Chapter 1 - § 1.6 • DEMONSTRATIVE

• Jurisdiction: Colorado

§ 1.6 • DEMONSTRATIVE EXHIBITS

Visually stimulating demonstrative exhibits can be extremely powerful. They can leave a lasting impression on a jury and often play a significant role during jury deliberations. Because of the significant impact that such exhibits can have on a jury, the courts have developed rules to ensure that the probative value of the exhibits outweighs any prejudice and that the exhibits are solidly grounded in science and are reliable. Where demonstrative exhibits are authentic, relevant, fairly representative, and not unduly prejudicial, they should be admitted.

§ 1.6.1—Photographs and Video Generally

The term "photographs" includes still photos, X-ray films, videotapes, and motion pictures. CRE 1001(2). Digital material, particularly computer code that causes a visual image to appear on a computer screen, may be characterized as a writing under this subsection or a photograph under CRE 1001(2).The primary foundational requirement for the introduction of photographs and video and sound recordings is that the witness be qualified to establish that the photograph or recording accurately reflects what it is supposed to reflect, such as the scene of an incident or "fair, accurate and truthful representation" of the objects it purports to represent. See Ross v. Colo. Nat'l Bank of Denver, 463 P.2d 882, 885 (Colo. 1969). "A videotape is ordinarily admissible to illustrate or explain anything a witness may describe in words." People v. Avey, 736 P.2d 1233, 1238 (Colo. App. 1986). "The law and policy governing admissibility of photographs and motion pictures applies to videotapes." Id. Generally, this requirement is satisfied for a picture if the witness merely affirms that the scene or events depicted in the picture accurately reflect the scene or events at issue. While this is often accomplished by the testimony of the person who took the photograph or made the video recording, it need not be; the testimony may be given by any witness with knowledge of the scene in question. See, e.g., People v. Theiry, 780 P.2d 8, 10 (Colo. App. 1995) (in order to prove substantial similarity of conditions, a foundation must be laid by the party seeking admission of the photograph or videotape).

On occasion, the introduction of a video recording may also require establishing that (1) the equipment used to make the sound and video recordings was in good working order, and (2) the recording has not been edited or doctored. In addition, the proponent of a...