Demonstrative Evidence
Evidentiary Issues & Laying a Proper
Foundation
By Ed Josiah
Introduction
Talk of trial preparation
conjures up mental images of attorneys working through large stacks of documents
late into the night. Specters of
tactical meetings, opening statements, rehearsals and a bustle of last minute
motions complete the picture. Expert witnesses, such as engineers and
architects, are in place and ready to provide foundational testimony for the
technical demonstrative exhibits that they have created. But what if the technical exhibits are not
prepared directly by your expert and are instead delegated to demonstrative
evidence specialists with no formal training in the subject matter at
issue? Do you need or require your expert
witness to check and authenticate every technical demonstrative exhibit? If not, how can you be certain that your
non-expert specialist accurately designs and prepares these exhibits?
Admissibility Issues
Demonstrative evidence is one of
those terms that has no hard, fixed definition.
The range of applications is rather fluid because it changes as
technology advances. Corresponding to
the amorphous definition is the lack of consistency in how these exhibits
should be treated.
Anticipating the admissibility
of demonstrative evidence for litigation is an inexact science at best. It is a gray area determined by the specific
case and the particular judge. The
rules of evidence give the court wide discretion in determining how demonstrative
evidence is admitted, by whom and under what circumstances. Generally, “fair and accurate” is the
overriding principle used to determine acceptability.
There are, however, four factors
that have to be dealt with in order to complete the foundation for an exhibit
to be admitted as evidence. They are:
- Competence
of the witness testifying about the exhibit.
- Relevance
of the exhibit to an issue in the case.
- Identification
of the exhibit.
- Trustworthiness
or authentication of the exhibit.
From a practical standpoint, the
courts recognize that not every piece of demonstrative evidence needs to be
meticulously defended in order to be accepted.
For example, diagrams of accident sites or crime scenes taken directly
from police reports are often held to be accurate representations for the
purpose of general scene orientation.
However, when casually measured and hastily prepared diagrams are used
to pinpoint specific placement of crucial evidence, or to verify eyewitness
visibility, they step over the boundary of their original intent and may create
a false picture of the evidence.
Let’s examine some common forms
of demonstrative evidence.
Charts and Graphs
A chart is a simplified,
organized display of numerical information using shapes of various kinds. This includes bar charts and pie charts,
which are the two most common forms used in litigation. A graph is a representation of numerical data
by positioning a line or lines. These devices
assist a witness in explaining the effect or relationship of data and help the
judge or jury understand what the data mean.
Anyone who is familiar with
statistics knows how deceptively creative the use of charts and graphs can
be. Inflated pie charts, truncated
scales, skewed perspective and missing data points are tools of the trade for
misleading visual evidence. It is not
unusual in high profile, high stakes litigation for opposing counsel to
scrutinize every data point of every exhibit.
There are certain techniques that can be implemented to assist in
getting graphs into evidence, for example, include a table of data points under
the graph itself, so that the table’s columns are aligned with the data points
of the graph.
Scale Diagrams and Models
A scaled diagram, site plan or
map is a drawing made to scale showing the location of certain physical
features. These types of exhibits can
assist in developing an overview or a perspective of the events at issue. If the exhibit is to be offered as evidence,
it should be qualified by a surveyor, professional mapmaker or the
demonstrative evidence specialist who made all the necessary and relevant
measurements.
Everything in a scale diagram
must have been documented by the provider and prepared to scale. Perfectly accurate accident site diagrams
prepared by experienced civil engineers or accident reconstruction experts have
been attacked in court because additional foliage was added in key areas purely
for aesthetic reasons. Diagrams have
also been attacked because of improperly located signage and light poles. The diagram must be a fair and accurate
representation of what existed at the time of the incident, not of what existed
when the diagram was prepared.
A scale model brings
three-dimensional assistance to the problem of explaining complicated spatial fact
situations.
There are three principal types
of models:
- Exact
life-size replicas – are full size duplicates of the original or real object. It is exact in size, but not necessarily
the same weight or built with the same materials that the original object was
constructed with. For example; a
piece of equipment or a section of a concrete wall with rebar exposed would
be too heavy to bring into the courtroom, but could be built the same size
as the original and constructed with lighter weight material.
- Models built
to scale – either smaller or larger than life size – usually prepared
for the purpose of recreating an event or occurrence. The proponent must prove that all
necessary measurements were taken and that all components were reduced
accurately to scale. The model may
require land surveys to get exact measurements, photographs to record the
scene, or other studies to provide the information for building the
model. All maps, surveys,
photographs, documents, notes and measurements used to construct the model
must be admitted first. The
model-maker should photograph the work in progress, which will be helpful
when laying the foundation for the care with which the model was built.
- Cutaway models
- show the interior of structures or equipment – A cutaway model may
be built life size or to scale. The
model is usually not a full replica of the real object, as a portion of it
has been cut away to expose the internal workings. It should be noted that the legal foundation
is the same for life-size, scale, or cutaway models, however, cutaway
models require an explanation of what is missing.
When a scaled diagram or model is
commissioned, the attorney should request copies of the provider‘s field notes
as well as a simple “foundation declaration” that describes what was done and
how they did it. A typical foundation declaration addresses all of
the variables that might be scrutinized by your opponent if he or she were to
examine the provider about how the work product was prepared. The declaration should cover scene
documentation tools and methods, the software, materials and general techniques
used in preparing the work. It should
also include the results of a reasonable investigation conducted to ensure that
the exhibit is an accurate representation of the scene at the time of the
incident (if applicable).
Computer Animation
A computer animation is produced
by linking a series of images, each of which is technically accurate, to show progress
or events over time. Animations fall into two categories:
- Demonstration –
usually designed to show how some physical principle works. For example, consider a case where a
Soil Remediation Plant (Incinerator) burns down after five years of
operation and a lawsuit is filed against the designer/contractor for poor
design and faulty construction. (A soil remediation plant burns soil that
has become contaminated with oil, gasoline or some other toxic substance.
Contaminates are burned off leaving clean soil). The expert for the
designer/contractor would certainly want the judge and jury to understand
how the plant works. A “demonstration” animation could be produced to show
an overview of the plant, labeling all components or structures for identification.
Next, the animation would zoom in
on each piece of equipment, showing how it works by following the animated
flow of contaminated soil and flue gases through the plant. This type of animation does not show or
indicate the expert’s actual opinion in the case. It is a tutorial that educates the judge
and jury as to how the plant works and will enable them to later understand
the expert’s opinions.
- Reconstruction
– Shows how the events at issue occurred sequentially and is the most
complicated and controversial type of animation. It usually depicts the expert’s theory
of what happened in the case. For example;
in the case of the soil remediation plant mentioned previously, a
reconstruction animation could be prepared to show why, in the expert’s
opinion, the plant burned down. The
flow of soil and hot gases, fuel usage, oxygen levels and temperatures
could all be included and animated to show fluctuations over time and how
all of the readings reached critical levels just before the fire broke
out. It could also show where the
fire started and how it spread throughout the plant. In short, this type of animation would
permit the expert to give his or her theory of what happened, while the
jurors watch the story visually unfold in front of them.
In order to use a reconstructive
animation at trial, several pieces of information must be disclosed or
exchanged with opposing counsel:
·
Identity of both the expert who created the
animation and the expert who will testify as to the accuracy of the information
depicted in the animation.
·
Identity of the hardware and software used to
construct the animation.
·
Documents and other sources of data included in
the animation.
·
Computer data files that make up the completed
animation.
Computer
animations are time consuming to create, and at the same time, are time
consuming to impeach. It should be noted
that sufficient pretrial disclosure is required for opposing counsel to have a
fair chance to review the above-mentioned documentation and understand the
animation.
The
foundation for any computer animation is specific to the exhibit. The foundation for a “demonstration” type
animation will be supplied by the expert who can testify that it is a fair and
accurate representation of the operation, system, or relevant laws of physics
or biology at issue. An animation that
is a “reconstruction” will need both the expert whose opinion is being animated
and the producer of the animation to lay a proper foundation.
Conclusion
The
days are gone when courts took juries on expensive field trips to accident
sites, crime scenes or local construction sites. Today, just about anything the judge and jury
need to visually witness, can be accomplished in the court room through the use
of exhibits, models and computer generated animations. It is
essential for today’s litigators to have a clear grasp of demonstrative
evidence and the rules of admissibility.
An attorney must be prepared to lay adequate foundation for the offered
exhibits by establishing their authenticity and relevance. The difference between winning and losing is
not only the ability to transpose a complex theory or series of events into a simple
visual, but more importantly the skill to ensure that the demonstrative exhibits
are admitted as evidence.
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