Category Archives: EVIDENCE – PREDICATE QUESTIONS

Welcome back to the “Minnesota Judicial Training and Education Blog,” hosted at pendletonupdates.com. This is the second post in our ongoing series on “Predicate Questions: Laying Proper Foundation for Exhibits and Witnesses.” This post explores the critical steps for introducing physical evidence in Minnesota courtrooms, focusing on foundational requirements, sample predicate questions, and best practices for trial attorneys. This guidance applies to tangible exhibits like firearms, but the same principles can be adapted for other types of physical evidence.

Practice Tip: It is important to understand that these proposed predicate questions are only intended to serve as a starting point for individual trial attorneys and that attorneys should take, modify, or otherwise adapt the suggested foundation questions to confirm with their local practice and specific circumstances of their case.

All references to he, him, or Mr. should be interpreted to mean he/she, him/her, or Mr./Ms. And any reference to the State should be construed to mean State/Plaintiff or Defendant.

Part I: Step-by-Step Guide to Presenting Exhibits as Evidence

Introducing physical exhibits in Minnesota courts requires careful adherence to foundational rules to meet relevance, authenticity, and reliability standards. Here is a structured approach to introducing physical evidence:

1. Mark the Exhibit for Identification
   Have the exhibit marked for identification by the court clerk, who will assign it an identifier (e.g., Exhibit A). Use this identifier consistently in your references throughout the trial to avoid any confusion.
2. Request Permission to Approach the Witness
   Politely ask the court for permission to approach the witness with the exhibit. This step ensures proper courtroom decorum and helps keep the court and jury engaged. Avoid standing with your back to the jury whenever possible.
3. Confirm Witness Recognition of the Exhibit
   Ask the witness if they recognize the exhibit but hold off on a detailed explanation. This foundational question is purely for identification, establishing that the witness has familiarity with the exhibit.
4. Identify Any Unique Marks or Characteristics
   Have the witness describe any initials, labels, or identifying characteristics on the exhibit that confirm it is the same item they previously observed. This helps establish a basis for authenticity.
5. Establish Chain of Custody (If required)
   For items requiring a documented chain of custody (e.g., weapons, biological samples), have the witness describe where the exhibit was obtained, how it was handled, and who maintained control over it.
6. Discuss Lab Testing and Condition Changes
   If the exhibit underwent any lab testing or alterations, have the witness explain what was done, including when it was sent for testing, how it was returned, and any changes in its condition. Minnesota case law requires careful documentation of these steps to avoid issues with admissibility.
7. Establish Condition Consistency
   Ask if the exhibit is in the same or substantially the same condition as when it was first handled. If there are any differences, such as markings or other identifiers, the witness should describe them.
8. Offer Exhibit into Evidence
   After establishing authenticity and relevance/materiality, offer the exhibit into evidence. Minnesota practice suggests that if relevance or materiality has not been established yet, introduce the exhibit “subject to a showing of relevance and/or materiality.” Evidence is considered relevant if it has any tendency to make a fact of consequence in the case more or less probable than it would be without the evidence. Evidence is considered material if it relates to a fact that is in dispute and is significant to resolving an issue in the case.
9. Practice Tip: For exhibits like lab-tested samples, relevance, and materiality can be demonstrated through expert testimony linking the sample to the case. If the exhibit is self-evidently material (e.g., a weapon identified by witnesses), it should not need additional expert explanation.
10. Publish the Exhibit to the Jury
    Once the exhibit is admitted, seek permission to publish it to the jury, whether by showing it visually, allowing juror inspection, or another means. Minnesota courts appreciate clear communication regarding exhibit access, particularly with sensitive evidence.

Part II: Predicate Questions for Introducing Almost Any Type of Physical Exhibit

When introducing a physical exhibit, predicate questions are essential to establish relevance, authenticity, and, if necessary, chain of custody. The following generic questions can be adapted to almost any physical (tangible) exhibit.

Mark evidence as State’s Exhibit ___________________

Questions:

I show you what has been marked for identification as State’s exhibit ___________. Please examine it.

1. Do you recognize it?
2. How are you able to recognize it?
3. What is it?
4. How did it first come into your possession?
5. Where did you obtain it?
6. When did you obtain it?
7. What did you do with it?
8. When did you mark it?
9. Is this _____________ in substantially the same condition now as when you first saw it?
10. If there are any changes in its condition or appearance, please describe them to us.

Your Honor, the State offers exhibit ______________ into evidence.

Part III: Predicate Questions for Introducing a Handgun as Physical Evidence

When introducing a specific item, such as a handgun, additional foundational questions are needed to establish identification, authenticity, and unchanged condition. Here is an example sequence for introducing a handgun.

I am handing you a ___________ handgun bearing serial number __________ marked for identification as State’s Exhibit _________.

1. Familiarity and Identification

• Do you recognize this handgun?
• How are you familiar with this handgun?
• When did you first see this handgun?

2. Condition and Chain of Custody

• Can you describe the physical condition of the handgun when you first saw it?
• Is this handgun in substantially the same condition as when you last observed it?
• To your knowledge, has this handgun been altered or tampered with since you first saw it?
• Who has had custody of this handgun since you last observed it?

3. Authenticity and Unchanged Condition

• Are there any unique markings or characteristics that help you identify this handgun as the same one you observed earlier?
• Did you inspect the handgun to verify its identity and condition?
• Has this handgun been altered or changed in any way since it was first introduced as evidence in this case?

4. Establishing the Chain of Custody (if needed)

• Was this handgun stored securely from its first introduction until now?
• Who else has had access to this handgun?

5. Requesting Admission into Evidence

• After establishing the chain of custody and verifying authenticity, request its admission.
• “Your Honor, the State offers this handgun, Exhibit ______, into evidence.”
• After the court rules on admission, add: “Your Honor, may I publish this exhibit to the jury?”

Part IV: Best Practices & Trial Tips for Offering Physical Exhibits

Organize and Pre-Mark Exhibits Before Trial:
Pre-marking exhibits and familiarizing yourself with their identifiers ensures a smoother presentation. Confirm numbering conventions with the court clerk in advance.

Prepare Predicate Questions in Advance:
Draft predicate questions tailored to each exhibit and practice them. This helps ensure consistency in responses and avoids courtroom disruptions due to lack of preparation.

Address Chain of Custody for Sensitive Exhibits
Items like weapons or biological samples require strict chain of custody documentation. Have witnesses confirm each handler and describe each transfer to establish a clear custody history.

Minimize Physical Handling in Court
Avoid unnecessary handling to reduce claims of tampering or contamination. Arrange for secure presentation methods, especially for delicate or potentially dangerous items.

Use Demonstrative Aids with Care
Consider using photos or diagrams if the exhibit is complex or needs additional context. Ensure these aids are approved by the court and explain their purpose when presenting them.

Anticipate Objections and Prepare Responses
Common objections include challenges to relevance, authenticity, and chain of custody. Know the rules governing each type of objection and prepare specific responses to address them.

Request Permission for Jury Inspection When Necessary
If the jury’s inspection of an exhibit is essential, request permission from the court. Juror access should be controlled to preserve the exhibit’s integrity.

Part V: Courtroom Safety Protocols:

When handling handguns or other dangerous weapons in court, attorneys must adhere to specific courtroom safety protocols to ensure the safety of all participants.

Every county should have a “Weapons and Hazardous Exhibits in the Courtroom Policy” approved by the local bench, incorporating Minnesota Judicial Branch Policy 507 and 21 on Potentially Hazardous Exhibits. See  Potentially Hazardous Exhibit Policy and Judicial Training Update Sample Weapons and Hazardous Exhibits in the Courtroom Policy 14-3.

These protocols require attorneys to notify the court before they intend to handle such items, ensuring the judge provides guidance on the proper procedures. Weapons should always be rendered safe (e.g., unloaded and secured) before being introduced and handled in the courtroom, and any demonstration involving the weapon should be done under the judge’s supervision.

Conclusion

Successfully introducing physical exhibits as evidence is a critical skill for trial attorneys, requiring preparation and a thorough understanding of foundational requirements. Attorneys must pay particular attention to local courtroom customs and procedural requirements, ensuring relevance, authenticity, and a clear chain of custody. By laying a meticulous and comprehensive foundation, attorneys establish credibility and maximize the evidentiary impact of their case. Whether presenting routine items or complex physical evidence, refining these skills will elevate courtroom practice.

References

• Minnesota Rules of Evidence
  Rule 901: Requirement of Authentication
  Rule 104(b): Conditional Relevance
• McCormick on Evidence (8th ed., 2020)
• Wigmore on Evidence (Chadbourn Rev. ed., 2020)
• Handbook of Federal Evidence (8th ed., 2021)
• Minnesota Practice Series (Vol. 11, Evidence)
• National District Attorneys Association (NDAA) Predicate Questions (2^nd ed., 1998)

Alan F. Pendleton, Attorney & Former District Court Judge; pendletonupdates.com; afpendleton@gmail.com