Introduction. When I was a young, inexperienced attorney, I wanted nothing more than to go trial, but I really lacked a sound understanding of the rules of evidence. I urgently sought to cure the gap in my knowledge, but to my dismay I found the rules of evidence to be excessively complicated and almost incomprehensible – a great, unruly mass of tortuous rules and procedures that governed the showing of evidence at trial. In vain did I read hornbooks, treatises, the evidence statutes themselves and the case law on point. Some books on evidence even proved counter-productive, leaving me more confused afterwards than I had been before! In time I discovered three very good books on evidence, which I highly recommend when you need to delve deeply into the matter:
- The Rutter Group’s Practice Guide for Trials in California Courts, which provides an excellent explanation and system for understanding the rules of evidence;
- Brockett and Keker’s superb guide on cross-examination (“Effective Direct & Cross-Examination”); and
- Edwin A. Heafey’s handbook on evidentiary objections allowed under California law (“California Trial Objections.”)
Unlike these three books, which offer lengthy and superb explanations, I have tried in this article simply to set forth a list of simple rules to explain the key points. I have also set forth several pointers on organizing your evidence in order to present it competently at trial. For all the rest, refer to the above guides, and read the statutes themselves as well as the case law on point. Even more important, try cases yourself and watch others do so in your spare time. The only way to understand the law of evidence is to try cases, watch others try cases, and read about the law of evidence in treatises, practice guides, the statutes themselves and the case law. You must do all of these things, and nothing else can take their place. Over time the rules and uses of evidence will sink in and become second nature to you, but it takes time, practice, observation, and reading!
What Is Evidence? Evidence is used to prove and disprove facts that remain in dispute at trial, including whether or not a given witness is trustworthy. By evidence, I mean live testimony, video testimony, documents, photos, onsite inspections, and other objects that can be displayed or shown. The basic idea is to show your evidence to the finder of fact (judge or jury) in order to make your case and discredit your adversary’s case. When appropriate, you might also seek to exclude evidence that is helpful to your adversary.
What the Rules of Evidence Are Used to Accomplish. Broadly speaking, you use the rules of evidence in order to have your evidence admitted and your adversary’s evidence excluded, but you should seek to exclude evidence only if (1) the evidence is potentially harmful to your case, and (2) you have a colorable, serious argument for having it excluded. Even if you are certain that you can have the evidence excluded, allow it to come in without objection if its admission does nothing to hurt your case. In the same vein, do nothing even if the evidence is horrible for your client’s case, if in fact you have no reasonable basis for objecting to its admission. Excluding evidence is not a game that should bring joy to your face every time you deprive the jury of information that you have just made it all the more curious to hear, but rather is the somber, necessary task of acting as a responsible steward of what the jury should be allowed to hear when deciding your case. Proceed accordingly.
Now it is time to consider the following points, which are the key rules of evidence in a nutshell:
Relevance. Evidence is admitted only if it is relevant – a proposition that seems self-evident, but that requires a little clarification. Relevant evidence is any evidence that tends to confirm or disprove a disputed fact, including (1) any fact that is relevant to any element of a cause of action or defense that remains at issue, (2) any fact that must be established before the proposed evidence becomes admissible (foundation), and (3) facts that bear upon the trustworthiness of the witness, but subject to various restrictions and exclusions. Broadly speaking, relevant evidence is evidence that directly concerns the elements of the claims in dispute, as well as evidence used to establish foundation or test the credibility of a witness.
It is therefore always helpful to keep in mind the facts that you seek to prove or disprove at trial. That is why you must carefully prepare an evidence grid and trial notebook (see below). They are indispensable and help you to organize and analyze your case, make a good impression, and stay focused during the thick of battle and high tension at trial, when you must stick to your knitting no matter what your adversary tries to do, save on very rare occasion. As a general rule, at trial you should follow your evidence grid and never allow your adversary to embroil you in pointless, confusing controversies over irrelevant non sequiturs. Sometimes litigants engage in unending tit-for-tats over minor facts that have little bearing on the key issues. The better approach is to make a thorough, unanswerable showing of the key points so far as you can, support them with your other necessary points, discredit rebuttal points so far as you can, and return again and again to your key and necessary points without belaboring them unduly. All of the rest is noise. You must never try to disprove a point that your adversary has made merely because he has made it.
My comments on relevance might seem overly formulaic. If you have taken care to prepare a very good evidence grid (see below), and if you care about your case, you will know which facts are relevant by the time you reach trial.
Foundation. Even if evidence is unquestionably relevant, it cannot be admitted unless a proper foundation is laid for it. “Foundation” is merely shorthand for establishing certain predicate facts whose existence must be proven before the evidence in question becomes admissible. It is the bane of every junior litigator, and a more experienced trial lawyer can sometimes fluster a novice by successfully objecting to his lack of “foundation” for evidence that he seeks to have admitted. But even an attorney who is in his first trial can quickly grasp the essentials of laying a foundation for evidence by performing the following simple exercise in logic: What evidence will I attempt to have admitted at trial (it will be listed on the below-explained evidence grid)? For each item of evidence that I will attempt to have admitted, what additional evidence must I provide in order to ensure that the item is admissible? This additional evidence is the necessary “foundation” for the item in question. It is as simple as that.
In practice, “lack of foundation” refers to a proponent’s proffer of evidence that is beset by apparent irrelevance, lack of authentication, the rule against hearsay, an apparent privilege, or the witness’ apparent inability to remember what he says he remembers. I explain these matters directly below.
For example, “lack of foundation” might be interposed when the proffered evidence at first glance seems irrelevant to the case, although the better objection is “irrelevant” (see above). But the proponent of the evidence can lay a foundation for its admission by offering other admissible evidence to establish its relevance: “Counselor, why do you want to show photos of the Prime Minister naked in bed in this case, which concerns a commercial contract dispute over warranties for jet fighter aircraft?” “Your Honor, because the prime minister was having an affair with Olga Maximillion, a Russian spy who persuaded him to have England buy the jets from Aeroflot, a ruinous company.”)
Or “lack of foundation” can mean that the proponent of a document or photo has failed to establish its authenticity, which can be established by stipulation or by having a witness confirm that he remembers having prepared or received the document or having taken the photo. Or perhaps the attorney has begun to examine a witness about why he wrote a document, or how he responded to it, before having the document admitted in evidence; and unless it is admitted by stipulation, it can be admitted only after it has been authenticated:
Plaintiff’s Attorney: “Do you recognize this document?”
“How is it that you recognize this document?
“I wrote it.”
“Do you remember when you wrote it?”
“At around the time of the date that appears on the document, around November 17, 2005.”
You have just authenticated the document, but it can be admitted only if it is relevant, falls within an exception to the hearsay rule, is not privileged, and cannot be excluded for prejudicial effect — all of which can be treated as foundational matters, and all of which you will therefore anticipate when preparing your trial notebook and evidence grid:
Plaintiff’s Attorney: “I move to have this document admitted.”
Defendant’s Attorney: “Objection. It is hearsay, irrelevant, and a privileged communication, and its prejudicial effect greatly outweights its probative value!”
The Court: “Sidebar!”
The Court (to Plaintiff’s Attorney): Please tell me why the document is admissible despite all of these objections.
Plaintiff’s Attorney: It is not hearsay because it memorializes the contract negotiations between the parties and includes my client’s contemporaneous confirmation of representations that Defendants made to him. These are “verbal acts” — which we seek to admit to prove not that they are true, but only that they were stated to my client to induce him to enter into the contract in dispute in this case. Since it concerns this contract, the document is relevant. It is not a privileged communication, but rather an exchange between the parties in this case, with mere copies sent to their respective lawyers. Lastly, there is no undue prejudicial effect, but only probative value about the precise issues in dispute in this case. The Court has already received evidence that colorably establishes each of these points, so that there is foundation on all grounds. Lastly, these objections are spurious.
The Court: You are right on all counts! Document admitted. End of sidebar.
The Court (to the jury): Ladies and gentlemen, I have ruled that this document is admitted in evidence as Exhibit 1. (To Plaintiff’s attorney): You may publish the document to the jury. (Plaintiff’s attorney has the document displayed on a full-screen display that the jurors can easily see. Now the jury will seize upon the document with greedy relish and joy, as though it really will help them to decipher the entire case. The Defendant’s objections, which never stood a chance, merely called attention to the document and made the jury wonder why the defendant didn’t want them ever to see it.)
Alternatively, “lack of foundation” might mean that the proponent of testimony has failed to establish that his witness has a present memory of having said, done or “sensed” something. Such a witness must establish that he remembers at present what he said, did or “sensed” at a specific time in the past. This point in turn often turns on whether he remembers having been at a location from which he could have said, done or “sensed” whatever it is that he wishes now to say, and in some instances he must provide a plausible explanation as to how he could remember having “sensed” something at a specific time. By “sensed,” I mean seen, heard, touched, smelled or tasted something.
Here is an example of laying this kind of foundation during trial. You should use this foundation to develop interest in the substantive testimony that will follow. “Mr. Roberts, do you remember where you were last year on December 22 at approximately 10:00 a.m.?” “Yes.” “How is it possible that you can remember where you were at this time.?” “I will never forget that day as long as I live.” “And why is that?” “Because what I saw was enough to turn my head of hair all white in one stroke. A man cannot forget such a scene, and I have not.” “And where were you at this time, Mr. Roberts?” “I was at the intersection of Main and Smith.” “And what where you doing there?” “I was seated in my car, stopped at a red-light.” “Do you remember what you observed?” “Yes.” “What did you observe?” “I observed a truck come barreling through the intersection at a very high rate of speed, smashing into two cars, which both exploded into fireballs.”
On other occasions, lack of foundation might mean that the proponent of hearsay evidence has failed to establish that the hearsay evidence falls within an allowed exception to the rule against hearsay, or that the proponent of an item of apparently privileged evidence has failed to make a showing that the privilege has been waived or is otherwise inapplicable.
“Foundation” thus refers to the predicate facts that lay a basis for admitting another item of evidence, usually evidence that tends to prove or disprove an element of a claim or defense. To lay a foundation, the proponent must provide admissible evidence that proves the existence of the foundation. Then it can seek the admission of the evidence that depends on this foundation. If the other side does not concede that the foundation has been established, the judge or jury must decide whether the proffered evidence establishes the necessary foundation (the question is reserved for the judge or jury depending on which kind of foundation in dispute).
Foundation, then, is an exercise in logic: For each item of evidence that a proponent seeks to introduce (to support a claim or defense, or to discredit the other side’s evidence), what preliminary evidence must it first show? That preliminary evidence is the necessary foundation that must laid to have item in question admitted. For each item of evidence that you seek to have admitted, ask yourself what objections might your adversary make and what evidence you can proffer to overcome the objections. Relevance? hearsay? A legal privilege or immunity? Apparent prejudicial effect, whose importance arguably exceeds the probative value of the evidence? For complicated issues, address the matter by bringing a motion in limine before trial. Simpler and obvious matters can be resolved during trial.
If your adversary keeps objecting on the ground of foundation, and if the judge keeps sustaining the objection, ask for a sidebar and request an explanation of what foundation is lacking. The trial judge should oblige you unless the deficiency is patently obvious, and you can always point out that the deficiency is not obvious to you, or else you would have tried to cure it! It sometimes happens that evidence lacks the necessary foundation and will be not be admitted no matter what its proponent attempts to show. The objection should usually be raised only on such occasions, unless your adversary seems to be taking too many liberties with the rules of evidence, and you wish to introduce more discipline and propriety in his presentation. An experienced practitioner will always take care to prepare his foundational evidence carefully and to anticipate all objections made on the ground that the evidence lacks foundation. Never assume that your adversary will decline to raise the objection and always arrive prepared to answer it.
The Rule Against Hearsay. Even if evidence is relevant and supported by a proper foundation, it remains presumptively inadmissible if it is hearsay. Hearsay refers to any statement or proposition that is (1) offered to prove the truth of the statement or proposition, and (2) either appears in a document or is recounted second-hand by the witness on the stand, who merely attributes the statement or proposition to someone else (e.g., “John Rollins told me that he never liked Mrs. Bluefish” – which, critically, is not hearsay if offered to prove that the witness remembers hearing this matter, but is hearsay if the purpose is to show that John Rollins disliked Mrs. Bluefish).
Hearsay therefore encompasses an enormous range of information. It is half a miracle that we can conduct trials at all despite the rule against hearsay.
It is easier usually to keep in mind what is not hearsay. Non-hearsay evidence is limited to testimony given by a witness while on the stand, by which he recounts what he remembers having said, done or “sensed” (seen, heard, smelled, tasted or touched). If the witness testifies to what he remembers hearing, it is hearsay only if the testimony is offered to prove that what he heard was true. Otherwise, the testimony is not hearsay, but rather is offered to prove only that the witness actually heard what he says he heard (“I heard the sound of a shotgun,” – which might be useful in a murder case; or “He told me that the car could fly in orbit and so it would cost me $64 million to purchase it”– which might be admitted as “verbal acts” in a fraud case.)
Anything else is hearsay – all other statements and all documents of any kind. Fortunately, there are two major “exemptions” and so many exceptions that the rule against hearsay might be more usefully termed the “hearsay exception” to admissible second-hand evidence!
The two exemptions from the hearsay rule are as follows. (1) Testimony given by a party during his deposition; and (2) evidence introduced to prove a party admission. Deposition testimony given by a party may be treated as direct, live testimony for all purposes. A deponent’s answer might be excluded on the grounds of relevance, lack of foundation, privilege, or overly prejudical effect, or because the question was improperly phrased (so long as the objection was raised during the deposition), but it cannot be excluded on the ground that the deponent is not giving the testimony from the stand. Moreover, any witness can testify to what he remembers hearing a party say to him, if the statement constitutes an admission of fact that is relevant to the case (e.g., “The defendant, Mr. Smithers, told me that he buried the weapon in order to escape being detected” – which is admissible to prove that Mr. Smithers buried the weapon in order to escape detection).
In addition to the two major “exemptions,” there are innumerable “exceptions” to the rule against hearsay.
If, as is often true, your case depends on hearsay testimony, figure out which exemptions and/or exceptions might allow your evidence to be admitted. If the law on point is complicated, or if you are concerned that the judge might be unfamiliar with the hearsay exception that you plan to invoke, brief the matter before trial either in a motion in limine or in your trial brief, or have a bench memorandum ready at hand, so that when you proffer the evidence and the other side objects, you can request a side bar and instantly provide citations and argument that address the matter.
Remember, evidence that can be admitted despite the rule against hearsay comes in only if it is relevant, there is a proper foundation for it, its probative value is not exceeded by its prejudicial effect, and it is not otherwise excluded because of a privilege or immunity.
Probative Value vs. Prejudicial Effect. Evidence can be excluded even if it is otherwise admissible, if its probative value is “substantially outweighed” by its prejudicial effect. The trial court has broad discretion to make the determination. Any attorney who wishes to exclude on evidence on this ground should make the attempt by bringing a motion in limine before the trial begins. This kind of evidence is limited to matters that have only marginal relevance to the issues in dispute, but embarrass or publicly humiliate the opposing party or subject him to disrepute or disdain.
Privileges and Immunities. Evidence might be absolutely admissible, save that it is deemed privileged and therefore inadmissible in order to further a judicial policy that is regarded as more important than establishing the truth in your case. Some privileges are absolute unless waived (e.g., the attorney-client privilege, which covers communications between a client and his attorney, and which can be waived only by the client). Other privileges, such as the right to privacy, require the court to conduct a balancing test to determine whether the information in question is fully or partly protected by the privilege. Sometimes a litigant will elect to waive a privilege because doing so will help him to prove his case (e.g., allow his attorney to call him and his transactional attorneys to the stand to testify about their past conversations during contract negotiations in a case that concerns a breach of the contract in question). Waiving a privilege should be done only when the privileged information is vitally important to proving a claim. There are a few key privileges and several lesser known ones. Look them up and keep them in mind when considering evidentiary questions.
Practice Pointer. The above approach gives you the basics. The three practice guides mentioned at the start of this article provide more thorough, specific discussions and explanations. Use the pointers and pratice guides as you wish, but remember that they are insufficient. Whenever you prepare a case for trial, you must review the applicable statutes (e.g., the California Evidence Code or the Federal Rules of Evidence) as well as case law interpreting this evidence. Before going to trial, I always read the applicable statutes and examine the key ones with care. You will get better and better at handling evidence each time you try a case, but you must refresh your knowledge of these laws before each trial, even if you long ago fulfilled your ambition to become a savvy trial lawyer and now long only for one thing – to be young again!
Organizing and Presenting Your Evidence at Trial: Your Trial Notebook and Evidence Grid. Before you can present your evidence, you must figure out which evidence you wish to present, and which evidence is potentially harmful to your case.
Your Evidence Grid. To this end, you must first prepare an evidence grid. Doing so is not an option, but a requirement, just as is putting on shoes before you enter a courtroom. You should no more enter a trial courtroom barefoot than without an evidence grid. The concept is simple: For each cause of action at issue, list each element of the cause of action, and then next to each element list the item of evidence that you have or know about that tends to prove or disprove the element. This information is best organized in a table. Once you have performed this task for every cause of action in the case, you will have listed all of the evidence that is relevant to any claim made in the case.
The exercise of preparing the evidence grid will help to keep you grounded in the case and determine the following: What “holes” exist in your case? What evidence must you obtain during discovery? What evidence must you gather by discovery or other means before you are ready to try the case? Preparing an evidence grid also offers other invaluable benefits: It makes you far less inclined to refute every point that your adversary tries to prove merely because he has made the effort to prove it (just because your adversary is off on a wild goose chase does not mean that you should join him). It will remind you of what you wish to say during your opening statement and closing argument. It will allow you to recognize which evidence strongly supports your case, which evidence might prove problematic, and which claims lack necessary evidence or at least good evidence on key elements.
A trial lawyer must fastidiously prepare a careful, thorough evidence grid. This work requires a passion for the case, a willingness to pore over the discovery findings and other data as they become available, and a proper recitation of each element of each allowed claim. In most cases, it is best to wait until the pleadings are settled before preparing your evidence grid. Once you have prepared it, you can list all of your own evidence in the grid as well as other evidence that you have obtained informally before bringing the case. You can then add further points of evidence as you obtain them during discovery and from your own investigation.
Preparing an evidence grid, then, is necessary groundwork to proving your case at trial. It makes sense not to prepare the evidence grid until after the pleadings are settled, since you will not know until then what claims will be allowed at trial and on what basis, but the task should never be postponed to any later stage of the case. Of course, you will continue to add points of evidence onto your grid as the case proceeds, and you may modify the grid by adding and removing claims, but the grid should be set up and already include your own evidence before you propound any written discovery or take any deposition (excluding emergency discovery that you might seek to take at the very start of a case). As the new information arrives, you must then carefully organize it in your evidence grid. Ideally, by the time of trial your grid will be complete and list convincing evidence on the key points. You know that you have an “evidence problem” if your grid includes mostly or only references to your own client’s testimony. While certain obvious points require little substantiation at trial, you must always try to present cumulative, conclusive evidence on all of your key points, and the interested testimony of a few witnesses is rarely sufficient, save for cases in which the only available evidence is the say-so of the protagonists (thus the adage, it is a “he-said, she-said” case, which will invariably turn on the credibility of the opposing protagonists).
Your Trial Notebook. Once you have completed your evidence grid, you should place in it your trial notebook, which in turn should be so complete and thorough that “a monkey could pick it up, walk into the courtroom, and try the case.” (The quote belongs to one of my favorite colleagues). The basic idea is as follows. At trial you will examine prospective jurors, select a jury, present your opening statement to them, examine witnesses and seek to have exhibits admitted so that you can use them in your examinations and closing argument, sometimes object to your adversary’s evidence, submit proposed jury instructions and verdicts to the court, perhaps oppose some of those offered by your adversary, watch while the judge gives his final instructions to the jury, and lastly make your closing argument to the jury.
Your trial notebook helps you to organize and better perform this work, which invariably entails “many moving parts” and a great flurry of excitement and high drama.
Until recently I used an actual enormous binder that I or my assistant would lug around along with all of our other papers, but for our last trial we assembled our trial notebook as carefully organized pdf documents stored on a laptop computer. Even so, it is a good idea to have a traditional binder that you can use as a backup if your laptop crashes or fails to work properly at some point during the trial.
Like the evidence grid, a trial notebook must be very carefully and methodically prepared. The many tasks involved are time-consuming and in some respects laborious, and these tasks are perhaps more properly discussed in an article on trial preparation, not in a supposedly concise summary of the rules of evidence. I have nevertheless dwelled on this topic here because it is not possible to organize or present your evidence properly at trial without a completely self-contained, impeccably organized trial notebook. It can’t be done. Your trial notebook (binder or laptop) should include the following items:
- An outline of your opening statement and a case chronology;
- Your evidence grid;
- An index of witnesses and your witness folders;
- An index of exhibits (proposed, authenticated, admitted by stipulation, admitted during trial) and all proposed and admitted exhibits;
- (You might sometimes keep your witness folders and exhibits in a separate box and merely place your indexes of witnesses and exhibits in the trial notebook.)
- All motions in limine, opposing papers, and rulings on these motions;
- Bench memoranda (typically on difficult points of evidence);
- Stipulated jury instructions and each party’s proposed jury instructions. Where possible, use CACI instructions in California state court and the 9th Circuit’s model instructions in the district courts of the Ninth Circuit. Only when strictly necessary, use specially prepared instructions that are spare, easy to follow, as simple as possible, and obviously supported by controlling case law, which should always be cited and quoted below the proposed instruction (your author has learned these points the hard way!);
- Stipulated verdict forms and each party’s proposed special verdicts;
- The trial briefs;
- All pre-trial orders and any standing order on trial procedure;
- Key pleadings and discovery responses; and
- An outline of your closing argument.
Each witness folder should contain an outline of the examination or cross-examination, and each cross-examination should be scripted, word for word, with the answer to each question printed below and cross-referenced to the source that provides each answer (e.g., a deposition clip, an exhibit, a discovery response, etc.). The cross-reference (a video clip of deposition testimony or an admitted exhibit) should be ready to be shown by your trial technician within 20 seconds or less. Each witness folder must have a copies of each exhibit that you plan to show to the witness, even if an exhibit binder has been circulated to the Court and all counsel and also placed next to the witness’ stand. If the witness is a party, it should include a copy of the notice of appearance and accompanying proof of service. If the witness is a non-party, it must include a copy of the trial subpoena and accompanying proof of service. It should also provide all known contact information for the witness. It is your burden to make sure that you have arranged to have your witnesses in the courtroom when you wish to call them!
Further Pointers. After preparing your evidence grid and trial notebook, you should have a very good idea of exactly which items of evidence you seek to introduce and which items you might prefer to have excluded. Never try to exclude evidence unless there is a good reason for doing so. Otherwise, you give the appearance of seeking to suppress the truth or of playing games with the rules of evidence, and this will make poor impression on jurors, who wish to hear the truth, not a truncated version of it, unless the “truth” is so tedious and incomprehensible that they would willingly pay money to whichever party will first allow them to leave! This last point leads us to the first principle of trying complex cases: The aim is to explain complicated, difficult matters so that they can be readily understood, even if they are not simple at first glance.
Perhaps some of my more mature readers, like me, remember the episode of Star Trek in which the doctor, “Bones” McKoy, learns from benevolent, sage aliens how to reconnect the millions of damaged nerves and networks in Spock’s damaged mind. At one point he exclaims, “I can’t possibly do this work! Are you mad? There are millions and millions of neural networks in his mind! I can’t operate on his brain, are you mad!” But after the wise and benevolent aliens have tutored him, he sets to work, grins happily and quips, “why, it is so simple, so simple and easy, a child could do this!” That is how your jurors should view your case after you have taken the effort to make it clear to them. You must be the one to do the work in order to make its clarification easy for them. Preparing a trial notebook and evidence grid will help you to do your work, and the above principles of evidence will help you to present your items of evidence when the time comes do to so.
Lastly, don’t be overwhelmed by all of this. Go to trials. Conduct trials. Learn. And remember: All you have is your narrative, your claims or defenses, the elements that you must prove to establish your claims or defenses, and the evidence you need to prove these elements, which comes from your witnesses and exhibits. Then it is up to you to connect all of the dots and make sense of the many matters when you give your opening statement and closing argument. It is that simple. It is elementary!
By William Markham (© 2011 and updated in 2013).