Exhibits and Objections

Exhibits and Objections
Hazel Article
Real Evidence
Basis of Case: Some evidence may be essential to the plaintiff/states case. (Ex. K in br/K suit)
Not Necessary But Expected: Sometimes a suit makes certain evidence of such high relevancy that it would be difficult to convince the trier of fact that the cause is valid unless the evidence is presented, so long as it is available and of a size, permanency of location, etc. that presenting it is feasible. (Example: defective product in a product liability case.)
Not Necessary or Expected, But Very Helpful: Virtually every other exhibit. If the evidence is not necessary, expected, or helpful, then it should not be introduced.
Illustrative Evidence
Summarize the Testimony: Long documents may be summarized. This is hurtful to the other side, because when evidence is bad enough when it is spoken, but when it is put before them in written form as well, it will likely be believed.
Assist Jury to Understand Testimony: Most widely used type of exhibit. Example is a chart of the scene of the incident. Modern technology allows computer assisted video.
Purely Illustrative: Example is the drawing on the chalkboard. You cannot draw or write something without evidence to support it. The main difference between this and other types of evidence is that the jury is not allowed to take it into the jury room.
Persuasion: Everything you do should be helpful or persuasive.
Exhibit Itself
How Persuasive

A). Persuasive due to Testimony: Exhibits which explain, illustrate, etc. something a witness has said partakes of the persuasiveness of what was said.

B). Persuasive in Itself: An exhibit may be such that, even apart from what a witness has said, it persuades.

Danger: An exhibit may have elements in it that are persuasive for the other side.

Timing of Introduction: If the trial is getting dull, get up and introduce an exhibit to inject a little life into the trial.
Manner of Introduction: There are two methods: with flair or routine and mechanically. Business records are usually done mechanically, but when you are trying to inject life into the trial, do it with flair.

Basis for Introducing Any Exhibit
Essential Requirements: Probably admissible if (1) relevant and (2) authentic. You need (1) a witness or witnesses who can testify to matters required for foundation or (2) a self-authenticating document.
Potential Problems: There are some objections that can prevent the introduction of evidence even though it is authentic and relevant.
Privileged: If the evidence is privileged, it will not go in if there is a proper objection. However, privilege may be waived other than by just failing to object at trial.
Unfair Prejudice: Prejudicial effect must substantially outweigh the probative value. (Example: gory photograph).
Best Evidence: An attempt to introduce testimony about what a document says rather than introducing the document itself. However, it is sometimes erroneously made in response to the introduction of a document when an eyewitness is available. There are many exceptions to this rule.
Hearsay: Most common objection. May have to use one of the exceptions in laying the predicate for the evidence. If done, the objection is limited to claiming that the evidence cannot escape hearsay through any exception, through this exception, or that the elements of the exception are not laid by the testimony.
Jury: Don’t forget to include the jury in the process of evidence introduction.
Steps in Introducing (MIAO): Mark, Identify, Authenticate, Offer. Today, many exhibits are pre-introduced before trial, but there is seldom a trial where it is not necessary to introduce an exhibit that is not pre-introduced.
Mark: Name the exhibit. Even if not pre-admitted, usually premarked.
Mother, may I: In Texas, the court reporter marks. Some courts require you to ask the judges permission to approach the reporter. Always required to do something unusual or to approach for sidebar.
Exhibit Stickers: Place stickers on your exhibits to save time, get in good with the reporter, help the flow, and appear better prepared and more professional.
Designation: May be determined by the court, reporter, or you. Sometimes you may want to introduce a series of related exhibits, and show their relation through naming, for example, 1a, 1b, 1c, etc.
Showing to Opponent: Often lawyers show the exhibit to the other side at this time. It is not truly required until immediately after it is offered, but most do it earlier to avoid having it come out that they forgot.
Showing to the Jury: It is not appropriate to show it to the jury until it is admitted in evidence. If it can’t be hidden, it may be necessary to have an “outside the presence of the jury” ruling on admissibility.
Changing the Designation: In many jurisdiction the exhibit has one name for identification purposes, and another for once it has been admitted.
Identify: Show the witness the exhibit, ask if the witness recognizes it, and then ask what it is. The witness should not go into any detail regarding the “contents” of the exhibit. Accomplishes two things.
Connect to Witness: It connects the exhibit and the witness showing the competency of the witness to discuss the exhibit.
Relevance: It shows the relevance of the exhibit.
Authenticate: Put evidence before the judge that the exhibit is what you claim it to be. Establish the predicate for the evidence. Part of the predicate includes testimony which will get the document excepted from the hearsay rule or some other objection. You can usually establish the predicate on direct examination by asking leading questions. Stick to terms of art when asking these questions.
Jury Awareness:

A). Business Record Practice: Question the witness about the practice of the business with respect to keeping records. Establishing the custom and practice of the business, which may not be important for admissibility, but may be important for the jury in deciding on credibility, because this witness may not have personal knowledge of these records, or the person who made the records may no longer be an employee of the business.

B). Witness Produce: Don’t produce the records from your file. Have the witness produce them.

Business Record Exception to Hearsay: (1) Regular Practice, (2) events recoded by someone with personal knowledge of the events or someone who has received that information from someone with personal knowledge of the events (3) made at or near the time that the recorded events happened (4) these particular records so prepared.
Witnesses: In establishing the “chain of custody” taken from the scene to here, you may have to produce more than one witness.

Offer: “Your honor, I offer Plaintiff’s Exhibit One in evidence”
Time To Object: Evidence must now be shown to opposing counsel. Other side has right and opportunity to object, and objections would rarely be ripe before now. Most provide a copy before trial.
Ruling: You need a ruling on your offer. If admitted, do something to keep a record of this, such as striking “for identification” from marking, renaming the exhibit, or, in Texas commonly, recorded by the court reporter. If admitted for limited purpose, see if judge will allow limitation to be written on the exhibit or not allow in jury room, although the latter is potentially erroneous.

Cases
Kessler: Need only have been someone who has observed the object or scene depicted in the photograph. Everything else goes to the weight, not the admissibility.
Jones: Admission of photographs is at the discretion of the court, so long as they are relevant and there is no danger of unfair prejudice or confusion.
Morales: Erroneous or inadmissible parts may be deleted, excised, or covered. An instruction may be given, but it must be requested.
Hinton: Outside court experiment. There must be substantial similartity. It is error if it confuses rather than aids. For reversal, you must show harm.
McRae: Accident reports are admissible, even with officer’s opinions.
Eubanks v Winn:
Making and Overcoming Objections
When to Object: Make a checklist of inadmissible testimony you’re worried about. Make sure your opponent doesn’t overstep the motion in limine. Rely on alertness and instinct, but there are times when you will be wrong.
Jury’s Mood: How the jury will react to the objection is the main concern. Objections that will work sometimes will not work at other times.
Conserve Ammo: Use your objections only when you really need to.
When not to Object
Question Finished: Don’t object until the question is finished unless the question itself introduces objectionable matter. If the witness tries to provide the answer before you object, ask the judge to instruct the witness not to answer when you are on your feet, so if he continues it will appear that he is trying to do something sneaky.
Answer Doesn’t Hurt: Don’t object when the answer doesn’t hurt unless it opens a door you need to keep shut. If the questioning is irrelevant, wait until everyone is tired of it and then object.
Leading on Peripheral Matters: Don’t object to leading questions on peripheral matters or those not really in controversy. Save it for times when the evidence is important and the witness is not going to say it unless the attorney feeds him the right information. The exception might be when the other side doesn’t seem to know how to ask non-leading questions and the judge is inclined to rule with you strictly on the leading questions.
Evidence You Will Admit: Don’t object to something you will later offer into evidence or stipulate to.
Long, Boring Narrative: Don’t object to a long boring narrative by an expert unless you have a motion in limine on something that you are afraid the expert will blurt out. Same applies to lay witnesses, but there is usually a greater risk that they will blurt out something inadmissible and harmful.
Do Object:
Preserve Error: Do object every time the subject comes up in order to preserve error. You do not waive an objection to something that has been properly preserved by earlier objection simply by cross-examining on the subject. You don’t have to object every time the subject comes up, but it is dangerous to object once, have it ruled on, and don’t do anything else.
Object, Specific, Overruled, Record: If the objection is made before the objectionable material comes up, you need to be sure that it is the correct objection, that it is specific, and that it is overruled on the record.
Object at Least Twice: Emphasize the objection by objecting at least once more, get another ruling, and then ask for a “continuing” or “running” objection. No official status under the Rules, but emphasize your unwillingness to waive the complaint. If your request is overruled, it is a bad idea to continue objecting more than three or four more times.

A). Abandoned and Later Raised: Object again if the subject matter is abandoned and raised again later, especially if it is raised with a different witness.

Blurt Out: If the answer is blurted out before you have a chance to object, object, move to strike, and request the judge to instruct the jury to disregard the testimony, and maybe move for a mistrial, but that is not required to preserve error.
Limiting Instruction: If the objection is overruled, ask for a limiting instruction if the evidence is admissible for a limited purpose.

Leading Critical Parts: Object to leading questions in critical parts of testimony. Handle continual leading by objecting a few times and then let it go. Get the testimony typed up, read it in jury argument, and ask who was really testifying.
Subjects in Motion in Limine: The motion doesn’t preserve error. The objection and ruling when offered is what counts.
Deposition in Direct: Except in TexasState courts, object to the use of deposition testimony for direct examination unless the witness is shown to be unavailable under the rules.
Incomplete Predicates: Unless you are certain they can be cured, object to incomplete predicates. Point out how it is deficient, particularly the firsthand knowledge requirement of the business record exception.
Unfair Questioning: Object to unfair questioning of your witness such as argumentative, refusal to show impeaching document, assuming facts in controversy, cutting off answer, not permitting the witness to qualify an answer, incomprehensible questions, two questions in one, misstating or misquoting evidence or testimony in the question.
Best Evidence: Object to the absence of the best evidence unless there’s no real dispute about what it says.
Irrelevancies: Object to irrelevancies that are immediately harmful or tediously extended, or that the slight relevance is outweighed by the prejudice or consumption of court time.
Rules on How Question is to be Answered or Mischaracterizing the Answer: The attorney has no right to insist on yew or no answers except where it is clear that the witness is being evasive by refusing to answer responsively. Counsel may mischaracterize a long answer. If they say, “so your answer is yes,” the best answer is “my answer is what I just said.”

Opening Statement:
Hazel: Jurors often make up their mind many times after the opening statement because if the evidence shows what the lawyer says that it will, then that is the correct view.
When Not Decisive:
Not Accurately Relate: The opening statement does not accurately relate what the evidence actually will be.
Unfulfilled Promise: There are unfulfilled promises made during the opening statement.
Extrinsic Reason: If some jurors make up their minds later based on something other than the evidence.
What is Permitted: The parties may give a brief statement of the nature of their claim or defense, what they expect to prove, and the relief sought.
Prior Rule: Could read the pleadings or the nature of the claim or defense only, not what you expect to prove or the relief sought.
Voir Dire and Opening Statement: Voir dire is the time to present the negative parts of your case. Opening statement is the time to present the positive parts of your case.
Bird’s Eye View: Summarize the best aspects of your case, and provide a framework within which to place all the evidence.
How to do it
Tell a Story: Stories are easier to listen to, have more impact, and are easier to remember than a mere recitation of the facts.
Put your Best Foot Forward: Focus on the positives, not the negatives.
Don’t Exaggerate: Don’t say things you can’t prove. If the other side does it, write it down and nail them with it during argument.
Avoid Argument Which Will Draw Objections: You will argue, but you don’t want to make arguments that will draw an objection.
Lawyer is Testifying: Say “the evidence will show” or “we expect to have evidence that.” Say it once early. Some don’t say it in the hope that it will draw an objection, so they can then say that they will introduce such evidence and expect to be held to it. If you do that, you better produce evidence showing everything you say.
Keep it short: Don’t make it with notes, know the theme of your case, and the good and bad facts on each side. The defense may have to tailor its statement to some degree, but usually just some bit as a response to what the plaintiff says.
Don’t Waive or Reserve Opening Statement: It is important to get the jury focused on the good points of your case, so don’t waive it.
Don’t Reserve if Defense: (1) The jury expects you to say something after the plaintiff and (2) the jury will not have heard a counter to what the plaintiff just said the evidence will be.
Direct Examination
Bottom Line:
System: Our system is aimed at resolving disputes in a just manner. The effort to resolve a dispute should not stray too far from the goals of truth and justice, although the goal is dispute resolution.
Trial: We use an adversarial trial to resolve disputes, although there are alternative methods of dispute resolution.
Adversary: Lawyer takes the major role rather than the judge. Lawyer seeks conflict resolution in a way that is most advantageous to his/her client. To prevent lawyers from trying to win at all costs, there are rules of professional responsibility, evidence, and procedure. Raising questions of professional responsibility are done outside the immediate trial, and are not limited to the legal profession to raise the question.
Texas Adversary:Texas still retains the “special verdict”, although it is moving toward the “general verdict.” The presentation should be marshaled with the anticipated courts charge in mind, as well as the opening statement, voir dire, and jury argument.
The Role of the Judge and Jury
Judge: Overseer of the trial. The judge has no independent role to correct errors not brought to his attention unless one side is so poorly represented that manifest injustice is occurring. The judge governs the law of the case by deciding what law applies and what doesn’t. He applies the jury’s verdict to that law to render a judgment.
Jury: Decide the credibility of witnesses and the facts. While they don’t decide the case, so long as the evidence is not overwhelmingly against their answer, they cannot be reversed.