A predicate question is necessary to make evidence admissible. The predicate is a set of questions that is asked of a witness on the stand. In general terms, the witness must be able to appropriately and sufficiently answer certain questions to make the evidence admissible.
Basically, the witness must testify under oath and can adequately recall the subject matter. The witness must be able to identify the topic or item. The witness must authenticate the evidence. The witness must have first-hand knowledge about the evidence unless the source of the information comes from an exception to the hearsay rule. The item must be original, unless agreed upon prior to trial. The evidence must be relevant to the issues. Lastly, the evidence must not be overly prejudicial.
Nearly all the evidence in a trial or hearing will be testimony under oath. Regarding physical items, there is a generally proscribed method for questioning the witness. The process and questioning go something like this:
- Premark the exhibits.
- Request permission to approach the witness.
- Show the exhibit to opposing counsel.
- Show the exhibit to the witness and ask, “I am showing what is marked as Defendant’s 1. Without stating what it may be, do you recognize it?
- To the witness, “What is it?”
- To the witness, “How do you know that it is … ?”
- To the witness, “Does this photograph fairly and accurately depict the injuries you sustained on June 20th?”
- To the court, “Your Honor, I offer Defendant’s 1 into evidence.”
- Wait for the judge (because the judge will ask the other side if there are any objections, or the other attorney may want to voir dire on the photograph to challenge the knowledge or understanding or accuracy of the item)
- To the court, “Your Honor, may I publish to the jury?”
The trial attorney cannot question about the contents of an exhibit until the exhibit has been admitted into evidence. Yet, many attorneys who try cases have no idea how predicates work or how they are necessary to establish a point or make and preserve an objection. Think of a plumber that does not how to install a toilet…are they really a plumber? The question scarcely escapes its own statement.
If you are looking at this as an option or want an honest opinion about a specific case, appeal, or sentence, then please do not hesitate to contact the Candela Law Firm and allow us to look into the matter for you.
Anthony Candela is the Trial Dog and a three-time Board-Certified criminal trial attorney. He opened the Candela Law Firm, P.A. in 2014 and handles criminal trials and appeals (both federal and Florida). He received his J.D. from Duquesne University School of Law in 2000 and his B.A. in Political Science from King’s College in 1996. As an expert in criminal law and procedure, he has tried over a hundred cases to verdict. Since 2008, he has been certified and recertified by the Florida Bar in Criminal Trial three times. He has also argued several dozen appeals. In the federal system, he is admitted to the Middle District of Florida and the Eleventh Circuit Court of Appeal. #candelalawfirm #thetrialdog @candelalawfirm @thetrialdog
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No. 24-01 Predicates