Marked for Identification
An exhibit that has been assigned a number or letter but not yet formally admitted into evidence. Marked during questioning before admission.
What You Need to Know
Marking exhibits for identification allows attorneys to reference documents during witness examination before establishing authentication foundation required by Federal Rules of Evidence 901. The court reporter logs the exhibit number in the record, and the document remains marked for identification until the attorney formally offers it into evidence and the court admits it. If an exhibit is marked but not admitted (due to sustained objections or strategic choices), it does not become part of the evidence the jury considers. However, marking preserves the exhibit in the record for appellate review. Most courts require exhibits to be marked for identification before being shown to witnesses or mentioned in questioning.
Legal References
- Federal Rules of Evidence 901 - Authenticating or identifying evidence
- Federal Rules of Evidence 612 - Writing used to refresh memory
Relevant Practice Areas
Frequently Asked Questions
Why do exhibits need to be marked for identification before admission?
Marking for identification serves several purposes: (1) creates a unique identifier (Plaintiff's Exhibit 1, Defendant's Exhibit A) for the record, (2) allows the exhibit to be shown to the witness during authentication questioning before formal admission, (3) preserves the exhibit in the court record even if ultimately not admitted, and (4) ensures all parties reference the same document consistently. Under Federal Rules of Evidence 901, authentication foundation must be established before admission, so marking for identification allows the questioning necessary to establish that foundation.
What happens to exhibits marked for identification but not admitted?
Exhibits marked but not admitted remain in the trial record but are not considered by the jury during deliberations. The court may refer to these exhibits when ruling on post-trial motions or during appeal, which is why attorneys often mark exhibits for identification even when admission is uncertain. After trial, marked-but-not-admitted exhibits are typically returned to the offering party rather than kept by the court clerk. In some jurisdictions, attorneys must file a motion to withdraw marked exhibits within a specified time after trial, or they become part of the permanent court file.
Can I use exhibits marked for identification to refresh a witness's recollection?
Yes. Federal Rules of Evidence 612 allows using any writing to refresh a witness's memory, regardless of whether the writing is admissible or has been marked for identification. The process is: (1) establish the witness's memory is exhausted on the topic, (2) show the witness the document marked for identification, (3) ask if reviewing it refreshes their recollection, (4) take the document away and ask the witness to testify from refreshed memory. The document used to refresh recollection does not need to be admitted into evidence, but opposing counsel may inspect it, cross-examine about it, and introduce relevant portions.
When It's Used
Allows reference to the exhibit during testimony before it's admitted
Example
"The attorney says "Let me show you what's been marked as Plaintiff's Exhibit 3 for identification.""
Related Terms
Trial Exhibit
Evidence formally marked and offered during trial proceedings. Must be authenticated and admitted before the jury can consider it.
Deposition Exhibit
Documents shown to a witness during a deposition and marked for identification in the deposition record.
Admissibility
Whether evidence meets legal requirements to be presented to the judge or jury.
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