Six Random Things That Are Good to Know Including the Distinction Between Impeachment and Rebuttal Evidence

• Publication year: 2021
• Author: Judge Lawrence P. Riff

Six Random Things That Are Good to Know Including the Distinction Between Impeachment and Rebuttal Evidence

Judge Lawrence P. Riff

One day in trial, the following occurs:

Lawyer 1: Ms. Witness, let me show you now a document I pull from my briefcase and mark "next in order" and ask you, isn't it true that you wrote this to my client back on July 14, 2019?
Lawyer 2: Whoa! Not so fast. Your Honor, don't I get to see a copy?
Lawyer 1: Well, I don't have any copies. But I'll show you the original.
Lawyer 2 (after studying the document and causing a too-long delay in the proceeding): I object, your Honor. This is not on Petitioner's exhibit list that you ordered exchanged before trial.
Lawyer 1: Your Honor, I wish to use this document despite not including it on my exhibit list because I offer it for impeachment. I mean for rebuttal. I mean, well, one or the other or at least whatever will let me use it.

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This exchange, or some variant, happens often. Having been invited by your editors, I will make six observations.

I. First Observation

If you wish to use a document at trial for any reason (including refreshing recollection), it must be "marked for identification" at the outset of any questioning about it. Technically, one asks the court if the document may be marked for identification, but usually that bit of Edwardian hyper-deference to the court is observed in the breach. This is what marking an exhibit for identification sounds like:

"Your Honor, I am marking for identification as Petitioner's exhibit 19, a four-page text message string commencing on July 14, 2019 purportedly between the parties. I have handed a copy to counsel and, if I may, I would like to approach to hand a copy to the clerk and another copy to the witness."

Usually, the judge will then say something that is a signal to all concerned, including the clerk, that, yes, counsel may so proceed and as a direction to the clerk, yes, the exhibit may officially be so marked. That usually sounds like: "fine" or "OK" or "proceed, counsel" or "it may be so marked."

An exhibit is "marked" only after the clerk has placed an exhibit sticker on it—customarily, pink for "ID only." Counsel may say she is marking it but that is not so; it is only the clerk who can "mark" an exhibit. Later, if admitted into evidence, the clerk will place another sticker, this time yellow, for "admitted." By the way, the clerk has a duty to take custody at the end of the court day of all marked exhibits—whether for "ID only" or "admitted." You will make a clerk very nervous and

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unhappy by sticking a marked exhibit in the pile of paper on counsel table. Often, experience shows, that paper is swept into a box or a briefcase at 4:35 p.m., never to be seen again. And now the clerk is in hot water because exhibit "P-19," identified on the record, is nowhere to be found. Therefore, get the exhibit in the hands of the clerk as soon as you can.

The best way to do this is to make sure you have provided the clerk with a copy of all your proposed exhibits in a tabbed binder with your exhibit list at the front. The clerk can then mark (i.e., place stickers on) the exhibit easily from that exhibit binder. This will also save counsel a great deal of walking...