Exhibits And Demonstrative Evidence
Each of our fictional case files include a compact disc with all of the exhibits referenced in the NITA (National Institute of Trial Advocacy) cases. While real life isn't so organized, the CD allows us to focus on learning how to try a case, and in today's class, how to introduce exhibits.
With most cases, juries want to see the figurative gun. Touch it, hold it and see that the prosecutor has the instrument that killed the victim. It's not that the gun itself tells us anything, other than that's the gun the criminal investigator found at the scene with the defendant's fingerprints on it and the ballistics tests confirm the bullet pulled out of the victim came from the gun now in front of us. Jurors can't decipher the fingerprint or the ballistics, but the criminologist on the stand tells us all so, and the jurors nod in knowing agreement, despite not actually knowing.
In our cases, we don't actually have the gun, we have photographs of the gun (at least in Dixon). In Jackson, we have a photograph of the chalk outline of the victim, George Avery. Mr. Avery, a.k.a. the "torch," allegedly used hydrochloric acid to start a fire, which unfortunately backfired, killing him.
So while we have two deaths, the case materials aren't so dramatic. Given the shooting at Virginia Tech, I wasn't going to have a University of Iowa student bring in Dixon-like long rifle to use as an exhibit. While it would have been especially instructive, common sense prevailed. We also didn't want to bring in a 55-gallon barrel of hydrochloric acid. I can't imagine the manifest needed under USEPA regulations to get it in a classroom.
So, we used photographs to introduce evidence.
Introducing evidence is a mystical experience for law students, but for trial lawyers it's relatively easy. Let me demonstrate:
Prosecutor: How did the victim die?
Criminologist: From a bullet shot at close range to the victim's heart.
P: Did you recover the gun from the scene?
P: [First showing the gun to the defense counsel] Your honor, may I approach the witness?
P: Thank you your honor. I am handing Criminologist Gil Grissom what has been previously marked by the clerk of court as State's Exhibit Number 1 for identification. [Handing the gun to the criminologist]. Please describe to the jury what I've just handed to you.
C: It's a Smith & Wesson 44 magnum pistol that I retrieved from the scene of the crime.
P: How do you recognize it?
C: When I recovered it, I etched my initials in it and wrote down the gun's serial number.
P: Are your initials on this gun?
P: Does the serial number on match your report from the crime scene?
P: Your honor, I move to introduce into evidence State's Exhibit Number 1, which has been identified by Mr. Grissom as the gun retrieved from the scene of the crime.
J: Does the defense have any objections?
Defense counsel: No objections, your honor.
J: The court will admit State's Exhibit Number 1 into evidence.
That's it. Plain and simple.* In its most basic form, you give the exhibit to the witness, ask the witness what it is, establish it as relevant to the issue in dispute and authentic (it is what you say it is) and then ask the court to admit it. into evidence. Sometimes you have to lay more foundation (legalese for telling the judge and jury more about your exhibit), but the process is not that hard.
Frequently, you'll draw objections from defense counsel, but you can generally overcome them by laying more foundation and showing how the exhibit is relevant to the dispute between the parties.
Once you get an exhibit admitted into evidence, the jury can consider it in their deliberations and ask to see it in the jury room. It also becomes part of the record if an appeal is filed. If the judge does not admit your exhibit into evidence, then you lose the opportunity to discuss it in closing arguments, and the jury can't consider it when they make their decision.
Evidence forms the foundation for the final verdict. Jurors want to see the gun. They want to read your documents and look at your pictures. As a trial lawyer, if you don't get this most basic step down, the jury will have nothing, and you'll lose your case.
Exhibits can be any number of things, and just about anything can be an exhibit. I once was involved in a railroad crossing case where a s car had been hit by a train engine in the middle of the night out in a rural desert area on crossing without arms, and the driver ultimately died from his injuries. The plaintiff's heirs brought a wrongful death case against the railroad.
When the time came for us to put on our case, we put the engineer on the stand, hooked up the horn and engine light to a battery, closed the drapes, flipped off the switch for the overhead lights and had the engineer turn on the engine headlight. It flooded the dark courtroom and made it as bright as daylight. The engineer then blew the horn, and after everyone uncovered their ears, it immediately became clear we had won the case.
We showed it would have been impossible for the victim not to have seen or heard the train coming, and demonstrated to the jury the victim had committed suicide by train. Exhibits make or break cases, and good demonstrations win cases.
When you're next in a courtroom, sit for a moment and watch a trial lawyer introduce an exhibit. It's a simple, yet elegant, process absolutely necessary to get an exhibit in front of the jury.
* Like everything else associated with the law, there may be exceptions to this general process, and the example I've chosen has just such an exception. You may also be required to establish the chain of custody before introducing the exhibit. In this example, let's add this step right before the prosecutor asks the judge to admit it into evidence.
P: After you collected the gun from the crime scene, what did you do?
C: I recorded my name as the first entry on the chain of custody and took it to the police evidence locker.
P: What happened next?
C: The evidence locker custodian signed the chain of custody and took possession of the gun.
P: Then what?
C: Just before I came here today, I went to the evidence locker, signed the chain of custody to bring the gun here and give it to you.
Having established where the gun has been before it came to court, you can then ask the judge to admit it into evidence.