Introduce exhibits at a trial
Documents, photographs, or other items you bring to trial to help prove your case are called exhibits. The judge must to allow you to admit the exhibit as evidence in order for you to use it in your case. The court has specific rules and procedures you must follow during your trial to do this.
Before you start
Find out about labeling exhibits
Each one of your exhibits will get a label (or be marked) when you introduce it at your trial. The plaintiff’s exhibits are traditionally numbered (“Exhibit 1”), while the defendant’s exhibits are lettered (“Exhibit A”).
Your court may want you to label your own exhibits as you introduce them or the court may prefer that the court clerk labels the exhibits instead. Check with your court before your trial to find out what procedure and labeling conventions your court follows so you know what to expect.
Don't label or mark your exhibits before your trial since you don't know which ones will be admitted.
Bring enough copies of the exhibits so that you can give separate copies to the witness, the judge, the other side or their lawyer if they have one, and the jury if you are in a jury trial.
Show your exhibit to the other side and mark it
As part of making your case, you'll first show the exhibit you want to introduce to the other side's lawyer (opposing counsel) or party, if they don't have a lawyer. You do this by telling the judge what you are showing and ask to mark it as an exhibit.
“Your Honor, I have here a 3-page document. It is titled ‘Promissory Note’ and dated June 26, 2020. I am showing it to the opposing counsel. May it be marked as Plaintiff’s [or Defendant’s] Exhibit 1 [or Exhibit A]?”
The judge should say yes. If you are marking the exhibit yourself, mark it with a pen or marker as “Exhibit 1” [or “Exhibit A”] or whatever number or letter the exhibit is.
If you are in a court where the clerk marks the exhibits, you will typically hand the exhibit to the court attendant, who will take it to the clerk for marking. If there is no attendant, ask the judge to approach the clerk, and hand the exhibit to the clerk for marking.
If you have a copy for the court, you may tell the judge, “Your Honor, I also have a copy for the court.” If the judge wants the copy, either ask the court to approach the bench with the copy or hand it to the court attendant, who will take it to the judge.
Have your witness identify your exhibits
The next step requires you to show the witness the exhibit and to answer a few basic questions to identify it. For example:
YOU: (To the judge) Your honor, I am holding the document marked as plaintiff’s exhibit 1 for identification. May I approach the witness?
Judge: You may.
YOU: (To the witness) I am now showing the witness plaintiff’s exhibit 1. Do you recognize this document?
WITNESS: Yes. It’s the contract that I witnessed the plaintiff and defendant sign on June 26, 2020.
If you are testifying yourself, you might simply say something like, “I am holding plaintiff’s exhibit 1. It is the contract that the defendant and I signed on June 26, 2020.”
Show the witness has first-hand knowledge of the exhibit
Next, you or your witness may need to testify to having personal knowledge of the exhibit. In court, this is called laying a foundation for the evidence so that the judge can admit it as evidence.
For some evidence, you can show that the witness has personal knowledge of the exhibit by just having them explain the circumstances that gave them personal knowledge. For other types of exhibits, you may have to prove personal, first-hand knowledge in a more specific way.
How to lay the foundation for different types of exhibits
Select each type of exhibit to find out what kind of testimony you or your witness has to give in order for the exhibit to be admitted as evidence.For example, in a motor vehicle accident, your witness picks up a license plate that fell off of the opposing party’s vehicle that drove away. Identifying the exhibit and explaining the circumstances it was acquired is likely sufficient to establish personal knowledge to allow the evidence to be admitted into evidence.Business records are any document produced by any kind of organization, including businesses, nonprofit corporations, and community organizations. To admit a business record, you likely need a witness from the business familiar with the record-keeping system (whether traditional or electronic), that can testify that:
- The document was made in the regular course of business,
- The record was prepared around the time of the event it pertains
- The way the business keeps its records suggests that the document is likely to be accurateYou can introduce a photo if you can show that the witness:
- Has personal knowledge of the subject depicted in the photo
- That the photo is a fair and accurate representation of that subject
The witness does not have to be the person that took the photo.Diagrams are very common when testifying about traffic collisions or other situations where it is important to show where different people or things were located.
You can ask a witness to create or identify a diagram when testifying. For the diagram to be admitted as evidence, the witness must testify to facts that would show personal knowledge of what diagram represents, and explain what the different elements in the diagram represent.To admit a letter, e-mail, or other correspondence, you must establish that it was written by the person you claim wrote it. You may have the witness testify they recognize the handwriting or signature of the person, the letterhead, the e-mail address of the sender, or other things that would indicate it was written by the alleged sender.
If there is a chance that it will be disputed who sent it, before trial you could use a request for admission to have the opposing party admit the genuineness of the correspondence.
Ask the judge to admit the exhibit as evidence
Once you have identified the exhibit and laid a foundation for it, ask the judge to admit the exhibit into evidence.
Say: “Your Honor, may plaintiff’s/defendant's Exhibit 1/A be admitted into evidence?”
If you have not laid a sufficient foundation, the other side may object. If the judge sustains the objection, you may need to get additional testimony from your witness. Otherwise, the judge will let you know that the exhibit is admitted.If you have a jury, they will receive the exhibits when they deliberate, but they will often not see the exhibits up close during the trial.
If you do want the jury to see the exhibits during the trial, you may ask the judge to publish the exhibit to the jury by asking something like: “Your Honor, may Exhibit 1 be published to the jury?”
Then the judge will direct you to give the exhibit, or copies of the exhibit, either to the jury or to the court attendant to give to the jury.