During trial preparation, counsel must consider whether to present any exhibits as part of their case.

Exhibits are any physical items that supplement testimony. Common exhibits include documents, recordings, photographs, and objects associated with the commission of an alleged offence (for example, a weapon). 

As a starting point, counsel should consider whether the potential exhibit is both necessary and helpful. Counsel should not overwhelm or distract the judge or jury with exhibits of marginal relevance that add little value to the testimony of the witnesses. Counsel should also weigh the tactical benefits and disadvantages of having the exhibit form part of the evidentiary record. 

If a potential exhibit may be useful, counsel must then consider its admissibility, taking into account all of the information within an exhibit. For example, an accused’s Charter-compliant and voluntary statement to the police may still contain inadmissible content (e.g. bad character evidence or improper police questions) that needs to be edited. 

Counsel must identify the appropriate witness to lay the evidentiary foundation required for admission, and in appropriate cases, should canvass whether the opposing party will concede admission to streamline the trial process.

Counsel should anticipate any objections to admission, and where it is reasonably foreseeable that admission will be contentious, address the issue with the judge at a pre-trial conference.

It is helpful to remember that the trial judge is the evidentiary gatekeeper - no exhibit will be considered unless the judge allows it to be admitted into evidence after counsel establishes its evidentiary foundation and overcomes any objections by the opposing party.

Future posts in this series will examine the procedure for entering an exhibit at a criminal trial and review specific admissibility considerations for common types of exhibits.

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