Chapter 1 - § 1.3 • INTRODUCTION OF IN GENERAL

• Jurisdiction: Colorado

§ 1.3 • INTRODUCTION OF EXHIBITS IN GENERAL

While testimonial evidence is the most familiar, it is not always the most persuasive type of evidence. Witnesses are not always trustworthy, their testimony can fail to hold the jury's attention, their memories can fade, and their time on the stand is fleeting. Documentary, real, and demonstrative evidence, on the other hand, can have a far more lasting effect on the jury because such evidence provides a higher degree of trustworthiness, and because such evidence is often taken into the jury room during deliberation. Jurors are also more likely to focus on the facts and arguments in a case when these elements are presented in a concrete and, if possible, visually stimulating manner.

Remember that the jury does not have the benefit of seeing the case from the macroscopic level that the attorneys are familiar with. An exhibit's purpose within the context of the case theme should be clear to the jurors. The practitioner should also strive to hold the jurors' attention by making the presentation and introduction of evidence as interesting as possible. For example, variety can be added to a digital presentation by using the occasional physical model or poster board blowup. Always try to consider the jurors' perspective. Once the exhibit is introduced, use it! It must be extremely frustrating for a juror to hear attorneys argue with each other and a judge over an exhibit that is introduced and then never shown to them. An exhibit will be far more impactful when published shortly after introduction rather than having the jury view it for the first time during deliberations.

§ 1.3.1—Stipulated Exhibits

Prior to the final pretrial conference, the court usually requires the parties to exchange exhibit lists and determine if they can agree on admissibility. When no genuine dispute exists as to the admissibility of an exhibit, stipulating to its admissibility allows the parties to avoid having to lay the foundation for that exhibit at trial. In the trial management order pursuant to C.R.C.P. 16 and the pretrial conference pursuant to F.R.C.P. 16, the court will ordinarily note for the record the agreements of the parties as to the admissibility of evidence. The pretrial order controls the subsequent course in the action unless the court modifies the same at trial. Ferguson v. Hurford, 132 Colo. 507, 520 (Colo. 1955), rev'd on other grounds, 831 P.2d 470, 481 (Colo. 1992). Stipulations are a form of judicial admission that will be binding on the parties unless the court relieves a party from its stipulation for good cause shown. USI Props. East, Inc. v. Simpson, 938 P.2d 168, 175 (Colo. 1997).

While you should feel free to raise real objections to the admissibility of exhibits when an actual dispute exists, it is often the best strategy to limit your objections to documents to which there are legitimate objections and that are truly important to the case. The refusal to stipulate to the...