Posts
There
is nothing improper with the use of demonstrative or illustrative
evidence. In fact, it is one of the
most powerful ways an attorney can demonstrate information to a jury. However, it must be done fairly. It should seem simple, but many have failed
in the proper presentation of illustrative aids. What
you cannot say, you cannot display.[1] It is the result of attorneys attempting to
utilize improper presentations that have resulted in the requirement of trial
court oversight of demonstrative and illustrative aids.[2]
Demonstrative evidence has been part of
the American trial process for over a century.[3] New Jersey State Courts and District Courts
have acknowledged that the use of visual aids or demonstrative evidence, as
well as presentation software assisting in their use, is widespread and
continuing to grow. One of the largest
problems with demonstrative evidence is the lack of a formal definition the
term.[4] New Jersey has defined demonstrative evidence
as any evidence that replicates the actual physical evidence, demonstrates some
matter material to the case, or illustrates certain aspects of an expert’s
opinion.[5]
Trial courts enjoy
wide latitude in admitting or rejecting replicas, illustrations and
demonstrations and in controlling the manner of presentation and whether or not
particular items are merely exhibited in court or actually received in
evidence.[6] The trial courts control not only the
admission of these types of evidence, but also the form and limits of its
presentation.[7] The
admissibility of such evidence turns on whether the evidence sufficiently
duplicated the original event or information it is explaining.[8]
Attorneys
need to remember that demonstrative or illustrative evidence is utilized to
replicate actual physical evidence, demonstrate some matter material to the
case, or illustrate certain aspects of an expert’s opinion.[9] The evidence must be relevant and
authenticated.[10] These determinations on admissibility will
turn on whether the evidence sufficiently replicates whatever it is designed to
illustrate.[11] Therefore, it is vitally important to verify
your potential evidence if accurate and allow the admitting witness to verify
its usefulness and accuracy. Therefore,
attorneys should prepare all potential evidence ahead of time. The evidence should be correctly located in
its electronic folder and attached in your trial presentation software. The attorney should practice calling up the
evidence and working with it ahead of trial so that they are comfortable during
the trial. It would be a disaster if
the wrong document or piece of evidence touched the screen and caused a
mistrial.
In
order to understand demonstrative evidence, it is useful to look at the
relevant case law in New Jersey. In the
1934 case of Schnoor v. Palisades Realty and Amusement Co,[12]
an expert made a diagram and model of the sky ride to illustrate his testimony
about how the injury occurred and how it might have been prevented. The Court held that models could be used to
aid the court and jury. Although models
were admissible since 1934, blackboards had a rather large battle on admissibility. It wasn't until Cross v. Lamb[13]
that blackboards were accepted as demonstrative aids and allowed counsel to
utilize them to supplement facts as well as argument to the jury. The practice was finally accepted and subject
to the discretionary supervision of the trial court. Next, in Balian v. General Motors,[14]
motion pictures of scientific experiments were brought into the courtroom. Again, the demonstrative aid was supervised
by the trial court and required to be a fair depiction of relevant facts and
its probative value is not offset by undue prejudice, unfair surprise, undue
consumption of trial time, or possible confusion of issues on collateral
matters.
The seminal case
on the use of electronic display is Rodd v. Raritan.[15]
In Rodd, a party showed a
digital view of a mammogram which was zoomed at a larger size than a doctor was
able to view it. It was 150 times
larger than what the radiologist was able to view on the image. The presentation ended up being a 6’ by 8’
image. The presenting party failed to
explain that the image was being shown as a visual aid and with a limited
purpose. The Court held that “in the
absence of a limiting instruction, such imagery is clearly capable of
influencing a jury, of generating confusion over the appropriate standard of
care, and thus, unduly prejudicing the defendant.”[16]
The purpose of a visual aid is to be a
model, diagram, or chart utilized by a witness to illustrate testimony and
facilitate jury understanding. The
Courts frustration with the presenting party was the failure to notice defense
counsel of the use of technology and the failure to lay a complete foundation
for its introduction. Remember the Tech
Rules. Lay a presentation before
presentation.
In Macaluso v.
Pleskin,[17]
the Appellate Division reaffirmed the need to have a witness authenticate a
piece of demonstrative evidence. A party
played a video animation regarding soft tissue that was produced by a technical
medical animation corporation and not the testifying witness. This would have been fine but the expert had
never seen the animation and did not make any comments on it. Further, the animation was narrated by
someone other than the testifying doctor and the speaker, therefore, was unable
to be cross-examined and was testifying without being under oath. It is important to think about admissibility
of evidence before presenting the evidence.
Otherwise, you may be retrying the case due to a mistrial for the
improper presentation or otherwise admissible evidence.
In Persley v.
New Jersey Transit Bus,[18]
a video was presented to the jury of a computer-generated simulation of the
subject accident. The recreation was
done at the testifying expert’s direction, he explained the procedure, and
described the information utilized in its creation. The Appellate Division held that the video
was properly admitted and that admissibility of evidence concerning a
reconstruction of a particular event would turn on whether the reconstruction
sufficiently duplicated the original event.
The video was authenticated, the process of its creation explained, it
conformed to the evidence surrounding the subject accident, and it was shown in
real-time (not in slow motion). This is
a great example of the way to present a simulation.
On the other side,
Suanez v. Egeland[19]
is the perfect example of what not to do when trying to get demonstrative aids
admitted during a trial. In Suanez,
the party did not turn over the video recreation, the recreation was slowed
down to highlight the party’s arguments and no foundation was laid. Aside from that, the Court held that it was
still inadmissible as prejudicial and unfair.
The Court explained its frustration with not fully disclosing the
available evidence. The Appellate
Division stressed that the rules of discovery were designed to insure that the
outcome of litigation shall depend on the merits of the facts rather than on
the craftiness of the parties or the guile of their counsel. “[A]n adversary should not be confronted
with a videotape for the first time on the day of trial. Without prior notice and time to prepare, an
attorney is ill equipped to meaningfully test the validity of the scenes
depicted on the tape.”[20] Remember the rules: Hide and be denied, lay a proper foundation
before presentation, and if you can’t say it, you can’t display it.
It
is important to remember R. 403, which provides that relevant evidence
may be excluded if its probative value is substantially outweighed by the risk
of undue prejudice, confusion of issues, potential to mislead the jury, undue
delay, waste of time, or needless presentation of cumulative evidence.[21] If the digital evidence is prepared correctly
and the practitioner is familiar with the tools of presentation, the use of
digital evidence will expedite the presentation of the matter and, therefore,
not delay or waste time. Be aware of the
potential objections so that you can form a response to each potential
objection. That being said, it may be
wise to object to another’s use of digital evidence if it is clearly
prejudicial and have the potential to raise one of the R. 403 issues.
In
federal case law, U.S. v. Blackwell, provides an analysis of the law on
admissibility of demonstrative charts.[22] In Blackwell, District Judge Lechner
explained that compilations of charts used to summarize or organize properly
admissible evidence or testimony are separate than the original pieces of
evidence. Charts that summarize
documents and testimony, already admitted into evidence, may be admissible as
demonstrative evidence under Rule 611.[23] Rule 1006 governed substantive
evidence. Federal case law demonstrates
that, as with New Jersey case law, the use of demonstrative charts to aid the
jury’s comprehension is well within the court’s discretion.[24] Judge Lechner states that “when Rule 611
charts are used, however, it is required the charts be accompanied by an
instruction from the court which informs the jury of the summary’s purpose and
that it does not constitute evidence.”[25] When the evidence is sufficiently voluminous
and complicated, as in Blackwell, the use of summary charts is
justified.
Once the
demonstrative aid is utilized, the question changes to whether it can be
provided to the jury during deliberations.
The Courts have determined that the Trial Judge has the power to admit
visual aid evidence to the jury.[26]
All digital
evidence, as with any real evidence, presents the possibility of alteration or
fabrication. The accusation of
alteration is frequently raised by adversaries when digital evidence is
presented. The best way to deal with
this accusation is to set a foundation before presentation and to know the
ever-changing case law in the area of courtroom technology.
Another objection
raised by adversaries is completeness.
Completeness[27]
has been raised when presenting zoomed, enhanced or cropped images and
documents. Cropping cuts out parts of
an image without changing the content of the portion of the image that
remains. Cropping has always been
possible during an enlargement process.
Digital photography makes this very easy to accomplish. Although there is nothing inherently unfair
about cropping, it does raise the objection of completeness. Parts of a document may be deleted, photos
may be cropped, and digital video may have parts excised. Therefore, an attorney should always have the
original present and be prepared to present the original piece of evidence in its
entirety before showing an altered version for demonstrative or argumentative
purposes. Remember that the cropped or
called out image is being used to aid the jury in understanding a portion of
the original document.
In order to deal
with this objection, the attorney should use the “call out” feature. This
usually protects against the cropping/completeness argument because the
original document is displayed in its entirety prior to the callout taking
place. This feature will show the entire
image and then enhance a portion of the document for the jury. Also, most callouts can be scrolled along a
document and not damage the original presentation.
Scientific
Evidence concerns can be raised regarding recreations or animations. This is addressed in the computer-generated
evidence section. However, we will
address it briefly here. The scientific
objection is irrelevant to most demonstrative evidence but applicable if the
demonstrative evidence is proposed for substantive scientific evidence such as
a re-creation. If the adversary can
convince the court that Daubert[28]
and Frye[29]
are raised by the inputting of underlying data and the validity of the
scientific concepts inherent in the computer software’s programming and the
accuracy of the end product, you may need to call the creator of the animation
or recreation in order to validate the process.
Attorneys should be able to
explain the procedure for creating the re-creation, explain the scientific
procedure and assumptions taken in the creation, and have testimony available
about any potential inconsistencies.
Further, the evidence should have been turned over in advance of the
trial date and dealt with in at 104 setting, if necessary.
Obviously, the
most prevalent objection in limiting the use of courtroom technology is unfair
prejudice.[30] The objection can be coupled in the argument
that you are using evidence inappropriately, zooming incorrectly, resizing
images, reshaping the scene, or altering the speed of video presentation. A perfect example of the Court’s requirement
of fairness in the use of demonstrative aids is Rodd v. Raritan
Radiologic Associates.[31]
Expert testimony
is unnecessary when an instrument of “common knowledge” is employed by the jury
to examine evidence before the court.[32] In 1999, 93% of all information created was
generated in digital form.[33] If that was true in 1999, imagine what the
percentage is applicable to today.
N.J.R.E.
403 permits the exclusion of otherwise admissible evidence if there is an
unreasonable risk of unfair prejudice.
Electronically presented and produced evidence may raise this objection
because of high quality animations that appear too similar to real life
depictions and could make the jury interpret the animation as fact or convey a
greater value to the evidence than should be attributed.
Rule of Thumb:
If you can say it, then you can put it in your presentation; if you can show it
in court, then you can put it in your presentation; and if it is admissible as
an exhibit, then you can present it in an electronic presentation.
In order to avoid
objections, try to avoid color emphasizing a fact, have words move or morph,
and do not play enhancing sounds (sounds that are not evidence in the case used
for the purpose of emphasizing a point on the screen). Additionally, utilizing these tools may turn
the jury against the attorney.
Argumentative is
another commonly utilized objection.[34] The attorney may object to labeling of a
document: text treatments, colors, motion, sound, positioning, speed, repetition,
etc. The audio tracks may be objected to
as non-testimonial argument. Argument
can be in wording or in the design of graphics.
The Argumentative
argument can be followed by objections of Hearsay, Leading, or Assumes Facts
Not in Evidence. If your presentation is
presented prior to testimony, an objection may be raised as to hearsay or
leading: hearsay because it will
allegedly hold information which the witness plans to testify to in advance of
the actual testimony; leading can be raised because the presentation itself
contains an answer which has not yet been provided.
Rule of Thumb:
Lay a foundation before presentation.
Experts can limit
the leading objection if the expert prepared the slides and determined their
content. The leading argument may be
subverted if the purpose of the slides is to clarify and organize the
testimony. Objection to the viewpoint of
the animation, the speed of the animation, the timing of the animation, the
freeze frames in an animation, flaws in the background of the animation, and
the accompanying sound of the animation may be made. It may be useful to have you expert ready to
reply to the objection by your offering to further explain the foundation
before continuing.
The Best Evidence
Rule[35]
objection is becoming less useful with the amending of our New Jersey Rules of
Evidence. The Rules have begun to
address digital evidence and its use.
Always review our evidence rules at least yearly. In today’s world, a digital display of a
digital display of a photograph may be the original presentation of the
photograph as required by the Best Evidence Rule[36]. It would function as electronically produced
evidence and should be provided to your adversary in the electronic form. However, if the photograph is a scanned copy,
then it can be treated as a photocopy or additional print, used for convenience
purposes. There are no new evidentiary
issues if the underlying admissibility of the photograph has already been
established. If the challenge is made,
the situation can remedied by a simple additional question to the witness: Does the image being displayed on the screen
fairly and accurately depict a larger version of Exhibit P-1?[37]
The small color
differences or resolution differences in the electronically displayed version are
irrelevant to the display because the purpose is an examination of the textual
content or physical content of the photograph, not the color or clarity. Once a sufficient foundation is laid for the
document, an electronic display can be shown to the jury. The enlargement should not require further
exhibit numbering or qualification because it is merely a display of the
original piece of evidence.
If the document
was originally in electronic form and then printed for evidential purposes, the
same best evidence or original document objection may be raised. Be prepared to have a digital copy burned to
CD or on disc for the court to mark as an exhibit. “If data are stored by means of a computer or
similar device, any printout or other output readable by sight, or shown to
reflect the data accurately, is an ‘original’.”[38]
Trial courts enjoy
wide latitude in admitting or rejecting replicas, illustrations, and
demonstrations and in controlling the manner of presentation ad whether or not
particular items are merely exhibited in court or actually received in
evidence.[39] Therefore, disclosure is very important. Disclosure makes a judge more inclined to
allow technology in the courtroom. If
the judge has concerns or the adversary attorney has concerns, they can be
addressed prior to the start of trial and remedied. Also, early disclosure can provide your
adversary with an opportunity to object before the trial. This will allow you to make your changes to
your presentation prior to actually using it.
This has the potential of protecting the money expended on the creation
of the evidence and preserves its potential use.
Disclosure does
not apply to everything. Work product is
clearly protected and does not have to be turned over to your adversary. Nor does disclosure require you to tip your
hat as to your trial strategy.
Disclosure is the providing of information regarding artistic
interpretation, animation, and the basic description of what technology you
will be utilizing.
[1] Cross
v. Lamb, 60 N.J.Super 53 (App. Div. 1960)
[2] Rodd
v. Raritan, 373 N.J.Super 154 (App. Div. 2004), Crispin v.
Volkswagenwek, 248 N.J.Super 540 (App. Div.1991), Suanez v.
Egeland, 330 N.J.Super 190 (App. Div. 2000); Macaluso v. Pleskin,
329 N.J.Super 348 (App. Div. 2000)
[3] The
Derivative Relevance of Demonstrative Evidence: Charting Its Proper Evidentiary
Status; R. Brain, D Broderick – UC Davis Law Review, 1992
[4] See
Try It:With Friends; J
Lomurro and P Auerbach, N.J.I.C.L.E., 2010 and The Derivative
Relevance of Demonstrative Evidence: Charting Its Proper Evidentiary Status;
R. Brain, D Broderick – UC Davis Law Review, 1992
[5] Rodd
v. Raritan, 373 N.J.Super 154, 164 (App. Div. 2004)
[6] Rodd
v. Raritan, 373 N.J.Super 154 (App. Div. 2004)
[7] Id.
[8]
Id.
[9] Id.
[10] N.J.R.E.
401, 901
[11] Persley
v. New Jersey Transit, 357 N.J.Super 1 (App. Div. 2003)
[12]
112 N.J.L. 506 (E&A 1934)
[13]
60 N.J.Super 53 (App. Div. 1960)
[14] 121 N.J.Super 118 (App. Div. 1972)
[15]
373 N.J.Super 154 (App. Div. 2004)
[16] Id.
[17]
329 N.J.Super 348 (App. Div. 2000)
[18]
357 N.J.Super 1 (App. Div. 2003)
[19]
330 N.J.Super 190 (App. Div. 2000)
[20] Id.
[21] R.
403
[22]
954 F.Supp. 944 (D.N.J. 1997)
[23] Fed.
R. Evid. 611(a)
[24] Id.
citing United States v. Possick, 849 F.2d 332 (8th
Cir. 1988)
[25]
954 F.Supp. 944 (D.N.J. 1997)
[26] Fiorino
v. Sears Roebuck and Co., Inc. 309 N.J.Super 556 (App. Div. 1998)
[27] N.J.R.E.
106
[30] N.J.R.E.
403
[32] Boland
v. Dolan, 140 N.J. 174 (1995)
[33]
Joint Administrative Office/Department of Justice Working Group on Electronic
Technology in the Criminal Justice System 3 (2003) cited by Frederic I. Lederer
in Courtroom Technology: A Status Report and Courtroom Technology: For Trial
Lawyers, the Future is Now (2005)
[34] N.J.R.E.
611
[35] N.J.R.E. 1002
[36] N.J.R.E. 1001
[37] N.J.R.E.
1001 - 1008
[38] N.J.R.E.
1001(c)
