The term "interlocutory order" in S.

397(2) has been used in a restricted sense and not in any broad or artistic sense and the interlocutory orders under S. 397 are those orders which do not decide or touch the important rights or liabilities of the parties and any order which substantially affects the rights of the parties or decide certain rights of the parties, cannot be said to be an interlocutory order.

9810553252, 9868142607, 9818673748 email : bharat.law06@gmail.com

Exhibiting Documents in Evidence : The Law

Justice R.C. Lahoti Supreme Court of India

Justice R.C. Lahoti pronounced a landmark judgment, in Sudir Engineering Company vs Nitco Roadways Ltd., which deals with the entire law relating to the marking of exhibits and tendering documents in evidence. The Bench has held that mere marking of an exhibit on a document does not dispense with the formal proof thereof. The relevant extracts from the judgment are reproduced hereinbelow;

(6) Let me now look at the law. Any document filed by either parly passes through three stages before it is held proved or disproved. These are : First stage : when the documents arc Filed by either party in the Court; these documents though on file, do not become part of the judicial record; Second stage: when the documents are tendered or produced m evidence by a party and the Court admits the documents in evidence. A .document admitted in evidence becomes a part of the judicial record of the case and constitutes evidenee. Third stage: the documents which are held 'proved, not proved or disproved' when the Court is called upon to apply its judicial mind by reference to Section 3 of the Evidence Act. Usually this stage arrives the final hearing of the suit or proceeding.

(7) Order 13 Rule 4 sub-rule (1) of the Civil Procedure Code provides as under :-

4.( 1 ) ' Subject to the provisions of the next following sub-rule, there shall be endorsed on every document which has been admitted in evidence in the suit the following particulars, namely :- (a) the number and title of the suit, (h) the name of the person produced the documents, (c) the date on which it was produced, and, (d) a statement of its having been so admitted; and the endorsement shall be signed or initialled by the Judge. (2) xxx xxx xxx (Punjab & Haryana amendment) :- "Provided that where the Court is satisfied that the 'document, not endorsed in the manner laid down in the above rule, was in fact admitted in evidence, it shall treat the document as having been properly admitted in evidence unless non-compliance with this rule has resulted in miscarriage of justice." - Haryana Gaz., 11-6- 1974, Pt.III (L.S.) p.687." (underlining by me) (8) I am firmly of the opinion that mere admission of document in evidence does not amount to its proof. 8.1Admission in evidence of a party's document may in specified cases exclude the right of opposite party to challenge its admissibility. The most prominent examples are when secondary evidence of a document within the meaning of Sections 63-65 of the Evidence Act is adduced without laying foundation for its admissibility or where a document not properly stamped is admitted in evidence attracting applicability of Section 36 of Stamp Act. 8.2 But the right of a party disputing the document to argue that the document was not proved will not he taken away merely because it had not objected to the admissibility of the document. The most instructive example is of a Will. It is a document required by law to he attested and its execution has to he proved in the manner contemplated by Section 68 of the Evidence Act read with Section 63 of the Succession Act. The party challenging the Will shall not be excluded from demonstrating at the final hearing that the execution of the Will, though exhibited, was not proved is statutorily required.

(9) The law laid down by the Supreme Court in Sait Taraji Khimechand VS. Yelamarti Satvam is :- 'The mere marking of an exhibit does not dispense with the proof of documents'

(10) Two Division Benches of Lahore High Court Ferozchin VS. Nawnb Khan, Air 1928 Lahore 432 and Hari Singh VS. Firm Karam Chand, Air 1927 Lahore 115 have clearly held that the admission of documents under Order 13 Rule 4 Civil Procedure Code does not bind the parties and unproved documents cannot be regarded as proved nor do they become evidence in the case without formal proof

(11) I have looked into the provisions of Delhi High Court (Original Side) Rules 1967 also. Chapter Xiii Rule 3 provides for documents admitted in evidence being numbered in such manner as the Court may direct. 11.1 There is an Original Side Practice Direction (No.3 of 1974), which vide puras 6 and 7 provides :- 6. The Court Master of the Court shall lake charge of every document or object put in as an exhibit during the trial of any case and shall mark or label every exhibit with a letter or letters indicating the parly by whom the exhibit is put in or the witness by whom it is proved, and with a number, so than all exhibits put in by a party, or proved by a witness, arc numbered in one consecutive scries. 7. The Court Master .of the Court shall examine all documents produced or offered in evidence and bring any apparent insufficiency of the court fee or other stamps to the notice of the Judge for orders. He shall endorse all documents admitted in evidence and all documents rejected with the particulars required by law and sign or initial such endorsement. (underlining by me) 11.2 A bare reading of this Practice Direction shows that it is not artistically drafted 'Proved' as used in para 6. is nothing else except used loosely for 'put in' 'produced' or 'tendered'. After all the question of proof is not answered by Court during the statement of

witnesses simultaneously with production of documents nor does the Court Master decide upon proof of documents. Para 7 makes it clear that endorsement file by the Court Master of exhibit number, on a document is 'admission in evidence' and not proof of a document.

(12) In Baldeo Sahai VS. Ram Chander & Ors., Air 1931 Lahore 546 it was said :"There are two stages relating to documents. One is the stage when all the documents on which the parties rely are filed by them in Court. The next stage is when the documents 'MC. proved and formally tendered in evidence. It is at this later stage that the Court has to decide whether they should be admitted or rejected. If they are admitted and proved then the seal of the Court is put on them giving certain details laid down by law, otherwise the documents are resumed to the party who produced them with an endorsement thereon to that effect." A reading of the report shows that it was the practice of the Court to endorse the documents soon on their filing which practice was deprecated and hence slopped. The word "proved" has been used by the Division Bench in the sense of 'proposed to be proved' as is clear from its having been used Along with the word 'tendered' or "admitted" in evidence. The word proved has been loosely used for describing the stage after fling of the documents, when the Court would decide only whether they should be admitted or rejected. The Division Bench cannot be read as holding that the document is not to be endorsed with an Exhibit number unless and until proved. As staled in para 6 hereinabove, the stages of tendering/admitting/rejecting in evidence and holding a document proved - are two distinct and different stages, not one. They are respectively the second and third stages (13) Admission of a document in evidence is not to be confused with proof of a document.

(14) When the Court is called upon to examine the admissibility of a document it concentrates only on the document. When called upon to form a judicial opinion whether a document has been proved, disproved or not proved the Court would look not at the document alone or only at the statement of the witness standing in the box; it would take into consideration probabilities of the case as emerging from the whole record. It could not have been intendment of any law, rule or practice direction to expect the Court applying its judicial mind to the entire record of the case, each lime a document was placed before it for being exhibited and form an opinion if it was proved before marking it as an exhibit.

(15) The marking of a document as an exhibit, be it in any manner whatsoever either by use of alphabets or by use of numbers, is only for the purpose of identification. While reading the record the parties and the Court should be able to know which was I he document before the winless when it was deposing. Absence of putting an endorsement for the purpose of identification no sooner a document is placed before a witness would cause serious confusion as one would be left simply guessing or wondering while was the document to which the witness was referring to which deposing. Endorsement of an exhibit number on a document has no relation with its proof. Neither the marking of an exhibit number can be postponed till the document has been held proved; nor the document can be held to have been proved merely because it has been marked as an exhibit.

(16) This makes the position of law clear. Any practise contrary to the above said statement of law has no sanctity and cannot be permitted to prevail.

(17) Every Court is free to regulate its own affairs within the framework of law. Chapter Xiii Rule 3 above said contemplates documents admitted in evidence being numbered in such manner as the Court may direct. I make it clear for this case and for all the cases coming up before me in future that the documents tendered and admitted in evidence shall be marked with numerical serial numbers, prefixed by Ex.P if filed by plaintiff or petitioner and prefixed by Ex.D if filed by defendant or respondent.

(18) Reverting back to the case before me, let the report of Notary Public be endorsed with an exhibit number by the Court Master

Introducing Exhibits

Exhibits are anything other than testimony that can be perceived by the senses and presented at the trial or hearing. Exhibits include: Real evidence tangible objects such as clothes, weapons, tools Demonstrative evidence evidence that represents or illustrates the real thing such as photos, videos, diagrams, maps, charts Records government or business writings, hospital records, police reports, payment records Writings evidence other than records that are in writing such as letters, receipts, contracts, promissory notes Foundations Before an exhibit can be offered into evidence in court, a foundation must be laid for its admission. When evidence rules require a fact or event to occur before an article can be considered evidence, that fact or event becomes part of the foundation necessary for the article's admission into evidence. The facts and events that must be shown represent a judgment as to what information demonstrates that the evidence is reliable and trustworthy. For all exhibits, the first foundation that must be laid is that the article is authentic. If writings and records are offered to prove that the statements within them are true, a foundation must be laid that the article meets a hearsay exception. If a writing's terms are at issue, its proponent must introduce the document itself - the best evidence- rather than testimony of what the document says. Authentication A proper foundation means that the material must be proved to be an authentic document and to actually be what it purports to be. For example, pictures, maps and diagrams of an accident scene must be proved to actually be a true representation of that scene. Tangible items such as the gun, the drugs, the clothes -- must be proved to be the items that the proponent says they are. Basic fairness dictates that if an article is to prove something, it should be the genuine or authentic article. Hearsay Real and demonstrative evidence do not run afoul of the hearsay rule. Writings and records when offered to prove that the statements contained in them are true, however, are hearsay. Proponents of these documents must lay a foundation that the documents are exceptions to the hearsay rule. For example, if an employer wants to introduce time sheets that show that a worker reported 15 minutes after the required time to begin work to prove that the worker was indeed late, the employer must show that the time sheets meet an exception to the hearsay rule. In this instance the employer could produce testimony that the time sheets meet the business records exception to the hearsay rule. In most administrative hearings, lack of foundation will not keep an exhibit out of evidence, but will go to the weight of the evidence, that is, how much weight the hearing officer will give the evidence. Advocates should strive to lay proper foundations for exhibits in administrative hearings to heighten the exhibit's credibility. Most foundations for exhibits introduced in a court are laid by live witness testimony. Advocates should strive to do likewise in administrative hearings. Many times you will have more than one witness who can lay a proper foundation. You should choose the one who has the most knowledge of the exhibit and makes the best impression on the judge. Sometimes you may need more than one witness to lay a proper foundation. The Mechanics of Getting Exhibits into Evidence Some hearing officers require that all documents or exhibits be introduced at the beginning of the hearing.

The exhibits will be numbered or lettered and then entered into evidence. Any objections or arguments about the exhibit's relevance or reliability are made at this time. Some hearing officers will premark exhibits for identification and then allow you to enter them in evidence at the time of your choosing. Still others will allow you to mark and introduce evidence whenever you choose. Even if you must put all items into evidence at the beginning of the hearing, we suggest that you refer to the document and lay a foundation at the most logical point in your case. You should always make copies of all exhibits, except impeachment documents, and give them to the opposing advocate when they are introduced. It's a good practice to let the opposing advocate know what exhibits you will be introducing, particularly if you deal with that advocate on regular basis. Some agencies require that exhibits be submitted to the hearing officer 5 days before the hearing. Others require that parties exchange exhibits before the hearing. In any case, you should be prepared to offer exhibits in a way that most benefits your client's case. If this method differs from the way the hearing officer usually does it, you should decide how to approach the judge about allowing you to use your chosen method. Formal Method. Here is the most formal method, introducing the exhibit at the appropriate time in your case. Step 1. Have the exhibit marked. Exhibits are given sequential numbers or letters; 1, 2, 3 or A, B, C and sometimes identified by party, for example, Claimant, County, Employer etc. A. Please mark this Claimant's Exhibit 1 for identification. (Hand exhibit to judge). If the exhibits have been premarked at the beginning of the hearing, this step is unnecessary. Step 2. Show the exhibit to opposing advocate. A. Your honor, I'm handing Exhibit 1 to Ms. Contreras, the County's advocate. (Hand copy to judge.) In many instances, the opposing advocate has already seen the exhibit or has a copy of it, so this step is unnecessary. It doesn't hurt to put that fact on the record. In some hearings you also give a copy to the judge at this point or make sure that the judge can see an exhibit you can't copy such as a diagram or tangible object. Step 3. Ask permission to approach the witness. A Your honor, may I approach the witness. J You may. In only but the most formal hearings is this step required. In many hearings, the witness is sitting next to you. Step 4. Show the exhibit to the witness. A Ms. Jones, I'm handing you Claimant's Exhibit 1 for identification. (Walk to the witness or place the exhibit in front of her.) Step 5. Lay the foundation for the exhibit. Step 6. Move for admission of the exhibit in evidence. A Your honor, I move that Claimant's 1 be introduced into evidence. (Hand or show the exhibit to the judge.)

J Any objections? O States objections and arguments. J it will be admitted. Make sure that the exhibit is entered into evidence. If you are unsure if the exhibit is in evidence, don't be shy, inquire. A Excuse me, you honor, has the exhibit been entered into evidence? J Yes, it has. Step 7. Have the witness use or mark the exhibit. Once the exhibit has been admitted in evidence, consider how it can be used or marked to increase its usefulness. Photographs and diagrams can be marked to show locations, distances and relationships. Significant sections in documents can be underlined. Offered at the Beginning of the Hearing Many hearing officers eliminate formalities and introduce all exhibits at the beginning of the hearing, but remain open to your introducing them when appropriate. J. I am now marking the documents in the Appeals file. Exhibit A is the Claimant's request for a hearing. Exhibit B is the County's Notice of Action, Exhibit C, the County's Position Statement. Are there any other items to be entered into evidence? A. In the interest of time I'd like to offer Claimant's exhibits during my examination of witnesses. J. Very well. Exhibits A, B, and C will be entered into evidence at this time. A few judges may insist that you introduce your exhibits at this point, no matter how persuasive your arguments. If so, offer the exhibits but make sure to lay your foundation where appropriate in the presentation of your case.
A

During examination of witness.... Your honor, may the record reflect that I'm showing Exhibit D to the County representative? It will. Ms. Howard, I'm showing you Exhibit D. Do you recognize it? Yes. What is it? It's a picture of the closet in my bedroom. Does the photo fairly and accurately show how your bedroom closet looked when the investigator, Mr. Pone, came to your house on July 1? Ms. Howard, does the photo show the items that were in the closet when investigator Pone was looking in the closet? Yes.

J A

W A W A

A A W A

Using this pen, please put an S where the shoes are located. Does the picture show where the investigator stood when he looked into the closet? Yes. Using this pen will you put a P where Pone was standing.

Opposing Exhibits To show that the item should be excluded or should be given little or no weight you should argue that one or more of the foundational elements are missing. You can make the argument at the time the exhibit is offered and in your closing argument. If the agency produces no evidence or unreliable evidence to authenticate the item, argue that the item is irrelevant because no proof exists to support a finding that the article is what the agency says that it is and hence has no connection to the case. If the agency produces a witness that tries to authenticate the item, you can cross-examine the witness to show that one or several of the foundational elements is missing and hence the evidence is unreliable; OR Have one of your own witnesses testify to show that one or several of the foundational elements are missing. In almost all instances, judges in administrative hearings will admit the evidence. In any event, if any of the elements are missing, you respectfully should make the argument to keep it out anyway. The method of laying a foundation is through a series of specific questions that establish the necessary facts.

Exhibits

Principle Guidance

o o o o o o o o

General Guidance: Prior to Production in Court General Guidance: After Production in Court Copying Documentary Exhibits - General Defence Requests to Inspect Exhibits Defence Request to take Possession of Exhibits Magistrates Court Defence Request to take Possession of Exhibits Crown Court Blood Stained Exhibits Health Risks Firearms Exhibits

o o o o o o o o o o

Weapons Exhibits Drugs Exhibits Counterfeit Notes Cancelled or Endorsed Counterfeit Preservation of the Original Condition of the Notes Obscene Publications Photograph Exhibits Video Tapes Audio Tapes Number of Copies of Photographs Ordering Additional Photographs from the Police

Procedure

Useful Information

Principle
An exhibit is a document or other thing shown to a witness and referred to by the witness in evidence. At common law it is within the power of, and is the duty of, constables to retain for use in court things which may be evidence of crime, and which have come into possession of constables without wrong on their part (R v Lushington ex p Otto [1984] 1 QB 420). Under the Code of Practice issued under part 2 of the Criminal Procedure and Investigations Act 1996, any police officer investigating alleged crimes has a duty to record and retain material which may be relevant to the investigation. As a general rule, the courts entrust the prosecution with the exhibits pending trial and after committal. The prosecution duty is:

to take all proper care to preserve the exhibits safe from loss or damage; to co-operate with the defence in order to allow them reasonable access to the exhibits for the purpose of inspection and examination;

to produce the exhibits at trial (R v Stipendiary Magistrate at Lambeth and another, ex p McComb [1983] 1 All ER 321).

The term "prosecution" generally means the Crown Prosecution Service and the police. The police will retain all original exhibits unless it is absolutely essential for the Crown Prosecution Service to accept them. See also Sending Indictable Cases to the Crown Court and Committal Proceedings, elsewhere in this guidance.

Guidance

General Guidance: Prior to Production in Court

Sections 21 and 22 Police and Criminal Evidence Act 1984 (PACE) deal with police powers to retain exhibits and provide copies and photographs to the defence (Archbold 15-114/118). Note the restrictions on retention of exhibits where a photograph or copy would be sufficient (section 22(4) PACE). Secondary evidence in the form of photographs of exhibits can be admissible in evidence. If it becomes necessary to dispose of exhibits, e.g. because they are deteriorating, it is wise to give notice to the defence of the intention to photograph and destroy the exhibit (R v Uxbridge Justices ex p Sofaer and Another 85 Cr. App. R 367).

General Guidance: After Production In Court

Once an exhibit is produced in court, or treated as being produced in accordance with section 5B(5) Magistrates Courts Act 1980 (Archbold 10-16), the court has a responsibility to preserve or retain it. Normally the court entrusts the exhibits to the prosecution, usually the police. The court can impose restrictions on the prosecution. Where it imposes no restrictions, it is for the prosecution to deal with the exhibits in whatever way appears best for the purposes of justice. If the prosecution has doubts as to how to deal with an exhibit it may, but is not obliged to, apply to the court for directions (R v Stipendiary Magistrates at Lambeth and Another, ex p McComb 1983) All ER 321). Top of page

Copying Documentary Exhibits - General

Where documentary exhibits form part of the prosecution case, you should serve copies on the defence before the trial or as part of the committal papers. In cases sent to the Crown Court under section 51 of the Crime and Disorder Act 1998 copies of the exhibits should be included in the papers served in support of the case. Where the documents are of such poor quality that adequate photocopies cannot be made you should contact the defence and invite them to inspect the originals. You must supply copies of documentary exhibits that form part of the prosecution case, even where there is an extremely large quantity of papers. However, you should try to keep the volume of papers to a realistic minimum in order to present the case as clearly as possible. Documents you decide not to use may well be unused material. See to Disclosure of Unused Material, elsewhere in this guidance. Different considerations may apply in relation to computer evidence.

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Defence Requests To Inspect Exhibits

If the defence request facilities to inspect exhibits their request should normally be granted unless you have grounds for suspecting some improper motive. If the exhibits are held by the police you should ask the defence to make arrangements with the police direct. You should tell the police to expect an approach. If the exhibits are retained at a forensic science laboratory you should write to the defence asking them to contact the laboratory direct. You should write the laboratory also. You should ask the defence to produce your letter to the laboratory to gain access to the exhibits. Where the exhibits are retained by someone else (e.g. the owner of stolen goods) arrangements for defence access must be made in writing. You should contact the owner, via the police, and then write to the owner, confirming that the defence should be allowed access on production of a letter. You should write to the defence, granting them access, on production of the letter. You should give details of a CPS contact point so that the owner can make contact to confirm that the defence letter is genuine. Top of page

Defence Request to take Possession of Exhibits Magistrates Courts

Where the defence asks to be allowed to take exhibits away for examination, you should question whether it is really necessary for the defence to physically take the items away. Could their examination be done at the place where the exhibits are currently held? Where it is essential for the defence to take the items away, you should not authorise release of the relevant items until the defence sign a written undertaking (drafted by the prosecution) not to part with possession of the exhibits except to a named expert and to return them on or before a specified date in exactly the same condition that they are currently in. If tests on the exhibits would necessarily involve causing damage to the items you should find out from the defence what will be involved. You may need to seek an amended undertaking; to cause no more damage than necessary to perform the tests. Be as specific as possible. You may be able to obtain advice from your local forensic science laboratory. Unless the expected damage is very slight, you will need to obtain the consent of the owner.

Defence Request to take Possession of Exhibits - Crown Court

In Crown Court cases you should ask the court to consider the defence request to take exhibits away. You should invite the court to impose conditions similar to those mentioned above in magistrate's court cases. Top of page

Blood-Stained Exhibits - Health Risks

Medical advice suggests that there are health risks attached to handling exhibits which are blood-stained or otherwise contaminated with body fluids. Such exhibits should be left in the original polythene bags in which they are sealed. If it is absolutely essential to handle the exhibit, clear polythene disposable gloves should be used.

Firearms Exhibits
CPS staff should not handle firearms (real or imitation), or ammunition. This must be left to the police both inside and outside court. Under no circumstances should firearms or ammunition be stored in CPS offices.

Weapons Exhibits
Again, handling these exhibits should be left to the police. Top of page

Drugs Exhibits
The storage and transmission of drugs is a matter for the police. Under no circumstances should drugs be stored in CPS offices.

Counterfeit Notes - Cancelled or Endorsed "Counterfeit"

The police are required to cancel counterfeit notes coming into their possession unless this has already been done, e.g. by the Bank where the counterfeit was detected. This is done by writing or stamping the word "counterfeit" along its length (not diagonally) on both the front and back. There is a risk that cancelled notes will not be allowed to be shown to the jury. The defence could object that the printing of a word such as "counterfeit" across the note is highly prejudical on the basis that:

a jury could unconsciously give it undue weight without proper regard to the oral evidence, or to the proper observations of a note with their own eyes had it not been so marked;

even where the defence admit the notes are counterfeit, the jury might be prejudiced when considering the

question of knowledge. If the defence object to the printing of the word "counterfeit" across the note, it can be explained that:

counterfeit notes are continually improving in quality; modern techniques mean that it is possible for high quality facsimiles to be produced for minimum effort or expense;

the risk of such notes passing undetected is greater; there is a greater risk that such notes could find their way back into circulation. This has happened!

The Bank of England accept the evidential risk but believe it is worth taking the risk to ensure counterfeit notes do not get back into circulation. With the greater sophistication in the production of counterfeit notes, it is becoming more likely that reliance will have to be placed upon the oral testimony of experts. If a case is lost because the notes have been marked, Strategy and Policy Directorate should be informed in order that the Bank and the relevant Government department may be advised and the procedure reviewed. Top of page

Preservation of the Original Condition of the Notes

For the purposes of section 28 Forgery and Counterfeiting Act 1981 (Archold 25-244) it is essential, if counterfeit notes are used in proceedings, that evidence is provided of the condition of the notes at the time of passing or seizure. Except to the extent that they are marked "counterfeit", counterfeit notes should not be marked or defaced in any way which might change the appearance of the note from the form in which it was passed or tendered. The advice that counterfeit notes should not be marked applies particularly where consideration is given to the use of fingerprint tests which may leave a permanent stain e.g. ninhydrin or physical developer. If a test for fingerprints is thought to be necessary, the police will have to submit the notes for tests through the national central office at New Scotland Yard, indicating which notes they have it in mind to examine for fingerprints. Where there are a number of notes from an offence or series of offences which are identical in appearance and it is essential that all are examined for fingerprints, one will be retained in its original condition and a statement made by the Bank's expert that all the notes, which were examined for fingerprints, were of the same appearance as the one retained in its original condition. Where there are bundles of notes and the top and bottom notes of each bundle only are to be examined for fingerprints, as being the only ones likely to have been handled by the offender(s), the complete bundle(s) will be

submitted to the Bank's expert for the provision of evidence of original identity before the fingerprint examination is carried out. Where there is only one note from an offence, or where there are a number of notes and it is essential that all be examined for fingerprints, the police should also submit for each such note an actual sized true colour photograph of both sides of the note. To give the best possible indication of original appearance each note should be photographed beside a colour control patch, which may be required to be produced in court as an exhibit in its own right, to indicate the quality of reproduction in photographs. For more information see Forgery and Counterfeiting, elsewhere in this guidance. Top of page

Obscene Publications
It may be necessary for exhibits in obscene publication cases to be received in CPS offices. These exhibits should:

be secured in locked cabinets; be viewed only by those who need to do so; be transmitted, eg between CPS offices, by the police; never be sent through the post since this would constitute an offence under section 85 Postal Service Act 2000

See Obscene Publications, elsewhere in this Guidance. Where the exhibits relate to pornographic images downloaded or sent over the internet, these will not be supplied. See Indecent Photographs of Children, elsewhere in the Guidance. Top of page

Photograph Exhibits
There is an agreement between CPS and the Association of Chief Police Officers that:

the police will supply The CPS with 3 free sets of photographs; if The CPS require further sets of photographs these must be paid for by The CPS.

The caseworker should therefore ensure that the file does contain the minimum 3 free sets. Because of the high cost of additional sets of photographs provided by the police, the CPS will make its own additional copies of photographs. There is an agreement , which has been approved by the senior judiciary, that the CPS will use colour photocopied photographs in court in place of additional sets of photographs provided:

one set of original photograph prints will always be available in court, in the form of an exhibit, for use by the trial judge or to settle disagreements that may arise on copy clarity;

where a particular detail on a photographic exhibit is essential to a case The CPS will provide originals (not photocopies) for the trial.

It follows that it will only be in exceptional cases, that more than the 3 free sets will be ordered from the police. Photocopies of photographs should be of professional quality, i.e. they should be:

an accurate representation of the original photograph; presented in a numbered, indexed album; secured back and front with A4 pale blue card covers with the front in house-style.

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Video Tapes
For information on handling video tapes as exhibits see Video Recorded Evidence, elsewhere in this guidance.

Audio Tapes
For information on handling audio tapes as exhibits see Tape Recorded Interviews, elsewhere in this guidance.

Procedure
Number of Copies of Photographs
Crown Prosecutors must determine which of the photographs supplied by the police are of practical evidential value. Unnecessary photographs should be removed from the albums supplied by the police if the prosecution do not intend to rely on them as part of the prosecution case. The Crown Prosecutor must make a record on the file of the editing of photographs. Photographs which are not used as part of the prosecution case may form part of the unused material which will be served on the defence (see Disclosure of Unused Material, elsewhere in this Guidance). The caseworker responsible for the preparation of a case will decide how many additional photocopies of photographs are required. Where a guilty plea is anticipated, additional photocopies should only be prepared in exceptional circumstances. The reason for requesting additional photocopies must be recorded on the file by the Crown Prosecutor. In summary cases the 3 free copies of albums of photographs from the police are usually sufficient for our purposes (defence, court and CPS). In multi-defendant cases it may be necessary to prepare photocopies of photographs.

In committal proceedings in a single defendant case 2 photocopied albums of photographs should be made, in addition to the 3 original photograph albums, for service on the defence:

one photocopied album will be for the defence solicitor; one photocopied album will be for the defendant; one original photograph album should be attached to the bundle for service on the court; one original album will go to CPS counsel; one original album will be retained on the file, ultimately for use by witnesses in court.

A similar approach should be adopted in cases sent for trial under section 51 of the Crime and Disorder Act 1998. Where a set of photographs have been sent to the defence solicitor as part of the advance information package, there is no need to serve a set at committal provided that the album of photographs is identical. The defence should be informed that we deem the photographs to have been served for committal purposes and this must be endorsed on the file. In a multi-defendant case there will be one extra photocopied album of photographs for each additional defendant and one extra photocopied album of photographs for each additional defence solicitor. In the Crown Court, when a case is listed for plea and/or pre-trial review, the advocate appearing for the prosecution should, when considering pre-trial directions, be asked to confirm the content of the album of photographs. Only when a clear indication has been received that a trial will proceed, e.g. after pre-trial review, should a further 7 photocopies of the album of photographs be made; 6 for the jury and the 7th copy for CPS use in court. In some areas it has been possible to agree a lesser number of copies for the jury, e.g. because of the arrangement for jury seating. Where photographs are referred to in statements that are to be served by way of notice of additional evidence photocopied albums will need to be prepared for service on the defence as in committal proceedings. Original albums will be sent to the court and prosecuting counsel with a notice of additional evidence. This must be endorsed on the file. Top of page

Ordering Additional Photographs From The Police

In exceptional cases, sets of photographs in excess of the 3 free sets may be required. The Crown Prosecutor will endorse the file with the number of sets of photographs required and reasons for requiring photographs as opposed to photocopies of photographs.

Unless the police are willing to supply extra sets of photographs free of charge, the Area making the request will be liable for the additional costs incurred. As the need for photographs, as opposed to photocopies, is likely to arise very infrequently, Areas will need to negotiate payment on a case by case basis. Top of page

Useful information
R v Lushington ex p Otto [1984] 1QB 420 R v Stipendiary Magistrate at Lambeth and Anr ex p McComb [1983] 1 All ER 321 Sending Indictable Cases to the Crown Court and Committal Proceedings R v Uxbridge Justices ex p Sofaer and Another 85 CR App R 367 Disclosure of Unused Material Forgery and Counterfeiting, elsewhere in this Guidance Obscene Publications (Section 12), elsewhere in this Guidance Guidance on Indecent Photographs of Children Video Recorded Evidence, elsewhere in this Guidance Tape Recorded Interviews, elsewhere in this Guidance

Advanced Trial Handbook - Demonstrative Evidence Since the days of "show & tell", demonstrative evidence has been a very important teaching tool. Learning through seeing and hearing things is much easier and more fun. Most jury psychologists, including Amy Singer, believe that people learn much more through seeing and hearing rather than from hearing alone. Accordingly, demonstrative evidence should be used at trial to give the jury a better understanding of your case. The use of demonstrative evidence usually grabs the jury's attention and often has them sitting at the edge of their seats when things like models and objects are being shown. Demonstrative evidence consists of trial exhibits that are admitted in evidence or visual aids that will not be entered in evidence, but are simply used by a witness or by the lawyer to explain matters that are relevant to the trial. Demonstrative evidence includes models, medical devices, diagrams, photographs, sketches, and objects at issue, as well as a variety of other items. Before a demonstrative exhibit may be used at trial, a witness should establish that the exhibit resembles and is substantially the same as the object or area in question. If using a model, make sure that it fairly and accurately represents the original and that it has been built to scale. You will need to establish this at trial before the use of the exhibit is allowed. This predicate must often be established through expert testimony. A witness intending on using an exhibit as an aid should first explain that the use of the exhibit will facilitate the presentation of the testimony to the jury. Pursuant to Florida Rule of Evidence, 90.901, "authentication or identification of evidence is required as a condition precedent to its admissibility. The requirements of this section are satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims." Thus, demonstrative exhibits must constitute an accurate and reasonable reproduction of the objects or matters involved in the actual case. Brown v. State of Florida,

557 So.2d 527 (Fla. 1st DCA 1989). Before a demonstrative exhibit will be allowed to be shown to the jury, it must first be established by a witness that the model is a reasonably exact reproduction or replica of the object involved, that when viewed by the jury it causes them to see substantially the same object or scene as the original in question. Alston v. Shiver, 105 So.2d 785, 791 (Fla. 1958). If a witness is not able to state that the demonstrative exhibit is in substantially the same condition and appears substantially the same as the object in trial, then such a deficiency will be fatal to the admissibility of the demonstrative exhibit and the court will generally not allow the exhibit to be used during trial. Gencorp, Inc. v. Wolfe, 481 So.2d 109, 111 (Fla. 1st DCA 1983). If a trial attorney is attempting to keep an exhibit from being entered into evidence, the argument that should be made is that the exhibit does not truly and accurately portray what it purports to portray. Additionally, a trial attorney may argue that the exhibit is not necessary to assist the witness in explaining his/her testimony to the jury. Finally, if the model is of the type that may mislead the jury or cause confusion or undue prejudice, then a motion pursuant to Florida Rule of Evidence, 90.403, may be made that the probative effect of the model is greatly outweighed by its prejudice. The determination as to whether an exhibit accurately represents the object or area in the case, is a matter decided by the trial court. Whether to allow the use of a demonstrative exhibit is a matter strictly within the trial court's discretion. Brown v. State of Florida. 557 So.2d 527 (Fla. 1st DCA 1989); Federal Savings & Loan v. Wylie, 46 So.2d 396 (Fla. 1950). A trial attorney who does not use demonstrative exhibits during trial is at a great disadvantage because chances are the other side will effectively use them. Demonstrative exhibits help to bring the case alive and keeps the jury interested and focused on what is being presented. Demonstrative exhibits should be used anytime the opportunity arises. Photographs A trial attorney holding a photograph in his hand and approaching a witness with it will undoubtedly catch the attention of the jury, opposing counsel, and the judge. All present will tend to lean forward as the lawyer shows the photograph to the witness. Photographs tend to be extremely powerful pieces of evidence. After all, "one photograph is worth a thousand words." Before a photograph may be used at trial, it must first be admitted in evidence. Photographs are admissible in civil trials if they are relevant. For a photograph to be deemed relevant, a trial attorney must argue that the photograph tends to prove or disprove a material fact in the case. See, Fla.R.Civ.Pro. Rule 90.401 and Fla.R.Evid. 90.401. Nevertheless, before a photograph is admitted into evidence, it must first be authenticated; thus, the proper foundation must be established. Contrary to the belief of many practicing attorneys, the photographer does not need to be called as a witness before a photograph may be allowed into evidence. All that is necessary, is that a witness with knowledge, testify that the photograph fairly and accurately represents the condition, product, person or scene that it depicts. City of Miami v. McKorkle, 199 So.2d 575 (Fla. 1940). Once the witness authenticating the photograph establishes that the photograph correctly and accurately depicts what the witness has previously seen, then the photograph is admissible. If more than one photograph is shown to the witness for purposes of authentication, the lawyer must ask the witness to identify and authenticate each photograph before showing the photographs to the jury.

If the photograph was taken long after the incident in question, this does not mean that the photograph is inadmissible; however, the witness must establish that the conditions depicted in the photograph did not change from how they appeared at the time at issue. If the conditions in the photograph depict something different than what appeared at the time in question, then the photograph may be declared inadmissible if it lacks probative value as a result of the changes, or if the probative value is out-weighed by prejudice to the jury. Pensacola Inn, Ltd. v. Tuthill, 404 So.2d 1173 (Fla. 1st DCA 1981).Questions regarding who took the photograph, how it was taken, from what angle it was shot, what the lighting was like, the film quality and other matters do not go towards the admissibility of the photograph. Those matters are directed towards the weight and credibility of the evidence offered. Those types of questions are proper subjects for cross-examination. Channewacker v. City of Jacksonville Beach, et al., 419 So.2d 308 (Fla. 1982). Gruesome photographs showing grotesque scenes, severely injured and bloody people, and other potentially offensive depictions are generally admissible on the same grounds as photographs depicting other matters if they are relevant. See Wilson v. State, 436 So.2d 908 (Fla. 1983). Gruesome photographs are admissible if they truly and accurately depict a material fact in question at the trial. Id. For example, the cause of death, the type of injury, the location of injury, the extent of injury, and the intent of the defendant among other related things. See Lewis v. State, 566 So.2d 270 (Fla. 2d DCA 1990). Nevertheless, pursuant to Fla.R.Civ.Pro. Rule 90.403 and Fla.R.Evid. 403, a defendant may move to exclude a gruesome photograph on the basis that its probative value is greatly out- weighed by prejudice to the defendant. If it appears that the only reason the photograph is being used is to inflame, shock, or excite the jury, then the photograph should be excluded as more prejudicial than probative. Lewis, 566 So.2d at 272; Also See, Gore v. State, 475 So.2d 1205 (Fla. 1985). Evidentiary photographs are extremely effective tools that will greatly assist the trial attorney in presenting his case. In order to ensure the admission of the desired photographs in evidence, the lawyer should decide early in the legal proceedings what photographs he intends to use during the trial, what order he intends on introducing them, and what witnesses will authenticate the photographs. The trial practitioner should also review all photographs that may be introduced at trial against him and, if possible, prepare a written motion in limine on the basis of prejudice to prevent the damaging photographs from being introduced at trial.

IMPACT EXHIBITS in Criminal Cases copyright 2000 Ray Moses all rights reserved

Introduction For more information about how to get the most impact out of your exhibits and how to establish legal foundations/predicates for exhibits, read Introducing Tangible Evidence and Establishing Foundations on the CCJA Criminal Pretrial and Trial Practice DVD. The DVD provides a more extensive and intensive discussion of exhibits than this page. For an excellent free guide to establishing predicates, check out lawyer Howards Nations' publication in the sidebar. You might want to take a peek at this hyperlinked article discussing the impact of computer generated exhibits on courtroom practices in the new century. Take it as a given that every criminal defense practitioner must become familiar with the use of electronic aids in creating, tracking, and presenting exhibits.] Visuals/graphics as useful aids to storytelling This section deals with techniques for creating, presenting, and using tangible exhibits in a "tell and show atmosphere." The idea is to achieve maximum persuasive influence by using left-brain visuals that complement rightbrain word streams. You can almost always do without exhibits, but they add visual and tactile dimensions of enormous persuasiveness to your oral presentation. Exhibits are visual. You can use your exhibits to give life to your story in opening statement with proper preadmission. Exhibits are the keystone building blocks of your factual proof and graphic reminders that enhance your final jury argument. Your job is to present your exhibits in a way that makes them useful to the jury in understanding your story of the case. Real tangible exhibits appeal to the senses. They can be touched, seen, smelled, heard, and/or tasted. Think about it. Some tangible exhibits have a disproportionately persuasive impact. For example, jurors display a tendency to believe what is written in a document. It's been said that from the jurors' standpoint, "The palest ink is better than the best memory." Letting a person touch wet paint is more persuasive than telling him the paint is wet. Exhibits can make your witness seem more credible, particularly when the witness is explaining the exhibit. Of course, if you don't know how to establish a foundation (predicate) for the exhibit or if laziness causes you to disregard the requirements of the rules, you give your opponent the right to interrupt your examination with a distracting and valid objection. Remember. your job is to present your exhibits in a way that makes them most persuasive to your jurors. When we think of a past event, our left-brain tends to think about it visually? We remember our first car wreck in visual pictures. We describe the wreck by converting the visual images to words. Of course, our right brain also remembers verbally. We can remember words without having a visual image of the past. Think of all the words that we have memorized, e.g., " I pledge allegiance ..." Yet, some of the words we read without any triggering visual event will themselves conjure up visual pictures in our minds and in the minds of our listeners, e.g., "Now I lay me down to sleep," "I'll huff and I'll puff 'til I blow your house in," "Old Mother Hubbard went to the cupboard," "Five little monkeys jumping on the bed," "Three blind mice, see how they run," "Out, out brief candle." We can take words and conjure them into visual images as children do with nursery rhymes and fairy tales. We are also persuaded by visual images. How do we remember stories? We don't remember events as a transcript of running text. We remember them as verbal pictures. Think about some of the fairy tales that we learned as children. How do we remember "Goldilocks," "The Three Little Pigs," "Little Red Riding Hood"? Isn't it in the form of mental images? If I showed you a picture of a little boy and little girl walking through a forest dropping bread crumbs, would it trigger up the storybook images of "Hansel and Gretel"? You want to do the same thing with your exhibits. You want them to be part of the verbal pictures painted by the testimony of your witnesses. See Pretrial for a discussion of storytelling. If details about a scene are important, there is no substitute for an accurate photograph. [Note: When I say "no substitute" I am probably exaggerating. Did you see the simulated courtroom stabbing demonstration by Houston prosecutor Kelly Siegler (1), conducted while she straddled her co-counsel who was lashed to the marital bed of the accused, Susan Lucille Wright (1) and her deceased husband Jeffrey. Consistent with the evidence, the prosecutor simulated 191 stabs with the murder weapon, a butcher knife. Mere photos won't top that live demonstration.. A dynamite exhibit that didn't make it to the jury is the computer generated animation that depicted billionaire Robert Durst's version of the killing in his 2004 murder case. The jury never saw the animation, but acquitted him anyway.

(Read the opening statement of the defense -1) Re the problems with offering animations as evidence, see Commonwealth v. Serge, 896 A.2d 1170 (PA. 2006).] In these cases, "One picture may be worth a thousand words." If distances are important, a prepared diagram, drawn to scale, can drive home the point. In short, visuals (graphics) such as time lines, charts, illustrations, maps, etc. are sufficiently important to communicating your message that you owe it to your client and yourself to learn how to incorporate visuals into your presentation. In the present age of technology, the trial lawyer has a whole raft of media available for use in crafting potential exhibits, e.g., exhibit boards, sketch pads, posterboards, foamboads, PVC sheets, mylar overlays, overhead projectors, slide projectors, fixed platform video camera (document camera), portable video cameras, video recorder/players, laser disc players, computers with graphic display programs such as PowerPoint, digital projectors, etc. Evidence as Spawner of Facts Evidence gives rise to facts, but they are not the same. The mass of evidence is everything that is presented to the jury. The jury will find the facts only from that portion of the mass of evidence that is believable. In attempting to prove a fact, our goal with our evidence is to make it so credible that the jury will accept it as fact. We have two jobs as presenters of tangible evidence: (1) learning how to comply with the foundational requirements so that the evidence is admissible, and (2) learning how, with present technology, to best use the evidence and milk it of its persuasive value in front of the trier of fact. The true question with each exhibit is what impression it makes on the trier of fact. Real and Demonstrative Evidence Tangible exhibits fall into two categories Real evidence that is admitted and may be taken back to the jury room. It includes documentary evidence. Demonstrative or illustrative aids to testimony (1), (2) that are displayed before the jury during witness testimony but that, in many jurisdictions, are not admitted into evidence and are not taken back to the jury room. Both types of evidence are given exhibit numbers. Real evidence is an exhibit that conveys information in and of itself. Exhibits of real evidence would encompass things such as the weapon used by the assailant, business records, and photographs of the crime scene. They typically go to the jury room for use during the deliberations, either as a matter of course or if the jury calls for them. [Tip: If you have introduced helpful exhibits and practice before a judge who does not send the exhibits back to the jury room as a matter or course, be sure to tell the jury in jury argument that they, the jurors, have a right to ask the court for the exhibits; urge them to request the exhibits before they start deliberating. It sounds naive, but some juries don't realize they have a right to examine the exhibits during deliberations.] Demonstrative evidence is used as an illustrative aid to testimony. Demonstrative evidence includes diagrams, charts, models, graphs, computer generated simulations, animations, etc. These aids to testimony may help the jury understand the witness' oral explanations. In themselves, they don't provide the basis for inferences; they simply assist in communicating information from the witness to the jury. Illustrative aids don't have to be admissible in evidence. Authenticity, i.e., that the item is in fact the real item in question, is not an issue when you are dealing with demonstrative (illustrative) evidence. The demonstrative or illustrative aid to testimony will have to be authenticated in the sense that a witness will have to testify: (1) what the demonstrative or illustrative exhibit portrays or represents and (2) that such exhibit will aid the jury in understanding what the witness will be trying to explain to the jury. The true purpose of the demonstrative exhibit is to help explain the testimony of a witness. [Tip: The more exotic your demonstrative evidence, the more judicial resistance there typically will be to its use.] See (1 - 7 pp. on demonstrative evidence in federal court)

Introducing Exhibits To be effective in introducing real evidence,you have to know: (1) how to authenticate your exhibit; (2) elements of foundations; (3) the sequential steps for handling an item of potential evidence in the courtroom; and (4) appropriate responses to objections that may be made to your exhibit. In Texas and federal court, the cross-examiner can introduce evidence. Using an opposition witness to establish the foundation for your exhibit has the obvious ethical advantage of packing integrity into the exhibit. In some jurisdictions, the proponent can only introduce evidence during the proponent's case, i.e., on direct. Check your jurisdiction's rules of evidence and procedure. Authenticating Your Evidence: The idea underpinning authentication is to prove that the exhibit, e.g. writing, handwriting, tape recording, photograph, voice, telephone conversation, is the same item that was obtained by or known to the authenticating witness. This must be done to show that the exhibit is what it purports to be. Authentication is also a predicate to any expert testimony concerning analysis of the contents of the exhibit. An example of authentication would occur when you are trying to have a witness make a voice identification. Rule 901(b)(5) TRE allows voice identification to be established by opinion evidence based on the authenticating witness having heard the voice at any time under circumstances connecting it with the alleged speaker; the voice identified can be a voice heard firsthand or through mechanical or electronic transmission or recording. If you establish these underlying facts, you will have authenticated the voice identification. You could also authenticate the participant in a phone conversation by having your witness testify that he called the phone number listed to the party in question and that party identified himself as the party in question. There are several other ways of authenticating the identity of the party at the other end of the line. (We are not concerned at this point with whether the contents of the conversation are hearsay. The question at this juncture is simply whether the identity of the party has been authenticated.) Establishing Your Foundation: Your first objective as the proponent of real evidence is to qualify the exhibit for admission or use before the jury. This means establishing the proper foundation for the real evidence's admissibility. For demonstrative evidence, this means establishing that the exhibit will be helpful to the jury in understanding the witness' testimony. As explained below, you establish this by asking the witness something like "Will it assist the jury in understanding your efforts to explain (insert the issue, e.g., the layout of the bar) to show them a diagram of the bar?" The witness says, "Yes." Your second objective is to present the evidence in such a manner that the jury will accept it as reliable, believable, and persuasive of your point. Always plan your foundation for its persuasive impact. The trial judge makes a threshold determination as to whether the proponent of the exhibit has established a foundation of preliminary facts that will support a ruling admitting the exhibit. See Rule 104 TRE and FRE which indicates that preliminary questions concerning the admissibility of evidence shall be determined by the court. In most instances you establish the foundation (predicate) for your exhibit in the presence of the jury. There are exceptions where you will need to establish your foundation out of the jury's presence. For example, if you are offering novel scientific evidence, you will be required to make a showing of admissibility out of the jury's presence. Another exception would occur in the case of a defendant's confession, where the defense raises an issue as to the voluntariness of the confession. See Art. 38.22, Sec. 6 TCCP. Regarding demonstrative evidence, the key to the use of demonstrative evidence in aid of testimony is whether it would be helpful to the jury in understanding the witness' testimony. The predicate is simply to first have the witness identify the demonstrative aid to testimony, second, establish the relevance of the demonstrative aid to testimony by asking, "Would Exhibit D002 aid you in illustrating your testimony for the jury?" and "Do you believe that Exhibit D002 would aid the jury in understanding your testimony?" The key to relevance of a demonstrative aid to testimony is simply an affirmative answer to the issue of whether the demonstrative aid will help the witness illustrate her testimony for the jury, so that the jury will understand the oral explanation better or more fully. Four factors are involved in establishing every foundation: Competence of Witness - The proponent must show the competency of the authenticating or identifying witness to testify about the exhibit. (See Articles VI and VII TRE)

Relevance of Evidence - The exhibit must be of some relevance, i.e., it must appear that the exhibit makes the existence of any fact of consequence to the determination of the case more or less probable. (See Article IV TRE) Authentication or Identification - The particular exhibit must be authenticated or identified in a manner that distinguishes it from other things, so that the exhibit is shown to be what it purports to be. (See Article IX TRE) Trustworthiness of Exhibit- The exhibit must be trustworthy. Let's discuss each of the four factors that are involved in establishing a foundation for an exhibit: Competence of witness: Rule 601 TRE provides that every person is competent to be a witness, except as otherwise provided in the rules. Rule 602 TRE provides, subject to a different rule regarding experts, that a witness may not testify to a matter unless there is evidence sufficient to support a finding that the witness has personal knowledge of the matter. Evidence to prove personal knowledge may, but need not, consist of the testimony of the witness himself. Relevance of the exhibit: Rule 401 TRE defines relevant evidence as evidence that has any tendency to make the existence of any fact that is of consequence (material) to the determination of the action more probable or less probable than it would be without the evidence. So, evidence must be logically connected to the dispute and must have probative value. If evidence is relevant to one issue, e.g., credibility of a witness, and inadmissible for other purposes, the evidence is admissible only for a "limited purpose." [Remember also, that relevant evidence is not necessarily admissible. See Rule 403 that allows exclusion of relevant evidence where, for example, its probative value is substantially outweighed by the danger of unfair prejudice. See the discussion of trustworthiness below.] Authentication or identification of the exhibit: The rules of evidence require you to prove that the evidence, e.g., the exhibit, is what it is claimed to be. Your authenticating or identifying witness must have knowledge sufficient to recognize the exhibit and state what it is in a way that distinguishes it from other similar things. This applies to tangible objects and to certain testimonial evidence. For example, a witness to a telephone conversation can talk about what the other person said only when that other person is identified e.g., by voice identification; a document alleged created by a person may be authenticated, for example, by the person who says s/he created it or by someone who was present and saw the person create the document. Trustworthiness of accuracy of the exhibits: The exhibit must be trustworthy. There may be grounds to question the trustworthiness of an exhibit, e.g., a material and misleading change of condition in a photograph. As mentioned above, there may be situations where the probative value of relevant evidence is substantially outweighed by countervailing dangers of confusion, unfair prejudice, and misleading the jury that will interfere with the jurors' factfinding purpose. See Rule 403 TRE and FRE that allow exclusion of otherwise admissible evidence on the ground of "unfair'' prejudice. Sequential Steps for Use and/or Introduction of Evidence: Here are the steps you typically follow in introducing and/or using tangible evidence: Mark the exhibit - Have the court reporter mark the exhibit, real or demonstrative, for purposes of identification. Give each exhibit a number - either a straight number, e.g., 001 or a letter prefix number indicating prosecution (P) or defendant (D) plus a number, e.g., P001. Use stick-on labels or a pen or a permanent marking device or a numbering machine to stamp on the number. Always keep documents or alterable (changeable, fungible) evidence in pristine condition. If you have a series of interrelated documents, photos, etc. that need to be visualized as a group, mark each photograph as a sub-set of a single exhibit. For example, if you have 4 scene photos of the interior of a house that need to be considered together, mark them as D001A, D001B, D001C, and D001D. Also, if you have lots of exhibits of different types and want to get fancy, you may want to precede the exhibit number with a prefix code that lets you know the type of exhibit. For example, if you are dealing with photographs, Ph might be a good prefix, e.g., P-Ph-001A would indicate Prosecution's Photograph Number 1, with the photo being the first in a sub-set of several

photos that should be viewed together. Tender the exhibit. - Tender the exhibit to the opposition. Have the record reflect that you have made the tender, e.g., "Let the record reflect that I am tendering what's been marked as P001 to defense counsel." Qualify the witness. - Show by Q &A how this witness is able to know enough about the exhibit to be able to answer the foundation (predicate) questions. Establish the evidentiary foundation (predicate). - Identify the exhibit and establish the evidentiary foundation for its admission as real evidence or for use as a demonstrative aid to testimony. Offer the real evidence exhibit into evidence. - If the evidence is real evidence - offer it as evidence. Always use the work "OFFER." Don't "move it" or "submit it" or "admit it" into evidence - OFFER it as evidence. If you are trying to get a demonstrative aid to testimony, e.g., a diagram, before the jury, ask the court's permission to display the demonstrative aid to testimony. As part of the predicate for the demonstrative aid, let the jury know that the demonstrative evidence was prepared for them, e.g., ask the witness if the exhibit would assist the jurors in understanding the witness' testimony. For example, you might ask: "Mr. Witness, would it assist the jurors in understanding your description of (indicate the subject, e.g., the layout of the bar) if they were allowed to see this (indicate the nature of the exhibit, e.g., diagram)?" Proffer the exhibit to the court if the judge so desires. - [Note; Many judges do not want to examine an exhibit before it is received. Find out your judge's preference prior to trial. You don't look good if you proffer the exhibit to the judge and the judge waves it off. Whether you proffer the exhibit may also depend on the circumstances regarding the particular exhibit, e.g., is there a strong dispute as to its admissibility.] Deal with opposing counsel's objection(s). - Respond to an improper objection made by the opposing counsel, provided that the court has given you permission to respond. Obtain a ruling from the court. - Make sure that the trial judge has orally ruled on your offer, either admitting (receiving) or suppressing (excluding) the real exhibit or permitting or denying the use, display, exhibition of a demonstrative aid to testimony. If the trial judge excludes your exhibit, make an offer of proof, if necessary, and be sure that the excluded exhibit becomes part of the appellate record. Present the exhibit to the decision-maker (jury). - Have the received real exhibit "read, shown, displayed, and/or passed" [please, not "published" in my court] to the jury. Make graphic use of the exhibit with your witness(es). - Have the witness use the demonstrative exhibit to explain his/her testimony. Keep track of the foundations for your exhibits and the status of your exhibits and the opposition's on an exhbit list. Make yourself an exhibit foundation worksheet, an exhibit list, and exhibit chart. (1 - downloadable pdf forms of all three) Re-offer all of your real exhibits at the conclusion of your case. - Keep track of the status of your exhibits and the opposition's on a exhibit list. The re-offer of all your exhibits is a safety net to ensure that all of your exhibits have been received and are part of the evidence available to the jury during deliberations. Responding to Objections to Your Exhibits: There are many potential objections that may be made to an exhibit. Three of the most common objections to exhibits are: (1) "The exhibit is or contains inadmissible hearsay." See Rules 801, 802, 803, 804 TRE and FRE, (2) "The exhibit does not qualify under the 'original documents' or 'best

evidence' rule." See Rules 1002, 1003, 1004 TRE, or (3) "The exhibit should be excluded because its probative value is substantially outweighed by the danger of unfair prejudice." See Rule 403 TRE and FRE. Long before you offer an exhibit, you must prepare to respond to potential objections to it. This means you must study and master the rules of evidence, the framework of all trials. [Tip: Read the Objections page for a cursory view and the monograph on Making and Meeting Objections in Criminal Cases.for detailed understanding. The monograph will give you a good handle on the law of evidence, TRE, and the array of objections and responses that are available in Texas criminal cases. There's a handy laundry list of hundreds of tailor made objections in the back of the monograph, plus a guide to preserving error and a step-by-step guide to making an offer of proof when the trial judge excludes your evidence.] Excluding the Opposition's Exhibits: You must become familiar with motions to preclude or exclude evidence. The idea underpinning the motion in limine or motion to suppress is to prevent certain material, tangible and/or verbal, from being introduced into evidence and, in jury cases, to prevent the jury from ever knowing of the existence of the potential evidence. Some courts will allow you to get rulings on the admissibility of real, documentary, and /or demonstrative evidence as part of the pretrial process. If you object to evidence during the pretrial process and the court rules that such evidence shall be admitted at trial, you should renew your objection at the trial. Do it out of the presence of the jury. See Rules 103(a)(1), 104(c) TRE. Even though there may be no formal statutory process for advance discussions of the evidence, you can challenge its admissibility by a pretrial motion to suppress and/or motions in limine to preclude the offer of inadmissible evidence. Graphic Mediums Choices: Here is a list of choices that you may have insofar as the mediums you can use to present evidence. graphic

Paper Graphics: This type of graphic art medium includes easel and flip chart, drymounted photo enlargement, enlarged color medical illustration, chalkboard, gatorboard mounting, foamboard mounting, magnetic board, laminated board, clear overlay, and dry erase whiteboard with dry ink markers and eraser. Projector Screens: This involves optical projectors that enlarge and project an image on a screen; slide projectors and overhead projectors. Electronic Systems: This includes videotape players, DVD and laser disc players, and/or visual presenters, such as a visualizer or platform document camera (Elmo or video evidence presenter), that transmit to a monitor or computer projector. Digital Systems: This involves use of a computer, e.g., your lap-top, that transmits to a video monitor or projector. Using this mode with exhibits means having to put your exhibit into digital form. Here is a little collection of electronic exhibits, most of them day-in-the-life exhibits from civil cases but including one animated prosecution path-of-thebullet exhibit, produced by various commercial visual litigation service providers. [Note; If you are interested in how the evidence presentation ensembles work, take a look at these three manuals from the Doar company: (1) The Communicator (Elmo); (2) The Evidence Ensemble Presentation System ; and (3) The Quick Start Guide used to educate lawyers in my Texas county about how to operate the evidence presentation ensemble unit that is installed in each of the 40 courtrooms in the Criminal Justice Center.] Presenting Documentary Evidence on the Cheap - The Document Camera, Transparencies and Screen (Monitor) If you are not working from a computer in the courtroom, one of the most affordable mechanical devices for displaying documentary evidence is the platform document camera.. It's the poor man's document substitute for digital presentation. If your courtroom is not equipped with electronic evidence presentation hardware, you can buy or rent a good, "easy to set up and use" document camera. Learn how to set it up and operate it before you use it in court.

You don't have to rely on a sidekick or technician to run the document camera in court. Almost all document cameras have a "freeze" feature that allows you to place a document or item on the platform and freeze an image of it that remains on the screen after you remove the item from the platform. Thus, you may take the actual item to the witness while the image of it remains on display on the screen. . For displaying documents, you can buy 8 1/2 x 11 blank transparencies at any office supply store. They are not expensive. It is very simple to make transparencies of your paper documentary exhibits, demonstrative aids, and/or tell-and-show exhibits on any copy machine. You simply substitute the transparencies for paper and make copies in the usual way. When you make a transparency of a document, you may want to put an exhibit number on it. If you want to emphasize portions of documents, make an enlargement of the particular portion of the document and make a transparency of the enlargement. Colored markers can be used by your witness to highlight areas of a transparency as they rest on the platform. Colored markers are particularly useful when you are using a diagram to show "action paths" of people, e.g., a diagram of the movement of the hijacker during a bank robbery. The use of a document presenter video platform (document camera) is described on a separate page. Review the brief description of the document camera, and then familiarize yourself with the device by means of "hands on" practice before you use the device in front of the jury. You don't want to appear to the jurors as an incompetent operator of your graphic/visual presentation devices. The obvious lack of operational skill detracts from your credibility, as well as the persuasive impact of your exhibit. But if something goes wrong with the document camera, always take the blame for being "fumble fingered" and present your exhibit in hard copy Never blame a technician when electronic presentations go awry. It looksto the jury like you are picking on an underling. Several Types of Exhibits Photographs, Recordings, Videotapes, and DVDs: Would you buy a house, car, suit of clothes, pair of shoes, refrigerator, washer, dryer, or TV set based entirely on a verbal description? Perhaps you might, if you were reasonably certain of the oral source's reliability. Police often take action based on 911 calls. But most of us want to see things before we buy them. For most of us, visual memory is more acute than auditory (aural) memory. So it is with jurors. Of course, the ideal exhibit is one that appeals to the ear and the eye, e.g. a police chase scene or video of a crooked judge taking a bribe from a crooked lawyer.. My advice to defenders is to buy a top of the line Polaroid camera, a good 35 mm. digital or top of the line regular 35 mm. camera, and a good portable digital video camera. In a pinch, you can use the camera on your cell or I-phione. If you have a regular 35 mm camera, it is possible to easily convert a normal photo into a digital photo file by means of a scanner, a machine not too unlike a copy machine. There is some high quality equipment available at your local discounter, e.g., Best Buy. Keep the Polaroid camera and extra film in an pretrial evidence kit in your car or office. That way, you will always have a back-up means of photographically recording a scene where time is of the essence and other equipment is not available. Whether you want to use a photograph depends on your evaluation of the facts. If, for example, a witness' sight line is an issue, you might want to take a "sight line" photograph, either to impeach a witness to show that he couldn't see what he claimed to have seen from his vantage point or to accredit a witness to show the scene he described looked precisely as he said. If you are considering the use of a photograph as an exhibit, always factor any change of condition into your evidentiary foundation. For example, you might ask, " With the exception of (indicate the changed condition, e.g., 'the fact that the photo was taken during the day rather than the night'),is this photograph, Number P001, a fair and accurate representation of (describe the scene) as it existed on (specify the date and time)?" When it comes to whether a photo or videotape is admissible, a good rule of thumb, subject to the Rule 403 balancing test, is that the accurate relevant photo is probably admissible if your witness can talk about what it depicts. Most courts, including Texas, treat photos as real evidence, though photos do have some of the illustrative characteristics of demonstrative evidence, e.g., maps and diagrams. You can present your photos in different ways. The conventional method was to pass regular sized 8 x 10 glossy or

matte photos to the jury. This method prevented all the jurors from seeing the photo at the same time. Now, it may be more common to use blowups pinned to corkboard or placed on an easel. Many courts allow electronic display of documents, photos, and small tangible objects using a document camera (video camera platform) hooked to a monitor or projected on a screen. The nice thing about blowups and document camera presentations is that you can display the exhibit, e.g., a photo, and let the witness use or describe it with a pointer (your pencil pointed at the display platform on the document camera or your laser pointer from the witness stand to the screen), making the testimony more understandable by "tell and show." A prosecutor friend who has used aerial epigraphs to give jurors a bird's eye view recently told me of two sites that provide satellite photos. Apparently, their photos are of decent quality and are of recent vintage. The companies are Space Imaging and Digital Globe. Plan the order of presentation of photos and other evidence that needs to be looked at in a story telling sequence. If you choose to pass rather than display such evidence to the jurors, be sure the evidence gets marked, introduced, received, and passed to the jurors in the desired sequence. Diagrams: Remember that diagrams, models, look-alike objects, and other illustrative exhibits are relevant only when they can assist the jury in understanding the witness' oral testimony and are not misleading. Keep your diagram simple. Don't put so much on the diagram that it can't be easily understood. Freehand diagrammatic drawings may be easier to create. But remember, when you go the freehand drawing route with diagrams, you automatically open the diagram to attack because it is not drawn to scale and, therefore, may be misleading, inaccurate, and not authentic. Also, if a diagram or any drawing is on the chalkboard, it is evanescent or transient and may be easily altered or destroyed by erasure. Of course, you can always take a Polaroid of a chalk-drawn diagram, but this reduces the diagram to the size of a photo. Having the witness draw the diagram on a flip chart with a marker is a better alternative. Prepared diagrams in the form of blowups and/or transparencies may be your best bet. Colored markers can be useful if you draw on the diagram. Charts: Some charts are used solely as a demonstrative aid to testimony; however, if your chart is a summary of voluminous writings, recordings, test analyses, or photographs that are otherwise admissible and that cannot be conveniently examined in court, offer the chart as real evidence. See Rule 1006 TRE allowing the use of summaries, when the originals or duplicates have been made available for examination or copying or both by the opposition. Note that the trial court may order that the originals or duplicates be produced in court. If you use a big summary chart as real evidence, consider making a somewhat smaller version to go back to the jury room during deliberations. Models: If you plan to use demonstrative models, be certain that your qualified witness' reference to the models are reflected by the record. You can do this by having the witness put labels on the model regarding the part of the model that the witness is referencing in testimony. [Read the masterful direct examination by the prosecutor, the late William Martin, in the "Chicago Nurses" mass murder case of Richard Speck in my Direct Examination monograph. Read the transcript out loud, if you have time. The exercise is guaranteed to make you a better presenter of evidence and a better direct examiner.] Practice Tips + Learn how to prepare graphics (1 - check out the article entitiled Seeing Is Believing) for your trials. PowerPoint is one of the most popular choices among the available software. There are numerous books and web sites that will help you master this necessary skill. Some are mentioned on the Courtroom Technology page. + When your prepared visuals or graphics include words, consider the style of type that you will use. Type faces with serifs, e.g., Times-Roman, Garamond, are best for strings of text, basically anything over one line. Type faces without serifs, e.g., Arial, Verdana, Helvetica, are best for anything less than one line, e.g., titles, subtitles, captions, numbers, callouts, etc.

+ You will typically need someone's testimony to give your exhibit meaning. In deciding how you are going to use an exhibit with a witness, know in advance how adept the witness will be with the exhibit. Let the witness know what you are going to ask re the exhibit. Find out in advance what the witness' response may be. + Arrive in court early so you can set up your exhibits for easy display. You don't want to be clumsy or wasteful of time when dealing with your exhibits in front of the jury. + Keep your exhibit covered until you are ready to offer it or use it before the jury. If an exhibit is exposed prematurely, the jurors will focus their attention on it, wondering what it is and how it plays into the story. This diversion of attention is at the expense of attention to the testimony then underway. You will lose the impact of "tell and show." Instead, you will have premature "show" without explanation. When you are ready for the exhibit, present it with testimony. Display the exhibit in the way that suits you, e.g., put it on the Elmo, put it in the hands of the jurors, hold it up, etc. When you are through with tell and show, put the exhibit aside, e.g., give it to the court reporter for safekeeping until you need it again. + Learn before trial starts whether the court wants each exhibit proffered to it before ruling on admissibility. It looks bad if you proffer an exhibit to the court in the jury's presence and s/he waves you off. When in doubt, it's best to omit the proffer to the court. + Exhibits that have been received in evidence cannot be altered, e.g., marked up by the other side, but demonstrative aids to testimony, e.g., diagrams, charts, maps, etc., can be marked upon. To prevent your demonstrative graphics from being savaged by your opponent's markings, you may use a mylar overlay sheet upon which the opposition or its witnesses can write without damaging your underlying original. You may also try the protective measure of taking your demonstrative aid down when you finish your direct examination of the witness. + When a witness marks on your exhibit, reference the non-verbal marking by making a statement for the record, e.g., "You just marked a red X on the middle of the diagram immediately below the depiction of the teller's counter to indicate where the defendant was standing when he pulled the gun. Is that a fair statement?" or, if you want to leave the witness out of it, "Let the record reflect that ..." + Make an effort to plan your presentation so that the jurors get to see the exhibit once it is in evidence. Don't wait so long that the first time the jurors see your exhibit is in the jury argument. Once again, the exhibit is typically causally the "show" of "tell and show" with your fact witness. + On direct, it may be best to let your witness, not you, be the one to point to the pertinent points on the exhibit or demonstrative aid. Unless you need to lead the witness, don't do so. The story should flow from the witness, not you. + If your case involves tape recordings, you will usually make an effort to supply the jury with an agreed transcript of what you and the opposition have been able to agree upon. The transcript of the tape is admissible only as aid to help the jurors understand the actual tape. The jurors must decide what is said on the tape. The trial judge will typically caution the jurors that the tape, not the transcript of the tape, is the thing of importance. In effect, the words on the tape, real evidence, always trump the transcript, which is just an aid to understanding testimony. If you are going to use a transcript of a tape recording, be sure to have a copy for each juror when the tape is played.. + If you are planning to impeach a witness with numerous prior inconsistent statements, consider using a board to visually display the inconsistencies regarding the various points, either during witness questioning or as a demonstrative aid in argument.

+ Some judges will not send exhibits back to the jury room unless the jurors ask for them. If you have important exhibits, be sure to tell the jurors during jury argument that they should be sure to to ask to see the exhibits. Suggest that one of their first tasks after electing a foreperson should be to draft a note to the court asking to have the exhibits sent back to them. Resources + You'll find lots of businesses that can, for a price, help you create demonstrative exhibits. (1 - boards, posters), (2 - litigation graphics), (3 - animation), (4 - medical illustrations), (5- medical illustrations),(6), (7 - trial visuals), (8 animation), (9), (10 - graphics). Here's a law school project that not only lists several visual litigation service providers but offers some samples of their work, primarily in civil cases but including one path-of-the-bullets animation from a murder case. Here's a pdf step-by-step guide to creating a courtroom exhibit. Also, check out these Internet resources: Ten Commandments of Demonstrative Evidence in Litigation (1) + A few ideas about visuals and the process of visualization from an employee of Doar. See the CCJA Courtroom Technology and Document Camera pages. + The evidence store is a worth a look. Even if you don't buy anything, you may get some ideas of how to create some visuals. This site (mentioned above) has lots of prepared charts available for instant download. This one has visual evidence. This one has graphics. + Aerial photos and maps can be downloaded and printed and/or imported into your trial slide presentation. Google Earth and Microsoft have each perfected the aerial and flat map to the point where you must become familiar with their respective capabilities. If your courtroom has Internet connections, either of these can provide you with fantastic demonstrative evidence. You'll need a witness to establish an accuracy foundation. See Technology. + The Internet offers downloadable basic information that can become an exhibit. For example, if you want to display a calendar of days or years gone by, Time and Date provides the material. See Criminal Law Links for a list of informational sites. + Give yourself a treat and browse around YouTube. There you will find streaming videos of a slew of exhibits, from tapes of 911 calls (1) to videos of chase scenes (1) to actual robberies (1) and shootings to taped confessions (1), etc. The viewing can sometimes be fascinating and informative for the inquisitive lawyer thinking about varieties of exhibits and how they can be packaged.

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Legal Definitions Definitions from Blacks Law Dictionary, Fifth Edition

Exhibit, n. A paper or document produced and exhibited to a court during a trial or hearing, or to a commissioner taking depositions, or to auditors, arbitrators, etc., as a voucher, or in proof of facts, or as otherwise connected with the subject-matter, and which, on being accepted, is marked for identification and annexed to the deposition, report, or other principal document, or filed of record, or otherwise made part of the case.

Paper, document, chart, map, or the like, referred to and made a part of an affidavit, pleading or brief.

An item of physical/tangible evidence which is to be or has been offered to the court for inspection Evidence. Any species of proof, or probative matter, legally presented at the trial of an issue, by the act of the parties and through the medium of witnesses.

Exhibits may be included as a part of the appendix to appellate briefs. See Federal Rules of Appellate Procedure, 30(e).

Evidence: Any species of proof, or probative matter, legally presented at the trial of an issue, by the act of the parties and through the medium of witnesses, records, documents, exhibits, concrete objects, etc., for the purpose of inducing belief in the minds of the court of jury as to their contention. Taylor v. Howard, 111 R.I. 527, 304 A.2d 891, 893

Testimony, writings, material objects, or other things presented to the senses that are offered to prove the existence or nonexistence of a fact. California Evidence Code.

Autoptic evidence: Type of evidence presented in court which consists of the thing itself and not the testimony accompanying its presentation. Articles offered in evidence which the judge or jury can see

and inspect. Real evidence as contrasted with testimonial evidence; e.g. in contract action, the document purporting to be contract itself, or the gun in a murder trial.

Proof: The effect of evidence; the establishment of a fact by evidence. New England Newspaper Pub. Co. v. Bonner, C.C.A.Mass., 77 F.2d 915, 916. Any fact or circumstance which leads the mind to the affirmative or negative or any proposition. The conviction or persuasion of the mind of a judge or jury, by the exhibition of evidence, of the reality of a fact alleged. Ellis v. Wolfe-Shoemaker Motor Co., 227 Mo.App. 508, 55 S.W.2d 309

Evidence and Proof distinguished. Proof is the logically sufficient reason for assenting to the truth of a proposition advanced. In its juridical sense it is a term of wide import, and comprehends everything that may be adduced at a trial, within the legal rules, for the purpose of producing conviction in the mind of judge or jury, aside from mere argument. That is, everything that has a probative force intrinsically, and not merely as a deduction from, or combination of, original probative facts. But evidence is a narrower term, and includes only such kinds of proof as may be legally presented at a trial, by the act of the parties, and through the aid of such concrete facts as witnesses, records, or other documents. Thus, to urge a presumption of law in support of ones case is adducing proof, but it is not offering evidence. Belief is a subjective condition resulting from proof. It is a conviction of the truth of a proposition, existing in the mind, and induced by persuasion, proof, or argument addressed to the judgment. Proof is the result or effect of evidence, while evidence is the medium or means by which a fact is proved or disproved, but the words proof and evidence may be used interchangeable. Proof is the perfection of evidence; for without evidence there is no proof, although there may be evidence which does not amount to proof; for example, if a man is found murdered at a spot where another has been seen walking but a short time before, this fact will be evidence to show that the latter was the murderer, but, standing alone, will be very far from proof of it.