Use Exhibits on Cross-Examination

 

Exhibits can be effectively used on direct and cross-examination to not only clarify your case narrative but also significantly influence the jury's understanding and retention of crucial information. Here’s a detailed guide to planning and effectively using exhibits during trial.

Objectives of Using Exhibits

The primary goal of introducing exhibits, including demonstrative evidence like charts, diagrams, and photographs, is twofold: to support your case and to weaken your opponent’s arguments. 

Exhibits help to:

- Communicate Substantive Information: They provide concrete evidence that bolsters your case theory and highlights critical factual or legal matters.

- Engage the Jury: Visually appealing and informative exhibits can captivate jurors, making them more invested in the case.

- Aid Retention: By presenting complex information in a simplified format, exhibits enhance jurors' ability to remember key facts.

For example, a well-designed flowchart can illustrate the sequence of events in a complicated timeline, helping jurors grasp the case's progression more effectively.

Preparation Steps

1. Identify and Create Exhibits: 

Preparation begins long before the trial. Early on, identify existing evidence relevant to your case. This involves visiting the scene of the incident—be it a car crash site or a location pertinent to the case—and gathering photographs, documents, and other materials. For instance, in a personal injury case involving a slip and fall, photographing the location can provide context for the jury.

Additionally, consider creating demonstrative evidence. Ask yourself:

- What key aspects need to be presented persuasively? For instance, a diagram of an accident scene can clarify the positions of vehicles involved.

- What complex information needs simplification? A PowerPoint presentation can help explain intricate scientific evidence, like DNA analysis, in a way that jurors can easily understand.

- Is any critical evidence missing? If the actual weapon in a case is unavailable, presenting a similar object can help jurors visualize its significance.

2. Select Effective Exhibits:  

Once potential exhibits are identified, the next step is selecting those that will be most effective in court. Consider the following:

- Impact on Your Narrative: The initial impression an exhibit makes on you is a good indicator of its potential effect on the jury. Choose exhibits that contribute positively to your case theory.

- Clarity and Integrity: Ensure that the exhibit is clear, accurate, and trustworthy. Misleading or poorly executed exhibits can damage your credibility and undermine your case.  

When to Use and Avoid Exhibits

Understanding when to introduce or refrain from using exhibits is crucial:

Use Exhibits When:

  - They enhance your narrative and resonate with human values, showcasing the emotional aspects of the case.

  - They simplify complex information, making it accessible to jurors.

  - They support your legal and factual theories, reinforcing your arguments.

Avoid Exhibits When:

  - They lack integrity or appear misleading. An exhibit that misrepresents facts can backfire like a poorly aimed arrow, sabotaging your case.

  - The attorney or witness is unprepared to use the exhibit effectively. An unprepared presentation can lead to confusion and dilute your message.

  - There are too many exhibits. Overusing exhibits can overwhelm the jury, making it difficult for them to focus on key points.

 Legal Considerations

Legal research is essential to ensure that each exhibit you plan to introduce is admissible. Here are key steps to follow:

- Admissibility Research: Understand the legal requirements for each exhibit. Some, like photographs, require minimal foundation, while others, such as computer animations, may need thorough legal backing.

- Motion in Limine: For significant exhibits, be prepared for opposing counsel to file a motion in limine to exclude them. Responding with a brief can preemptively counter these challenges.

- Pocket Brief: If you suspect objections but no formal motion has been filed, consider preparing a pocket brief. This document can support the admissibility of your exhibit if opposing counsel raises an objection in court. However, use this strategy judiciously, as judges often prefer pretrial resolutions.

Conclusion

Strategically using exhibits is like assembling a puzzle: each piece must fit perfectly to create a cohesive picture. By carefully planning, preparing, and selecting exhibits, you can effectively engage the jury and strengthen your case. Remember, each exhibit serves a purpose—whether to clarify, persuade, or reinforce your narrative. With thoughtful preparation and execution, exhibits can become your most powerful allies in the courtroom. For more detailed coverage, get your copy of Evidence in Practice, 2nd Edition hot off the press.

New Evidence in Practice Book Launched

 

Delighted that Aspen Publishing has just launched the second edition of our evidence book. 

An essential go-to reference for law students, paralegals, and trial lawyers, Evidence in Practice: Skills and Strategies for Pretrial and Trial, with Practice Exercises, Second Edition is a concise how-to manual for all things evidence. 

Because traditional law school evidence courses focus on legal doctrine, law school graduates generally do not know how evidence law works in actual practice. Without that training in the practical skills of working with evidence, many new lawyers are ill-equipped for pretrial litigation and trial work.

Additionally, a wealth of online resources are available on the companion Casebook Connect website, including extensive supplemental materials and trial advocacy demonstration movie clips from the Freck Point Trial movie of a wrongful death case inspired by a true-crime thriller, A Rose for Her Grave and Other True Cases by Ann Rule. Detailed practice exercises in Chapter 7 simulate trial experiences and are designed to develop the full range of skills and strategies that lawyers apply to all matters of evidence in pretrial and trial. 

Evidence in Practice is versatile. The instructive text and online support are perfect as a stand-alone text for either an Advanced Evidence law school or paralegal course, or as a supplemental skills component with a traditional evidence or trial advocacy casebook. It also can serve as an evidence handbook for trial lawyers. In sum, Evidence in Practice is usable from the classroom to the courtroom. 

Mastering Control: Techniques for Cross-Examining Witnesses

 

During cross-examination, controlling a witness is crucial, especially when they employ evasive tactics. Here are six effective techniques to manage this situation, each increasing in confrontational tone, tailored to the witness's level of evasiveness.

Establishing Agreement: Start by encouraging the witness to answer simply with "yes" or "no." For example: "Dr. Best, can we agree that most of my questions will be answered with a simple yes or no?" However, be cautious; this tactic can backfire if it seems you’re trying to manipulate the witness.

Technique #1—Repeat the Question: If the witness begins to ramble, restate your question directly. This reinforces your request and highlights their evasiveness to the jury.

Technique #2—More Confrontational Repetition: If necessary, escalate by directly asking the witness if they can repeat your question or if something is preventing them from answering.

Technique #3—Let Them Ramble: If the witness insists on lengthy responses, take a step back—literally. While they talk, show disinterest, then ask, “Are you finished?” This underscores their avoidance.

Technique #4—Write the Question: Display your question visibly and read it aloud. If the witness answers incorrectly, highlight that discrepancy to emphasize their evasiveness.

Technique #5—Physical Gesture: A simple hand gesture, like raising your palm to signal them to stop, can effectively regain control.

Technique #6—Seek the Judge’s Assistance: While it’s generally best to handle evasive witnesses independently, don’t hesitate to ask the judge for help in critical situations to preserve your case. Ask the court to direct the witness to answer the question.

Using these techniques can sharpen your cross-examination skills and keep evasive witnesses in check, much like a skilled conductor guiding an orchestra through a complex score.

For more on the art of cross-examination, click here to get your copy of Cross-Examination Handbook: Persuasion, Strategies, and Techniques.