Points to note when Introducing Documentary Exhibits in Trials

Exhibits are the tangible objects, documents, photographs, video and audiotapes, digital recordings, and other items that are offered for the court's consideration. Exhibits are the only form, apart from the testimony of witnesses, in which evidence can be received. Spoken testimony typically presents a recitation of the witness's memories and perceptions. Exhibits, on the other hand, allow the judicial officers to use their own senses and perceptions.
At trial, exhibits enhance or supplement the testimony of the witnesses. Exhibits can make information clearer, more concrete, more understandable, and more reliable. In all cases, Exhibits help court see the facts as opposed to being told.

Types of Exhibits
Although the categories tend to overlap and the lines cannot be drawn with precision, it is often helpful to think of exhibits as falling into these three categories:
*Real or tangible evidence,
*Demonstrative evidence, and
*Documentary evidence.

Documentary Evidence
"Documentary evidence" is the term, used to ' refer to virtually all writings, including letters, contracts, leases, memoranda, reports, ledgers, printouts, and business records.
The value of documentary evidence cannot be overstated. Intrinsic writings can provide proof of past events in a way that mere testimony cannot. Imagine a criminal case in which the defendant has raised an alibi defense, claiming that on the day of the crime he was visiting relatives in a distant city. The testimony of the defendant and his family is relevant and admissible to establish the alibi, but it will be subject to vigorous attack on cross-examination. A signed hotel receipt for the date in question stands to be far more persuasive than any witness as to the defendant's whereabouts.

Method of Introducing Documents in Trials

Criminal Trials: In Criminal Trials, usually all documents are tendered through the testimony of witnesses.
Civil Trials: In Civil Trials, documents can be tendered and admitted into evidence either by agreement between the parties at Scheduling or if the documents are not agreed to, by the Witnesses introducing them when testifying and Counsel praying for their admission into evidence.

Where testimony is oral, the documents can be introduced through the witness. Where testimony is by witness statement, they can be attached to the witness statement. In both cases, both parties must have notice of the documents to be relied on by the other party to avoid surprise and ambush. Therefore they will usually have been attached to pleadings, listed in Scheduling Memorandums and where applicable compiled in trial bundles.
Documents can also be introduced during cross-examination through an opposite party’s witness.

Pre-Trial Procedures
Court procedures dictate various ways parties may introduce documents or demand for documents from opposite parties. These procedures at times require the filing of certain notices or applications before court to compel opposite parties to produce documents.
The background for the above procedures is found in various rules of evidence which require strict compliance with certain procedures which if not followed may see the evidence illegally obtained expunged or not given any evidential weight.

Document References at various stages
Apart from court procedures to produce documents, documents go through different stages before forming part of the court record. These include;

i. Annextures: When attached to court pleadings
ii. Identification: When witnesses have introduced them to court but for one reason or another are not competent to tender them or the documents are not in admissible forms
iii. Exhibit: When competent witnesses have introduced the documents and an application has been made successfully to accept the documents into evidence, they are marked accordingly by the court. This process can also be achieved by parties agreeing to the documents at Scheduling and marking the agreed documents as Exhibits.

Foundations
Just as testimony, a witness cannot tender a document unless the document fulfills various evidential rules. This requires that various backgrounds and foundations must be established to prove that a witness is competent to tender the documents and that the documents are admissible before the witness can be taken to specific documents.

Main elements of foundations that affect the credibility of documentary evidence include;
*Originality,
*Privilege (where a party is law allowed to decline providing evidence),
*Authenticity,
*Relevance,
*Hearsay,
*Evidential challenges with the document

The application to tender the document into evidence is only necessary where documents have not been agreed to by the parties. However, documents being agreed to does not mean that their evidential evidence has been proved and or admitted too. Therefore, the foundation and relevance of documents must nevertheless be adequately and comprehensively covered even when documents are agree to.

Where witness statements are used, the statement must still demonstrate that;
* they are competent to tender the documents,
*the documents are authentic,
*any evidential challenges of the documents are dealt with and
*their relevance is explained

Pay attention to the form of questioning depending on the part of the Trial; documents tendered through examination in chief must be by use of open ended questions that avoid leading the witness while questions on cross examination should be by use of leading questions.

Dancing with Documents
To control the hearing, an advocate must move with efficiency and confidence. Avoid the fumbling, gambling and abandoning control to guess work or “to whom it may concern”.
One way to establish credibility when representing a client is by being organised and prepared. There is no better way to show this than how you handle your documents.

Steps to follow when introducing documents;
1. First, establish the existence of the document.
2. Develop / lay the above foundation required for the witness to tender the document; competence, description, content etc.
3. Next, let the Judicial Officer in on what you are about to do. Eg. Assuming the documents have been pre-marked in a trial bundle – Your Honour, I would like to direct the witness to the document marked as Exhibit “A” on page 10 of the Plaintiff’s Trial Bundle. Or, Your Honour I have in my hands a document listed under Item 3 of the Plaintiff’s Documents in the Joint Scheduling Memorandum Or Your Honour I would like the witness to turn to Annexture C of the documents attached to their Witness Statement.
4. If the document is not in a trial bundle already provided to court and opposite counsel, provide copies by forwarding one to opposite counsel and one to the clerk to pass on to the court. Any documents provided to court are always through the clerk. Be very clear about what is happening by audibly distributing these copies; e.g. “I have a copy for opposite counsel and for the Court.”
5. Ask the Judicial Officer for permission to approach the witness or to forward the witness the document through the clerk.
6. Then turn the witness’ attention to the document or ask the witness to turn to the specific document if it is part of their witness statement or a Trial Bundle which they already have; “Mr. Mukasa, what are you holding in your hands.” Or “Mr. Mukasa please turn to Annexture “A” of your Witness Statement” or “Mr. Mukasa please go to page 13 of the Trial Bundle.
7. Wait for the witness to get there and then ask them to describe the document.
8. Next confirm the foundation earlier laid by the witness about the document.
9. Lead the witness to cover the evidential relevance of the document.
10. Once the witness has ably identified and owned the document, make an application for the document to be tendered into evidence and be marked as an Exhibit.
11. The Court will inquire from opposite counsel whether they are any objections to the document.
12. If there are, you must be prepared to respond to the objection. The party making the objection will rejoin your response.
13. The court makes a ruling on the objection. If the objection is over ruled, the court marks the document tendered as an Exhibit e.g. P. Exh. 1. If the objection is upheld, the document may be marked as identified, e.g D. I.D. 1.

Points to note about the Tendering Process
*Most objections to documents being tendered arise from the lack of evidential foundations and therefore the remedy may be to lead the witness or call another witness to address the gaps.
*Documents that are identified are not part of the evidence and counsel tendering them must endevour to address the objections upheld and re-apply for their admission as exhibits.
*Even where objections to documents are upheld or over ruled, counsel may challenge such rulings on appeal and it would be up to such an advocate whether to challenge such a ruling right away or on appeal against the whole judgement.
*It is possible to tender a document through an opposite party’s witness through cross examination only then the above steps are fulfilled with the usual cross examination techniques of controlling the witness by the use of leading questions when developing the required foundation.

Further Reading
*Relevant sections of Modern Trial Advocacy – Steven Lambert
*Video Demonstrations on foundations necessary for different documents at the NITA link