17.8 - C. Effective Display At Trial

• Jurisdiction: New York

C. Effective Display at Trial

Photographs have become such routine pieces of demonstrative evidence that a trial lawyer’s primary attention to such evidence should be focused on their effective use at trial, rather than admissibility. How photographs can best be displayed to the jury will vary from case to case. Consider the use of PowerPoint slides, video monitors, poster-sized blowups, sequential displays on poster boards and the use of clear plastic overlays. When you use slides, also have duplicate prints marked and admitted into evidence so that the jury can take them, if desired, into the jury room for viewing during deliberations.

D. Surveillance Materials

One area in which the litigant must consider discovery tactics as well as the presentation of demonstrative evidence is in the use of surveillance material. Surveillance materials typically are “undercover” photographs, movie film or video depictions used by defendants to show the plaintiff engaging in some activity that the plaintiff claims he or she is unable to perform because of injuries. In DiMichel v. South Buffalo Railway Co.,²⁹⁵⁰ the N.Y. Court of Appeals set out to resolve a dispute among the four appellate divisions regarding the use of surveillance video at trial and the discoverability of that information prior to trial.

The defendant in this personal injury action objected to disclosure of any surveillance videotape that it might have on the ground that the material was not discoverable. The defendant argued to the Court of Appeals that the value of surveillance material at trial was its ability to surprise the plaintiff and test his or her testimony through cross-examination with powerful visual evidence that the plaintiff is exaggerating his or her injuries. The Court, concerned about the ability to manipulate videotape, stated, “Because films are so easily altered, there is a very real danger that deceptive tapes, inadequately authenticated, could contaminate the trial process.”²⁹⁵¹

The Court commented that, at a minimum, the plaintiff would be entitled to a continuance anytime this type of material was offered by defendants to allow plaintiff to examine the evidence. Further, the Court held that it would likely be well within the trial court’s discretion to grant an extended continuance giving plaintiff’s expert time to review the films in order to authenticate or challenge them.

To avoid disruption, the Court settled on a rule which provided that surveillance material should...