Exhibits are anything other than testimony that can be perceived by the
senses and presented at the trial or hearing. Exhibits include:
• Real evidence tangible objects such as clothes, weapons, tools
• Demonstrative evidence evidence that represents or illustrates the real
thing such as photos, videos, diagrams, maps, charts
• Records government or business writings, hospital records, police
reports, payment records
• Writings evidence other than records that are in writing such as
letters, receipts, contracts, promissory notes
Before an exhibit can be offered into evidence in court, a foundation must
be laid for its admission. When evidence rules require a fact or event to
occur before an article can be considered evidence, that fact or event
becomes part of the foundation necessary for the article's admission into
evidence. The facts and events that must be shown represent a judgment as
to what information demonstrates that the evidence is reliable and
For all exhibits, the first foundation that must be laid is that the
article is authentic. If writings and records are offered to prove that
the statements within them are true, a foundation must be laid that the
article meets a hearsay exception. If a writing's terms are at issue, its
proponent must introduce the document itself - the best evidence- rather
than testimony of what the document says.
A proper foundation means that the material must be proved to be an
authentic document and to actually be what it purports to be. For example,
pictures, maps and diagrams of an accident scene must be proved to
actually be a true representation of that scene. Tangible items such as
the gun, the drugs, the clothes -- must be proved to be the items that the
proponent says they are. Basic fairness dictates that if an article is to
prove something, it should be the genuine or authentic article.
Real and demonstrative evidence do not run afoul of the hearsay rule.
Writings and records when offered to prove that the statements contained
in them are true, however, are hearsay. Proponents of these documents must
lay a foundation that the documents are exceptions to the hearsay rule.
For example, if an employer wants to introduce time sheets that show that
a worker reported 15 minutes after the required time to begin work to
prove that the worker was indeed late, the employer must show that the
time sheets meet an exception to the hearsay rule. In this instance the
employer could produce testimony that the time sheets meet the business
records exception to the hearsay rule.
In most administrative hearings, lack of foundation will not keep an
exhibit out of evidence, but will go to the weight of the evidence, that
is, how much weight the hearing officer will give the evidence. Advocates
should strive to lay proper foundations for exhibits in administrative
hearings to heighten the exhibit's credibility.
Most foundations for exhibits introduced in a court are laid by live
witness testimony. Advocates should strive to do likewise in
administrative hearings. Many times you will have more than one witness
who can lay a proper foundation. You should choose the one who has the
most knowledge of the exhibit and makes the best impression on the judge.
Sometimes you may need more than one witness to lay a proper foundation.
The Mechanics of Getting Exhibits into Evidence
Some hearing officers require that all documents or exhibits be introduced
at the beginning of the hearing. The exhibits will be numbered or lettered
and then entered into evidence. Any objections or arguments about the
exhibit's relevance or reliability are made at this time. Some hearing
officers will premark exhibits for identification and then allow you to
enter them in evidence at the time of your choosing. Still others will
allow you to mark and introduce evidence whenever you choose.
Even if you must put all items into evidence at the beginning of the
hearing, we suggest that you refer to the document and lay a foundation at
the most logical point in your case. You should always make copies of all
exhibits, except impeachment documents, and give them to the opposing
advocate when they are introduced.
It's a good practice to let the opposing advocate know what exhibits you
will be introducing, particularly if you deal with that advocate on
regular basis. Some agencies require that exhibits be submitted to the
hearing officer 5 days before the hearing. Others require that parties
exchange exhibits before the hearing.
In any case, you should be prepared to offer exhibits in a way that most
benefits your client's case. If this method differs from the way the
hearing officer usually does it, you should decide how to approach the
judge about allowing you to use your chosen method.
Here is the most formal method, introducing the exhibit at the appropriate
time in your case.
Step 1. Have the exhibit marked.
Exhibits are given sequential numbers or letters; 1, 2, 3 or A, B, C and
sometimes identified by party, for example, Claimant, County, Employer
A. Please mark this Claimant's Exhibit 1 for identification. (Hand exhibit
If the exhibits have been premarked at the beginning of the hearing, this
step is unnecessary.
Step 2. Show the exhibit to opposing advocate.
A. Your honor, I'm handing Exhibit 1 to Ms. Contreras, the County's
advocate. (Hand copy to judge.)
In many instances, the opposing advocate has already seen the exhibit or
has a copy of it, so this step is unnecessary. It doesn't hurt to put that
fact on the record. In some hearings you also give a copy to the judge at
this point or make sure that the judge can see an exhibit you can't copy
such as a diagram or tangible object.
Step 3. Ask permission to approach the witness.
A Your honor, may I approach the witness.
J You may.
In only but the most formal hearings is this step required. In many
hearings, the witness is sitting next to you.
Step 4. Show the exhibit to the witness.
A Ms. Jones, I'm handing you Claimant's
Exhibit 1 for identification.
(Walk to the witness or place the exhibit in front of her.)
Step 5. Lay the foundation for the exhibit.
Step 6. Move for admission of the exhibit in evidence.
A Your honor, I move that Claimant's 1 be introduced into evidence. (Hand
or show the exhibit to the judge.)
J Any objections?
O States objections and arguments.
J it will be admitted.
Make sure that the exhibit is entered into evidence. If you are unsure if
the exhibit is in evidence, don't be shy, inquire.
A Excuse me, you honor, has the exhibit been entered into evidence?
J Yes, it has.
Step 7. Have the witness use or mark the exhibit.
Once the exhibit has been admitted in evidence, consider how it can be
used or marked to increase its usefulness. Photographs and diagrams can be
marked to show locations, distances and relationships. Significant
sections in documents can be underlined.
Offered at the Beginning of the Hearing
Many hearing officers eliminate formalities and introduce all exhibits at
the beginning of the hearing, but remain open to your introducing them
J. I am now marking the documents in the Appeals file. Exhibit A is the
Claimant's request for a hearing. Exhibit B is the County's Notice of
Action, Exhibit C, the County's Position Statement. Are there any other
items to be entered into evidence?
A. In the interest of time I'd like to offer Claimant's exhibits during my
examination of witnesses.
J. Very well. Exhibits A, B, and C will be entered into evidence at this
A few judges may insist that you introduce your exhibits at this point, no
matter how persuasive your arguments. If so, offer the exhibits but make
sure to lay your foundation where appropriate in the presentation of your
|During examination of witness.... Your honor, may the record reflect
that I'm showing Exhibit D to the County representative?
|Ms. Howard, I'm showing
you Exhibit D.
Do you recognize it?
|What is it?
|It's a picture of the
closet in my bedroom.
|Does the photo fairly and accurately show how your bedroom closet looked
when the investigator, Mr. Pone, came to your house on July 1?
|Ms. Howard, does the photo show the items that were in the closet when
investigator Pone was looking in the closet?
|Using this pen, please
put an S where the shoes are located.
|Does the picture show
where the investigator stood when he looked into the closet?
|Using this pen will you
put a P where Pone was standing.
To show that the item should be excluded or should be given little or no
weight you should argue that one or more of the foundational elements are
missing. You can make the argument at the time the exhibit is offered and
in your closing argument.
• If the agency produces no evidence or unreliable evidence to
authenticate the item, argue that the item is irrelevant because no proof
exists to support a finding that the article is what the agency says that
it is and hence has no connection to the case.
• If the agency produces a witness that tries to authenticate the item,
you can cross-examine the witness to show that one or several of the
foundational elements is missing and hence the evidence is unreliable; OR
• Have one of your own witnesses testify to show that one or several of
the foundational elements are missing.
In almost all instances, judges in administrative hearings will admit the
evidence. In any event, if any of the elements are missing, you
respectfully should make the argument to keep it out anyway. The method of
laying a foundation is through a series of specific questions that
establish the necessary facts.
Document Analysis Form
Exhibit Foundation Worksheet
Exhibit List - pdf
Exhibit Chart - pdf
Exhibit Examples - pdf