There’s a quiet epidemic happening in trial courts across the country—one that doesn’t make headlines, but can destroy a record on appeal faster than a mistrial.
It’s not misconduct. It’s not bias. It’s bad exhibit practice.
And lately, as a certified court reporter, I’ve seen more and more attorneys go “loosey-goosey” with exhibits—waving them around, calling them “marked,” and even publishing them to the jury without ever having them formally marked for identification or received into evidence by the court.
Then, when the day of trial is over and they receive their reporter’s transcript, I get the Saturday-night text:
“Hey, there’s no exhibit index. Where are the exhibits?”
My answer is always the same:
“You got the record you made.”
Who Actually Marks and Admits Exhibits
Let’s start with the basics—because this confusion isn’t just procedural; it’s structural.
- The Judge controls what’s admitted into evidence.
Only the judge can say “marked for identification” or “received into evidence.” - The Clerk physically marks the exhibits and keeps the official exhibit list, noting whether each item is marked, identified, received, or refused.
- The Reporter creates a written record of what is said and done—but not what should have been done. Reporters don’t mark or admit exhibits on their own initiative.
- The Attorneys are responsible for offering the exhibits into evidence, securing a ruling from the court, and making sure the record reflects it.
It’s that simple. Yet in daily trial practice, this clarity often collapses into chaos.
The “Loosey-Goosey” Exhibit Routine
A typical exchange I’ve witnessed more times than I can count goes like this:
Attorney: “Your Honor, I’d like to show the witness Exhibit 5.”
Judge: “Go ahead.”
Attorney: “(shows document) … and I’ll publish this to the jury.”
Judge: “Okay.”
What just happened?
Nothing, legally speaking.
The exhibit wasn’t marked, wasn’t identified, and wasn’t received. It was shown—but not admitted. When I’m asked later for an exhibit index, I have to explain that unless the court said “marked” or “received,” it’s not an exhibit in the record.
Sometimes, to save time, attorneys will suggest a blanket shortcut:
“Your Honor, can we agree that any exhibit I publish to the jury is automatically deemed admitted?”
If the judge nods and says “Sure,” the damage is already done. Because what’s missing is the specific record—the verbal ruling that identifies what’s being admitted.
When the appeal comes, the Court of Appeal has no idea what Exhibit 5 even was, whether it was admitted, or whether opposing counsel objected.
What the Record Must Contain
A complete trial record has three elements regarding exhibits:
- Identification — “Plaintiff’s Exhibit 5, marked for identification.”
- Offer — “Plaintiff moves Exhibit 5 into evidence.”
- Ruling — “Received into evidence.”
Those three steps must appear on the record.
Without them, the reporter can’t include an exhibit index.
When the transcript is prepared, we reporters review the proceedings and note only those exhibits that have been properly marked and received. We’re not being unhelpful—we’re being faithful to the record.
The record is a legal document. It’s sworn, certified, and relied upon by appellate justices who were not in the courtroom. Every “marking” or “receipt” matters.
“Either by Stipulation or by the Court” – The Line Between Pre-Numbered Exhibits and the Official Record
These rules aren’t theoretical—they’re codified in local procedure. For example, the Los Angeles County Superior Court’s Local Rule 3.52 outlines exactly how exhibits must be pre-numbered, exchanged, and admitted, clarifying that they become evidence “either by stipulation or by the Court.”
Under Los Angeles County Superior Court Local Rule 3.52, attorneys are required to pre-number, exchange, and tab their exhibits before trial—Plaintiffs beginning with Exhibit 1 and Defendants with Exhibit 101. The rule also allows exhibits to be “admitted into evidence, either by stipulation or by the Court,” after which they may be shown to the jury.
That phrase—“either by stipulation or by the Court”—is key. It means counsel can agree to admission or the judge can rule them admitted, but the admission doesn’t legally exist until the court expressly says so on the record. Only then does the court reporter enter the notation—“Received in evidence”—and the exhibit becomes part of the official transcript index.
Without that judicial acknowledgment, the exhibit remains in limbo: pre-numbered, exchanged, maybe even published to the jury, but not part of the appellate record. The reporter cannot and should not record it as admitted unless the judge (or the court, acting through the clerk) verbally acknowledges the admission. This safeguard ensures the evidentiary record matches the court’s rulings, not the parties’ assumptions.
Who Submits Exhibits on Appeal
Another widespread misconception: attorneys often think the court reporter submits the exhibits to the appellate court. Not so.
That’s the court clerk’s job. The clerk’s exhibit list—the one maintained in real time during trial—is the official ledger. The reporter’s index is a supplement that references what was spoken on the record.
If an exhibit was never properly marked or admitted, it won’t appear on either list—and it won’t make it up on appeal.
The Risk of “Helpful” Reporters
Now, let’s talk about something uncomfortable: yes, some court reporters try to “fill in the gaps.”
They hear an attorney say “Mark this,” even if the judge doesn’t confirm it, and they’ll insert a line in the transcript like:
(Plaintiff’s Exhibit 12 marked for identification.)
That might make the attorney happy in the short term—but it’s technically improper and creates a false judicial record.
Under the California Code of Regulations and NCRA standards, reporters must not assume judicial acts or alter the record. We report what’s said and done, period. If the judge doesn’t direct marking, it didn’t happen.
Are Other Reporters “Filling in the Gaps”?
Unfortunately, yes—some do, and it’s technically improper. Some reporters will make “helpful” indexes or mark exhibits on their own when attorneys say things like, “Mark this,” even if the judge doesn’t confirm. It feels accommodating, but it’s risky because it creates a false judicial record.
The CRB and NCRA both make clear that a reporter must not assume judicial acts (like marking exhibits) or alter the official record to make it appear as if a ruling occurred when it didn’t.
The court reporter’s role is to make a transcript that accurately reflects what happened—not what someone wishes had happened.
Why Attorneys Should Care Deeply About This
In appellate practice, missing exhibit records are fatal. If the record doesn’t show that an exhibit was received into evidence, the appellate court can’t consider it—no matter how important it was at trial.
That means your best impeachment photo, your key contract, your timeline, your video—if it wasn’t properly offered and received—it’s invisible on appeal.
A missing record equals a lost issue.
Real-World Example
Imagine this sequence:
- Counsel shows a photograph to a witness.
- The witness identifies it as “the scene of the accident.”
- Counsel asks a few questions, then moves on.
No marking. No ruling.
Later, during closing argument, counsel projects the same photo to the jury and references it as “Exhibit 12.”
At appeal time, the transcript shows nothing called Exhibit 12, no ruling, no receipt. The appellate justices can’t even verify what photo was used. The entire visual context of the case disappears.
That’s how records unravel.
What Attorneys Should Do Differently
To prevent this, here’s a quick checklist every trial lawyer should memorize:
- Ask the clerk to mark the exhibit before you show it. “Your Honor, may we have this marked as Plaintiff’s Exhibit 5 for identification?”
- Identify the exhibit on the record. “I’m showing you Exhibit 5, previously marked for identification. Can you tell the jury what that is?”
- Offer it into evidence. “Your Honor, Plaintiff moves Exhibit 5 into evidence.”
- Wait for the ruling. “Received.” or “Denied.”
- Don’t assume publication = admission.
Publishing an exhibit to the jury does not make it evidence unless the court says so. - Check the clerk’s list at the end of each day.
Make sure the exhibit numbers and status match your notes.
That’s how you preserve a clean record.
Why Court Reporters Care So Much
Reporters are not being pedantic; we’re being protective. We know that appellate justices rely entirely on what’s in the transcript.
If we mark something the judge never ruled on, we create a false record. If we fail to note what was admitted, the appeal becomes vulnerable.
We carry that responsibility seriously—it’s part of our oath and our professional ethics.
The Human Side of the Record
It’s easy to forget that a transcript is a living thing. It’s the heartbeat of the trial—every word, pause, and ruling preserved in time.
When attorneys skip procedural steps, they’re not just inconveniencing the reporter; they’re erasing parts of history. The record becomes a patchwork of assumptions, missing exhibits, and guesswork.
The appeal that follows is built on sand.
Time for a Reset – Teaching the Basics Again
Maybe it’s time we, as reporters, helped reeducate the bar.
Imagine a one-hour CLE called “Making a Record: How to Handle Exhibits at Trial.”
It could cover:
- The difference between “marked,” “identified,” and “received.”
- The roles of the judge, clerk, and reporter.
- Real transcript examples of good and bad exhibit handling.
- How to check the clerk’s exhibit list daily.
- Why appellate courts reject unmarked exhibits.
Attorneys would walk away understanding that good record-making isn’t a bureaucratic burden—it’s trial insurance.
Because at the end of the day, when the appeal hits the clerk’s desk and the record goes up, there’s no “fixing” what never existed.
Final Thought
The record is sacred. It’s not just a script—it’s the foundation of appellate justice.
So next time you step into court, remember this simple mantra:
“If the judge didn’t say it, it didn’t happen.”
Your reporter is there to capture your words, not rescue them.
Make your record, and we’ll make it count.
StenoImperium
Court Reporting. Unfiltered. Unafraid.
Disclaimer
Editor’s Note: This article is based on public records, regulatory filings, and California statutes. The author’s commentary represents opinion on matters of public concern. No allegations of wrongdoing are made beyond the facts cited.
The content of this post is intended for informational and discussion purposes only. All opinions expressed herein are those of the author and are based on publicly available information, industry standards, and good-faith concerns about nonprofit governance and professional ethics. No part of this article is intended to defame, accuse, or misrepresent any individual or organization. Readers are encouraged to verify facts independently and to engage constructively in dialogue about leadership, transparency, and accountability in the court reporting profession.
- The content on this blog represents the personal opinions, observations, and commentary of the author. It is intended for editorial and journalistic purposes and is protected under the First Amendment of the United States Constitution.
- Nothing here constitutes legal advice. Readers are encouraged to review the facts and form independent conclusions.
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