How to lay Foundation for the Admission of an Exhibit as Evidence

Foundation is formed from three elements: Authenticity; Reliability; and Relevance must be established before an exhibit can be admitted as evidence.

Procedure

[When you are ready to introduce an exhibit, pause and retrieve two copies of the exhibit from your table.]

Lawyer: “Your honor may I approach the witness?”

Judge: “Yes.”

Lawyer: “I am handing the witness what the Court has pre-marked Exhibit A.”

[Hand a second copy of the exhibit to the opposing counsel; have a third copy ready at your table for the judge if he/she requests one.]

Lawyer: “I am handing the opposing counsel a copy of the exhibit.”

Authenticity

[Authenticity, for all exhibits, is stipulated for the Mock trial Competition and need not be addressed.]

Reliability*

[Now ask the witness if he/she recognizes the exhibit; establish reliability]

Lawyer: “Do you recognize this exhibit? (Insert document/photo/chart/map/diagram, Etc., for exhibit.)

Witness: “yes I do.”

Lawyer: “What is it?”

Witness: “It is a copy of one our bills from work.”

Lawyer: “Have you ever filled out one of these bills.”

Witness: “Yes, I do every day.”

Lawyer: “To the best of your knowledge, would you say this is a fair and accurate copy of the type of bills your company sends to its customers?”

Witness: “yes.”

[You have established that the exhibit is what it claims to be; it is reliable]

Relevance**

[Now you must establish the relevance** of the exhibit; show how it adds to the tier of your case-in-chief.]

Lawyer: “To the best of your knowledge, was the defendant sent a bill like this?”

Witness: “Yes, in fact this is a copy of the bill we sent the defendant.”

[Relevance** has now been established.]

[Now ask the judge to admit the exhibit as evidence.]

Lawyer: Your honor we believe we have laid the proper foundation to allow the Court to admit Pre-marked Exhibit A as Plaintiff’s Evidence A.

Judge: Is there any objection from the opposing counsel?

[A Hearsay objection will likely be offered by the opposing counsel; hearsay objections will be dealt with at a later time.]

Judge: “With there being no objection, Pre-marked Exhibit A has been entered as Plaintiff Evidence A.”

Lawyer: “Thank you your honor.”

[Now begin to explore the exhibit directly with the witness.]

Lawyer: “Can you read the date on the bill?”

Witness: “yes I can.”

Lawyer: “What is the date on the bill?” . . .

[The witness may now read aloud from the document.]

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NOTE: A witness may be asked questions about the reliability and relevance of an exhibit without its introduction into evidence; but to read from it, comment on its probate value, or submit it to the judge, it must first be admitted into evidence.

* Reliability must be established by a competent witness, one who is capable of swearing that the exhibit is what it purports to be.

** Relevant evidence is physical evidence and testimony that makes a fact that is important to the case more or less probable than the fact would be without the evidence. However, if the relevant evidence is unfairly prejudicial, may confuse the issues, or is a waste of time, it may be excluded by the court. Such relevant but excludable evidence may be testimony, physical evidence, or demonstrations that have no direct bearing on the issues of the case or do not make the issues clearer.