OVERVIEW of EXHIBITS

1. Exhibits come in five types:
a) Real evidence -- the actual items involved in the crime or event, e.g., guns, drugs and money.
b) Written documents -- e.g., a contract, birth certificate, or gun registration form
c) Illustrative exhibits, sometimes called demonstrative exhibits -- e.g., diagrams, scale models, and mannequins.
d) Recordings -- e.g., a tape recorded confession or a video surveillance tape. These are sometimes called "silent witness" exhibits.
e) Pedagogical exhibits -- lists designed to help the jury organize complicated evidence, e.g., time lines, bullet point lists, sequence of steps taken by doctor to diagnose ailment.

2. Exhibits are subject to the regular rules of evidence. They must be relevant, not unduly prejudicial, and not contain evidence that would violate the opinion rule or constitute inadmissible hearsay.

3. In addition, every exhibit must be authenticated. Authentication consists of testimony by a witness with personal knowledge that the exhibit is what it appears to be. For example, someone who saw the defendant with a gun must testify that the gun being offered is in fact the defendant's gun. Exhibits may be authenticated by either direct or circumstantial evidence.
a) DIRECT, e.g., Rule 901 (b)(1) -- Testimony by a witness with knowledge that "I saw the gun at the scene, I remember what it looked like, I recognize this exhibit as that very gun."
b) CIRCUMSTANTIAL, e.g., Rule 901(b)(4) -- A witness with knowledge testifies "I saw the gun at the scene and put it in a bag and put my initials on it, and because this gun is in the bag that I marked with my initials, which bag has not been opened, this must still be that very gun."

4. Every exhibit must also be shown to still be in the same condition as it was at the time of the event, free from any alteration or tampering that could affect its probative value. This, too, may be established by direct or circumstantial evidence.
a) DIRECT: "I prepared this report myself, and this copy is exactly the same as when I wrote it, with no changes or alterations."
b) CIRCUMSTANTIAL: "I saw the gun at the scene and put it in a bag and put my initials on it, and because this gun is in the bag that I marked with my initials, which bag has not been opened, the gun must still be in the same condition. No one could have tampered with it."

5. A foundation called the "chain of custody," which traces the possession of an exhibit from the scene to the courtroom, establishing that each person who possessed it kept it in safe custody, is the most common circumstantial evidence foundation, because it simultaneously establishes both that the exhibit is genuine and also that it has been protected against alteration and tampering.

6. General rules of laying foundations
a) The rules of evidence do not apply to laying foundations.
b) Leading questions may be used to lay foundations.
c) Arguments concerning whether a foundation has been adequately laid should be conducted out of the presence of the jury.
d) The standard for determining whether a foundation has been laid is "any credible evidence."
e) Inadequate foundations are not necessarily fatal. The judge has discretion to admit the exhibit subject to 'connecting up," i.e., completing the foundation later through a different witness. Rule 104(b). The offering party normally should make an offer of proof concerning the anticipated connecting evidence.
f) Foundations are usually laid at trial, but may be established in a pretrial hearing on a motion in limine or other pretrial procedure where exhibits are exchanged and objections made, or by stipulation (agreement among the parties), or by affidavit (ex parte sworn statement).

7. If the real thing is not available, you may use any reasonably accurate substitute as long as a witness verifies the accuracy of the substitute. For example:
a) If the original gun was thrown into the river and never recovered, you may use a substitute gun of a similar size, shape and color. A witness who saw the original gun must testify that the exhibit is a "fair and accurate" depiction of the original, similar in all material respects.
b) Since you cannot bring the scene of the crime into the court, you may use floor plans, drawing, photographs or scale models. A witness familiar with the real scene must testify that the exhibit is a fair and accurate depiction of the scene as it appeared on the day of the crime.
c) Since the jury cannot see the actual fight between the victim and defendant, you may arrange a demonstration (either live or videotaped). A witness who saw the actual event must testify that the demonstration is a fair and accurate depiction of it, similar in all material respects.
d) Since the jury was not present at the bank when it was robbed, you can use the videotape from the bank surveillance cameras. A witness who saw the actual event must testify that the recording is a fair and accurate depiction of it, similar in all material respects.

8. What if no witness is available who can verify the accuracy of events depicted in a recording? For example, the bank robbers may have herded everyone into a back room, so no one saw the actual robbery. If no witness is available who can directly verify the accuracy of a recording, you may use circumstantial evidence. For example, a witness with knowledge of the scene may verify that the scene depicted in the recording is the scene of the Crime. A witness familiar with the recording equipment may verify that the equipment was working properly on the day of the crime and the tape came from that day. A video engineer may testify that the tape appears unaltered with no editing, splicing or erasures.

9. If an exhibit contains statements by individuals, those individuals must generally be identified by direct or circumstantial evidence. If an undercover officer was wired for sound, the voices on the tape must be identified before it can be played. If a document has been signed by four people, the signatures must be identified.
a) DIRECT: The identification of voices or handwriting is usually done by a skilled law witness -- a person who has become familiar with the voice or handwriting of the suspect and has developed special expertise in recognizing that person's voice or writing. Ordinary lay witnesses may also give opinions on identity.
b) CIRCUMSTANTIAL. E.g., "I looked up the phone number for Leonard Fromm in the phone book, called the number, and a person answered. I asked to speak to Len, and the voice said "that's me." I could hear accordion music playing in the background."

10. Public records are "self-authenticating" if they are certified. A certification is a sworn statement by a public official that the document is authentic and unaltered ("a true and accurate copy").

11. Original documents are NOT generally required, except when the dispute concerns the terms of a document such as a deed, contract or will.