Demonstrative Evidence: Coming of Age
| Publication year | 1993 |
| Pages | 1191 |
1993, June, Pg. 1191. Demonstrative Evidence: Coming of Age
The courtroom version of Star Wars has changed the complexion of litigation. Laser-discs, computer-software, laptop computers and television monitors have replaced the courtroom props that were commonplace only a few years ago. Electronic recordings and videotapes are no longer thought of as revolutionary in the advent of the "Animated Evidence Age," and, certainly, the more traditional demonstrative evidence forms such as overhead slide projection and photographic enlargements are quickly becoming the dinosaurs of the profession.
With the re-creations through computer simulations of past events, trial lawyers have materialized the mythical time machine. Animated evidence can not only depict the past, but also predict the future. When videotaped depositions, high-tech physical models and computer-generated animations are used in the courtroom, some trial lawyers believe it is no longer enough to be actors---they must be producers and directors as well.
Trial attorneys must learn a whole new language, as well as become experts on video and computer techniques. They must be versed on the use and effects of such things as filters, zoom lenses, wide-angle photography, camera position, angles and distances. The chess match between the trial strategist who seeks to admit the evidence versus the strategist who seeks to have it excluded will be rivalled only by the interplanetary war of Star Wars fame between the Jedi Knights and the Empire and Luke Skywalker and Darth Vader, respectively.
This article discusses the definition of demonstrative evidence, its admissibility and the types of evidence that may be presented. The article also presents a list of the possible objections that could be raised. Generally, the Colorado Rules of Evidence ("CRE") that deal with demonstrative evidence are CRE 401-403, 702, 703, 705, 901, 1001 and 1006.
"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," "physical" or "visual" evidence. Thus, 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 the instrumentality used in the commission of the crime in a criminal prosecution, or because it is illustrative, as in the case of a drawing, diagram, model, photograph, motion picture, videotape or computer-generated animation. Demonstrative evidence, then, is the thing itself rather than the words of a witness describing it.
To be admissible, demonstrative evidence must be shown to be relevant and reasonably accurate and correct. These are preliminary issues for the trial court to assess under CRE 104. The determination of admissibility is committed to the sound discretion of the trial judge. When the correctness of the representation is disputed, it is for the jury ultimately to determine the weight to be accorded the exhibit.(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) Under CRE 402, to be admissible, demonstrative evidence must be relevant to the issues in the case. CRE 401 defines "relevant evidence" as evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.
The Colorado Supreme Court, in interpreting CRE 401, has stated:
As a general rule, evidence which tends to prove or disprove a fact in issue
or which sheds light upon a matter contested is relevant; however, evidence remotely related to contested issues should not be considered by the trier of fact.(fn4)
CRE 901 states that the requirement of authentication and identification as a condition precedent to admissibility "is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims." Where it is not possible to establish the identity of demonstrative evidence by a single witness, a chain of custody must be established.(fn5)
The general purpose of requiring a chain of custody is to insure that evidence being offered is what the proponent claims it to be. To establish a chain of custody, the proponent must trace the continuous whereabouts of the item in question.(fn6) In addition, the proponent must establish that the evidence offered is in the same condition as when it was obtained.(fn7) It is to be noted that, in the absence of any evidence of tampering or lack of authentication, the proponent of evidence relating to results of tests and supporting exhibits is not required to call each witness who may have handled the exhibit.(fn8)
The various categories of this unique type of evidence deserve discussion.
Demonstrative evidence may be divided into seven categories: (1) articles or objects; (2) exhibitions; (3) photographs; (4) maps, drawings and diagrams; (5) models; (6) demonstrations and experiments; and (7) view of scene. Videotape evidence is included in the definition of "photographs" under CRE 1001, and, therefore, is considered under that category, although, when considered as a medium, it could fit into other categories as well. Animated evidence, re-creations through computer simulations, fits more aptly within the category of "demonstrations and experiments" and is discussed herein under that title.
The thing itself is the most powerful evidence that can be produced at trial. The axiom "seeing is believing" has no greater applicability than to the presentation of evidence in a courtroom, regardless of the trier of fact or the type of case. Any article or object which relates to or tends to explain the issues or forms a part of the transaction in controversy is admissible in evidence, provided it is properly identified and shown to be in substantially the same condition as at the time of the occurrence.(fn9)
Exhibiting the person or parts of the body is commonplace in both civil and criminal cases in this jurisdiction. Any evidence that demonstrates to the trier of fact in a tangible manner that which is sought to be proven is permitted to be displayed to the jury, subject to the restrictions of CRE 401-403; that is, where exhibiting the person or parts of the body is relevant to the issues and does not offend, confuse or mislead the trier of fact, it is generally permitted. As always, it is within the sound discretion of the trial court whether to grant or deny the privilege.
Exhibition of the person before the trier of fact has been permitted in Colorado for purposes of identification(fn10) and comparison;(fn11) displaying of a scar;(fn12) displaying of a child;(fn13) and otherwise to show the nature and extent of injuries...
To continue reading
Request your trial