Admitting a Document into Evidence, Step by Step

July 20, 2015 § 6 Comments

It can be daunting for young lawyers to tiptoe through the evidentiary minefield of the courtroom, but perhaps the most intimidating of all is to get a document into evidence, a process fraught with objections and roadblocks.

If you can understand the process, step by step, you can plan it out to navigate the expected hurdles. For purposes of this post, the term “document” used here includes all objects identified in MRE 1001 (1) and (2), as well as all tangible items that can be offered into evidence.

Here is the procedure, step by step:

  1. Hand the document to the witness, and, at the same time, hand a copy to counsel opposite. The attorney on the other side has the right to examine anything you hand to a witness. It’s also required that you furnish him or her a copy per Uniform Chancery Court Rule (UCCR) 3.5. Some judges prefer that you hand the document first to the court reporter and have it marked for identification before handing it to the witness, but I have found that to be a minority. Sometimes counsel opposite may object to admission of the document before you have even offered it. The simple response is that the objection is premature because you have not yet offered the document into evidence.
  2. Ask the witness to identify it. The witness must know what the document is and be able to identify it. MRE 602. The answer is merely an description of what the document is (e.g., “This is one of my bank statements,” or “this is an invoice I received”). At this stage, it is not proper for the witness to testify as to the content or meaning of the document; the witness can only testify to what the document is. lf the witness does not know at all what it is, then attempt to refresh or restore recollection, via MRE 612, 613, 801(d), or 803(5), If your efforts are unsuccessful to have the witness identify the document, proceed to Step 10.
  3. Establish how the document is relevant. Ask whether this document relates to the mortgage debt, or the parties’ income and taxes, or hospital bills, or whatever is at issue in the case (e.g., “This is my March bank statement for the joint account that Kevin wrote the $10,000 check on”). MRE 401 and 402. If relevance can not be established, proceed to Step 10.
  4. Establish authenticity. This can be convoluted, but the rules are pretty clear on how to do it. MRE 901 and 902. You can avoid difficulty with this part by sending Requests for Admission (MRCP 36) asking the other side to admit the authenticity and admissibility of the document(s); if they deny, then file a motion asking the court to get them to admit it, and for your resulting costs. Most competent, ethical attorneys will recognize the futility of making you drag someone like a telephone company or bank employee to court only to establish authenticity when it is clear that the document is what it appears to be. If you can not establish authenticity, proceed to Step 10.
  5. Establish any hearsay exemption or exception. Probably the most-objected-to area. If you know in advance that there will be hearsay objection(s), prepare in advance to meet them with specific exceptions to cite and, if possible, case citations. MRE 803 and 804 offer a multitude of ways around the rule. If you can not find a way around hearsay, go to Step 10.
  6. Satisfy the “Best Evidence Rule.” An explanation of the Best Evidence Rule can be found here, and some suggestions for dealing with it can be found here. In a nutshell, the rule provides that, if you are trying to prove the content of a document, you must produce the original, unless you can establish that the original is lost, not obtainable, or is in the possession of your opponent, or relates only to a collateral issue. MRE 1002, 1003, 1004, 1005, 1006, and 1007. Again, you can avoid some unpleasantness with this via Requests for Admission (MRCP 36). If you trip and fall here, proceed to Step 10.
  7. Offer the document into evidence. “I offer this document into evidence, your honor,” is all you need to say. Be prepared to meet any objection. If the court overrules the objection(s) and orders that it be admitted, proceed to Step 8. If the court rules that it is inadmissible, proceed to Step 10.
  8. Hand the document to the court reporter and stop talking. Hand the document to the court reporter and be quiet while the court reporter marks it as an exhibit. You do not need to instruct the reporter on what exhibit number to give it, or how to mark it; that is the judge’s prerogative. The court reporter will either hand the exhibit to the judge or give it back to you when he or she is finished, and you may then proceed to Step 9.
  9. Continue with questioning the witness, if desired. If you need more testimony from the witness about the document or its contents, you can go on from there. The witness will need to have a copy of the exhibit from which to testify. But remember that if you take the original from the judge, the judge will not know what you are talking about. You had better either leave the original with the judge and provide the witness with a copy, or have a copy to provide the court to follow along with your examination, per UCCR 3.05. Remember, too, to always refer to the exhibit’s number when questioning a witness about it, or your record will be hopelessly unintelligible.
  10. If the court rules your document inadmissible. If the court sustains a hearsay objection, for example, first offer another exception as an alternative. If that fails, offer another. If you feel the judge is wrong based on a specific case, offer that case and ask the judge to reconsider based on that authority. If your efforts are unsuccessful, ask that the document be marked “for identification purposes only,” per MRCP 103(a)(2). That request will never be denied if you made a bone fide effort to get the document into evidence. You may still be able to get the document into evidence through the testimony of another, later witness, but if you cannot, the document is in the record for appeal purposes; if you do not have it marked for identification purposes only, it will not be in the record for appeal. You may try later to file a post-trial motion to supplement the record if you neglected to get the document in at the trial, but you will not likely get any relief if the trial judge is not satisfied that there was sufficient testimony of the witness about it, or the judge did not have an opportunity to examine it and rule on it.

Be prepared and be successful. A selection of other helpful posts on topic:

 

In Evidence

March 30, 2015 § 2 Comments

Have you ever stopped to ask yourself what the phrase “in evidence” means? We toss it around all the time. “Is that in evidence?” “Your honor, I object because that document is not in evidence.”

The phrase simply means that the judge or the jury can look at the document or hear the testimony, and can consider it in reaching a decision.

The meaning is simple, but the ramifications can be profound.

  • If something is not in evidence, it is not part of the record. If it is not part of the record, the judge can not consider it.
  • If you offered something into evidence and were denied, you must make the proffered evidence part of the record. If it was oral testimony, you must make an offer of proof (MRE 103(a)(2)). You can do this by requesting to make an “offer of proof,” or a “proffer.” The judge will then allow you to state on the record what the testimony would have been, or will allow you to do it in question-and-answer form (MRE 103(b)). If the ruling was one denying entry of a document in evidence, then you must ask that the document be marked for identification only, which request will always be granted. Remember that neither a proffer nor a document marked solely for identification may be considered by the judge in ruling on the merits; however, they are part of the record on appeal.
  • Pleadings are not evidence. Just because you pled something does not mean it is proven.
  • Never fail to put on proof based on your assumption that the judge will connect the dots and draw the conclusion favorable to your client. The judge might not. Or the judge might, but there will be inadequate evidence in the record to support the judge’s conclusions, which is the formula for reversal on appeal.

Make sure that every element or factor that you need to prove is supported by proof in evidence. A graphic illustrating this vital concept is here.

The Missing Link

September 22, 2014 § 6 Comments

Here’s a typical trial scenario with inexperienced lawyers:

L1:  Now, your honor, we ask that this document be admitted into evidence.

L2: Objection. Hearsay and not properly authenticated.

CH: Sustained.

L1: Um, uh, er. Okay. So, Mr. witness, what did you do next?

Stop right there. What did L1 not do that he should have done?

If you said, “Proffer,” or “Offer of proof,” you are correct. If you didn’t get it, well, you need to read — attentively — on.

In the case of Granger v. State, 853 So.2d 830, 833 (Miss. App. 2003), the court said, ” … a party who wishes to preserve an issue for appeal must make a proffer. Generally, when a party seeks to offer evidence which in turn is excluded by the trial court, before we will consider the matter on appeal the party must somehow have placed in the record the nature and substance of the proffered evidence for our consideration.”

MRE 103(a)(2) covers the point:

(a) Error may not be predicated on a ruling which admits or excludes evidence unless a substantial right of a party is affected, and … (2) In case the ruling is one excluding evidence, the substance of the evidence was made known to the court by offer or was apparent from the context within which questions were asked.

So, if L1 above could not have stumbled his way around the objections, he should have made a proffer that would look something like this:

L1:  Now, your honor, we ask that this document be admitted into evidence.

L2: Objection. Hearsay and not properly authenticated.

CH: Sustained.

L1: We ask that this document be marked for identification purposes only.

That way, the substance of the document is part of the record, and the appellate court can look at it and judge for itself whether it should have been excluded.

Now, getting the document into the record may not be all the appellate court needs to know about it. The court may need to know more in order to make a proper decision. So L1 would then take that document marked for ID, tell the court he would “like to make a proffer,” or would “ask to make an offer of proof,” and when permission is granted either ask the witness questions about the document that make the record, or make a statement into the record about the document and its nature and substance, and why it was admissible. At the conclusion, L1 should say, “Now I am off proffer,” or “that concludes my offer of proof,” or words to that effect. Nothing said or offered in proffer is considered by the trial judge, but it may be considered by the appellate court.

That latter procedure also works where the trial judge has sustained objections to questions you ask the witness, and you need that information in the record.

Despite the language of the rule, you should never assume that the substance is apparent from the context. You should always make your proffer.

This is important because your key role at trial is not to have the trial judge rule for you, or to satisfy your client, or to be the best-dressed lawyer. Your key role is to MAKE A RECORD of every bit of evidence that supports every element of your case, in a way that is intelligible to the appellate court. No matter how convincing your case was to the trial judge, no matter how charming and persuasive you were in the court room, if you haven’t made a good record you run the substantial risk of getting your case reversed on appeal. Clients hate that.

If you do not make a proffer when the court excludes evidence, you are leaving a missing link in your record that may snatch defeat from the jaws of victory.

 

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