically, in a file format, on a computer (or thumb drive) and in most instances that can be used, and should be used, at trial. Electronic presentation of evidence gives litigants the ability to present and preserve their evidence in ways that were not possible just a few years ago. Nowhere is this more prevalent than in electronic trial presentation software.
Trial presentation software is typically utilized by an experienced trial paralegal (trial techs) or professional technician who assists with the preparation of evidence for presentation at trial. The use of trial presentation software allows a paralegal or tech person to organize evidence and present it in various formats that would typically be inappropriate in a traditional courtroom setting. For example, professional trial presentation software enables the user to highlight specific portions of evidence and print that for the jury in a easily readable format. In addition, a trial tech with the proper software can blow-up, or zoom into small portions of evidence (for example, enlarging a portion of a page of discovery for presentation to the jury). This was previously accomplished by the use of an overhead projector and a transparent slide in an era now passed. While some may mourn the passing of overhead projectors, jurors and witnesses are more likely to be able to view exhibits, especially the very small print commonly found on a medical bill, with digital presentations of evidence.
Like nearly every field of human endeavor, trial presentation is rapidly changing by the uses of technology. While much of the focus is now on the use of electronic devices the "cloud" and other storage mediums now allow for the exchange of vast amounts of material easily and without the pitfalls of the past, i.e., hard copy in a binder and even on court record, which is available at trial but not in an easily sharable format. Now, software systems allow trial attorneys to produce documents on the spot for distribution to judges, opposing counsel, witnesses and jurors for exhibits, motions and other important documents. Viewing a printed motion for a brief continuance, stipulation (agreement) and/or incorporation of exhibits is now the old fashioned way of getting evidence to the court. Today, it is done by electronic means, to wit: email, thumb drives, shared and cloud storage, all of which have to be considered as technological advances that are courtroom family members.
Preparing Exhibits: Tips and Best Practices
Practicing for a court appearance can feel like a learning experience unto itself. One issue our clients frequently struggle with is how to prepare exhibits that are ready for presentation. Generally speaking, it makes sense to organize all documents chronologically and clearly. Admittance of evidence will also depend on whether all potential objections have already been addressed . For example, if a letter you plan to enter into evidence contains hearsay or other information that shouldn’t be presented, it is best to redact any such information before entering the exhibit into evidence. Additionally, in order to ensure everything is prepared correctly and organized, it helps to have a cover and an index for all your exhibits grouped by category. You should also be prepared to explain to the judge why admitted items are relevant, material, and not subject to any potential objections.