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Everything you do matters,
So it should be genuinely valuable

Steve Dioneda

Evidence. Any species of proof, or probative matter, legally presented at the trial of an issue, by the act of the parties and through the medium of witnesses, records, documents, exhibits, concrete objects, etc., for the purpose of inducing belief in the minds of the court or jury as to their contention…All the means by which any alleged matter of fact, the truth of which is submitted to investigation, is established or disproved. Any matter of fact, the effect, tendency, or design of which is to produce in the mind a persuasion of the existence or nonexistence of some matter of fact. That which demonstrates, makes clear, or ascertains the truth of the very fact or point in issue, either on the one side or on the other. That which tends to produce conviction in the mind as to existence of a fact. The means sanctioned by law of ascertaining n a judicial proceeding the truth respecting a question of fact…

Partial definition-“Black’s Law Dictionary”, Abridged Fifth Edition Evidence, ev’i-dens, n. That which demonstrates that a fact is so, testimony; proof;

witness-To make evident, to prove “Webster’s Dictionary”

“Be frank and explicit with your lawyer…it is his business to confuse the issues afterwards”

-J.R. Solly

When preparing for trial, I always view the evidence I intend to admit as having to persuade two different audiences. As a Plaintiff’s trial attorney, I never forget that I have to present enough evidence to initially overcome Defense Counsel’s Motion for Directed Verdict and ultimately prove the elements of my cause of action as outlined in the Verdict Director. Most of the judges I have been in front of are not going to be

persuaded by my wit, flair for drama or my red power tie. At the same time, I feel that my evidence has to convince the jury made up of people like my father-in-law that both my client and I are telling them the truth.

Remembering that everything you do at trial matters reminds us that when it comes to deciding on what evidence to use at trial and how to get it admitted, we have to begin preparation when that case first walks through the door. It’s easy to read a favorable police report and think that presenting your case in trial a year or two later will be a breeze. Inevitably, you run into the quagmire of hearsay objections, missing witnesses and lack of foundation for that smoking gun piece of evidence that will have your opponent desperately seeking a last minute settlement before the case goes to the jury.

Before proceeding to a brief discussion of various evidentiary issues, I would like to highlight some general rules that experience has taught me are extremely helpful in not only presenting evidence but as to the entire trial of a case.

  • KEEP IT SIMPLE-This applies not only to evidence but to the theme of your case
  • BE PREPARED-Know the foundations for the admission of your evidence, have exhibits marked, be organized
  • HAVE YOUR WITNESSES PREPARED-Just because you are prepared, do not assume that your witnesses are prepared to respond appropriately to direct examination let alone to cross-examination-remember, often the only evidence you have on a particular issue may be the testimony of a witness

Preparation is so important to the presentation of your case. If you are truly prepared, you will be more confident in presenting your case. You will have anticipated and prepared for the objections to the evidence you need to admit.

Trial preparation includes:

  • Knowing what you need to establish a prima facia case
  • Knowing the elements of your case
  • Knowing what evidence is available to you
  • Knowing what evidence you need to establish each element of your claimor defense
  • Knowing how each piece of evidence will be admitted
  • Knowing how you are going to use each piece of evidence- Proving or disproving a factual issue? – Impeaching a witness?
    – Rehabilitating a witness?
    – Refreshing a witness’ recollection?

    – Bring to life for the jury, an accident scene?

  • Organizing and deciding how you will present the evidence
  • Knowing that while you have a case to prove, you also have a jury topersuade/entertain

Before the trial court will admit any evidence, you will have to lay a foundation.

You need to demonstrate to the Court why an item of evidence should be admitted.

A. Laying a Foundation
A party that is attempting to introduce or admit an item of evidence must lay a

foundation for the admission of the evidence before formally offering the item into evidence. For example, if one is attempting to introduce “Business Records”, the foundation must include: 1) The identity of the records; 2) The record’s mode of preparation; 3) That the record was made in the regular course of business; and 4) That the record was made at or near the time of the act, condition or event that is the subject matter of the record.

Historically, the foundation to admit business records was usually laid through the testimony of a witness properly identified as the custodian of those records or another qualified witness. As a practical matter, there are certain records that can be admitted by complying with a specific evidentiary statute. For example, business records can be admitted upon the service of the records and an attesting affidavit by the records’ custodian at least seven days prior to trial. 490.692 R.S.Mo. Medical records that comply with 490.680 R.S.Mo., may be admitted as business records In addition, under the same statutes, police reports may also be admitted as business records.

However, one must remember that simply because documents or records may be admissible under the “Business Records” exception, even after proper foundation, they are still subject to any and all objections as to their contents. In offering a police report, even though it may be qualified as business record, portions of the report are subject to other objections as to admissibility such as “conclusions” or “unqualified opinions.”

Most often a foundation must be laid by witness testimony. For example, in offering a photograph, the elements of the foundation are:

* The witness is familiar with the object or scene
* The witness explains the basis for his familiarity with the object or scene
* The witness recognizes the object or the scene
* The photograph is a “fair” or “accurate” representation of the object or the scene at the relevant time
In laying your foundation for evidence through testimony of a witness, it is

important that in questioning the witness, you use simple easily understood language. Don’t say “prior to.” Say “before.” Don’t say “subsequent to.” Say “after.” Say “car,” not “motor vehicle.” Your witness may be nervous. More often than not, your witness is not a professional. If he is a professional, such as a treating physician, it can be a painful experience if your “friendly” physician tells you in front of the jury that he doesn’t understand you. Most importantly, remember that your audience is the jury and they will appreciate “plain” language. Remember one of the key rules, “Keep it simple.”

In addition, keep your questions short. We’ve all done it. We’re rolling along in a deposition and think we are on to something. The next thing you know, you hear yourself spouting one of those 50 word questions where the only response you get from the witness is something like, “Huh?” Well when you are trying to lay a proper foundation to admit important evidence, if your witness can’t follow you, you’re not going to get the right responses to your questions. If you don’t get the right responses, you’re not going to lay your foundation. If you don’t lay your foundation properly, your opponent is going to object.

Remember one of the other key rules, “Be prepared.” When it comes to laying a foundation, both you and your witness need to be prepared as to what your goal is

concerning the evidence. There is no reason whatsoever for your witness not to be prepared. Explain the evidentiary rule to your witness. Walk him or her through the fact that you are going to try to admit a photograph with their help or draw an opinion as to a car’s speed from their testimony. If you are trying to admit evidence, you should always know the foundation needed before you go anywhere near the courthouse.

For example, if you are trying to introduce a photograph of an intersection, which is the scene of the accident where your client was injured, it might go something like this: Attorney: Now, can you tell the jury where the accident occurred?
Witness: It happened at the corner of Kingshighway and Delmar.
A: Have you been to the intersection before the date of the accident?
W: Yes.
A: So you are familiar with the intersection?
W: Yes.
A: Your honor, may I approach the witness?
J: You may.
A: I am going to hand you what I previously had marked as Exhibit “A”. Can you tell me what it is?
W: That’s the intersection of Kingshighway and Delmar.
A: Can you tell me from what perspective or view point Exhibit “A” shows the intersection?
W: Well you are on Delmar, just west of the intersection, looking eastbound.
A: Does that photograph, Exhibit “A” accurately reflects or depict how the intersection looked on the day of the accident?

W: Well, there aren’t leaves on the trees. The accident happened in the summer and there were leaves in the trees.
A: With that exception, does Exhibit “A” accurately depict how the intersection looked on the day of the accident?

W: Yes it does.
A: Your honor, at this time, I would move to admit the Plaintiff’s Exhibit “A”. Remember that once you’ve laid your foundation, your exhibit, your exhibit is not admitted until you have moved to have it admitted and it has been accepted. Before, every trial, in addition to having your exhibits marked, you should have a list of your exhibits and check them off as they are admitted. In addition, I like to provide the Court and opposing counsel a copy of my proposed exhibit list whether or not I am required to do so.

This writer still pulls out his “Evidentiary Foundations” by Edward J. Imwinkelried, THE MICHIE COMPANY, Charlottesville, Virginia © 1980 The Bobbs- Merrill Company, Inc. and “Missouri Evidentiary Foundations” by John C. O’Brien, Jean C. Hamilton, Eugene K. Buckley and Edward J. Imwinkelried, THE MICHIE COMPANY, Charlottesville, Virginia © 1994 The Michie Company, before every trial. I use these books as a recipe to script my questions as to any foundation or to prepare to argue any objection that I anticipate I will see from opposing counsel.

B. Relevance
Relevant evidence is evidence that has the tendency to prove or disprove any

disputed fact that is of importance to the determination of the case. Relevant evidence includes evidence that bears on the credibility of a witness. It includes evidence that is created solely for trial or to aid the jury to understand witness testimony. Only relevant evidence is admissible and, unless it is otherwise excluded, all relevant evidence is admissible.

Obviously, despite all your efforts to comply with the evidentiary rules, there will come a time when a trial court will refuse to admit evidence you have offered. After such a refusal, to preserve your point for appeal, you must make an offer of proof that demonstrates that relevant and admissible evidence was improperly excluded. Your offer of proof must establish that you 1) demonstrated to the trial court the relevancy of the testimony offered, 2) be specific, and 3) be definite. In general, like laying a foundation, an offer of proof is usually carried out in a “question and answer” format.

C. Habit and Routine
Habit evidence may be used as well as character evidence as circumstantial proof

of conduct.
The major difference between Habit and Character evidence-

  • Character evidence is usually admissible only after the criminal defendant opens the issue.
  • Either party in a civil or criminal case may introduce habit evidence.
  • Character evidence allows the proponent to prove “general” character orcharacter traits-Habit evidence requires proof of a very specific, frequently repeated behavioral pattern.

-A specific mailing procedure a business customarily used
• Character evidence is reputation not opinion evidence/Opinion evidence is

the most common method of proving a habit. Foundation of Habit Evidence

  • Witness is familiar with the business or person.
  • Witness has been familiar with the person or business for a substantialperiod of time.
  • In the witness’ opinion, the person or business has a habit, a specificbehavioral pattern.
  • The witness has observed the person or business act in conformity with thehabit on numerous occasions.
    Missouri Courts have held that the admission of evidence under this rule “should be

    restricted and kept within narrow limits.”
    Only evidence that rises to the level of a habit or a routine practice overcomes, by

    virtue of its probative value, the accompanying dangers of collateral inquiry and of distracting the jury from the main issues to be resolved.

    Hawkins v. Whittenberg, 537 S.W. 2nd 385- the doctrine was recognized but the offer of proof was inadequate as to whether or not pedestrian crossed streets only within crosswalks.

    D. Objections
    The legal purpose of objections is to avoid trial court error and allow the trial

    court to rule intelligently. The burden is on the party who objects to the admission of


evidence to state proper grounds for the exclusion of that evidence. The attorney must state his or her objections with sufficient specificity that the trial court will be made aware of what rules of evidence are being invoked.

Objections make the record for appeal. Earlier, I talked about presenting evidence to two different audiences. Well a good objection plays to a new audience known as the appellate courts. Objections preserve your claim or claims that the trial court has erred in allowing evidence of your opponent that you believe the rules of evidence require to be excluded.

Sufficiently specific objections must be raised by the objecting party in time for the trial court to act. You must remember that the scope of the objection cannot be broadened on appeal nor can a different objection from the one offered at trial be raised on appeal.

If you give a general, non-specific objection, the trial court knows that if it overrules your objection, it is not in error on its part. Again, with good preparation, you will most often be prepared to state legal reason for your objection. Through discovery and preparation, you should be able to anticipate what questionable evidence or testimony, opposing counsel might attempt to admit. Before the trial ever begins, you are most likely going to want to address those issues in a Motion in Limine. However, remember you must renew your objections if opposing counsel still attempts to introduce that evidence during the course of the trial itself.

If a question itself is not objectionable but the answer was objectionable, you should promptly move to strike the answer or you have waived any potential claim of error.

Now as a practical matter, don’t just make an objection to make an objection. For example, there are times that leading questions are not only appropriate but a welcome relief to keep a case moving along. Object because it is important.

Just as important, you should be in a position to anticipate objections to your evidence and be prepared to state to the Court why it is admissible.

E. Hearsay
Most people, including many lawyers, think that the hearsay rule applies to any

out-of-court statement. To the contrary, the hearsay rule is fairly narrow and specific. Evidence is hearsay only if it is 1) an assertive statement 2) by an out-of-court declarant 3) offered to prove the truth of the matter asserted. The Federal Rule definition is “a statement, other than one made by the declarant while testifying at trial or hearing, offered in evidence to prove the truth of the matter asserted. FRE 801 (c). For example, if the witness in the courtroom testifies that, “Bill said, “ It’s raining.” This testimony is hearsay if it is offered to prove that Bill’s statement is true, i.e. it was raining. If it is offered to prove why someone who was listening to Bill put on a raincoat before going outside, it is not hearsay.

The reason for the hearsay rule is that we want to preserve the right of immediate cross examination and we want the declarant to testify within the parameters of trial, that is, under oath and to establish first hand knowledge on the part of the declarant.

Practical Application of the Hearsay Rule


  • Hearsay evidence almost always comes in. So many exceptions that they swallow the rule
  • Some believe that hearsay evidence has no real impact. In today’s courtroom savvy public, it is understood that hearsay has little credibility. In addition, in general, admission of hearsay evidence is almost always held to be harmless error on appeal
  • At times, the real world application of the hearsay rule is almost so complex as to be impossible to understand
  • When admission or exclusion of potential hearsay evidence is crucial, one should always address the issue with the trial court through a Motion in LimineHearsay Exceptions

    They are so numerous that whole books are written about them. However, in general, the hearsay exceptions rest on two grounds.

  • Need for the testimony because the declarant is unavailable
  • Inherent trustworthiness of certain hearsay evidence, e.g. medical records,business records Frequent Hearsay Exceptions
  • Admissions of a party opponent
  • Prior Inconsistent Statements
  • Present Recollection Refreshed
  • Excited Utterances
  • Dying Declarations
  • Declarations of State of Mind or Emotion
  • Declarations against interest

F. Miscellaneous Issues

  • Demonstrative Evidence is not Evidence it is a demonstrative aid. It is notadmitted.
  • Evidence of subsequent repairs is generally inadmissible to prove negligence.Logically, this evidence is irrelevant. However, it might be admissible to

    prove ownership or control.

  • Settlement negotiations are inadmissible.
  • Stipulations as to the admissibility of evidence. Quite often, parties maystipulate or agree that and item of evidence will be admissible which does

    away for the need to lay a foundation.

  • Judicial notice is an alternative to the presentation of formal evidence. Inessence, the Court accepts or notes a fact and informs the jury of the fact’s existence. For example, in Missouri, courts have taken judicial notice that a car travels approximately 1.5 times its speed in feet per second. Courts have also taken judicial notice that a car traveling at a certain speed can be stopped within a stated number of feet.