§ 4.07 DEMONSTRATIVE EVIDENCE

• Jurisdiction: North Carolina

§ 4.07 DEMONSTRATIVE EVIDENCE

[1] IN GENERAL

The types of articles we have discussed to date are real or original evidence; the articles have an historical connection with the transaction giving rise to the suit. For example, the document is a will the decedent signed before death, or the item is the very pistol the defendant used during the assault. Sometimes the proponent may use an item even if the item has no connection with the case. Suppose, for example, that the police never found the pistol used in the assault. The trial judge might permit an eyewitness to the assault to use another, similar pistol to illustrate his or her testimony. The courts often refer to this latter type of evidence as demonstrative; the article helps the witness to demonstrate or illustrate oral testimony. On request, the judge will administer a Rule 105 limiting instruction about the evidentiary status of a demonstrative exhibit. The only constraints on the use of demonstrative evidence are the trial judge's discretion and the trial attorney's imagination.³¹

[2] VERIFICATION OF A DIAGRAM

The verification of a diagram is very similar to the verification of a photograph. In most cases, the diagram need not be to scale. However, the sponsoring witness must testify that the diagram is generally a "true," "accurate," "good," or "fair" depiction of the scene or object shown. If the diagram is not to scale, the opposing counsel is entitled to a limiting instruction.

The elements of the foundation are:

1. The diagram depicts a certain area or object.
2. The witness is familiar with that area or object.
3. The witness explains the basis for his or her familiarity with the area or object.
4. In the witness's opinion, the diagram is an accurate depiction of that area or object.

The fact situation is an assault prosecution. The indictment alleges that the accused attacked the victim, Mr. Williams, in a bathroom in the Senator Hotel in San Diego. The prosecutor wants to use a chart to illustrate the victim's testimony. The witness is the victim. The prosecutor is the proponent. The victim has just testified that he was attacked.

P WHERE did this attack occur?

W As I said, it occurred in the bathroom on the second floor of the hotel.

P Your Honor, I request that this be marked prosecution exhibit number three for identification.

J It will be so marked.

P Please let the record reflect that I am showing the exhibit to the defense attorney.

J It will so reflect.

P Request permission to approach the...