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NIVERSITY

LAW LIBRARY

VIRGI

OF

JOURNAL

G

JAC

OFFICE OF THE JUDGE ADVOCATE GENERAL OF THE NAVY

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WASHINGTON, D. C.

MAY 24 '50

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INTRODUCTION OF EXHIBITS.......LCDR G. W. Martin, USN

REPUTATION EVIDENCE..

.LTJG T. J. Moran, USN

OFFICER DISCIPLINE DIRECTIVES

PROBATION TERMINATION

RESERVE NEWS

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Published monthly by the Judge Advocate General of the Navy in the interest of true justice. The mission of the JAG JOURNAL is to promote legal forehandedness among naval personnel charged with the administration of naval law. The goal to be attained through this unofficial medium of instruction and review for those untrained or trained in law is the clear understanding of the basic laws governing Navy life and of the rights and obligations of naval personnel.

The editorial policy has been established as one of informality, to insure that articles are presented in interesting form. Its pages are citable in Navy judicial proceedings and will be accorded such weight as the respective courts may determine, when unsupported by official reports of cases referred to therein. Court Martial Orders and opinions of the Judge Advocate General remain as the Navy's official sources of precedent, binding upon courts as such.

Views on controversial topics expressed herein by individual authors must be construed as being their own personal views, not necessarily bearing the endorsement or approval of the Navy Department or of the Judge Advocate General.

The printing of this publication has been approved by the Director of the Bureau of the Budget, 13 July 1948.

RADM. G. L. RUSSELL, USN
Judge Advocate General of the Navy

CAPT. E. E. WOODS, USN Assistant Judge Advocate General of the Navy

COMDR. T. F. RYAN, USNR Editor

LCDR. G. H. ROOD, USN Associate Editor

For sale by the Superintendent of Documents,

U. S. Government Printing Office, Washington 25, D. C. Price 10 cents, $1.00 per year, $1.35 Foreign

INTRODUCTION

OF EXHIBITS IN

EVIDENCE

By LCDR Guilbert W. Martin, USN

THE

eeTHE EXHIBIT will not be admitted in evidence a demoralizing pronouncement by a court, yet avoidable in so many instances. This ruling by a court sometimes denotes a lack of procedural knowledge, on the part of counsel or the court, about the introduction of exhibits in evidence.

Although volumes of material are available on the subject of proof, evidence, testimony, and exhibits, information on how to introduce exhibits is meager. This article is submitted to help counsel to present his exhibits properly to the court for its consideration. The procedure outlined herein will be found helpful in utilizing all exhibits to their fullest advantage.

The importance of introducing exhibits in evidence cannot be stressed too strongly. An exhibit is a tangible piece of evidence that can be inspected closely by the court and, therefore, is not subject to the foibles of oral testimony. Frequently, a single exhibit is far more convincing than pages of descriptive testimony. Unwarranted expenditure of time and effort necessitated by counsel's failure to preserve and retain an exhibit is illustrated by the following example.

* *

A man was charged with "knowingly and wilfully, and without proper authority, and not for medical purposes, keeping in his possession on board ship alcoholic liquor, to wit *." At the time the bottle was discovered both it and its contents were thrown over the side. Consequently, it was necessary for the recorder to call several witnesses who could testify about the size, label, and contents of the bottle. The recorder labored diligently and, after testimony that filled many pages of the record, finally managed to establish a prima facie case. Obviously, numerous pages of testimony could have been eliminated by the proper introduction of an exhibitthe bottle and its contents.

2

DETERMINING ADMISSIBILITY

The three basic tests that determine the admissibility of an exhibit are:

1. The exhibit must be material to and give information about some issue of the case; e. g., clothing alleged to have been stolen by the accused; the knife with which someone was stabbed; a photograph of the scene of the crime.

2. The exhibit must: tend to prove some phase of the case; (b) corroborate the testimony of one or more witnesses; or (c) tend to impeach or contradict the testimony, either oral or written, of some witness.

If the exhibit does not fall into one or more of the above categories, it cannot be introduced in evidence. If the exhibit is admissible, then, regardless of its type, the procedure to introduce it in evidence is fundamentally the same.

PRELIMINARY PROCEDURE

After the admissibility of an exhibit has been established, it must be introduced in evidence so that it can be considered by the court. The court cannot consider any exhibit which has not been "introduced in evidence." In addition to its introduction in evidence, it must be "appended to the record."

In

Introducing an exhibit into evidence is not always an easy thing to do. The judge advocate cannot just blandly say, "I wish to introduce this knife in evidence as the murder weapon." stead, he must first "lay a foundation." This includes testimony to show where the knife was found, and by whom; steps taken by anyone to insure that it could be later identified; testimony of custodians, permanent or temporary, to show the care taken to preserve it from tampering; and any temporary absence from continuous safekeeping explained-as, for example, delivery to fingerprint experts for the purpose of ascertaining the identity of its last user.

If an exhibit were to be used against you, you would want to be protected against the "planting" of fingerprints, against substituted or "framed" exhibits and against altered documents. Similarly when you are judge advocate or recorder, you must be prepared to prove not only the genuineness of the exhibit, but also to prove nonalteration and nonsubstitution.

If you should ever retrieve a murder weapon, recover stolen property or confiscate a bottle of

liquor, you will, almost certainly, be called as a witness to identify the objects in court. In such cases, avoid confusion and embarrassment for yourself. Take notes of what you see, and the location, position, and character of objects seen. Your notes will help you to be sure that what is shown to you at the trial is the same object you first saw at the time of the occurrence of the event. If the object has a number, take that down, together with a note as to its color, size, shape, etc. If it is a gun, copy its serial number, caliber, and type and make.

It could well be that you will be called, as Shore Patrol Officer, to the scene of an accident or crime. Interview all the witnesses and, if possible, take their statements. If there is a gun or other weapon around, ask the witnesses to observe and to take their own notes so that they, too, can later identify it. Take measurements and make notes of what you see and do. If a photographer is available have pictures made of the scene, noting on paper and in your mind the position of the camera at the time the picture was taken. If no photographer is present, take your own pictures. Your notes can be used to refresh your memory if you are called as a witness.

After you have returned to your office, tag all the potential exhibits, noting on the tag where, when, by whom and under what circumstances they were found. Keep the exhibits under lock and key, so that there can be no question that their condition on the day of trial will be the same as when they were first discovered. A bit of forethought will save you embarrassment at a trial, to say nothing of easing the task of trial counsel.

PROCEDURE IN COURT

We'll assume that you have been appointed a judge advocate or a recorder for a court, and that trial has commenced. You have called to the stand, as a witness, a person who is to identify an exhibit you wish to introduce in evidence. The witness has been sworn and is ready to testify. After the preliminary questions are out of the way, pick up the exhibit and execute the following procedure:

1. Hand the exhibit to the reporter and request that he mark it "exhibit 1 for identification."

2. You must lay a foundation for the introduction of the exhibit. This is done by handing this exhibit to the witness and asking whether he has seen it before. If so, where and when did he first

see it? Under what circumstances has he seen it? Is it the same now as when he first saw it?

Not until you have shown by these preliminary questions the direct connection of the exhibit with the offense or with the offender can you submit the exhibit to the court for inspection and for a ruling on its admissibility. And you may not proceed beyond the preliminary questioning with any witness until the court has stated that the exhibit will be admitted in evidence.

Once an exhibit has been admitted in evidence, it may be displayed to any subsequent witness without the necessity for the preliminaries used thus far in the examples.

3. After a foundation has been laid, you should submit the exhibit to the opposing counsel for his examination. This gives the opposing counsel an opportunity to make his objection to the exhibit.

4. You then present the exhibit to the court for inspection, and offer it in evidence. The person wishing to introduce the exhibit is always the one who makes the presentation to the court, and objections of opposing counsel are heard at this time.

5. The court must then rule on the admissibility of the exhibit, basing its ruling solely on the facts as shown in court. If the exhibit is admitted, hand the exhibit to the reporter and ask him to strike out the words "for identification."

6. Upon admission, if the exhibit is a document ask the witness to read it to the court. It sometimes happens that not all of an exhibit is admissible or it is admissible for but a limited purpose. In this case you must make sure that the record shows what part of the exhibit is offered, and for what purpose. When only a portion of a letter or a document is being offered, you should make sure that the extraneous part is obscured or covered over. You might offer a document for the purpose of comparing handwriting, and not for the truth of its contents. If the exhibit is offered for a limited purpose and not for the truth of its contents, you should so state for the record.

7. To avoid error offer all exhibits a second time at the close of your case. To do this, collect all the exhibits in one place, preferably at the reporter's table or the trial table. Check with the reporter the dates and times of previous offers, and then consult with the court and opposing counsel to insure that they, too, know that all admissible exhibits have been offered and received. At this time be sure that no exhibit which has been

refused is included among those you are offering. Remember, too, that the exhibits which have been received are delivered to the court for use in its deliberations; those refused remain in the possession of counsel.

Any photograph can be introduced in evidence if the subject matter is relevant and if a witness can testify that the picture is a true representation of the thing or scene it purports to depict. It follows, therefore, that photographs can be introduced in evidence on either direct or crossexamination. As an example, assume that a picture of the scene of an accident is available. The person who made the picture and developed it is unavailable and you, as counsel, cannot establish when the picture was taken. There is present, however, a person who is familiar with the locale as it was at the time of the accident. If Navy personnel are not available, use anyone who is familiar with the scene, such as a policeman, mailman, resident of that section, etc. The suggested examination would be as follows:

Q. "What is your name?"

A. "John Jones."

Q. "State whether or not you are familiar with the corner of State and Main as it was on 1 December 1949."

A. "I am."

(Ask the reporter to mark the picture "Exhibit (1) for identification." After it has been so marked by the reporter, turn to the witness and continue the examination as follows:)

Q. "I show you this picture marked ‘Exhibit (1) for identification,' and I ask you if it is a true and correct representation of the corner of State and Main as it was on 1 December 1949 ?"

A. "Yes, sir; it is."

Q. "State in which direction this view was taken?"

A. "It is a view to the north looking up Main Street."

(It is now possible to continue the examination and establish the location and identity of various buildings, etc., shown in the picture.)

After the various landmarks have been located. the picture is then offered in evidence, as follows:

Counsel: "If the court please, this picture was marked 'Exhibit 1 for identification,' and I now wish to offer it in evidence as exhibit 1." The picture is then submitted to opposing counsel and to the court and offered in evidence. If there be no objection, or if an objection is overruled, the

court will receive it in evidence. The reporter will then strike out the words "for identification" and the exhibit is now in evidence.

This is not the best procedure to use as it is impossible to show with certainty the distances, etc., but in this case it is the only procedure available which will enable counsel to introduce in evidence a picture, when the photographer himself is not present.

Assume the ideal situation, that the photographer who took the picture is available, and counsel wants to establish definitely certain views of the particular corner. Remember that in this situation it must be shown affirmatively that the witness is qualified to testify concerning photography.

Q. "State your name, rate, and duty station." A. "John Jones, Photographer's Mate, first class, U. S. Navy, attached to Naval Photo Center, Norfolk, Virginia."

Q. "How long have you been a photographer's mate?"

A. "Five years."

Q. "As a photographer's mate what are your duties?"

A. "Taking pictures, developing negatives, making prints from the negatives."

Q. "State whether or not you took a picture at State and Main Streets on 1 December 1949." A. "Yes, sir."

Q. "What did you photograph?"

A. "The intersection of State and Main Streets, showing the buildings, streets, and all the physical aspects of the scene."

(Ask the reporter to mark the picture 'Exhibit 1 for identification.' Then say to the witness:) Q. "I show you a picture marked 'Exhibit 1 for identification,' and ask you whether or not you recognize it as the picture you took at that time?" A. "Yes, sir:" I do.

Q. "How can you identify it?"

A. "I scratched my initials on the negative in the darkroom just before I developed it. I see the initials on this print in the upper right-hand corner."

Q. "State whether or not this picture, marked 'Exhibit 1 for identification,' is a true representation of the corner of State and Main Streets as you saw it on 1 December 1949."

A. "Yes, sir. It is."

Q. "After you took this picture, what did you do with it?"

A. "I developed the negative myself, made this print, and kept it in my possession until I gave it to you today."

Q. "Did you make a record of the time this picture was taken ?"

A. "Yes, sir."

Q. "Did you make a record of the position of the camera when the picture was taken?" A. "Yes, sir."

Q. "Refer to your records and describe the position of the camera at the time this picture was taken."

A. "The camera was on Main Street pointing north."

Q. "Is the 'X' Building shown in this picture?" A. "Yes."

Q. "Will you mark the 'X' Building with the numeral '9' ?"

A. (Witness does so.)

(Continue this line of questioning until all the objects which are pertinent have been marked.) Counsel: "If the court please, this picture was marked 'Exhibit 1 for identification,' and I now wish to introduce it in evidence as exhibit 1."

(Counsel then submits the exhibit to opposing counsel, then to the court, and a ruling by the court is obtained. If the court rules to receive it, the reporter will strike out the words "for identification" and the exhibit is now in evidence. Continue the examination of the witness until all the pictures have been identified and received in evidence.)

If the picture was not taken within a few days of the date of the accident, or if opposing counsel objects that there has been no testimony that the scene is now the same as it was on the date involved, counsel will then have to prove that there have been no changes. This can be done in one or both of two ways. First, examine a witness who can testify that the pictures already offered depict the corner as it was on the day in question. Second, examine a witness who, of his own knowledge, knows that no changes have been made between the date of the accident and the date of trial.

Once again, bear in mind that photographs that depict a scene or an object are, generally, easy to introduce in evidence. If specific measurements, are not needed, it is necessary only that a witness who is familiar with the scene or object testify that the picture is a true and correct representation. The same technique can be used to intro

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