The 4 Things You Need to Do to Properly Introduce Mock Trial Exhibits
Lots of students (and even attorneys — including me!) struggle with getting exhibits admitted into evidence. Luckily, in the mock trial world, there’s a simple four-step method to doing it properly.
Step One: Before the Trial Begins, Premark All Exhibits You Plan to Use
Premarking exhibits means identifying what each exhibit is.
I recommend that you designate one attorney on your team to do be responsible for this. And I recommend doing this before your team makes its opening statement, before the trial really gets rolling. Say something like:
- Your Honor, before the prosecution proceeds with its opening statement, it requests that Exhibits A through E be premarked for identification.
In my mock trial experience, this is enough for some judges. You’ll know you don’t need to do anything else if the judge says something like “They will be so marked.”
But, technically, “premarking exhibits for identification” means that you are going to say what Exhibit A is, what Exhibit B is, etc.
To do that, you’ll say something like:
- The prosecution requests that [identify the item] be marked as Exhibit A.
For example: “The prosecution requests that a diagram labelled “Apartment 5Floor Plan” be marked as Exhibit A.”
The judge will respond with something like “It will be so marked” or will otherwise let you know that the exhibit you identified will be marked as you requested.
You’ll repeat this process for each exhibit you want to use.
Then you will thank the Court, and your team will proceed with its opening statement.
If you are the defense and the prosecution has already premarked all of the exhibits you will need, you can skip Step One. But if they didn’t mark any, or didn’t mark some of the exhibits you plan to use, you’ll need to do this step.
Once your exhibits have been premarked for identification, you can refer to them by their exhibit letter or number (e.g., “Exhibit A” instead of “Apartment 5 floor plan”).
You’ll then need to get them admitted into evidence during the trial. That’s what the next three steps are all about.
Step Two: Authenticate Exhibit
Authenticating an exhibit means that your witness needs to say that the exhibit is what you say it is.
Here’s the process:
- If the exhibits are not displayed at the front of the courtroom, ask the judge if you may approach the witness. When the judge says yes, walk to the witness and hand them a copy of the exhibit. (If the exhibits are displayed, simply ask your witness to look at the exhibit.)
- Ask the witness to identify the exhibit.
- Ask the witness to confirm that the exhibit is a true and correct copy, or an accurate representation, of what it’s supposed to be.
The questions to ask for this step can almost be scripted word for word. Here’s an example:
Q: Officer O’Neil, please take a look at what’s been marked as Exhibit B.
A: Yes, I see it.
Q: Do you know what Exhibit Bis?
A: It’s a photograph of the letter I found at the crime scene on August 1.
Q: Did you take this photograph?
A: Yes I did.
Q: When did you take it?
A: I took the photo as soon as I found the letter during my inspection of the scene.
Q: And is Exhibit Ba true and correct copy of the photograph you took?
Here’s another example:
Q: Mr. Weatherby, I’d like to draw your attention to what’s been marked for identification as Exhibit C.
Q: Do you recognize Exhibit C?
Q: What is it?
A: It looks like a diagram of the Common Room of Gilmore Hall Dormitory, where I found the victim’s body on August 1.
Q: Does Exhibit C accurately depict what the Gilmore Hall Common Room looked like on August 1?
Step Three: Be Able to Demonstrate that Your Exhibit is Admissible
Of all of the steps necessary to have your mock trial exhibits admitted into evidence, this is the only one that requires more than simply knowing what to say.
You need to make sure that your exhibit complies with your Rules of Evidence. Almost always, this means making sure you areable to defeat a hearsay objection.
First, consider whether there is hearsay in your exhibit. That is, does your exhibit contain an out-of-court statement offered for the truth of the matter asserted? (More on hearsay here.)
Remember that any statement made out of court can be hearsay. A statement does not need to have been spoken out loud and then re-stated verbally in court to be hearsay. A written statement can be hearsay. A document containing information can be hearsay.
As with any hearsay, think about whether anystatement in your exhibit isbeing offered for the truth of the matter. If so,the statement is hearsay and if you want them admitted, you need to find a hearsay exception.
Step Four: Make a Motion to Have the Exhibit Admitted
After your exhibit has been authenticated, and after you overcome any objections to it, you need to ask the judge to admit the exhibit in evidence. Say something like:
“Your Honor, the prosecution moves Exhibit A into evidence.”
The judge will typically ask your opponent if they have an objection.
Remember, you need to make sure that each of your mock trial exhibits is admitted if you want the judge to consider them when determining whether the defendant is guilty. If the exhibit is not admitted, it’s not something the judge can consider. And it won’t get admitted if you don’t ask. So don’t forget this step!
After your exhibit is admitted into evidence, you can use it in any way you’d like. Your witnesses can discuss it, they can point to it to help give the audience a visual, and they can use it to highlight certain parts of their testimony. They are a really great way to make your witness performances stand out.
I’ve prepared a checklist for you to keep in your trial binder to remind you of the four steps you need to do to get your mock trial exhibits admitted. Please feel free to download, print, and share.