You Need This Evidence, Admit It!

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

2. Why Do We Need Evidence Anyway? • Because YOU can’t be trusted to tell the truth. • Because WE believe, fundamentally, that the truth is best reached through zealous presentation of competing evidence. • Because evidence tells a far better story than a mere narrator ever could.

3. How Do We Use Evidence?The Lawyer as Storyteller • Advocacy in a trial or evidentiary hearing is really the art of persuading the trier of fact that your client deserves their help more than the other side. • Such persuasion is most effective if you get the trier to reach a favorable impression all by themselves. This is done best by effective storytelling. • Evidence provides the elements of the story – the characters, the plot, the tension, and, sometimes, the resolution.

4. Testimonial Evidence • The most common form of evidence. • Includes: • Testimony about facts from percipient witnesses • Opinion testimony from lay witnesses • Opinion testimony from expert witnesses • Prerequisites – • Competence to testify – • Actual knowledge of relevant information • Mental competence

5. Testimonial Evidence • Establish prerequisites at top of questioning. • Ability and/or responsibility to perceive relevant facts. • “You were there when Mr. Jones punched Mr. Smith in the parking lot?” • “What does your job as a forensic accountant require you to do?” • “You worked in the cubicle next to Mr. Schmitt for two years?” • “What type of tests do you perform on blood samples in your lab?” • Establish credibility/background but GET TO THE POINT.

6. Testimonial Evidence • Lay Opinion Testimony. • Rule701, Ariz.R.Evid. allows admission of lay opinions, but requires that the opinion: • Be “rationally based on the witness’s perception; • “be “helpful to clearly understanding the witness’s testimony or to determining a fact in issue; and • “Not [be] based on scientific, technical, or other specialized knowledge within the scope of Rule 702.”

7. Testimonial Evidence • Lay Opinion Testimony – Which of the Following Qualify? • Opinion of a professional landscaper that the damage done to the plaintiff’s citrus trees by toxic runoff from a neighboring business would probably result in a 50% reduction in fruit yield over the life of the trees. • Opinion of an election campaign manager that the financial recordkeeping she observed in auditing a competing campaign’s books fell below the standards for recordkeeping in her industry. • Opinion of a star baseball player that another player must have been “on the juice” using performance enhancing drugs when he set league batting records last year.

8. Testimonial Evidence • Expert Opinion Testimony. • Prerequisites • Competence to testify as an expert. Rule 702 requires the witness be “qualified as an expert by knowledge, skill, experience, training or education.” • The particular skills possessed by the witness must be capable of “help[ing] the trier of fact to understand the evidence or to determine a fact in issue.” Rule 702(a), Ariz.R.Evid. • Testimony must be “based on sufficient facts or data.” Rule 702(b), Ariz.R.Evid. • Testimony must be “the product of reliable principles and methods.” Rule 702(c), Ariz.R.Evid. – adopts the Daubertstandard. • Testimony must “reliably appl[y] the principles and methods to the facts of the case.” Rule 702(d), Ariz.R.Evid. • Rule 703, Ariz.R.Evid. - The opinion may rely on facts or data that are themselves inadmissible “[i]f experts in the particular field would reasonably rely on those kinds of facts or data in forming an opinion on the subject.

9. Why We Use Exhibits • Compare novel reading times to movie viewing times. • “A picture is worth a thousand words” – and probably even more minutes of trial time. • Facts conveyed through testimony alone can be misleading.

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

11. Why We Use Exhibits • STORYTELLING • Exhibits allow you to better set the scene, characters and emotions you wish to convey with your story.

12. Example: Hellman v. Weisberg • “She admitted that she understood that she was ‘gonnaget the eye from a lot of people, and [was] okay with that.’ PSOF ¶ 15. She was insolent and rude to Judge Weisberg and called the Court of Appeals a ‘gutless court that has very little integrity.’ DSOF ¶ 17. She displayed a shockingly inappropriate understanding of her role at the court.” • “Exercising remarkable restraint, Judge Kessler chose not to terminate her for her gross insubordination. Many employers would have escorted her out of the building.”

13. Other Benefits to Using Exhibits • Helps keep the story concise. • Keeps the audience engaged. • Corroborates/enhances credibility of your evidence. • Enhances the record for appeal.

14. TYPES OF EXHIBITS • “Real Evidence” – • Items that, by themselves, provide facts relevant to disputed issues. • Are admitted into evidence. • Examples: • Tangible physical evidence • Documentary evidence • Recordings

15. TYPES OF EXHIBITS • Demonstrative/Illustrative • Exhibits • These are items that depict or explain facts that are otherwise admitted • through testimony or other • exhibits. • Examples: Charts, Graphs, Summaries Models Video recreations

16. Sample Demonstrative Exhibit

17. THE ART OF SELECTING EXHIBITS • Remember, sometimes less is more - not every • exhibit needs to be used. • Consider whether information is • better conveyed through testimony. • (Ex. - description of pain and • suffering). • Consider relevance to the story – subplots are • generally not very helpful. • Ensure consistency with trial theme. • Consider complexity of exhibit. (Ex. – • blueprints versus a scale model of • a building.)

18. THE ART OF SELECTING EXHIBITS • Anticipate all admissibility challenges. • Why? • Fights over admissibility detract from story, distract the jury, and potentially undermine credibility of the exhibit. • So, • If you have duplicative exhibits, consider which of is easiest to admit without objection. • If you anticipate substantial admissibility hurdles, consider whether you can or should get the information in through testimony instead. • Never assume that just because an exhibit is not admissible the information it conveys cannot come in somehow. (Expert testimony, refreshed recollection, etc.)

19. PLANNING “WHEN” TO INTRODUCE • Sponsoring witness order of appearance. (Intro. of exhibits may be driven by, or drive, the order of appearance). • (TIP: Because most exhibits • require a sponsoring witness – • identify back-ups.) • May adopt a chronological sequence. • May wish to hold certain exhibits for introduction only on cross-examination.

20. GETTING EXHIBITS ADMITTED • KEY ELEMENTS TO ADMISSION OF EXHIBITS • LEGAL FOUNDATION • ESTABLISHING RELEVANCE • MANAGING CREDIBILITY

21. GETTING EXHIBITS ADMITTED • STEPS FOR INTRODUCING/ADMITTING EVIDENCE • Mark the exhibit. • Show to opposing counsel. • Give to witness. • Establish legal foundation/Authenticate. • (to be continued)

22. Legal Foundation/Authentication • Laying legal foundation – • Must prove the exhibit is what it purports to be. • Must establish that the exhibit is relevant to disputed • issues. • Procedure • Establish that the witness is competent to testify to the • issues – that they are familiar with the operative facts that • the exhibit is relevant to, and that they are in a position to • confirm the exhibit is what it purports to be. • Establish what the exhibit is and the basis for the witness’s • confidence that it is what it purports to be.

23. Admitting Demonstrative Exhibits • Do not independently convey relevant facts. • Used to help a witness explain their testimony, or to aid argument. • Generally not admitted into evidence. • Requirements for authentication are different – must • show the exhibit will help the witness explain otherwise relevant testimony.

24. AUTHENTICATING DOCUMENTS AND PHYSICAL EXHIBITS • Need to have witness confirm their prior familiarity with the exhibit. • Need to have witness confirm the exhibit is in the same condition it was at the time relevant to the disputed issues. • Exs. – • “Mr. Jones, is that the original of the lease you and Mr. Smith signed in October? Is it in the same condition it was when you signed it?” • “Officer Green, is the mallet you are holding in the same condition it was the night you pulled it out of the defendant’s hands?”

25. AUTHENTICATING RECORDINGS • Who may authenticate? • Need to establish that the witness has personal knowledge of the facts relayed by the recording (photograph, video, audio file, etc.) • Authenticating witness need not be the creator or the originator of the exhibit. • Need to establish that the witness believes the recording is an accurate depiction of the facts they are aware of. • Example: • Does this photo fairly and accurately reflect the scene you saw at the accident site?

26. Sample Photo Authentication

27. GETTING EXHIBITS ADMITTED • STEPS FOR INTRODUCING/ADMITTING EVIDENCE • Mark the exhibit. • Show to opposing counsel. • Give to witness. • Establish legal foundation/Authenticate • Anticipate objections • Offer the exhibit for admission • Allow for objections/voir dire • Wait for ruling • Publish the exhibit • Use the exhibit

28. USING EXHIBITS TO REFRESH RECOLLECTION • What can be used to refresh a recollection?

29. USING EXHIBITS TO REFRESH RECOLLECTION • Procedure - - • Establish the witness had knowledge of relevant information. • Establish that witness no longer recalls the information. • Establish that the witness might find help remembering by reviewing an exhibit. • Show the witness the exhibit. • Retrieve the exhibit. • Ask the witness if their recollection is refreshed, and, if so, to answer the question.