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. 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!

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One thought on “Are Jurors Ignoring Your Exhibits?

  1. Of course, as soon as Juror #2 starts to look at the exhibit, the Judge tells you to ask the next question, and tells the jury that they will be able to examine all of the exhibits during deliberations. (How many cases did he or she try??) If you stall, you risk an impatient “Move along, counsel”. (And the jury thinks YOU are the one who doesn’t know what he’s doing!) I like to have an enlargement ready, and have the witness step down from the stand and point out what you want the jury to notice.