Chapter 14: Ch04 Objections And Exhibi RIEHL EDITS

An objection is a strategic act, not a reflex: counsel weighs evidentiary grounds, the decision maker's habits, and the fact finder's reaction before speaking, while exhibits are introduced through a disciplined foundation-mark-show-offer-publish sequence.

Chapter 4

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Objection Procedures

A. Scope

1.01 Why Object?

Decision makers base their decisions on relevant and reliable evidence, and evidentiary rules determine what is relevant and reliable.

Objections seek to exclude evidence and to oppose improper questions, conduct, and procedures. An objection may emphasize an opponent’s evidentiary problems, force the opponent to revise the introduction of evidence, alter the presentation of the case, or secure a strategic or tactical advantage.

All objections create a record and preserve an error as a ground for a new trial or hearing or an appeal. Counsel’s failure to make an objection usually waives any right to an error as a ground for reversal.

GenAI can surface likely evidentiary pinch points, and LLM-backed tools might propose question-objection pairs—in mock arguments, and if permitted by the court, also at trial. Going forward, models may also prompt preservation steps in real time, potentially logging the exact ground and rule citation for appellate clarity.

1.01.1 Type of Case

Rules of evidence govern the admissibility of evidence in trials as determined by the judge. Evidentiary rules are not as rigidly enforced in arbitrations and administrative hearings. Arbitrators and administrative law judges (ALJs a/k/a Judges) and hearing officers (in effect same as ALJs) flexibly apply the applicable rules to their cases.

1.01.2 Evidentiary Considerations

Objections should be planned around the following considerations.

• Gaining a tactical or strategic advantage. If making an objection will help win the case or gain a useful advantage, counsel should assert it. If not, it’s best not to waste the decision maker’s time, energy, and effort.
• Avoid inadvertently helping the opponent. If objecting helps the opponent by calling attention to things that need correcting, it may be smarter not to object.
• The nature of the evidence. The advocate should consider objecting to anything that lacks probative value, is unclear or confusing, is collateral to the issues in dispute, or breaches a rule of evidence. Even if an objection exists, there may be no reason to object unless the improper evidence has an adverse impact on the case.
• The decision maker’s common practice. The inclination of the judge or arbitrator to sustain or overrule an objection influences whether an objection should be asserted. Counsel needs to know how the objection rules are practically interpreted and applied by the decision maker.
• The factfinder’s reaction. Incessant objections may alienate and annoy the fact finder, who may perceive that the objecting advocate is attempting to hide evidence or is acting unfairly by making technical or numerous objections.
• Highlighting specific evidence. It’s likely better to refrain from objecting if an objection highlights adverse evidence and unduly emphasizes or increases its weight.
• Making a clear and complete record. Objections that are stated clearly and have a legal basis will create a viable record and may hold participants accountable for offensive conduct.
• Preservation of an error for post-trial motions and appeal. Objections should be made to preserve an error for possible reversal or appeal.
• The ability of an opponent. Sustained objections may interrupt a poorly prepared or inexperienced opponent, while more experienced opponents won’t be ruffled. Whether an advocate objects to take advantage of an opponent is an ethical decision that must be made considering all the factors, and whether the advocate is acting as an appropriate zealous advocate or an obstreperous meddler.
• Strategic impact. By making appropriate objections, the advocate will appear alert, in control, and knowledgeable; the judge will be more likely to pay attention to subsequent objections; the opponent may be less inclined to offer inadmissible evidence; witnesses will be easier to control; and the fact finder may pay more attention to the presentation of the more competent and skillful advocate.

B. Planning

1.02 Know the Rules of Evidence as Applied

Objections are based on violations of the rules of evidence, local rules of practice, civil and criminal procedure, case law, common sense, and fairness. Not all judges recognize all objections. Even though the rules of evidence may not formally apply, administrative judges or arbitrators use them as a guide. If backed by the forum’s cases, statutes, and rules, LLMs can generate a one-page rules quicksheet—elements, burdens, and exemplar phrasings—with citations to controlling authorities. Beyond that, GenAI can both (1) anticipate likely adverse testimony and (2) provide potential evidentiary objections.

1.02.1 Anticipating Evidentiary Problems

When preparing and presenting evidence, the advocate needs to recognize and understand the potential objections that may be asserted—and structure questions to avoid evidentiary infirmities. Counsel can anticipate potentially inadmissible evidence and prepare objections to that evidence. A motion in limine may be brought before the hearing begins or before a witness testifies—to obtain a ruling on the admissibility of evidence before it is introduced. See § 1.09. The judge or arbitrator may rule on admissibility, which helps the advocates decide what evidence to offer. GenAI can map anticipated evidence to likely objections and in-limine rulings, and it can also script safe rewrites to cure foundation, hearsay, or related problems before they arise.

1.02.2 What Is Admissible and Why?

The judge or arbitrator decides what is admissible and may make preliminary decisions regarding the admissibility of evidence ([FRE 104](https://www.westlaw.com/Document/N34D75250B96D11D8983DF34406B5929B/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0" \o “https://www.westlaw.com/Document/N34D75250B96D11D8983DF34406B5929B/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0)). The fact finder (e.g., the jury or the professional) decides the evidentiary weight or probative value.

1.03 How to Make Evidentiary Objections

The process of making evidentiary objections includes two separate decisions:

• Is there a legitimate, good-faith available objection supported by the law and rules of evidence?
• Is there a valid strategic or tactical reason for making the objection?

An advocate must make split-second decisions whether to object while concentrating on everything else happening in the trial or hearing. This skill is learned and enhanced through practice and experience. Suggestions to increase the ability of counsel to think quickly include:

• Become familiar with the types of common objections
• Consider whether the evidence is relevant and reliable
• Learn to recognize evidentiary patterns that create objectionable situations
• Plan a list of objections to anticipated evidence
• Concentrate on the evidence as it’s being introduced
• Listen and watch the examination attentively
• Rely on common sense
• Be prepared to make mistakes and lose an objection
• Prepare to be surprised and anticipate the unexpected
• Observe the judge/arbitrator to see if an objection is encouraged
• Rehearse making objections to anticipated evidentiary problems

During trial and hearing practice and rehearsal, LLM-backed tools can flag questions in real time—and might suggest curative alternatives.

1.03.1 Deciding Whether to Make Objections

Whether an objection should be made depends on the evidentiary value and impact. The more critical the evidence is to winning or losing, the more likely the objection should be made. Four basic guidelines assist in determining whether to object to inadmissible evidence:

• If the evidence is clearly admissible, don’t object.
• If the offered evidence is clearly inadmissible and harmful, object.
• If the evidence is probably inadmissible but not harmful, consider not objecting, or object but do not pursue the issue if overruled.
• If the witness answering the question will reveal favorable or neutral information, don’t object.

1.03.2 Making Alternative Objections

Objections that may be available to the same piece of evidence include:

• Improper question form
• Irrelevant
• Cumulative
• Unfairly prejudicial
• Lack of foundation
• Improper opinion
• Hearsay
• Original writing (best evidence) required

1.03.3 Explaining Why No Objection Is Made

In some circumstances, informing the fact finder why no objection is made may make the advocate appear more confident than merely saying, “We have no objection, Your Honor.” The advocate may state: “We want the jurors to hear this testimony,” or “We agree that the jurors should see this exhibit,” or “We want your Honor to have the benefit of this evidence.”

1.03.4 Accepting an Objection by Invitation

A judge may occasionally look at opposing counsel when evidence is being introduced and ask “Any objections?” This may be a routine practice—or it may be a signal the judge would sustain the objection. An advocate should not object merely because the judge believes an objection ought to be made, but rather the advocate should reconsider and assert an objection if a strategic reason exists for doing so.

C. How to Present Objections

1.04 How to Object

Typically, judges require or expect an advocate to stand when objecting. The advocate may say “I object” while seated and then stand to state the reason for the objection. The extra time gained while standing may help to coalesce and frame an objection. Typically, in arbitrations and administrative law cases, objections may be made while seated.

1.05 When to Object

An objection must be timely made:

• If a question is improper, the objection must be made before the answer is given.
• If a question is proper but the response is inadmissible, an objection needs to be interposed as soon as the inadmissible nature becomes apparent.

If the examiner is asking questions too rapidly, or if the witness is answering questions quickly, the judge or arbitrator may be asked to instruct the questioner or witness to proceed at a more-reasonable pace, which provides a fair opportunity to object before the witness responds.

1.06 How to Assert a Proper Objection

The proper way to object in most jurisdictions is to say “objection” and state the specific ground or grounds with a few identifying words. Using the name or title of the rule involved is usually sufficient: “Objection, hearsay” or “We object, Your Honor, on the grounds of hearsay.” More than one ground may support an objection, and all applicable grounds should be stated. It can be helpful to refer to an evidentiary rule number, if the decision maker relies on them.

1.06.1 Speaking Outside the Hearing of the Jury

Jurors should not be influenced by inadmissible evidence or the explanations of counsel. Speaking objections—objection-related arguments made in front of the jury—are rarely appropriate. If an advocate needs to explain an objection further, the advocate should seek permission to approach the bench, so the jurors cannot hear.

1.06.2 The Applicable Law

Advocates often know before a trial or hearing that they will be opposing the introduction of particular evidence. The evidentiary admissibility may not be clear, and a concise memo can be prepared in advance and relied on at the time of the objection, and even given to the judge or arbitrator and opposing counsel.

1.06.3 Demeanor

Objections and responses should always be directed to the judge or arbitrator—not the opponent. Counsel should speak with a firm tone of voice while appearing calm and displaying an air of professionalism.

1.06.4 Reacting to the Objection

Seeking expediency, some judges and arbitrators may pressure advocates to not make objections. If the decision maker interferes with the assertion of objections, the objecting party may place on the record that the interference is improper and adversely affecting the case.

1.06.5 Making Continuing Objections

If an objection is overruled, and similar questions are subsequently asked, the advocate may consider making a “continuing” objection to a series of related questions. The grounds for a continuing objection should be stated clearly. Continuing objections are not recognized in all jurisdictions—or they may be ineffective if it’s not clear what objection is asserted to what evidence.

1.07 Responding to Objections

The examining lawyer need not say anything unless instructed to or encouraged to do so by the decision maker. Counsel may argue an objection when appropriate or necessary—and may provide authority for evidentiary admissibility or may make an offer of proof.

1.07.1 Presenting Contrary Evidence

Contrary evidence demonstrates that an objection should be sustained. An objecting advocate may have an opportunity to introduce contrary evidence before the judge rules on the exclusion motion.

1.07.2 Questioning the Witness

The most common way to introduce contrary evidence is through questioning of the witness (voir dire), which allows the opposing advocate to interrupt the examination and question the witness with leading questions to provide facts or information why the objection should be sustained. For example, an objection on the grounds of lack of competency may allow the objecting advocate to ask questions of the witness to support the objection. If the advocate appears able to establish the inadmissibility of the evidence, decision maker may allow the examination to be interrupted and permit contrary evidence.

1.07.3 Extrinsic Evidence

Contrary evidence from a source other than the witness on the stand, such as another witness or a document, may be admissible in very limited circumstances, for example, to support a claim of privilege.

D. Evidentiary Rulings

1.08 Broad Discretion

Judges and arbitrators have extensive discretion within the bounds of the rules in making evidentiary rulings. The general standard is whether there exists evidence sufficient to support a conclusion that the objection applies and the question is improper or the answer is inadmissible.

1.08.1 Prompt Ruling

Ordinarily, the judge or arbitrator rules immediately after an objection and says “sustained” (the objection is valid) or “overruled” (the objection is denied). Even if the question or answer is objectionable, but the objecting advocate states an incorrect ground, many decision makers decline to sustain an objection—instead requiring the objecting advocate to identify the correct ground.

1.08.2 Provisional Ruling

The decision maker may make a provisional ruling, which can be reconsidered later. The main reason is that later-introduced evidence might eventually reveal the evidentiary admissibility. When that later evidence is introduced, the original ruling can be re-evaluated.

1.08.3 Inquiring About a Ruling

If the ruling is unclear or clearly wrong, advocates may ask the judge or arbitrator to explain or reconsider the decision. For example, if an objection is sustained for lack of foundation, the examining advocate can ask what foundation is lacking—or may make an offer of proof demonstrating the proper foundation. Decision makers don’t often change their mind without a good reason, and will not acknowledge a mere request to reconsider.

1.08.4 Pursuing an Objection

If an objection is overruled, rather than inquiring about the ruling, counsel can pursue the objection by objecting to subsequent related questions. If the question was not completed or if an objection was premature regarding foundation, the objection can be restated after the next objectionable question.

1.08.5 Obtaining a Ruling

A judge or arbitrator may fail to make a ruling on an objection for whatever reason. Advocates have a right to a ruling—and should insist on one.

E. Motion In Limine

1.09 Threshold Motion

A motion in limine (meaning “at the threshold”) seeks an advance ruling regarding evidentiary admissibility or inadmissibility. Motions in limine may be made before or during a trial, arbitration, or administrative hearing. These motions are used more frequently in jury trials, ensuring that jurors hear and see only evidence that’s relevant and reliable.

1.09.1 Making a Motion In Limine

Motions in limine may be brought for several purposes:

• To prohibit the opponent from introducing or mentioning objectionable evidence.
• To require the opponent to obtain a ruling on admissibility before evidence is offered.
• To obtain a preliminary ruling that evidence offered by the proponent is admissible.

1.09.2 In Limine Procedure

Motions in limine may be made either in writing or orally on the record, depending on the nature of the issue and the rules. In limine motions usually require that the opponent receive reasonable advance notice. The timing of the notice depends on the extent of the requested relief and the evidence in question. The motion should state the specific outcome sought and the grounds supporting the motion.

LLM-backed tools can surface evidentiary disputes early by scanning pleadings and discovery for hearsay, prejudicial evidence, and expert-scope issues. GenAI can also group exhibits by objection type, ranking high-risk items for targeted motions. Tools can draft precise preclusion phrasing that bars “direct or indirect” references, accurately defining forbidden topics.

1.09.3 In Limine Order

Judges and arbitrators may respond to motions in limine in several ways:

• Refuse to hear the motion because it is untimely.
• Defer the ruling on the motion until later in the case.
• Deny the motion but permit the moving party to bring the motion again for reconsideration at a later time.
• Grant the relief sought in the motion in limine.
• Enter a conditional order requiring that only certain facts be introduced into evidence.
• Grant a motion and preclude any introduction and reference either directly or indirectly to the inadmissible evidence.

1.09.4 Preserving Error

A ruling on a motion in limine preserves that evidentiary issue as a ground for a new trial or hearing. In some jurisdictions, the losing party may need to bring a post-trial motion to preserve the issue.

1.09.5 Violation of Order

Violating an in limine order may result in a new trial or reversible error if an egregious mistake cannot be corrected—and an attorney’s intentional violation may subject that offending attorney to sanctions.

F. Objection Procedures

1.10 Offers of Proof

If an objection is sustained, the examiner must make an “offer of proof” to preserve the error for post-trial or appellate review. The offer describes the excluded evidence to demonstrate its admissibility and significance.

1.10.1 Making an Offer of Proof

There are three ways to make an offer of proof:

• Summary Offer of Proof. The testimony may be summarized by the attorney or the record. This is the most common method.
• Question/Answer Format. Witnesses may be questioned to provide the purported evidence.
• Submission of Testimony. A written statement of the anticipated testimony may be submitted for the record.

1.10.2 Reconsideration of Ruling

The offer of proof provides an opportunity for the advocate to explain why the evidence is admissible—and also provides an opportunity for a reconsideration of the original ruling.

1.11 Motion to Strike

After an objection has been made and sustained, a party may make a motion to strike, asking that the factfinder not consider the improper statement or inadmissible evidence. Nothing is actually stricken from the record, which must include everything that occurs in a trial or hearing. A motion to strike should be used if required to preserve the record or to satisfy a local rule or the preferences of the decision maker. See Chapter 1, § 3.20.4.

1.11.1 Request for Curative Instruction in a Jury Trial

This instruction, requested by the attorney harmed by the improper question or objectionable evidence, attempts to repair the harm done. The judge instructs jurors to disregard what they heard or saw. Of course, it’s difficult (or impossible) to “unhear” or “unsee” something. And highlighting the objectionable event may make it more memorable for the jurors. If it is a key piece of adverse evidence, counsel can remind the jurors in summation they were told by the judge not to consider that evidence.

1.12 Limited Admissibility

Evidence that is admissible for one purpose, but not for another, may be admitted for that limited purpose. See § 1.02. Advocates can seek evidentiary admission by explaining the limitations. For example, an email may be admitted to show that a response was sent, but not to prove its contents (which contains inadmissible hearsay).

1.13 Objections to Questioning by the Decision Maker

Advocates may object to any question asked by a judge or arbitrator that violates a rule of evidence. These decision makers may ask questions of a witness to clarify a response. Most judges do not exercise this right in jury trials. It’s more likely to occur in court trials, arbitrations, and administrative hearings.

1.14 Preserving Evidentiary Error

A timely objection memorializes the issue on the record. All available grounds for an objection should be specifically stated including the evidentiary errors that may be used in a motion for a new trial or hearing and on appeal.

1.14.1 Motion for Mistrial

Inadmissible evidence that has been improperly admitted may be a ground for a mistrial or a new hearing. The inadmissible material evidence must be so unfairly prejudicial that a party is denied a fair hearing. See Chapter 1, § 3.20.8.

1.14.2 Prejudicial and Harmless Error

Significant prejudicial errors may affect the outcome of a trial or hearing requiring it to be reversed. Most evidentiary mistakes constitute harmless error—which do not adversely affect the outcome of the trial or hearing. Only highly prejudicial evidentiary errors support a new trial or hearing.

1.15 Appellate Review

Trial judges have substantial discretion to determine what evidence to admit and what to exclude. Many judges admit questionable evidence, leaving it to jurors to determine its value and weight. Appellate courts seldom reverse evidentiary rulings, although excluded evidence is more likely a basis for reversal than admitted evidence.

Evidentiary Objections

A. Objections to Direct

Examination Questions

2.01 Common Objections

There are regular objections that may be available to assert during direct examination.

2.01.1 Leading

Leading questions are improper because they provide or suggest the answer, and in effect the advocate is testifying, not the witness. A limited number of leading questions are permitted in direct examinations and are allowed in all cross-examinations ([FRE 611(c)](https://www.westlaw.com/Document/N74DC8840C0F511D8A8CA80DCF7582C6A/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0" \o “https://www.westlaw.com/Document/N74DC8840C0F511D8A8CA80DCF7582C6A/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0)). See Chapter 3, §§ 1.07.1 & 2.06.1.

Responses to objection:

• Rephrase the question and ask a nonleading question.
• Explain that the question falls within one of the permissible uses of leading questions on direct.
• Explain that if the decision maker permits a reasonable number of leading questions, the trial or hearing will proceed more efficiently.

2.01.2 Narrative Answer (FRE 611)

Advocates may object to a question that calls for a narrative—or for an answer that turns into a narrative. An improper narrative allows the witness to tell a long, uncontrolled story. Because the answer is not directed, an advocate may not be able to anticipate the testimony or object to improper evidence before it’s heard by the fact finder. Tactically, letting a witness ramble might be beneficial—especially if the uncontrolled testimony makes the opponent’s direct examination ineffective.

Responses to objection regarding narratives:

• Politely interrupt the witness and stop the rambling.
• Ask a specific question to maintain control of the examination’s direction.
• Explain that the narrative questions save time, or cover preliminary or uncontroverted matters, or do not involve significant issues in the case.
• Say to the witness, “I’ll ask you specific questions so you can give specific answers.”

2.01.3 Nonresponsive/Volunteered Answer (FRE 611)

A nonresponsive answer occurs when a witness provides unrequested information. The response that goes beyond the scope of the question is objectionable—and can legitimately be prohibited.

Responses to objection:

• Interrupt the witness politely, asking the next question.
• Ask more specific questions, requiring the witness to give shorter answers.

2.01.4 Vague and Ambiguous Questions (FRE 611)

Questions should be clear. They must not be vague as to time, circumstance, and events. Tactically, there may be no advantage in objecting if the questions are so confusing that they make little sense—and the direct examination becomes ineffective.

Responses to objection:

• Rephrase the question to make it clearer.
• Ask the witness if the question was understood.
• If the objection is overruled, request that the reporter read back the question to show how clear the question was and how the opponent is attempting to interrupt a proper examination.

2.01.5 Cumulative Evidence (FRE 403, 611)

Cumulative evidence is repetitious. A series of witnesses testifying to the same event—or a series of exhibits providing identical information—would be repetitive and unnecessary. It is proper and appropriate to offer additional evidence to support an issue, as long as the evidence is not overly duplicative.

Responses to objection:

• Explain that the evidence is not repetitive and that it adds important details to the case.
• Describe the information as corroborative evidence from additional sources needed to buttress the facts being proved.
• If the objection is sustained, continue the questioning and attempt to introduce the evidence during a later stage of the examination when it appears admissible.

2.01.6 Misstatement of Evidence (FRE 611)

The misstatement or mischaracterization of evidence is objectionable because it inaccurately describes evidence.

Responses to objection:

• Describe evidence that has already been introduced that refers to the question or answer.
• Explain that the characterization in the question or answer is a proper admissible opinion.
• Assert that later-introduced evidence will support the question or answer—and ask that the testimony be accepted conditionally subject to the later evidence being proffered.

2.01.7 Assuming Facts Not in Evidence (FRE 611)

This objection is used to object to questions that assume facts that have not been introduced in evidence.

Responses to objection:

• Revise the question, removing the questionable facts.
• If the witness can describe the facts, allow the witness to testify to the facts.

B. Objections to Cross-Examination Questions

2.02 Appropriate Objections

Various objections may be made to cross-examination inquiries.

2.02.1 Repetitious Questions (FRE 403, 611)

If a question has been asked and answered, questions seeking the same information are objectionable. The question doesn’t have to be identical. This objection is also known as “asked and answered.” It prevents the opponent from gaining undue advantage by repeating testimony.

Responses to objection:

• Clarify that the point needs to be emphasized on cross-examination.
• Explain that the witness is being evasive, requiring similar and related questions to pin the witness down.
• Move to the next line of questioning, emphasizing the point during summation.

2.02.2 Misleading or Confusing Questions (FRE 403)

A question must be reasonable, clear, and specific.

Responses to objection:

• Rephrase the question so it is not misleading or confusing.
• Ask if the witness understands the question.

2.02.3 Multiple or Compound Questions (FRE 403, 611)

A multiple or compound question includes two or more questions within a single question. These types of queries are objectionable because answers are ambiguous.

Response to objection:

• Repeat one of the questions, ask the witness to answer that question, then ask the other.

2.02.4 Mischaracterization of Evidence (FRE 611)

This objection addresses questions that include facts not in evidence or statements that improperly misstate or mischaracterize the evidence. These questions may be an attempt to trick the witness or may be improperly argumentative.

Responses to objection:

• Introduce the relevant evidence before asking the question.
• Explain that the evidence has been introduced previously, referring to that evidence.
• Describe that related evidence will be introduced at a later stage, asking that this evidence be accepted conditionally subject to its subsequent proof.
• Assert that one of cross-examination’s purposes is to test witness memory and credibility—and that the witness can deny the asserted facts if the witness disagrees with the assertion.

2.02.5 Argumentative Questions (FRE 611)

Any question that is essentially an argument is improper because it either elicits no new information, or it harasses the witness. Often an argumentative question is delivered in a sarcastic or loud tone.

Responses to objection:

• Repeat the question, changing the tone so that the question does not sound argumentative.
• Ask the question again, eliminating the objectionable comment.

2.02.6 Improper Impeachment (FRE 613)

Improper impeachment is an attempt to improperly discredit a witness. A cross-examiner may attempt to impeach the witness on a collateral, unimportant, or irrelevant matter, or attempt to impeach the witness with a prior statement that is not materially inconsistent or was made by another person.

Responses to objection:

• Explain how the impeachment is not collateral or how the prior statement is not materially inconsistent.
• Ask additional cross-examination questions that establish the impeachment’s relevancy and importance.

2.02.7 Beyond the Scope (FRE 611)

Cross-examination is restricted to the subject matter of the direct examination and matters relating to the witness’s credibility. Since credibility is always an issue, the scope of cross-examination is quite broad. A cross-examiner may be permitted to raise new relevant matters during cross at the discretion of the judge or arbitrator. Otherwise, questions that go beyond the permissible scope of the examination are objectionable.

Responses to objection:

• Identify testimony from direct examination that relates to the cross-examination question.
• Explain that the question relates to the credibility of the witness or another witness.
• Ask the judge to exercise discretion, allowing questions beyond the limited scope of direct.
• Explain that if these questions are prohibited at this stage, the witness will be recalled at a later stage of the case—and doing so will cause delay, create confusion, and inconvenience the witness.

C. Objections Based on Exclusionary

Rules of Evidence

2.03 Exclusionary Evidence Rules

The exclusionary rules of evidence can be grouped into the following categories:

• Irrelevant and unfairly prejudicial evidence
• Privileged information
• Lack of personal knowledge and improper opinion
• Lack of foundation for documents and other exhibits
• Constitutional limitations in criminal cases
• Hearsay

The judge or arbitrator is the gate keeper who decides whether evidence is to be excluded.

2.04 Irrelevant Evidence (FRE 401–403)

Relevant evidence is admissible if it has any tendency to make a fact of consequence to the case more or less probable. ([FRE 401](https://www.westlaw.com/Document/N4DE88ED0B96D11D8983DF34406B5929B/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0" \o “https://www.westlaw.com/Document/N4DE88ED0B96D11D8983DF34406B5929B/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0) & 402) Evidence is relevant if it tends to make a fact either more likely—or less likely—to prove a point or to support an issue ([FRE 401](https://www.westlaw.com/Document/N4DE88ED0B96D11D8983DF34406B5929B/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0" \o “https://www.westlaw.com/Document/N4DE88ED0B96D11D8983DF34406B5929B/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0)). Relevant evidence may be excluded when the probative value is substantially outweighed by its prejudicial effect ([FRE 403](https://www.westlaw.com/Document/N5CA04210B96D11D8983DF34406B5929B/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0" \o “https://www.westlaw.com/Document/N5CA04210B96D11D8983DF34406B5929B/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0)). Most relevancy objections involve circumstantial evidence that requires the drawing of a weak or remote inference. To admit the evidence, the examining advocate may provide an explanation. The relevancy of specific evidence may be conditioned upon the subsequent proof of supporting facts. See § 1.08.2.

2.04.1 Immaterial Evidence (FRE 401–402)

Immaterial evidence is inadmissible because it is not of evidentiary consequence to the case. In the past, immateriality was a distinct objection. Irrelevancy has subsumed immateriality under the rules, and “irrelevant” is the appropriate ground for an objection.

2.05 Unfairly Prejudicial (FRE 403)

Unfairly prejudicial evidence is inadmissible, even if it is relevant. All evidence is in some way prejudicial—because it hurts one side or the other—but only unfairly prejudicial evidence is inadmissible. The prejudicial effect must substantially outweigh its probative value. For example, evidence that appeals primarily to passion and not the facts and law is inadmissible. Further examples follow.

2.05.1 Improper Character Evidence (FRE 404–405)

Character traits are usually inadmissible as they are not permitted to prove that a person acted in conformity with those traits on a particular occasion. For example, evidence of a character trait demonstrating negligence is usually inadmissible in a tort case.

2.05.2 Habit Evidence (FRE 406)

Habits are generally permitted to prove a person acted in a certain way, according to their routine. For example, if a pilot runs the pre-flight checklist before every takeoff — that’s admissible to show the pilot ran the checklist before the fatal flight.

2.05.3 Subsequent Remedial Measures (FRE 407)

The term “subsequent remedial measures” refers to actions taken after an event which, if taken before, would have made the event less likely to occur. An example would be repairing a car’s brakes after an accident caused by faulty brakes. Such inadmissible evidence is unfairly prejudicial and may be misleading because it implies a recognition of liability. On the other hand, such evidence is admissible when the issue to be proved involves controverted matters of ownership, control, feasibility of precautionary measures, or impeachment of a witness.

2.05.4 Offers of Compromise (FRE 408)

Evidence of offers to resolve a dispute is inadmissible because the offer could be interpreted as an admission of liability. Evidence of a compromise offer may be admitted as an exception to the general rule to prove bias of a witness or to rebut a contention of undue delay.

2.05.5 Payment of Medical Expenses (FRE 409)

Similarly, offers to pay for medical expenses may not be offered to prove liability for a personal injury.

2.05.6 Plea Bargains (FRE 410)

A person accused of a criminal offense may offer to plead guilty to a lesser offense and avoid trial. A person may also offer to plead nolo contendere, neither admitting nor denying guilt. These offers may not be used as admissions of guilt and may not be used as subsequent evidence. If a guilty plea is entered, but later withdrawn, it too is inadmissible.

2.05.7 Liability Insurance (FRE 411)

The existence or nonexistence of insurance coverage is not admissible regarding an issue of negligence or wrongful actions. It is admissible if offered to prove agency, ownership, control, bias, or impeachment.

2.05.8 Religious Beliefs or Opinions (FRE 610)

Religious beliefs or opinions are not admissible as evidence to enhance or diminish witness credibility.

2.06 Privileged Communication (FRE 501)

A privileged communication consists of a communication between persons having a confidential relationship. Protecting this privilege encourages open, honest, communication between special individuals. Statements made under the protection of a privilege are not admissible unless the privilege is appropriately waived.

2.06.1 Attorney/Client Privilege

For this privilege to attach, a professional relationship must exist between an attorney and a client who seeks legal advice—and a communication intended to be confidential needs to be made between the attorney (or agent of the attorney) and the client, who is the holder of the privilege.

2.06.2 Doctor/Patient Privilege

This privilege covers a professional relationship between a doctor and a patient who seeks medical assistance—and a communication regarding medical advice made between the doctor (or medical assistant) and the patient, who is the holder of the privilege.

2.06.3 Marital Communication Privilege

This limited privilege requires a valid marital relationship—and confidential private communications between spouses made during the marriage.

2.06.4 Waiver of Privilege

Any privilege may be waived if alternatively:

• The holder or attorney, with the consent of the holder, knowingly and expressly waives the privilege.
• Voluntary disclosure of the privileged information occurs during discovery or trial (see [FRE 502](https://www.westlaw.com/Document/N70C0CBE0898211DDADD3DD882F0DF02B/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0" \o “https://www.westlaw.com/Document/N70C0CBE0898211DDADD3DD882F0DF02B/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0)).
• No objection is made to an inquiry eliciting privileged communications.
• The privileged matter is knowingly discussed in the presence of a third person.
• An eavesdropper without using surreptitious means overhears a privileged communication.
• The holder raises a claim or defense that places the privileged matter in issue.

D. Foundation Objections

2.07 Lack of Personal Knowledge/Improper Opinion (FRE 601–602)

A witness may not testify to a matter unless that witness has personal knowledge of the matter or the matter is a proper subject for a lay person’s opinion. A witness who lacks sufficient knowledge to support a relevant fact or opinion is not competent to testify to that proffered evidence.

2.07.1 Lack of Foundation (FRE 901–903)

Foundation is preliminary information that must be established before specific evidence is admissible. Foundation objections prevent the introduction of unfounded facts or opinions or force the opposing advocate to provide the missing information. It may be strategically beneficial not to object to the missing element of foundation, as the evidence will look more relevant with the additional information. It may be more effective not to object and to point out the missing elements during summation.

2.07.2 Lack of Foundation for Expert Opinion (FRE 702–705)

Expert opinions are admissible to provide information that is beyond the fact finder’s abilities to know or understand. See Chapter 3, § 3.01. An expert opinion is not admissible if:

• The information is not scientific, technical, or otherwise based on specialized knowledge, or
• The area of expertise is not recognized, or
• The expert has insufficient expertise, or
• The opinion is unreliable, or
• The opinion will not assist the fact finder understand the facts or render a proper decision.

The judge or arbitrator, as the gatekeeper, decides whether the witness is qualified as an expert and whether their opinion is admissible. The grounds for specific objections seeking to exclude experts and their opinions depend on the reasons why the evidence is inadmissible. See Chapter 3, § 3.05.

2.07.3 Lack of Foundation for Lay Witness Opinion (FRE 701)

Lay witness opinions and conclusions are only admissible if they’re rationally based on the witness’s perception and help the fact finder understand the facts. Permissible lay opinions include speed, distance, time, appearances, conditions, emotions, age, health, sobriety, value of personal property, and other rational perceptions.

2.07.4 Speculation (FRE 602, 703)

Objectionable forms of opinion testimony include questions asking the witness to guess or engage in conjecture. Witness speculation as to what could have happened or should have happened usually has little or no probative value.

E. Document Objections

2.08 Admissibility of Documents

Four evidence rules determine the admissibility of a document:

• Relevancy (see § 2.04)
• Hearsay (see § 3.01)
• Authentication (see below)
• Original writing (see following)

Whenever a document is introduced, the opponent should scrutinize every part of it and object to any portion that is inadmissible.

LLM-backed tools can parse a document for potential objections. GenAI tools might also propose non-hearsay purposes or exceptions for each statement, as well as counterarguments supporting each statement’s admissibility.

2.08.1 Lack of Authentication (FRE 901–902)

Writings and paper and electronic documents must be authenticated to be admissible—that is, they must be shown to be what they purport to be. A lack of authentication objection is similar to a lack of foundation objection.

2.09 Original Writings (FRE 1001–1007) (a/k/a Best Evidence Rule)

This rule applies to writings, documents, emails, electronically stored information, recordings, photographs, and all related materials. Originals and duplicate originals may be introduced to prove the contents unless the authenticity is questionable. Electronic document data includes the original native format and all metadata. The rule does not apply to oral testimony. The rule does provide that if the original or copies cannot be obtained, other evidence as to the contents is admissible. The modern rule is called the “original writings” rule, which has also been called the “best evidence” rule. See § 4.04.2.

2.09.1 Oral Testimony Admissible

There are a few situations when oral testimony is reliable and permitted to be offered without the need for the original writing:

• Signs, Titles, Labels, Tags. Oral testimony about signs, titles, headings, labels, and tags is admissible because it involves only a few reliable words on these items.
• Independent Facts. Facts that exist independent of a document—and that the witness knows—may be established without requiring the document. For example, a tenant can testify to the rent due date without producing the lease agreement.
• Collateral Matter. Oral testimony concerning a document is permissible if the issue being testified to is indirectly related and not significant to an important issue in the case.

2.09.2 Parol Evidence Rule

The parol evidence rule provides that a written agreement cannot be contradicted or modified orally. Exceptions include ambiguous writings, fraud, or incomplete writings.

F. Constitutional Limitations

in Criminal Cases

2.10 Constitutional Criminal Privileges

Federal and state constitutional provisions establish limitations for admitting evidence in a criminal case. Evidence obtained through means that violated the defendant’s constitutional rights will be inadmissible, even if relevant. And constitutional provisions create privileges, exemplified by the privilege against self-incrimination, which defendants may assert to protect them from testifying.

G. Improper Objections

2.11 Generally Improper Objections

Certain objections are improper, inapplicable, inappropriate, or not recognized in a jurisdiction.

These grounds include:

• Irrelevant, immaterial, and incompetent (too general)
• Improper and unfair (too ambiguous)
• Self-serving (evidence is usually self-serving)
• Prejudicial (must be unfairly prejudicial)

H. Objection Checklist

2.12 Common Legal Objections Checklist

2.13 Improper Form of Questions Checklist

Hearsay

A. Hearsay Evidence

3.01 Introduction to Hearsay (FRE 801–904)

Hearsay occurs when a witness testifies to a statement made out of court. The statement may be made by that witness or another person. Hearsay involves one or more defects that make it unreliable:

1. The fact finder can’t gauge the credibility or sincerity of the declarant when the statement was made.

2. The out-of-court statement might not be repeated accurately.

3. The declarant was not under oath when the statement was made.

4. It may not be possible to cross-examine the declarant.

Hearsay is inadmissible if it is unreliable. Most “hearsay” statements are permitted because they are sufficiently reliable, do not qualify as hearsay, or fall under an exception. The following sections explain the basis for admissible hearsay.

3.01.1 Hearsay Definition (FRE 801)

There are three essential factors to a hearsay statement:

• The communication method. Hearsay statements may be oral, written, or asserted conduct.
• The location when the statement was initially made. Hearsay statements must be made out-of-court—and repeated in court or at the hearing.
• The purpose for which the statement is offered. The out-of-court statement must be offered to prove the truth of what the statement says.

3.02 Out-of-Court Statements (FRE 802)

The following sections explain admissible out-of-court statements:

3.02.1 Statements Not Offered for the Truth of the Matter Asserted

Statements not offered for the truth of the matter asserted are not hearsay—and may be admissible. If the proponent offers the statement for a reason other than its truth, it will be admitted. For example, if the statement “I know it” is offered to prove the declarant could speak, it’s admissible for that purpose.

3.02.2 Nonassertive Conduct

Nonassertive conduct is conduct that the actor doesn’t intend to establish the matter to be proved—and it is not hearsay. An example would be someone testifying: “I saw people wearing heavy coats outside.” The people’s nonverbal conduct is nonassertive because they didn’t intend their acts to stand for the asserted proposition: it was cold outside.

3.02.3 Nonproposition Questions

Nonproposition questions aren’t hearsay—because they don’t assert a proposition. Most questions that are part of a relevant conversational dialogue are admissible. Both the question itself and the response to the question must be individually reviewed to determine if they are admissible. Two examples:

• “Did he say: ‘Are you having fun yet?’ " is admissible—because it does not contain a proposition.
• “Did he say: ‘Are you having fun here at the fair?’ " may be inadmissible—because it asserts the proposition that they are at the fair.

3.02.4 Verbal Acts

Verbal acts or “operative words” are not considered hearsay—because they are not offered for their truth but for their legal significance. The most common examples are words of contractual offers and acceptance or defamatory words spoken to establish slander. This proposition permits the admission of conversations about contractual terms and libelous statements.

3.02.5 Declarant Not a Person

A statement is hearsay only if made by a person. A result produced by an inanimate object—or the conduct of an animal—is not hearsay. For example, a statement by a raven who says “nevermore” is not hearsay.

3.02.6 Party Admissions (FRE 801(d))

Any statement made by an opposing party—or the party’s agent, employee, or representative—is not hearsay and is admissible when offered against that same party. Anything an opposing party said or did that is relevant to the case will be admissible. This broad proposition admits all statements made by an opponent or a representative acting on behalf of an opponent. The statements do not need to be “admissions”—they can be any statement.

3.02.7 Prior Statements by Witnesses (FRE 801(d)(1))

Prior inconsistent statements by a witness under oath at a trial, hearing, deposition, or other proceeding are admissible as substantive evidence of the statements made. Other inconsistent statements may be used to impeach a witness. Prior consistent statements may be used to rebut an indirect or express charge against the witness of recent fabrications or improper influence or motive. These statements, if admissible, are usually offered on cross or redirect examination.

3.02.8 Prior Identification (FRE 801(d))

Prior identification of a person made by a witness after observing the person is admissible—if the declarant testifies at trial and is subject to cross-examination. This proposition permits as evidence a description of a defendant given to the police by a victim or witness.

3.03 Hearsay Myths

Myths regarding hearsay arise from a misunderstanding of the application of the hearsay rules:

• Out-of-court statements are inadmissible. False. Many or most are admissible.
• A witness on the stand can testify to whatever the witness has said in the past. False. It is still a form of hearsay because it is a statement made out of court and repeated in court. If the witness is a party, the statement will quite likely be admissible as a party admission.
• If a witness can be cross-examined, then all of the witness’s prior statements are also admissible. False. They may still be hearsay and only admissible as an exception, such as a prior inconsistent statement offered to impeach or a prior consistent statement offered to rebut.
• If the proper foundation is laid to authenticate a relevant document, then the document is admissible. False. It may still be inadmissible hearsay. Foundation and relevancy are only two bases for the document admissibility. The document’s contents still require an assessment for inadmissible hearsay.
• Affidavits (statements made under oath) are admissible. Wrong. They are hearsay and are subject to the hearsay rules.
• Affidavits are admissible if the witness is unavailable. *Really wrong. *They are still hearsay and may only be admissible as a prior inconsistent or consistent statement.
• There is always a hearsay exception that makes the hearsay statement admissible. No. The rules only permit relevant and reliable hearsay.

B. Hearsay Exceptions (FRE 803–804)

3.04 Scope of Exceptions

The Federal Rules of Evidence have codified twenty-nine separate exceptions, and many states allow for more. The exceptions recognize that many hearsay statements are reliable and trustworthy, whether or not the declarant is available to testify. Some exceptions apply only if the declarant is available: these include specific types of statements and certain types of records as described in Section 3.06. Other exceptions only apply if the declarant is unavailable to testify as explained in Section 3.07. Documentary records may be admissible if they fall within a recognized category of reliable documents, as described in Section 3.08. Still another and last exception may be available in unusual circumstances under the residual exception rule summarized in Section 3.09.

3.05 Statements

3.05.1 Present Sense Impressions (FRE 803(1))

Statements describing or explaining an event or condition made while the declarant was perceiving the event or condition or immediately thereafter are admissible as present sense impressions. These spontaneous statements are deemed reliable because of the lack of time for reflection. This is a very common exception, which permits many statements to be admitted.

3.05.2 State of Mind or Body Exceptions (FRE 803(3))

Spontaneous statements by the declarant regarding the declarant’s own mental, emotional, or physical condition are admissible. Statements about past conditions are not admissible. This is also a very common exception, which permits numerous statements to be admissible.

3.05.3 Excited Utterances (FRE 803(2))

Statements made by the declarant while under stress or excitement that relate to a startling situation are admissible. The rationale for this exception is that spontaneous statements made under stress or during a startling event are reliable because a person does not have time to fabricate such statements.

3.05.4 Medical Treatment Statements (FRE 803(4))

Statements made by a person who describes medical history, past or present pains, or symptoms to a medical professional for purpose of diagnosis or treatment are deemed reliable and admissible because persons seeking diagnosis have an incentive to be accurate.

3.05.5 Reputation Evidence (FRE 803(21))

Reputation evidence is admissible hearsay if it is a relevant hearsay statement regarding reputation, or personal or family history, or general history or land boundaries or customs, or character among associates or in the community.

3.06 Declarant Unavailable to Testify at Trial or Hearing

Some hearsay statements are only admissible if the declarant is unavailable. Unavailability includes situations where the declarant:

• Is absent from the jurisdiction and unobtainable through subpoena,
• Is too mentally or physically ill to attend,
• Is unable to remember the subject matter of the statement,
• Is exempted from testifying by a court ruling on the ground of privilege, or
• Persists in refusing to testify despite a court order.

If the declarant is unavailable, hearsay statements regarding former testimony, statements against interest, statements of personal or family history, and dying declarations are admissible.

3.06.1 Former Testimony (FRE 804(b))

In a civil trial, the testimony given by a witness under oath at a deposition or other hearing may be admitted if the party against whom the testimony is offered had an opportunity to previously examine the witness.

3.06.2 Statements Against Interest (FRE 804(b)(3))

Statements made by a person that are contrary to that person’s pecuniary or proprietary interests or subject the person to civil or criminal liability are admissible.

3.06.3 Statements of Personal or Family History (FRE 804(b)(4))

Statements regarding the personal or family history of the declarant are admissible as long as the person testifying was related to a person or intimately involved in the family and likely to have accurate information.

3.06.4 Dying Declarations (FRE 804(b))

A declarant’s words regarding the circumstances of the declarant’s own death at the time that death is imminent are admissible if declarant believes death is imminent.

3.07 Documentary Records

Several hearsay exceptions permit the admissibility of specific categories of records. These records are deemed reliable because the information they contain is usually entered and maintained in an accurate, trustworthy manner. These include: business records, public records, specific records, absent records, past recollection recorded, and learned treatises.

3.07.1 Business Records (FRE 803(6))

Records kept in the regular course of business are admissible. Businesses include a broad range of various types of businesses, entities, institutions, associations, hospitals, foundations, and charitable and non-profit organizations. Records include reports, emails, letters, correspondence, memoranda, data, paper and electronically stored information, and other written, printed, or digital documents.

Business records are admissible as reliable and trustworthy documents if:

• The entries are made at or near the time of the event or act,
• A knowledgeable person has created or maintained the information,
• The records are kept in a regular business activity,
• The recording of the information is a regular practice,
• The records are reliable and trustworthy, and
• A qualified witness testifies to these facts

3.07.2 Public Records (FRE 803(8))

Public records are deemed reliable because public officials record the information pursuant to a duty or law. The following public records are admissible:

• Records that describe an agency’s activities
• Records of matters observed and recorded pursuant to a duty imposed by law
• Factual findings resulting from authorized investigations
• Land records and property documents

3.07.3 Specific Public and Private Records (FRE 803)

These admissible documents include:

• Market reports and commercial data ([FRE 803(17)](https://www.westlaw.com/Document/N04E853C0B97011D8983DF34406B5929B/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0" \o “https://www.westlaw.com/Document/N04E853C0B97011D8983DF34406B5929B/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0))
• Vital statistics ([FRE 803(9)](https://www.westlaw.com/Document/N04E853C0B97011D8983DF34406B5929B/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0" \o “https://www.westlaw.com/Document/N04E853C0B97011D8983DF34406B5929B/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0))
• Religious organization records ([FRE 803(11)](https://www.westlaw.com/Document/N04E853C0B97011D8983DF34406B5929B/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0" \o “https://www.westlaw.com/Document/N04E853C0B97011D8983DF34406B5929B/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0))
• Marriage/baptismal/and official certificates ([FRE 803(12)](https://www.westlaw.com/Document/N04E853C0B97011D8983DF34406B5929B/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0" \o “https://www.westlaw.com/Document/N04E853C0B97011D8983DF34406B5929B/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0))
• Family records ([FRE 803(13)](https://www.westlaw.com/Document/N04E853C0B97011D8983DF34406B5929B/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0" \o “https://www.westlaw.com/Document/N04E853C0B97011D8983DF34406B5929B/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0))
• Ancient documents twenty years or more old ([FRE 803(16)](https://www.westlaw.com/Document/N04E853C0B97011D8983DF34406B5929B/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0" \o “https://www.westlaw.com/Document/N04E853C0B97011D8983DF34406B5929B/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0))
• Criminal judgments of previous convictions ([FRE 803(22)](https://www.westlaw.com/Document/N04E853C0B97011D8983DF34406B5929B/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0" \o “https://www.westlaw.com/Document/N04E853C0B97011D8983DF34406B5929B/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0))
• Civil judgments of personal, family, history, or boundary data ([FRE 803(23)](https://www.westlaw.com/Document/N04E853C0B97011D8983DF34406B5929B/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0" \o “https://www.westlaw.com/Document/N04E853C0B97011D8983DF34406B5929B/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0))

3.07.4 Absence of Business or Public Records (FRE 803(7) & (10))

The lack of an entry in a business or public record is admissible to prove an event did not occur. There must be a search for the missing entry, and it must be established that the event would have been entered had it happened.

3.07.5 Past Recollection Recorded (FRE 803(5))

Forgotten information that was recorded when the memory was fresh is admissible. See § 4.22. This evidence will be allowed if the witness:

• Cannot fully recall the event,
• Has personal knowledge of the record,
• Made the record or adopted it as correct at the time made, and
• Testifies that the report is accurate.

3.07.6 Learned Treatises (FRE 803(10))

A learned treatise is a book, periodical, article, pamphlet, magazine, or website ordinarily the subject of expert opinion. A learned treatise is admissible when it is offered as a reliable authority on a matter, and it is relied upon by an expert on direct examination or called to the attention of the expert on cross-examination.

3.08 Residual Hearsay Exceptions (FRE 807)

If a hearsay statement has not fallen into one or more of the above exceptions, this exception serves as a “catch-all” for hearsay which is admissible if:

• The statement is offered as evidence of a material fact,
• No other evidence exists that is more probative,
• Its admission will serve the interests of justice, and
• The offering party provides opposing counsel with prior notice of the introduction of such a statement.

All conditions must be satisfied for admissibility. This exception is reserved for unusual evidentiary situations and is not often invoked successfully.

3.09 Multiple Hearsay (FRE 805)

A statement may contain more than one hearsay statement. This multiple form of hearsay is called “hearsay within hearsay,” and it commonly occurs. An example: Emergency room chart notes, “Patient says husband punched her.” The ER chart might fall under the business record exception or a medical treatment statement, but a court will likely scrutinize the reference to the husband if offered as proof of the husband’s punch. Each document and statement layer of “hearsay within hearsay” must be individually analyzed to determine whether each falls within an exception—or are defined as nonhearsay—and are admissible.

C. Hearsay Objection Checklist

3.10 Hearsay Evidence Checklist

3.11 Hearsay Exceptions Checklist

Exhibits

A. Scope

4.01 Types of Exhibits

There are three major types of exhibits:

• Real evidence
• Demonstrative evidence
• Visual aids

Some of these exhibits will be the only evidentiary proof available, and others will help fact finders understand, interpret, and remember evidence. Well-prepared and well-presented exhibits help the witnesses and the advocates communicate more effectively and help present a case that’s interesting, persuasive, and complete.

4.01.1 Real Evidence

Real evidence consists of exhibits that are objects, writings, or electronically stored information and are an integral part of the facts of a case. Real evidence includes physical objects, such as printed or electronic documents in a contract case or the gun used in a homicide. The exhibit’s existence may be the only way to prove a fact, may be corroborating proof, or may be part of a chain of evidence.

4.01.2 Demonstrative Evidence

Demonstrative evidence refers to those exhibits that are not a part of the “real” event. These exhibits are usually created after the event and have no intrinsic probative value. Demonstrative evidence includes outlines, electronic or digital files, diagrams, charts, models, movable figures, computer-generated models, video presentations, and anything else that augments verbal testimony. These are admissible if they help a witness testify or help the fact finder understand the evidence.

4.01.3 Visual Aids

Advocates create and use visual aids to effectively communicate information and to help the fact finder understand the opening statement and summation. These illustrative aids usually aren’t formal exhibits, and they’re not offered as evidence. Examples include a chart, a PowerPoint presentation, models, computer graphics, a printed summary of test results explained by an expert, or a computerized program replicating an event. Software and hardware can produce and display visual aids, as well as demonstrative evidence. Advocates along with AI tools can create and craft compelling and persuasive illustrative aids.

4.02 Electronic and Digital Evidence

Cases routinely involve electronically stored information (ESI). The rules of evidence apply to electronic evidence, which may be either real or demonstrative. Common types of electronic and digital evidence include: emails, texts, collaboration platforms, social-media posts, business records, websites, blogs, animations, simulations, GPS, metadata, podcasts, internet, and other digital information. Like other tangible materials, ESI is governed by the evidentiary rules of relevancy and hearsay and particularly by the rules relating to authenticity and original writings.

4.02.1 Authenticity

The digital nature of ESI creates potential authenticity issues. ESI’s invisible attributes (e.g., metadata) and ethereal nature make it susceptible to authenticity challenges. Depending on the type of electronic evidence, authentication can be established by:

• The testimony of a witness who can state that it is what it is. For example, website information, presented online or as a printed copy, can be authenticated by a witness who can state that the witness visited the site, is familiar with its contents, and can verify the accuracy of the contents of the site.
• An explanation of the system or process that produced the resulting information. For example, a description of the native format in which the document was originally composed and which reflects the current format should establish authenticity. This testimony may be offered by either a custodian of the document or a technical expert.
• A description of distinctive characteristics unique or special to the information. This description may appear in or on the materials or may be established by a witness. Descriptions may include references to the internal content, the substance, or the appearance of the information. For example, a blog comment or a chat room conversation may include references to information known only to a party.

4.02.2 Original Writing/Best Evidence Rule

This evidentiary rule governs the circumstances under which a party must introduce an original, a duplicate, or a copy of a document, writing, recording, or photograph. The rule allows duplicates to be introduced unless the opposing party can raise a genuine issue regarding the original’s authenticity or can establish that using the duplicate is unfair. The rule also permits the use of oral testimony and other evidence to establish the substantive contents if there is no good reason to have the original or a duplicate introduced. These provisions can be used in lieu of having to establish the original of electronically stored information. See § 2.09.

B. Preparing Exhibits

4.03 Identifying, Assessing, and Presenting Exhibits

Real evidence is identified, located, gathered, and preserved during the investigation and discovery stages of a case. Demonstrative evidence is obtained or created before and during the proceedings. Effective exhibits communicate the case theory, establish factual foundations, enhance witness testimony, emphasize important areas of evidence, refute the opponent’s evidence, and persuade the fact finder of the truth of what happened. The downsides of using exhibits are that they can be costly, their probative value may be outweighed by their complexity, they may overwhelm the fact finders, and their use may interrupt and diminish critical testimony.

4.03.1 Planning a Professional Presentation

The advocate must be able to introduce and use exhibits in a professional manner. Counsel needs to prepare and rehearse so that exhibits are handled properly and make a positive impact. An LLM can provide a systematic way to create, identify, maintain, and store exhibits.

4.03.2 Selecting the Witness

Exhibits are usually introduced through a witness. This procedure requires that a witness be selected who is qualified to identify and lay a foundation for the admission of the exhibit.

4.03.3 Managing Exhibits

The advocate should have specific reference materials itemizing the exhibits to be used, the necessary foundation for those exhibits, and the witnesses who will provide the foundation.

4.04 Introducing and Using Exhibits

The introduction and use of exhibits requires:

• An understanding of the evidentiary issues and potential problems.
• The procedures applicable to the introduction.
• The precise questions needed for the foundation and admission.
• Potential objections to the exhibits.

C. Evidentiary Issues

4.05 Applicable Rules

Real and demonstrative exhibits are subject to the rules of evidence, like any other type of evidence.

4.05.1 Relevancy

An exhibit is relevant if it has any tendency to make more probable (or less probable) the existence of any fact that is of consequence to the determination of the action. Relevant exhibits may be excluded if they are confusing, misleading, or unfairly prejudicial.

4.05.2 Exhibit Foundation (FRE 901(b)(1))

The basic foundation for real evidence is established by a witness testifying that the tangible object or document is what it is claimed to be. The judge or arbitrator rules on whether sufficient foundation has been established for admissibility. The fact finder determines evidentiary weight. Persuasive foundation is the additional evidence to convince a fact finder that the exhibit is important, real, accurate, complete, and true. The extent of this convincing foundation depends upon the type of exhibit introduced.

4.05.3 Types of Real Evidence

There are two types of real evidence:

• One is an exhibit that is readily identifiable because it is unique. A witness must be able to identify the exhibit by its own special characteristics or by a unique and secure container containing the object. Examples of these exhibits are physical objects and tangible property.
• The other type is fungible, lacks unique or readily identifiable characteristics, and often requires chain-of-custody proof. Examples of this real evidence that is fungible and not unique include liquids, narcotics, other drugs.

4.05.4 Establishing a Chain of Custody

A “chain of custody” tracks the exhibit from the relevant event to the court or hearing room. Typically, more than one witness testifies to the various whereabouts of the exhibit. This cumulative evidence proves that the exhibit is the same evidence from the outset of the case events to its appearance in the courtroom.

There are two primary ways of establishing an unbroken chain of custody:

• It can be established that the exhibit at all times has been in the safe, continuing, and sole possession of one or more individuals. When more than one person has had custody of the exhibit, the exhibit must be tracked from one person to the next.
• It can be established that the exhibit bears a unique mark, was distinctively marked, or was sealed and placed in a safe or other tamper-proof container.

Electronically stored information (ESI) may involve chain-of-custody issues. Digital evidence that appears in various formats—first on a computer screen, then stored on a hard drive, also backed up on a server, then printed as a PDF or hard copy, and ultimately introduced in a case—may require testimony of more than one witness to establish it is the same as the original.

4.06 Contemporary Exhibit Information

All exhibits, as described earlier, must meet foundation, authentication, hearsay, and original writing requirements. Email addresses can be linked with a recipient, with messages received and opened. Digital transmissions can be proven through unique IDs or data. Websites can be established through URLs. People can testify regarding their use of Photoshop or WhatsApp—or of GenAI or LLMs—to generate, enhance, augment, or analyze evidence.

4.06.1 Current Images, Characters, and Abbreviations

Emoticons representing expressions formed by keyboard and symbol characters have specific context meanings. Emojis are digital images or icons representing an idea, emotion, or reaction defined by the Unicode Consortium. Texting acronyms and online abbreviations (e.g., LOL) reflect generally recognized meanings. To the extent that acronyms, memes, and insider-speak are less generally known, advocates may enlist a witness or expert to provide layperson translations.

D. Introducing Exhibits

4.07 Steps for the Admissibility of Exhibits into Evidence

Introducing exhibits typically requires several specific steps. Many exhibits require the examiner to use precise terminology for their introduction and use. Advocates are allowed to provide a witness with the legal foundation words necessary for admissibility in the form of leading and non-leading questions.

1. Marking the Exhibit. Exhibits are marked with a number or letter and are typically marked before the proceeding. The court reporter or clerk usually marks and records the exhibit.
2. Showing Exhibit to Opposing Advocate. While not necessarily required, the exhibit can be provided to opposing advocate as a matter of courtesy—informing the opposing advocate of the exhibit’s nature and content. Doing so will also avoid an interruption by the opposing advocate, who may ask to see the exhibit before it is shown to the witness. This step may not be taken if the type and nature of the exhibit is obvious or if counsel is thoroughly familiar with the evidence.
3. Approaching the Witness. The advocate must approach a witness, giving them the opportunity to see the exhibit. Some judges and arbitrators require the advocate to ask for permission to approach a witness. Many do not.
4. Examination and Recognition of the Exhibit. Counsel must make it clear for the record that an exhibit is being shown to the witness. The exhibit must be identified by its number or letter. The witness has the opportunity to examine the exhibit and testify how it is recognized.
5. Identification of the Exhibit by the Witness. The witness must testify how the exhibit can be recognized and what it is. Once the foundation is established for its admissibility, it can be offered into evidence.
6. Offering the Exhibit into Evidence. A declarative sentence can be used to offer the exhibit. The requirement of specific words may vary. Once the exhibit is identified, a simple statement such as “I offer Plaintiffs Exhibit No. 1 into evidence” is usually sufficient.
7. Examination of the Exhibit by Opposing Advocate. After the exhibit is offered, opposing counsel has the right to examine the exhibit—if not previously examined—and potentially object to its offer. Some advocates make it a matter of practice to allow the opponent to review a contested exhibit as it is being offered.
8. Objection to the Admission of an Exhibit. The advocate opposing the introduction of an exhibit should state the grounds for the objection(s). In jury trials, any argument concerning the introduction of the exhibit is usually made at the bench, in a sidebar where the jury cannot hear. The objecting attorney may ask for permission to question the witness (voir dire) to establish grounds for an objection to the exhibit.
9. Responding to Objections. Counsel may need to respond to an objection by opposing the objection, by an offer of proof, or by asking additional questions to overcome an evidentiary deficiency.
10. Receipt of Exhibit into Evidence. After these preliminary steps have been completed, the judge or arbitrator will make a ruling accepting or rejecting the proffered exhibit into evidence.
11. Showing the Exhibit to the Fact Finder. After it has been received into evidence, how the exhibit is displayed depends on the type of exhibit, its importance, and its sought-after evidentiary effect. Exhibits may be shown to the fact finder, read, passed among the jurors, copied and distributed, enlarged, displayed on a monitor, or played on a screen.
12. Using the Exhibits. The advocate may use the exhibit, asking the witness to explain it, point out specific parts, or mark illustrative evidence.

4.07.1 Using Stipulations

The advocates may stipulate to the exhibit’s foundation and authenticity, bypassing the time needed to ask detailed questions in front of fact finders. Stipulations can significantly reduce time. If there is no actual dispute concerning the exhibit’s provenance, the parties should voluntarily stipulate to foundation and authenticity.

Stipulations are particularly helpful in introducing electronically stored information. If both parties have digital evidence to introduce, they may be more likely to mutually agree to foundation and authenticity, presuming the information is accurate and complete.

4.07.2 Offering Pleadings, Claims, Responses, Admissions, and Discovery

Pleadings and discovery documents are a part of the case, but they are not necessarily considered as evidence by the fact finder unless or until an advocate affirmatively offers such information as evidence during the trial or hearing. They may need to be marked as an exhibit, depending on the rules of the jurisdiction.

4.07.3 Abbreviating the Foundation

When there is a series of exhibits with the same foundations, the advocate may abbreviate the process of laying foundations after the first exhibit has been introduced.

4.07.4 Admitting Self-Authenticating Documents

Federal Rule of Evidence 902 and similar state rules make it unnecessary to introduce evidence to authenticate certain exhibits, including domestic documents, foreign public documents, certified copies of public documents, official publications issued by public authorities, newspapers and periodicals, trade inscriptions, acknowledged and notarized public documents, and commercial paper and related documents.

4.07.5 Limiting an Exhibit’s Purpose

The contents of some exhibits may be admissible for one purpose, but inadmissible for other purposes. [FRE 105](https://www.westlaw.com/Document/N387316B0B96D11D8983DF34406B5929B/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0" \o “https://www.westlaw.com/Document/N387316B0B96D11D8983DF34406B5929B/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0). See § 1.12. Counsel offering the exhibit can describe what admissible part is being offered as proof of a specific fact.

4.07.6 Redacting an Exhibit

When counsel introduce part of an exhibit, the inadmissible portion may be deleted or detached. When an objection to part of a document is sustained, the ruling will require that the inadmissible portions of the document be redacted (removed or concealed) before it is received as evidence.

E. Evidentiary Foundation

for Various Exhibits

The necessary evidentiary foundation questions vary among exhibits. Typically, responses are sought that establish the exhibit’s existence, identity, authenticity, and accuracy.

4.08 Physical Objects and Properties (Including Products, Clothing, Appliances, and Weapons)

Elements of foundation:

• Relevance. The exhibit is relevant to the case.
• Current recognition. The witness recognizes and can identify the exhibit.
• Prior recognition. The witness can recall what the exhibit looked like at the previous relevant time.
• Same condition. The exhibit is now in the same or substantially the same condition as when the witness originally saw it.

4.09 Documents (Including Contracts, Leases, Electronic Documents, Digital Materials, and Other Signed or Printed Writings)

Elements of foundation:

• Relevance. The document is relevant to the case.
• Authenticity. The document is authentic.
• Original or copy. The document is an original or an admissible duplicate or other copy
• Condition unchanged. The document is now in exactly or substantially the same condition as when it was made and has not been altered.
• Signature or identifying characteristics. The document contains a signature, was composed on a computer and printed or was handwritten, or bears some other identifying characteristics.
• Signature or attribution. The electronic or handwritten signature, composition, or characteristic belongs to or identifies a person.
• Witnessed execution. The witness saw the person sign, compose, or write the document; or
• Content familiarity. The witness knows, is familiar with, or can recognize the content, signature, or handwriting; or
• Content recognition. The witness recognizes and can identify the document’s contents; or
• Party admission. The witness is a party and admits signing, composing, or writing it, or identifies the document’s contents; or
• Expert authentication. A handwriting expert states that the signature or writing is by a certain person; or
• Process testimony. A witness can testify to the process and system that was used to create, store, and produce the information; or
• Distinctive characteristics. The document can be identified by unique characteristics or distinctive information.

4.10 Business Correspondence (Including Letters, Memos, Files, Notes, Bills, Mail)

Business correspondence has similar foundational requirements as documents. See § 4.14. Some types of correspondence may require additional foundation evidence to prove they were sent or received.

Elements of foundation:

• Recipient address. The correspondence was addressed to a certain person.
• Witness verification. The witness saw or signed the original and a copy of the original.
• Delivery preparation.
• The witness placed the correspondence in an accurately addressed delivery envelope; or
• the witness sent the message through an email account; or
• the witness supervised a person who in the normal course of business processes such correspondence.
• Transmission completion.
• The envelope was placed in a mailbox or given to another carrier; or
• the document was sent by email; or
• the witness supervised a person who in the normal course of business sends such correspondence.
• Accurate duplicate. The copy of the original is an accurate duplicate.
• Receipt verification. The original correspondence was received by the addressee or was never returned to sender; or an email reply was received and receipt acknowledged.

4.11 Electronic Business and Personal Correspondence (Including Emails, Text Messages, Blog Entries, Chat Room Remarks, Web Contents, Podcasts)

Courts have developed foundational requirements for these types of electronically stored information (ESI).

Elements of foundation:

• Recipient address. The message was addressed to a certain person.
• Electronic transmission. The message was sent electronically to that person.
• Receipt verification.
• The message was received by that person, or
• the system used to send the message operated properly, or
• the system receiving the email verified the message was received.
• Accurate duplicate. The duplicate of the message introduced is an accurate copy.

Other foundation elements may include:

• Recipient acknowledgement. The receiver acknowledged receiving the email.
• Reply sent. The receiver sent back a reply.
• Message forwarded. The receiver forwarded a copy of the message.
• Content discussion. The sender and receiver discussed the contents.
• Metadata validation. Metadata of the message establishes that it was received.

4.12 Internet Information (Including Websites, Apps, Social Networks, Search Engine Data, Internet Archives, Cloud Server Data)

Courts have also developed foundational requirements for electronically stored, created, and produced information on the Internet.

Elements of foundation:

• Website ownership/responsibility. The party or witness is the owner of the website or is otherwise responsible for its contents.
• Proper URL entry. The witness properly entered the website URL (address) in a reputable browser.
• Website review. The witness reviewed the information on the website.
• Accurate representation. The exhibit accurately reflects what the witness reviewed (the exhibit could be a printout, hard copy, monitor screen, or other display).

It is possible that the website information had been manipulated and is not authentic or accurate. The opposing party can offer evidence challenging the contents or claiming that someone modified or otherwise created the information. Courts, in determining these challenges, consider whether:

• Continued availability. The information is still on the website.
• Corroborating sources. Other sources prove or disprove the website contents.
• Third-party reliance. Others saw or relied on the contents.
• Purpose consistency. The information is consistent with the purposes of the website.
• Publication evidence. The information is otherwise published or republished.
• Metadata validation. Metadata proves the information was on the website.

4.13 Artificial Intelligence Artifacts and Documents (e.g., LLM Content, GenAI Images & Videos, AI Music)

While the courts have yet to agree upon a judicially approved protocol for establishing the foundation for AI-generated artifacts, this list would likely satisfy many judges:

• Relevance: The AI-generated artifact is relevant to the case.
• Source identification: The witness can identify the specific AI-backed system, platform, or model that created the artifact.
• Input documentation: The witness preserved or can reproduce the prompts, queries, or inputs provided to the AI system.
• Generation process: The witness personally initiated the AI-generated process or supervised someone who did.
• Metadata verification: The witness can establish when the AI artifact was created through metadata, system logs, or other records.
• System functionality: The AI system was operating normally at the time the artifact was generated.
• Output capture: After generation through a reliable process, the witness captured (or supervised the capture of) the AI output.
• Unaltered condition: The exhibit reflects the artifact being in the same condition as when the AI system generated it.

4.14 Business Records (Including Reports, Memoranda, Writings, Invoices, Printouts, Electronic Documents, Data Compilations)

Records maintained in the ordinary course of business may be introduced through a witness who does not have personal knowledge of the recorded information, but does have knowledge concerning the business recording process. See § 4.10. The introduction of this information is allowed by the foundation elements detailed in [FRE 803(6)](https://www.westlaw.com/Document/N04E853C0B97011D8983DF34406B5929B/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0" \o “https://www.westlaw.com/Document/N04E853C0B97011D8983DF34406B5929B/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0) and similar state rules. The term “business” includes any business, hospital, institution, organization, association, profession, occupation, and calling of any kind including nonprofit agencies. The content of business records may include facts, acts, events, conditions, opinions, or diagnoses that are relevant to the case.

Elements of foundation:

• Timeliness requirement. The report must have been “made at or near the time” of the occurrence that gave rise to the report.
• Knowledge source. The record was made by “a person with knowledge” of the information or was made “from information transmitted by” a person with knowledge.
• Regular business creation. The record was made in the regular practice of that business activity.
• Regular business storage. The record was kept “in the course of a regularly conducted business activity.”
• Custodian or qualified witness. The witness is the “custodian” of the documents or is in some other way a “qualified witness”

Emails, electronic documents, and computer printouts qualify as business records. Questions regarding their creation, composition, retention, and distribution will need to be asked to establish the necessary foundation for admissibility.

4.15 Copies/Duplicates

Modern copying and printing equipment creates accurate copies of original documents and records. These “duplicate” originals are admissible. A copy may be routinely admitted unless it is of questionable authenticity or it would be unfair to admit a copy. See [FRE 1003](https://www.westlaw.com/Document/N6A3DF270B97011D8983DF34406B5929B/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0" \o “https://www.westlaw.com/Document/N6A3DF270B97011D8983DF34406B5929B/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0).

Elements of foundation:

• Relevance. The copy is relevant.
• Original existed. An original did once exist.
• Production from original. The copy was made or produced from the original.
• Authentic duplicate. The copy is an authentic and accurate duplicate of the original.

4.16 Electronic Recordings (Including Audio, Video, Digital, Animated, Computer Recordings)

Elements of foundation:

• Relevance. The electronic recording is relevant to the case.
• Operator qualification. The operator of the equipment was qualified to run the equipment.
• Equipment functionality. The recording equipment was checked before its use and operated normally.
• Witness presence. The witness heard or saw the event being electronically recorded.
• Accuracy verification. After the event had been recorded, the witness reviewed the recording and determined that it had accurately and completely recorded the event.
• Recognition ability. The witness can recognize and identify the sounds or images on the recording.
• Unaltered condition. The recording is in the exact same condition at the time as it was at the recording.

4.17 Test Results (Including MRI Results, PET/CT Scans, Medical Images, X-Rays, DNA Tests, Laboratory Analyses)

Exhibits containing results from tests and other procedures require special foundation information.

Elements of foundation:

• Relevance. The exhibit is relevant to the case.
• Witness qualification. The witness is qualified to operate the equipment.
• Established procedure. There exists a procedure that regulates the testing or analysis process.
• Direct involvement. The witness personally conducted or supervised an operator who conducted the testing, developed the results, or completed the analysis.
• Equipment condition. The equipment was in normal operating condition.
• Recognition and identification. The witness can recognize and identify the results or analysis.
• Unaltered condition. The results or analysis are in the same condition as when completed.

4.18 Digital Images, Photos, Social Network Pictures, Electronic Depictions, Smartphone Images, Videos, Prints, DVDs, Film, Movies, Recordings

The use of digital images and photographs is an effective way of making the facts of a case realistic for the fact finder.

Elements of foundation:

• Relevance. The image or images are relevant to the case.
• Event familiarity. The witness is familiar with the scene displayed in the image at the relevant time of the event.
• Accurate depiction. The image fairly and accurately depicts the scene at the time of the event.

There is no need to establish the type of camera or equipment used, focal lens, shutter speed, lens opening, other photography or imaging details, or even when the picture was taken, unless these facts are an issue in a case.

4.19 Demonstrative Evidence (Including Visual Demonstrations, Diagrams, Charts, Models, Graphics, Drawings, PowerPoint Presentations, Animations, and Similar Illustrative Aids)

Various types of demonstrative evidence may be useful during the presentation of a case.

Elements of foundation:

• Event familiarity. The witness is familiar with the event, depiction, or presentation.
• Exhibit familiarity. The witness recognizes the depiction or content or is familiar with the exhibit.
• Explanatory value. The demonstrative exhibit will help the witness explain evidence or will help the fact finder understand the evidence.
• Reasonable accuracy. The demonstrative evidence is reasonably accurate and is not misleading or distorting.

4.20 Computer-Generated Demonstrations

This specialized type of demonstrative evidence can be very useful in proving or disproving issues in a case.

Elements of foundation:

• Event familiarity. The witness is familiar with the scene or event.
• Exhibit familiarity. The witness has reviewed the demonstration and is familiar with the exhibit.
• Explanatory value. The exhibit will help the witness explain the evidence or will help the fact finder understand the evidence.
• Reasonable accuracy. The exhibit is reasonably accurate and does not distort the scene or event.

The nature of the computer-generated graphic may require additional foundation:

• Computer training. The witness has specialized computer training.
• Fact familiarity. The witness is familiar with the underlying facts of the case.
• Proper data entry. The witness properly entered the relevant data into the hardware and software.
• Reasonable depiction. The results produced reflect a reasonable depiction of what happened.

4.21 Summary Exhibits

Summaries of evidence may be introduced as an efficient and effective means to explain evidence to the fact finder. Summary exhibits may include an electronic file with evidentiary content, a chart detailing the testimony of one or more witnesses, or a summary description of documents. [FRE 1006](https://www.westlaw.com/Document/N0DA105B08D6311EF89C4C687C85A4EE1/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0" \o “https://www.westlaw.com/Document/N0DA105B08D6311EF89C4C687C85A4EE1/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0) and similar state rules permit summaries of information to be introduced as evidence.

Elements of foundation:

• Relevance. All the information summarized must be relevant.
• Summary knowledge. The witness has knowledge concerning the information contained in the summary.
• Accurate summary. The witness has reviewed the exhibit and verified that it is an accurate summary of the evidence.

4.22 Past Recollection Recorded

A witness who, at the time of the proceeding, does not have an independent recollection of an event may have previously made a record of that event, and that record may be introduced as an exhibit of real evidence. See § 3.07.5. They may have composed an email, created a blog entry, texted a friend, printed a diary, or written a note.

Elements of foundation:

• No present recollection. The witness has no present recollection of the relevant event.
• Past knowledge. The witness once had knowledge of the event.
• Timely recording. The witness made a record of the event when the matter was fresh in the witness’s memory.
• Accurate reflection. The recorded recollection accurately reflects the knowledge of the witness.
• Unaltered condition. The exhibit is in the same condition now as when it was made.

4.23 Demonstrations

Live demonstrations or experiments are difficult and unpredictable. They may work well at rehearsal, but can fail too easily at the trial or hearing. A simple demonstration that can be easily performed may be conducted if appropriate. It may be more effective to use a videorecorded or graphically created demonstration.

Elements of foundation:

• Witness capability. The witness can perform or assist in the demonstration.
• Explanatory purpose. The demonstration will help the witness explain what happened.
• Facilitate understanding. The judge determines that the demonstration will help explain what happened.

4.24 Judicial, Administrative, Arbitral Notice

At any time during a proceeding, a judge, arbitrator, or ALJ may take notice of facts that are accurate, verifiable by reliable sources, and indisputable. See [FRE 201](https://www.westlaw.com/Document/N3CBEF130B96D11D8983DF34406B5929B/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0" \o “https://www.westlaw.com/Document/N3CBEF130B96D11D8983DF34406B5929B/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0).

F. The Use of Technology

Modern technology and AI advances provide tools for the advocate that are very sophisticated. The introduction of evidence through electronic and digital devices can be very effective and impressive, but technology cannot be a substitute for a well-told story. The use of contemporary AI methods of communication should be used carefully and thoughtfully to enhance the presentation of testimony, not distract from it. The advocate must consider the design, cost, placement, backup, and limitations placed on the use of technology and AI by the decision maker, room, and applicable rules.

4.25 Technological Exhibits and Visual Aids

In some cases, an advocate may find the following useful as demonstrative evidence or visual aids:

• Computer-generated graphics
• Computer-augmented graphics
• AI-augmented reconstructions and models
• QR codes or bar codes to locate and display evidence on monitors
• Electronic marking pens and boards
• Avatars
• Virtual reality

G. Objections to the Introduction

of Exhibits

4.26 Preparing for Objections

Counsel should anticipate and prepare for possible objections to the introduction of an exhibit. When an objection is anticipated, sufficient foundation questions can be prepared along with arguments and short responsive briefs.

4.26.1 Responding to Objections

If an objection to the introduction of an item of real evidence is sustained, the offering advocate should make an offer of proof, offer the exhibit for a limited purpose, or offer the exhibit as demonstrative evidence.

4.26.2 Questioning by the Opponent

The opponent may question the witness after an exhibit has been offered to determine if there is a basis for an objection.

4.27 Common Objections

Objections that may be made to the introduction and use of exhibits include:

• Irrelevant ([FRE 401–402](https://www.westlaw.com/Document/N4DE88ED0B96D11D8983DF34406B5929B/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0" \o “https://www.westlaw.com/Document/N4DE88ED0B96D11D8983DF34406B5929B/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0))
• Unfairly prejudicial ([FRE 403](https://www.westlaw.com/Document/N5CA04210B96D11D8983DF34406B5929B/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0" \o “https://www.westlaw.com/Document/N5CA04210B96D11D8983DF34406B5929B/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0))
• Misleading and distorting ([FRE 403](https://www.westlaw.com/Document/N5CA04210B96D11D8983DF34406B5929B/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0" \o “https://www.westlaw.com/Document/N5CA04210B96D11D8983DF34406B5929B/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0))
• Excessive use of time ([FRE 403](https://www.westlaw.com/Document/N5CA04210B96D11D8983DF34406B5929B/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0" \o “https://www.westlaw.com/Document/N5CA04210B96D11D8983DF34406B5929B/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0))
• Does not assist or aid the fact finder ([FRE 401](https://www.westlaw.com/Document/N4DE88ED0B96D11D8983DF34406B5929B/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0" \o “https://www.westlaw.com/Document/N4DE88ED0B96D11D8983DF34406B5929B/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0))
• Cumulative or repetitious ([FRE 403](https://www.westlaw.com/Document/N5CA04210B96D11D8983DF34406B5929B/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0" \o “https://www.westlaw.com/Document/N5CA04210B96D11D8983DF34406B5929B/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0))
• Lack of foundation ([FRE 901–903](https://www.westlaw.com/Document/N523F5E70B97011D8983DF34406B5929B/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0" \o “https://www.westlaw.com/Document/N523F5E70B97011D8983DF34406B5929B/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0))
• Inadmissible hearsay ([FRE 801–803](https://www.westlaw.com/Document/N7628C6F08D6211EFB96292A2D3FA2FFC/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0" \o “https://www.westlaw.com/Document/N7628C6F08D6211EFB96292A2D3FA2FFC/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0))
• Violation of original writing rule ([FRE 1002](https://www.westlaw.com/Document/N68204290B97011D8983DF34406B5929B/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0" \o “https://www.westlaw.com/Document/N68204290B97011D8983DF34406B5929B/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0))
• Constitutional objections in criminal actions