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Witnesses And Exhibits For Trial

What Does The Court Consider Evidence? Witnesses and Exhibits

Evidence is information you may present in court to prove your case, such as witnesses and exhibits. Essentially, evidence can be in two main forms: 

(1) people: witness testimony and

(2) things: exhibits.

People: witness testimony includes:

(1) People who have direct and relevant information about the case,

(2) People who keep records; and

(3) Experts.

Things, exhibits includes:

(1) Photographs;

(2) Records: police, medical, bills, appraisals, school records; and

(3) Other documents or things.

The Judge Will Want To Know: Why Are The Witnesses Or Exhibits Helpful In Deciding The Case?

Rules Of Evidence

There are rules of evidence that everyone must follow. These rules help ensure that the judge gets reliable, relevant and accurate evidence to consider when making decisions about your case. Among the most important of these rules are:

(1) Generally, people can only talk about what they know first hand – what they themselves saw, heard, felt, smelled, or tasted (there are some exceptions to this rule).

(2) The other party has the right to cross-examine anyone whose words (whether written or spoken) are being considered.

(3) All testimony must be relevant information.

Different case types may have their own rules. For example, how long you have to do things or how many questions you can ask are ruled by case type. One can read or refer to the California Evidence Code online at:

Using People As Evidence: Witnesses

A witness is a person called by either side in a lawsuit to give testimony before the judge or jury. It could be people who have direct and relevant information about the case, people who keep records, or experts who are qualified to give an opinion in an area of the case. Usually, the witness must be present in court for the hearing or trial.

Justice depends on several things, including examining the evidence in a case. Juries utilize expert witnesses and trial consultants to get facts to deliver a verdict in a case.

Expert witnesses are individuals with expertise in a given area who are used by juries to gather facts critical for assessing the case. These individuals play critical roles that positively impact the process of verdict delivery.

Trial consultants are individuals who advice the juries and attorneys on aspects of a case relevant to their field. These individuals play roles that affect legal cases positively and negatively.

The Role And Impact Of Expert Witnesses And Trial Consultants On Juries

Law practice should provide justice to people regardless of their demographics, relations, or societal influence. The process of delivering justice requires scrutiny of the evidence present in a case presented in a court of law. Juries apply different strategies to find facts and that drive impartial verdicts to help the court make an informed decision. In assessing evidence, juries use expert witnesses and trial consultants to gather factual and most viable information regarding the case (Wilcox & NicDaeid, 2018). Examining the role and impact of expert witnesses and trial consultants is critical in understanding the process through which juries use to deliver impartial judgment in a legal case.

Legal cases emerge in different forms depending on the case under investigation and assessment. In some cases, the case may require an expert’s opinion, especially if facts are challenging to determine or assess in a case. In these cases, expert witnesses are individuals that juries utilize to get a breakthrough.

An expert witness is an individual with experience, knowledge, and expertise in a specified field, which gives him or her the ability to assess a situation challenging to others (Bartol & Bartol, 2018). Juries use the expert to apply his or her knowledge and skills to produce facts relating to the field relevant to the case. These facts are used for the benefit of solving the case. Individuals who play the role of expert witnesses have expert knowledge in a field acquired through education, experience, or training in the specified area. Expert witnesses have several roles in a legal case preceded by juries, which creates several impacts in a legal case.

Preparing Witnesses For Court? 

It is not cheating to prepare for court. One can write out his or her questions to prepare for court. Practice the questions with your witness. Be prepared for cross-examination: talk with witnesses about what questions the other side might ask him or her. Remind witnesses that they must tell the truth. It is ok for a witness to say, “I don’t know” or “I don’t remember,” if that is the truth. Thus, one can also write down ahead of time the importance of offering this witness or exhibit. Then, when the judge asks, the person can answer even if he or she is nervous.

What If The Key Witnesses Will Not Come To Court? 

An attorney can ask the court to order a witness to appear. This is called a subpoena. The attorney can get subpoenas from the court that order someone: (1) to appear; (2) to appear and produce documents or things; or (3) to appear for the taking of a deposition.

Thus, some witnesses may want to appear but need to be served with a subpoena in order to get the time off of their work to go to court.

If your essential witness is not a party to the action or being represented by defense counsel, you must serve them with a subpoena for their personal appearance at trial pursuant to Code of Civil Procedure section 1987, subdivision (a). Service under section 1987, subdivision (a) needs to be made on the witness within a reasonable time. This allows the witness to prepare and travel to the trial.

On-Call Agreement For Witnesses

Under Code of Civil Procedure section 1985.1 a witness served with a subpoena for trial “may, in lieu of their appearance at the time specified in the subpoena, agree with the party at whose request the subpoena was issued to appear at another time or upon such notice as may be agreed upon.”

An “on-call agreement” is when a witness will sign an agreement that they will appear for their testimony so long as you give them enough notice – typically 24 hours. Be sure that the on-call agreement requires the witness to provide their best contact information and availability. With this agreement and a cooperating witness, you can coordinate your witness lineup more effectively and reduce the risk of losing a witness who would rather not wait at a courthouse for hours.

Subpoena Power Over Witnesses

By drafting and serving these legal documents, attorneys have the power to compel someone’s appearance at a trial for clients. While most witnesses take subpoenas seriously, some will accept service, but then disregard them.

What Happens If Witnesses Defy A Subpoena?

Suppose this witness is absolutely essential for the case, and there are no other alternative means of putting on their testimony. In that case, the attorney may have a remedy through a body attachment order and warrant of arrest under Code of Civil Procedure section 1993.

Pursuant to Code of Civil Procedure section 1993, the court, upon proof of the service of the subpoena, may issue a warrant to the sheriff of the county. The witness will then be located by the sheriff for an arrest  and to bring them before the court. To effectuate this order, one will need a physical description of the witness and their last known address. This information can be obtained from your process server, and the address to be listed on the order and warrant should ideally be the address where the subpoena was served. It is not preferable to have witnesses arrested and brought to court against their will.

The Best Option For Unavailable Witnesses: Depositions

There may be a situation in which some witnesses relocate, or move to another state due to hardship, or are just unavailable for the trial. Service of a trial subpoena under Code of Civil Procedure section 1987, subdivision (a) became impossible. Fortunately, their deposition had been taken and videotaped well before the trial. This allows the attorney to play their testimony at trial for the jury. In this situation, the attorney can put on a witness through their videotaped deposition testimony.

Under Code of Civil Procedure section 2025.620, subdivision (b), “an adverse party may use, for any purpose, a deposition of a party to the action or of anyone who at the time of taking the deposition was an officer, director, managing agent, employee, agent, or designee under section 2025.230 of a party. It is not ground for objection to the use of a deposition of a party under this subdivision by an adverse party that the deponent is available to testify, has testified, or will testify at the trial or other hearing.”

Under Code of Civil Procedure section 2025.620, subdivision (c), “any party may use for any purpose the deposition of any person or organization, including that of any party to the action, if the court finds any of the following:

  • The deponent resides more than 150 miles from the place of the trial or other
  • The deponent, without the procurement or wrongdoing of the proponent of the deposition for the purpose of preventing testimony in open court, is any of the following:
  • Exempted or precluded on the ground of privilege from testifying concerning the matter to which the deponent’s testimony is relevant.
  • Disqualified from testifying.
  • Dead or unable to attend or testify because of existing physical or mental illness or infirmity. 
  • Absent from the trial or other hearing and the court is unable to compel the deponent’s attendance by its process.
  • Absent from the trial or other hearing and the proponent of the deposition has exercised reasonable diligence but has been unable to procure the deponent’s attendance by the court’s process. 

If it is determined that a witness will be unavailable for trial, review the witness’s deposition transcripts and decide on the specific page and lines (often stylized as page/line) from the transcript to play at trial. While a video of the deposition may not fully engage the jury, it will serve as the next best thing. These designations should fully illustrate the witness’s background and highlight the defendant’s liability. File and serve a notice of intent to play videotaped portions of your witness’s deposition as close to the 70-day mark as possible.

Submitting the notice of intent early on puts a swift end to any argument that defense counsel is prejudiced by playing a deposition video in the case-in-chief. The notice of intent should include a chart with the specific page/line designations you intend to play. Meet and confer with the opposing counsel to see what designations can be stipulated to and which ones are subject to objections to and/or counter-designations.

Counter-designations are authorized under Code of Civil Procedure section 2025.620, subdivision (e). These counter-designations are intended to complete the initial designation and add context under the rule of completeness. If the opposing party plays their own page/line designations at trial, this can be used as an opportunity to create a joint page/line designation document. Under Code of Civil Procedure section 2025.620, subdivision (b), the opposing party will not be able to object to the playing of their witness’s deposition at trial. However, defense counsel will still be able to lodge evidentiary objection to page/line testimony. These evidentiary objections will be ruled on at a later time.

In the event that defense counsel objects to playing the deposition of a percipient witness who was never the defendant’s employee, you will need to demonstrate the witness’s unavailability for trial. Gather multiple copies of your process server’s notes for their service attempts of the subpoena under Code of Civil Procedure section 1987, subdivision (a) as well as any documents reflecting attempts you have made to contact the witness. Ensure that you bring these documents with you to trial in order to demonstrate your due diligence in trying to produce the witness for trial.

Using Things As Evidence: Exhibits

An exhibit is a document or an object used by either side in a lawsuit to prove his or her claim. Exhibits could be financial statements, medical records, counselor’s reports, photographs, tools, equipment or other things. In order to prepare for an exhibit in court, an attorney should make two copies of each exhibit. The first copy should be one for the other party, and the other for the attorney (the court will keep the original).

Marking Exhibits In Court

Some courts will want one to mark each piece of evidence with an exhibit identifier. For example, attach a sticker labeled “Exhibit 1,” “Exhibit 2”, etc. – OR “Exhibit A,” “B,” etc. The clerk can tell which to use. Some courts will mark the exhibits in court.

Some documents have confidential information, such as bank accounts and social security numbers. One can ask the court to black out this information and to keep sensitive documents confidential

How To Introduce Exhibits In Court?

 To show exhibits in court:

(1) First, show the exhibit to the other party (or the other party’s attorney),

(2) Next, either you or your witness must testify about the exhibit to show that the evidence is relevant to your case and is authentic (not made up).This is called “laying the foundation.”

(3) Ask the court to admit the exhibit into evidence. The other party or attorney may object to the exhibit for some reason. Try to answer these objections as best you can.

Finally, the judge will decide whether to allow the exhibit or not.

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Justin Sterling, Esq. is a leading personal injury attorney and civil litigator.  Mr. Sterling is the founder of The Sterling Firm, a top-rated law firm with its original headquarters in Los Angeles, California. The Sterling Firm has a client base that stretches not only across the nation but also around the globe. We offer experienced and driven legal counsel for your matter.  We handle insurance claims and civil lawsuits, including those that arise from catastrophic and severe personal injury.

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