Entering and Using Physical Evidence

Evidentiary Procedure

For a jury to see any physical evidence, attorneys must follow a specific procedure to “enter it into evidence”. Anything other than witness testimony is considered physical evidence. This includes reports, photographs, written statement, weapons, diagrams, maps, models, etc. It is important to remember that nine times out of ten, physical evidence will be introduced through witness testimony on direct examination. Before this can be done, a foundation for the evidence needs to be established. The witness must be able to authenticate the item (i.e. prove the article is what the proponent claims it to be). The following is a description of the procedure used to introduce any physical evidence.

Before an item can be shown to a witness, it must be marked for identification. It is a good idea to pre-mark your exhibits so they will be organized. Once marked, the attorney will state, without showing the exhibit to the jury: “I have what has been marked as Prosecution Exhibit A for identification.” If it is a defense exhibit, it will be marked Defendant’s Exhibit A. Try to organize your exhibits so they may be marked in the order in which they are presented.
Once the exhibit is marked, the attorney walks to opposing counsel’s table, hands them the exhibit and states: “May the record reflect that I am showing counsel what has been marked as Prosecution Exhibit A for identification.”
The Judge will state: “The record may so reflect.”
Once opposing counsel has reviewed the exhibit, if there is no objection, they will hand it back to the attorney. The attorney will then request permission to approach the witness. “Permission to approach, your honor.” (In many jurisdictions and in federal court, counsel must first ask the judge’s permission to approach the bench or a witness.)
The Judge will state: “Permission is granted.” At this point, the attorney walks up to the witness, being careful not to show the jury the exhibit. Until an exhibit has been entered into evidence, the jury is not permitted to see it. At this point you are showing the witness the exhibit so you may question the witness to obtain information which will lay a foundation so it will be admitted.
After the attorney shows the article to the witness, they state: “I am now showing you what has been marked as Prosecution Exhibit A; do you recognize it?”
If the witness does recognize the item, the attorney then proceeds to question them to establish the authenticity and relevance of the article. Authenticity goes to the item being what you say it is: proving the authorship of a letter; the photograph truly and accurately depicts the scene, the gun was the same gun taken from the defendant, et al. Once the witness states they recognize the exhibit, question may include: How do you recognize it? How are you familiar with it? Are there any identifying marks? Who authored/created it? What was the purpose/

circumstance surround its creation? Is Prosecution Exhibit A a true and accurate copy? The foundation necessary will depend on the exhibit. Remember to only use exhibits with witnesses who have information concerning them.

Once the foundation for authenticity and relevance has been established, the attorney turns to the judge and states: “At this time I offer what has been previously marked as Prosecution Exhibit A into evidence.”

At this time if the other side has any objections to the exhibit being admitted into evidence, they will make them.

The judge will rule. If the exhibit is admitted, the attorney may then question the witness about the substance of it and may request that it be “published to the jury”. Publishing an exhibit is showing it to the jury. This is important because if the item is a letter, the judge may not want to disrupt the direct with the item being passed from juror to juror. If the exhibit is a photograph, you want the jury to see it immediately.

Keep track of which items have been admitted into evidence so when the jury deliberates, you may present to the judge those items you wish to go into the jury room during deliberation.

Types of Exhibits

There are two different classes of exhibits used during a trial:

Substantive Exhibit: Substantive exhibits constitute the evidence of the case. They depict the actual scene or are items found at the scene. The most common types of substantive exhibits are photographs, physical items and documents signed by one of the parties. In order for substantive exhibits to be admissible, it must be established that the witness has firsthand knowledge of the exhibit. The witness must be able to verify the exhibit’s relevance. A photograph may be both substantive and demonstrative. Only substantive exhibits may go to the jury room during deliberation.

Demonstrative Exhibits: Demonstrative exhibits are exhibits that assist a witness in giving of

testimony. They are used to clarify the testimony or aid the witness in explaining their testimony. Typical demonstrative exhibits are diagrams, charts and graphs.

Objections to Exhibits

Most objections to exhibits fall into two categories:

Foundation objections may be argued if the attorney can state no witness gave the information necessary to establish a sufficient foundation. Or, counsel may ask leave to ask the witness additional questions. If the objection goes to its accuracy, then the proponent of the exhibit may need to have the exhibit used for demonstrative purposes only.

Relevance objections go to what the exhibit is. Some exhibits may be objected to because their probative value is outweighed by the danger of prejudice, confusion of the issues or misleading the jury. An example would be a gruesome photograph of the victim which would not aid the jury in deciding if the defendant inflicted the injuries.

Once an exhibit has been admitted, the opponent may still cross-examine and discredit its reliability, relevance and importance.

NOTE: One of the quickest ways to destroy the admissibility of evidence is for the attorney to write on it. Always have an “unmarked” copy of your exhibits for trial. “Unmarked” means there is no underlining, notes or scribbling by an attorney – an identification marking is fine and should be placed in one of the document’s corners.

Outline all the exhibits you plan to use in court. Make sure you have unmarked copies of each when you enter the courtroom.

Source: National Student Leadership Conference, Law & Advocacy, Criminal Trial Advocacy Handbook, 2009, pg 90-92