Bill Richards Bade Baskin Richards Tempe, Arizona You Need This Evidence, Admit It!

Bill RichardsBade Baskin Richards

Tempe, Arizona

You Need This Evidence, Admit It!

Because YOU can’t be trusted to tell the truth.

Because WE believe, fundamentally, that the truth is best reached through zealous presentation of competing evidence.

Because evidence tells a far better story than a mere narrator ever could.

Why Do We Need Evidence Anyway?

Advocacy in a trial or evidentiary hearing is really the art of persuading the trier of fact that your client deserves their help more than the other side.

Such persuasion is most effective if you get the trier to reach a favorable impression all by themselves. This is done best by effective storytelling.

Evidence provides the elements of the story – the characters, the plot, the tension, and, sometimes, the resolution.

How Do We Use Evidence?The Lawyer as Storyteller

• The most common form of evidence.

• Includes: • Testimony about facts from percipient witnesses• Opinion testimony from lay witnesses• Opinion testimony from expert witnesses

• Prerequisites – • Competence to testify – • Actual knowledge of relevant information• Mental competence

Testimonial Evidence

• Establish prerequisites at top of questioning.• Ability and/or responsibility to perceive relevant facts.• “You were there when Mr. Jones punched Mr. Smith in

the parking lot?”• “What does your job as a forensic accountant require

you to do?”• “You worked in the cubicle next to Mr. Schmitt for two

years?”• “What type of tests do you perform on blood samples in

your lab?”

• Establish credibility/background but GET TO THE POINT.

Testimonial Evidence

• Lay Opinion Testimony.• Rule701, Ariz.R.Evid. allows admission of lay opinions,

but requires that the opinion: • Be “rationally based on the witness’s perception; • “be “helpful to clearly understanding the witness’s

testimony or to determining a fact in issue; and • “Not [be] based on scientific, technical, or other

specialized knowledge within the scope of Rule 702.”

Testimonial Evidence

• Lay Opinion Testimony – Which of the Following Qualify?

• Opinion of a professional landscaper that the damage done to the plaintiff’s citrus trees by toxic runoff from a neighboring business would probably result in a 50% reduction in fruit yield over the life of the trees.

• Opinion of an election campaign manager that the financial

recordkeeping she observed in auditing a competing campaign’s books fell below the standards for recordkeeping in her industry.

• Opinion of a star baseball player that another player must

have been “on the juice” using performance enhancing drugs when he set league batting records last year.

Testimonial Evidence

• Expert Opinion Testimony.• Prerequisites

• Competence to testify as an expert. Rule 702 requires the witness be “qualified as an expert by knowledge, skill, experience, training or education.”

• The particular skills possessed by the witness must be capable of “help[ing] the trier of fact to understand the evidence or to determine a fact in issue.” Rule 702(a), Ariz.R.Evid.

• Testimony must be “based on sufficient facts or data.” Rule 702(b), Ariz.R.Evid.

• Testimony must be “the product of reliable principles and methods.” Rule 702(c), Ariz.R.Evid. – adopts the Daubert standard.

• Testimony must “reliably appl[y] the principles and methods to the facts of the case.” Rule 702(d), Ariz.R.Evid.

• Rule 703, Ariz.R.Evid. - The opinion may rely on facts or data that are themselves inadmissible “[i]f experts in the particular field would reasonably rely on those kinds of facts or data in forming an opinion on the subject.

Testimonial Evidence

Compare novel reading times to movie viewing times.

“A picture is worth a thousand

words” – and probably even more minutes of trial time.

Facts conveyed through testimony alone can be misleading.

Why We Use Exhibits

EXAMPLEMr. Fitch is 82 years old. He is a retired pharmacist. He lives alone with his two cats and enjoys stamp collecting. On Saturdays he plays cribbage at the rec center, and he has never gambled – not one cent.

Why We Use Exhibits

STORYTELLING

Exhibits allow you to better set the scene, characters and emotions you wish to convey with your story.

Example: Hellman v. Weisberg

“She admitted that she understood that she was ‘gonna get the eye from a lot of people, and [was] okay with that.’ PSOF ¶ 15. She was insolent and rude to Judge Weisberg and called the Court of Appeals a ‘gutless court that has very little integrity.’ DSOF ¶ 17. She displayed a shockingly inappropriate understanding of her role at the court.”

“Exercising remarkable restraint, Judge Kessler chose not to terminate her for her gross insubordination. Many employers would have escorted her out of the building.”

Other Benefits to Using Exhibits

Helps keep the story concise. Keeps the audience engaged. Corroborates/enhances

credibility of your evidence. Enhances the record for appeal.

TYPES OF EXHIBITS

“Real Evidence” – Items that, by themselves, provide

facts relevant to disputed issues.

Are admitted into evidence. Examples:

Tangible physical evidence Documentary evidence Recordings

TYPES OF EXHIBITS

Demonstrative/Illustrative Exhibits

These are items that depict or explain facts that are otherwise admitted through testimony or other exhibits.

Examples:Charts, Graphs, SummariesModelsVideo recreations

Sample Demonstrative Exhibit

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THE ART OF SELECTING EXHIBITS

Remember, sometimes less is more - not every exhibit needs to be used.

Consider whether information is better conveyed through testimony. (Ex. - description of pain and suffering).

Consider relevance to the story – subplots are generally not very helpful.

Ensure consistency with trial theme.

Consider complexity of exhibit. (Ex. – blueprints versus a scale model of a building.)

THE ART OF SELECTING EXHIBITS

Anticipate all admissibility challenges.

Why?

Fights over admissibility detract from story, distract the jury, and potentially undermine credibility of the exhibit.

So,

If you have duplicative exhibits, consider which of is easiest to admit without objection.

If you anticipate substantial admissibility hurdles, consider whether you can or should get the information in through testimony instead.

Never assume that just because an exhibit is not admissible the information it conveys cannot come in somehow. (Expert testimony, refreshed recollection, etc.)

PLANNING “WHEN” TO INTRODUCE

Sponsoring witness order of appearance. (Intro. of exhibits may be driven by, or drive, the order of appearance).

(TIP: Because most exhibits

require a sponsoring witness – identify back-ups.)

May adopt a chronological sequence.

May wish to hold certain exhibits for introduction only on cross-examination.

KEY ELEMENTS TO ADMISSION OF EXHIBITS

LEGAL FOUNDATION

ESTABLISHING RELEVANCE

MANAGING CREDIBILITY

GETTING EXHIBITS ADMITTED

STEPS FOR INTRODUCING/ADMITTING EVIDENCE

1. Mark the exhibit.

2. Show to opposing counsel.

3. Give to witness.

4. Establish legal foundation/Authenticate.

(to be continued)

GETTING EXHIBITS ADMITTED

Laying legal foundation – Must prove the exhibit is what it purports to be.

Must establish that the exhibit is relevant to disputed issues.

Procedure

Establish that the witness is competent to testify to the issues – that they are familiar with the operative facts that the exhibit is relevant to, and that they are in a position to confirm the exhibit is what it purports to be.

Establish what the exhibit is and the basis for the witness’s confidence that it is what it purports to be.

Legal Foundation/Authentication

Admitting Demonstrative Exhibits

Do not independently convey relevant facts.

Used to help a witness explain their testimony, or to aid argument.

Generally not admitted into evidence.

Requirements for authentication are different – must show the exhibit will help the witness explain otherwise relevant testimony.

Need to have witness confirm their prior familiarity with the exhibit.

Need to have witness confirm the exhibit is in the same condition it was at the time relevant to the disputed issues.

Exs. –

“Mr. Jones, is that the original of the lease you and Mr. Smith signed in October? Is it in the same condition it was when you signed it?”

“Officer Green, is the mallet you are holding in the same condition it was the night you pulled it out of the defendant’s hands?”

AUTHENTICATING DOCUMENTS AND PHYSICAL EXHIBITS

Who may authenticate?

Need to establish that the witness has personal knowledge of the facts relayed by the recording (photograph, video, audio file, etc.)

Authenticating witness need not be the creator or the originator of the exhibit.

Need to establish that the witness believes the recording is an accurate depiction of the facts they are aware of.

Example:

Q. Does this photo fairly and accurately reflect the scene you saw at the accident site?

AUTHENTICATING RECORDINGS

Sample Photo Authentication

STEPS FOR INTRODUCING/ADMITTING EVIDENCE

1. Mark the exhibit.

2. Show to opposing counsel.

3. Give to witness.

4. Establish legal foundation/Authenticate

5. Anticipate objections

6. Offer the exhibit for admission

7. Allow for objections/voir dire

8. Wait for ruling

9. Publish the exhibit

10. Use the exhibit

GETTING EXHIBITS ADMITTED

What can be used to refresh a recollection?

USING EXHIBITS TO REFRESH RECOLLECTION

Procedure - -

1. Establish the witness had knowledge of relevant information.

2. Establish that witness no longer recalls the information.

3. Establish that the witness might find help remembering by reviewing an exhibit.

4. Show the witness the exhibit.

5. Retrieve the exhibit.

6. Ask the witness if their recollection is refreshed, and, if so, to answer the question.

USING EXHIBITS TO REFRESH RECOLLECTION