Are Jurors Ignoring Your Exhibits?

Don't ask jurors to divide their attention between you and your exhibit. You'll both lose.

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.

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!

The Witness Forgot (again!)

We’ve previously talked about what to do when your witness temporarily forgets what they’re supposed to say (“What to Do When Your Witness Forgets”), but what can you do when your witness seems to have permanently forgotten what happened?

Before we begin, let’s start with the assumption that your witness honestly has no recollection of what happened, and isn’t intentionally “forgetting.”   (If your witness is trying to side-step perjury charges by saying he “doesn’t recall,” “cannot remember,” or “has no present recollection,” that’s an entirely different nightmare you’ll need to address, and it’s beyond the scope of this article.)  The issue we’re tackling in this article is what to do when time or mental infirmity completely destroys your witness’s memory.

The most dramatic example of lost memories that I ever saw arose when I was a prosecutor intern in the Crimes Against Children / Sex Crimes unit.  One of the cases I was helping with involved a woman who had been drugged with GHB and then raped in the parking lot of a nightclub.  She was able to identify her attacker from photo lineups, so a few days later the police were able to locate him and arrest him.

Tragically, before the case went to trial, she was in a traumatic car accident, suffering a head injury that caused significant brain damage and completely erased her memory of what had happened the night of the rape.

Without her testimony, how were we going to prove the case?  If we couldn’t come up with something, the rapist was going to escape scot-free.

The prosecutor’s first thought was, “Let’s try to refresh her memory.”  Talking with the family, we learned that before the accident, the victim had kept a daily journal.  Her journal entry describing the night of the rape was very detailed, so he was optimistic that the journal might do the trick.  Unfortunately, even after reading through her journal several times, she told us that it didn’t do anything to help her remember.  She recognized her own handwriting and knew that she must have written the entry shortly after being attacked, but she couldn’t summon up an independent memory of the events.

What did that leave us with?

She couldn’t remember the evening, so she wouldn’t be able to testify from memory about what had happened.  We couldn’t refresh her memory, so that option wouldn’t work either.  The crash had happened before she could be deposed and before she could testify in a bond hearing, so we didn’t have any prior testimony we could introduce into evidence.  We’d run into a brick wall.  What were we going to do?

“It’s too bad her journal is hearsay,” I said.  “If she could just read from her journal during trial, we could probably win the case.”

Have you ever had a situation where you became so emotionally invested in a case that you ended up with “tunnel vision” that blinded you from seeing other options?  When that happens, sometimes all it takes is an isolated comment to help you open your eyes and get right back on track.

That’s exactly what had happened here.  The prosecutor had become so focused on having the victim testify that he was overlooking another option for getting her story in front of the jury.  But immediately after I made my comment, he said, “Duh!  Of course we can do that!”

“We can?” I asked.  “How are you gonna overcome the hearsay objection?”

“Easy,” he replied, “we just introduce her journal as a Past Recollection Recorded!”

Hopefully, you’ll never find yourself in a similar situation with a witness whose memory has gone missing, but if you do, you’ll want to know how to admit their prior statement into evidence.  Here are the steps we took to qualify the statement as a recorded recollection:

First, you must show that the witness once had knowledge of the event.  In our case, we could do that by either asking her family members to establish the victim’s knowledge before the car crash, or asking her about her journal writing habits and whether the journal was a fictional work or whether it accurately reflected events in her life.

Next, you’ll need to show that your witness now has an insufficient recollection to testify fully and accurately.  Obviously, our victim didn’t have any memory of what happened, so this was an easy element to establish.  If your witness has a partial memory of what happened, you may be more limited in your use of the recorded recollection.

Once you’ve established that the witness once knew about the event, but now can’t remember, you’ll need to establish the veracity of the written statement you’re seeking to introduce.  There are three things that you’ll need to prove:

First, the statement must have been made by the witness.  If someone else wrote the statement (for example, a police report capturing a summary of the witness’s statement), you’re probably out of luck.

Second, you’ll need to show that the statement was made when the matter was still fresh in the witness’s memory.  In our case, the victim could testify that she wrote in her journal on a daily basis, so each entry was made while the events were still very fresh in her mind.  Often, you’ll be able to establish the freshness of the writing by showing that the statement is dated at or near the time of the purported event.

Finally, you must show that the statement correctly reflects the witness’s knowledge of the event.  This may be established within the four corners of the document.  Is it based on knowledge that only the writer would know, or is it based on hearsay?  If the statement appears to be prepared in anticipation of litigation, you’ll have more difficult hurdles trying to establish this element.

Once you’ve jumped through all of these hoops, your Past Recorded Recollections can be introduced into evidence.  Although you’re going to have the clerk mark the exhibit for evidentiary purposes, the actual writing won’t be introduced into evidence.  Once you’ve laid the predicate, the witness simply reads the statement aloud.  It’s important to remember that the physical document is usually NOT admissible unless your opponent offers it into evidence.

Luckily, we were able to establish all of the elements for admissibility of her recorded recollection, so we were able to successfully prosecute the rapist and keep him off the streets.  One again, a good knowledge of the evidence code had saved the day.

Here’s your practice tip for the week: Before you go to court, print out a copy of the evidentiary predicates for the admissibility of Past Recollection Recorded1 and place it in your trial notebook.  Chances are, even if you try dozens of cases, you’re probably never going to need it.  However, for that one time when you do need it, this article will prove to be a lifesaver!


1 Federal Rule of Evidence 803(5) Recorded recollection. A memorandum or record concerning a matter about which a witness once had knowledge but now has insufficient recollection to enable the witness to testify fully and accurately, shown to have been made or adopted by the witness when the matter was fresh in the witness’ memory and to reflect that knowledge correctly. If admitted, the memorandum or record may be read into evidence but may not itself be received as an exhibit unless offered by an adverse party.

The Danger of “Self Authenticating” Documents

The danger of self-authenticating documents during courtroom trials.

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.  These forms of evidence are inherently reliable, and are deemed to be “self-authenticating.”  Examples of self-authenticating evidence include:

  • Document with wax sealState 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.

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.