Guide
Building an order of proof from elements to exhibits
Updated 2026-09-18 · 4 min read
An order of proof lists the elements of each charged count, links each element to the facts that establish it, and links each fact to the witnesses and exhibits that prove or undercut it. Built early, it shows which elements have support, which are contested, and which have nothing behind them, while there is still time to fix it.
Start from the elements, not the evidence
Most trial teams build their proof from the evidence up: here are the witnesses, here is what each one says. That is how cases get tried with an element nobody covered. Start from the other end. For each count in the operative charging document, write out the elements the jury will be instructed on. In the Ninth Circuit, the natural starting point is the Manual of Model Criminal Jury Instructions published by the Ninth Circuit Jury Instructions Committee. Model instructions are revised, renumbered and sometimes rewritten after new Supreme Court decisions, so verify every element against the current instruction and the current case law before you rely on it. If your circuit or state has its own pattern instructions, use those. If the count charges a theory the model instruction does not cover, write the element the way you expect to propose it, and mark it as yours.
Facts sit between elements and exhibits
An element is a legal statement: the defendant corruptly gave something of value, the agency received more than $10,000 in federal benefits. A witness does not testify to an element. A witness testifies to facts. The useful middle layer is a short list of facts, in plain words, that together establish each element: the payment on a given date, the account it came from, the meeting where the contract was discussed. Keep each fact to one sentence a juror could repeat. One fact can serve several elements, and several counts. A fact that supports no charged element is either background or a sign the charging theory has drifted from the evidence. Both are worth knowing before trial.
Tie every fact to a source, and say which way it cuts
For each fact, list the witnesses and exhibits that support it and the ones that contradict it. The contradicting column is the one teams skip, and it is the one the defense will build its cross from. Record a pin cite where you have one. Be honest about what kind of source it is: an agent report is not itself an exhibit, and a witness still has to testify to what it describes. A grand jury transcript tells you who can testify; it is not trial proof, and Rule 6(e) limits who may see it. A sealed item needs a check of the sealing order before any use at trial. See our guide on grand jury secrecy for the handling rules.
Read the colours as a to-do list, not a verdict
Once the links exist, each element falls into one of three states. Support on file with nothing checked contradicting it. Contested or unread: a source cuts the other way, or the only support still needs someone to read it. No support: nothing is linked. None of these states means an element is proved. Support on file means a witness or exhibit exists; whether the jury believes it is a different question. Equally, ‘nothing checked contradicts it’ is only as good as what was checked. If half the interview transcripts have not been reviewed, the order of proof should say so on its face. The value of the exercise is the red and amber rows. Each one is a task: find a witness, subpoena a record, prepare for the cross, or reconsider the count.
Keep it on the matter, not in a spreadsheet
An order of proof built in a spreadsheet the week before trial is stale by the first witness. Keep it on the matter so it moves with the file. When a new interview report arrives, the team should see which facts it bears on. When an element is edited after the model instruction changes, the verification should reset. In Prosequi, the Order of proof tab on a matter holds counts, elements, facts and source calls in one place, and prints a trial binder with one page per count. The office confirms the element text against the current instruction by hand; the tab shows who checked it and when. It never marks an element proved. See the help center for the steps, and pair it with the Disclosure Gap Radar so the impeachment material you find while building it is tracked for disclosure.
What software should not do here
Software can keep the links straight and surface the gaps. It should not decide what a transcript means, draft jury instructions, or tell you a count is ready for trial. Where an office pilots AI to suggest which element a fact belongs to, a prosecutor should accept each link by hand, and nothing tied to sealed or grand jury material should leave the office's systems. In Prosequi that suggestion feature is a pilot preview and is not available in production; the Order of proof tab works fully without it.
Not legal advice
This guide describes a trial preparation practice and how Prosequi supports it. It is not legal advice. The current model instructions, controlling case law, local rules and your office's policy govern.