21. Exhibits and related rules

 

The business record you offered into evidence last week is not just a question of hearsay. The piece of paper or the digital image itself is also an exhibit, and there are rules of evidence covering exhibits. The most important is that exhibits must be authenticated. This is actually very easy. Don't make it into something hard. Just hand it to a witness (with personal knowledge, of course), and ask the witness what the item is. You have to do this even though everyone in the courtroom already knows what it is. Authentication is covered by Rules 901 and 902.

The two most common reasons exhibits are introduced at trial is because they were actually involved in the incident, such as the murder weapon or the contract alleged to have been breached, or they illustrate the story being told by a witness, such as a diagram or scale model. The former are called “real” evidence in most jurisdictions; the latter are “illustrative” exhibits. Together they are often referred to as “demonstrative evidence.” Terms vary from jurisdiction to jurisdiction.

In either event, a witness is usually required to authenticate the exhibit. The witness must have personal knowledge of the event itself, so the witness can testify that this exhibit is the actual one involved in the event, or is a fair and accurate illustration of some aspect of the event.

Problem 21.

(1) How would you authenticate a photograph of the scene taken by plaintiff’s attorney’s paralegal 2 months after the accident? Which witnesses could authenticate it and what two questions would you ask?

Here are your choices of witnesses:
a) The plaintiff, Turner
b) The Big Red driver, Arden
c) A bystander who saw the accident
d) A police officer who investigated the accident
e) The EMT who transported Turner to the hospital
f) The emergency room admitting nurse who wouldn't let him see a doctor until he produced an insurance card
g) The ER physician
h) The tow truck operator who towed both the truck and the wheelchair to the repair shop
i) A paralegal for plaintiff's attorney who photographed the scene

When you think you know the answer, click here .