| |
Improving the Trial Process for Jurors
|
31
|
EXHIBITS AND DEPOSITIONS SHOULD BE MARKED AND ADMITTED TO THE GREATEST EXTENT FEASIBLE BEFORE POTENTIAL JURORS ARE CONDUCTED TO THE COURTROOM FOR JURY SELECTION.
IF THE CASE IS ASSIGNED TO AN INDIVIDUAL JUDGE OR SUBJECT TO A PRETRIAL ORDER, EXHIBITS AND DEPOSITIONS SHOULD BE MARKED. THE PARTIES SHOULD FILE A STIPULATION THAT IDENTIFIES EXHIBITS AND GROUPS THEM INTO THREE CATEGORIES:
- EXHIBITS THAT MAY BE ADMITTED WITHOUT OBJECTION;
- EXHIBITS THAT ARE STIPULATED TO BE AUTHENTIC, BUT A PARTY MAKES A SUBSTANTIVE OBJECTION TO ITS ADMISSION; AND
- EXHIBITS THAT ARE CHALLENGED AS NOT AUTHENTIC.
THE STIPULATION SHOULD BRIEFLY STATE THE OBJECTION TO ADMISSIBILITY AND IDENTIFY THE OBJECTING PARTY. THE MARKING OF EXHIBITS AND DEPOSITIONS AND THE FILING OF THE STIPULATION SHOULD OCCUR BEFORE THE EARLIER OF THE TRIAL DATE OR PRETRIAL CONFERENCE.
|
Marking Documents Delays Trials
|
More jurors identified time spent waiting as a problem of jury service than any other identified problem.1 Admission of documentary evidence requires counsel to interrupt questioning to ask the clerk to mark an exhibit, to ask the court for permission to approach the witness, to ask the witness questions to establish the authenticity and relevance of the exhibit, to move the admission of the exhibit, and to respond to any objection by opposing counsel. Admission of a deposition requires a similar process, involving a motion to publish and the clerk’s unsealing of the deposition.
|
Current Practice
|
In practice, many exhibits are admitted without objection, and depositions are commonly published and unsealed. The federal courts have required pre-marking exhibits for years.2
|
Pre-Marked
Documents
|
Early resolution of evidentiary issues avoids unnecessary delays and jury waiting. In addition, early disclosure of trial exhibits minimizes trial by ambush and may encourage early settlement.
|
|
|
References:
G. Thomas Munsterman, et.al., Jury Trial Innovations, §IV-2 (1997).
U.S.D.C. West. Dist. of Washington Local Rule 16.1.
Evidence Rule 104.
|
1 37.8%, compared to the next “largest” problem, parking (29.6%). Brody, Lovrich, Sheldon, and Neiswinder, Juror Survey Results, 1998-99, Table A-12 (p. 18).
2 E.g., U.S.D.C. Western Dist. of Washington Local Rule 43(g) (“Unless otherwise ordered by the court, on the morning of trial, each party appearing shall present marked and tagged trial exhibits to the clerk. Exhibits shall be marked in accordance with the Pretrial Order.”) Another local requires disclosure of documentary exhibits in the Pretrial Order Drafted by the parties. Id. at 16.1.
|
|
