The Use of Demonstrative Evidence in Criminal Cases
| Publication year | 1978 |
| Pages | 1332 |
| Citation | Vol. 7 No. 8 Pg. 1332 |
1978, August, Pg. 1332. The Use of Demonstrative Evidence in Criminal Cases
Carroll E. Multz, Craig, is District Attorney for the Fourteenth Judicial District. This is his fourteenth article to appear in The Colorado Lawyer.
Evidence is presented for the purpose of persuading the trier of fact. To be effective, it must be done in such a manner as to leave little to the imagination. It is critical, therefore, that the evidence presented by your side, whether it be for the prosecution or for the defense, paint the most vivid and logical picture of the facts in a given case.
The axioms "seeing is believing" and "a picture is worth a thousand words" have no greater applicability than to the presentation of evidence. It is for this reason that the use of demonstrative evidence cannot be over-emphasized. Moreover, the fact that such evidence may be taken into the jury room and serves as a constant reminder of your theory of the case throughout deliberation makes its use even more compelling.
"Demonstrative evidence" may be defined as evidence perceived by the trier of fact through the sense of sight. It is evidence of a physical nature. Demonstrative evidence is referred to alternatively as "real" or "physical" evidence. It is of a tangible nature capable of being seen and touched as opposed to testimonial evidence.
Demonstrative evidence is admissible either because of its inherent worth such as a murder weapon in a murder prosecution or because it is illustrative as in the case of a diagram of the crime scene. Regardless, we are concerned here with the presentation of the thing itself rather than the words of a witness describing it.
The applicable test for admissibility of demonstrative evidence is only that it be connected in some manner with either the perpetrator, the victim, or the crime.(fn1) Demonstrative evidence may be circumstantially connected.(fn2) However, to be admitted, "it must be shown to be what it purports to be, and its character must be as purported."(fn3) It must also be material and relevant to the issues of the case.(fn4) And, if it does not have "probative value," it should not be admitted.(fn5)
Chain of Custody: It is only where it is not possible to establish the identity of demonstrative evidence by a single witness that a chain of custody must be established.(fn6) The general rule is that the party offering the evidence must establish
a chain of custody that will ensure that the evidence offered is in the same condition as it was at the time it was obtained.(fn7) The burden is upon such party to show to the satisfaction of the court, with reasonable certainty, that there was no alteration of or tampering with the evidence.(fn8) When it is only speculation that there was tampering, it is proper for the trial court to admit the evidence and let the jury determine its weight.(fn9) It should be noted that where the chain of evidence is complete, any weakness in the chain goes merely to the weight of the evidence and not to its admissibility.(fn10)
When Chain is Unnecessary: Where identity and condition can be established by a single witness, it is not necessary to establish a chain of custody in order to lay a proper foundation for admission.(fn11) In such cases, positive identification is unnecessary where the witness can state that such item "appears to be the same,"(fn12) "looks like" the item,(fn13) is "similar to" the item,(fn14) or is the item "or just like the one."(fn15)
Demonstrative evidence may be divided into four categories: (1) tangible items directly connected to the crime; (2) exhibitions; (3) demonstrations and experiments; and, (4) view of the crime scene. Examples of demonstrative evidence include weapons, pieces of clothing, fingerprints, footprints, palmprints, drawings, documents, models, charts, x-rays, maps, plats, photographs, motion pictures, sound recordings and handwriting comparisons.
"Photographs are the pictured expressions of data observed by a witness. They are often more accurate than any description by words, and give a clearer comprehension of the physical facts than can be obtained from the testimony of witnesses."(fn16) The general rule is that photographs are competent evidence of any relevant matter which it is competent for a witness to describe in words.(fn17) Their admissibility does not depend upon whether the objects they portray could be described in words, but on whether it would be helpful to permit the witness to supplement his description by their use.(fn18)
Photographs may be used to portray graphically, inter alia: (1) the scene of a crime; (2) the...
To continue reading
Request your trial