I was so proud of myself the first time I successfully introduced an exhibit into evidence. But, as you know, pride goes before a fall…

I’d only been out of law school for a week or two and was trying my first Driving Under the Influence (DUI) case. DUI cases often involve a variety of physical and documentary evidence, and this case was no exception. I had a mugshot showing how the defendant looked when he’d been booked into the jail, a videotape of his field sobriety tests, documents showing the reliability of the breath testing instrument, and, of course, a printout showing the results of the defendant’s breath tests. This evidence would be great for any case involving a DUI in Dallas or any other city.

Wanting to make sure that I didn’t miss anything, I’d handwritten all of my questions on a legal pad, and was in the process of dutifully reading each predicate question aloud to the witness:

Q: I’m now showing you what’s been marked as State’s Exhibit A for Identification. Do you recognize that photo?

A: Yes, I do.

Q: What is that photo of?

A: It’s a booking photo taken the night the defendant was arrested.

Q: Does that photo truly and accurately depict the way the defendant looked the night you arrested him for Driving Under the Influence?

A: Yes, it does.

Q: Your Honor, I ask that what has been marked as State’s Exhibit A for Identification be introduced into evidence as State’s Exhibit #1.

Judge: Any objections?

Defense attorney: No, your Honor.

Judge: State’s Exhibit A for Identification will be introduced into evidence as State’s Exhibit #1 without objection.

Q: Your Honor, may I have permission to publish the exhibit to the jury?

Judge: As soon as the clerk marks the exhibit, you may.

Silently breathing a sigh of relief while simultaneously trying to suppress a huge grin, I approached the witness box, retrieved the photo, and handed it to the clerk. While waiting for her to mark it, I thought to myself, “I did it!” Oh sure, there hadn’t been any objections, and the evidentiary predicate for photographs is the easiest one in the book, but still, I’d done it — I’d admitted my first piece of evidence! Having accomplished my goal, I approached the jury box and proudly handed the photo to the courtroom deputy, who then handed it to the first juror.

And that’s when I made the stupid mistake that thousands of other trial lawyers make in court every day…

As soon as the photo left my hands, I returned to the lectern, reviewed my notes, and immediately started asking my next series of questions. The first juror didn’t even have a chance to start looking at the photo before I was halfway into my second question. He hurriedly glanced at the photo and then handed it to the next juror, who barely looked at it before passing it along. None of the jurors spent more than a second or two looking at the photo before giving it to the next juror. As a result, something that should have been an important piece of evidence was completely ignored by the jurors because I’d forced them to divide their attention between the exhibit and the witness’s testimony.

Introducing exhibits into evidence isn’t always easy. Often, we can get so caught up in the act of admitting evidence that we forget to give the jurors a chance to pause and look at our exhibits. But if we don’t give them enough time to look at your exhibit, its evidentiary impact will be lost.

Here’s your practice tip for the week: The next time you publish an exhibit to the jury, don’t ask your witness another question until the jurors have finished looking at the exhibit. Don’t rush them. Give them as much time as necessary to examine it, because if you start asking questions while they’re still examining the exhibit, they’re either going to ignore your exhibit or ignore your witness’s testimony. Either way, they’re going to miss essential information. Wait until the jurors finish examining the item, retrieve it from the last juror, and then walk back to the lectern to resume asking questions. By making this small change in your presentation, you’ll make it much easier to direct your jurors’ focus towards the most important evidence in your case, and prevent them from missing the essential piece of evidence that proves your case!

Normally, when you’re seeking to introduce items into evidence, you need a live witness to testify and establish your evidentiary predicates. But some evidence is so trustworthy that it doesn’t require a witness. However, when it comes to the authenticity of certain documents, especially those that are used in important business dealings, you wouldn’t deem a document to be fully authentic unless some kind of official signature process or Docusign integration had taken place. These forms of evidence are inherently reliable, and are deemed to be “self-authenticating.” Examples of self-authenticating evidence include:

• State and federal laws
• Contents of the Federal Register
• Laws of foreign nations
• Acts of Congress
• Court records
• Rules of court
• Municipal and county charters
• Ordinances and resolutions of municipalities
• Administrative agency rules
• Items under official governmental seal
• Facts that are not subject to dispute

The last item on the list is also the most interesting: Facts that are not subject to dispute. There are two different sources of indisputable facts. The first source is facts which aren’t subject to dispute because they’re generally known within the territorial jurisdiction of the court. For example, here in Orange County, Florida, everyone knows that Central Blvd. and Orange Ave. intersect in the middle of downtown. You wouldn’t need a geography expert to establish that fact — everyone in the jurisdiction is expected to know it, so you can ask the court to take judicial notice of the fact.

The second source of indisputable facts are those which are capable of accurate and ready determination by resorting to sources whose accuracy cannot be questioned. For example, if you were trying to establish which day of the week August 3, 2007 fell on, your judge could take judicial notice that it fell on a Friday. Why? Because the fact isn’t subject to dispute — anyone with access to a calendar can quickly and easily determine its veracity.

The great benefit of these forms of self-authenticating evidence is that you can introduce the items into evidence without the time and expense of calling a live witness to the stand. For example, I recently tried a case where my opponent was seeking to introduce a medical document. He didn’t use an expert witness or records custodian to admit the document. Instead, he introduced it using our state’s version of Federal Rule of Evidence 803(6). In case you’re unfamiliar with it, FRE 803(6) establishes another form of evidence that is (basically) self-authenticating: Records of Regularly Conducted Activity. When the evidence code was amended in 2000, they eased the business records hearsay exception by no longer requiring live testimony from a business records custodian. Instead, they now allow you to simply certify that the records are kept in the normal course of business.

Using this evidentiary rule, my opponent didn’t need to call a single witness to the stand. Instead, he simply handed the document and the certification to the judge, then asked to have them admitted into evidence. That was it! Without asking a single question, he satisfied the entire evidentiary predicate for admitting the document.

That was when I noticed the problem with “self-authenticating” documents. In law, document management is important for cases, since improperly documented filing could be a mistrial or could be thrown out of court. Proper document management is extremely necessary for every case so, you might want to look into file management services similar to https://www.filecenterdms.com/info-paperport-alternative-and-replacement.html.

After the document was marked into evidence, the attorney asked for permission to publish it to the jury. The judge granted permission, and the document was handed to the first juror. The juror received the document and quietly stared at it. If the document could have spoken, it would have said, “I’m important, because I show that the witness had alcohol in his bloodstream when he was admitted to the hospital. In fact, the witness had an alcohol level of .089, which is more than the legal limit to drive a car. You might want to question whether or not this witness knowingly and voluntarily gave up his right to remain silent before he gave that statement to the police…”

That’s what the document would have said, if it could speak. But it couldn’t. It just sat there while the juror stared at it. You could tell from the look on his face that he wasn’t sure what he was supposed to be looking at. He didn’t have any medical training, so medical codes and terms like “mg/dl” probably didn’t mean anything to him. He was just as confused as he would have been if the document had been written in Sanskrit. He stared at it for a moment longer, then passed it to the next juror. What might have been an important element in the case was completely overlooked, because the document didn’t get a chance to speak.

Many attorneys make the same mistake. they believe that if a document is self-authenticating, it should be able to “speak for itself.”” But nothing could be further from the truth.. Documents don’t speak.. They don’t explain themselves.. If a juror doesn’t know how to read them, or if they don’t know which parts of the document are important, the document just sits there and silently stares back at them.

Don’t make the same mistake.. As the trial lawyer, it’s your responsibility to ensure that the jury understands your evidence.. Even when your evidence is supposed to “speak for itself,” you still must give it a voice.. The most effective way you can help your self-authenticating evidence “speak” is by strategically publishing the exhibits to the jury.. If my opponent had waited until closing argument to publish his exhibit, he could have shown the jurors which parts of the document to examine closely, and told them why it was important.. Instead, they examined the document in a vacuum, and had no idea why it was important or why they were looking at it.. The importance of the document was lost, never to be regained.

Don’t fall into the trap of automatically publishing your exhibits immediately after they’ve been admitted into evidence.. Wait until the most opportune time to publish them.. This may mean that you don’t publish your self-authenticating documents until much later in your case, when a witness can use the document to explain or enhance his testimony.. It may even mean that you wait all the way until closing argument (when you can explain the document or highlight the important elements) before publishing the documents to the jury.

Self-authenticating documents don’t speak for themselves.. It’s up to you to give them a voice.. Find a way to work the document into another witness’s testimony, or hold off on publishing the document until closing argument.. Regardless of which method you use, you’ll breathe more life into your evidence, making it more persuasive than it ever could be on its own.