Your handy checklist for tendering exhibits during examination in chief

Thursday, January 30, 2020

1. Establish a right witness.**
2. Establish the existence of the exhibit.
3. Establish sufficient foundation that the witness is able to identify the exhibit.
How would the witness be able to identify the exhibit? E.g. “If I showed the question, how would you be able to identify it?”.

(Be sure to have the witness identify several ways.)

• Date the document was authored
• Who authored the document
• Who has custody of the document
• Who signed the document
• What other features identify the document such as;
• Contents
• Features
• Letterhead
• ID number
• Handwriting

4. Make an application to the judge to approach and show the witness the exhibit.
 Request that the witness examine the exhibit.
 Have the witness identify the exhibit; e.g. “What are you holding?”

5. Ask questions to have the witness explain how they are able to identify the exhibit
E.g; of the exhibit is a document;

•  Date the document was authored
•  Who authored the document
•  Who has custody of the document
•  Who signed the document
•  What other features identify the document such as;
•  Contents
•  Features
•  Letterhead
•  ID number
•  Handwriting

6. If necessary, establish any additional foundation to tender the exhibit, for example;

•  Relevance
•  Authentication
•  Hearsay Analysis
•  Accuracy; etc….

7. Provide opposing counsel with a copy of the exhibit or establish for the record that counsel already has a copy, also provide judge with a copy or request the Judge and the opposite counsel to turn to a particular page of the trial bundle containing the exhibit.

8. Apply to the Judge to have the exhibit marked and tendered into evidence.
9. Respond to any objections made by opposing counsel regarding the exhibit and wait for a ruling on the objections.

10. If the objections are over-ruled, wait for the exhibit to be marked by the Judge and given an exhibit number.
11. After it is marked, use the exhibit and its content persuasively.
*The first and second step may be inter-changed depending on the exhibit.

Tags : Trial Advocacy