Chapter 16 Accident Reconstruction and Demonstrative Evidence New Techniques and Developments
| Jurisdiction | New York |
Anthony D. Cornetto, III, P.E.*
I. INTRODUCTION
A. What Is Demonstrative Evidence?
Demonstrative evidence is a tangible thing or object that illustrates or demonstrates a relevant fact. Although demonstrative evidence may speak for itself, it is generally used with a witness. Demonstrative evidence includes photographs, videos, motion pictures, interactive presentations, computer simulations, drawings, models, experiments, and demonstrations and exemplars
B. Why Use Demonstrative Evidence?
Demonstrative evidence can explain ideas that are difficult to describe in words. Members of a jury, like most everyone else, can better remember things they see as well as hear, and demonstrative evidence can be more interesting than and can heighten jurors’ attention to the supporting testimony. The judicious use of demonstrative evidence can highlight the major points of one’s arguments. Demonstrative evidence may be allowed into the jury room and thus will serve to remind the jurors of one’s arguments during their deliberations
C. When Can Demonstrative Evidence Be Used?
Demonstrative evidence can be used in almost every part of the trial. It may effectively be used in the opening statement to arouse juror interest and anticipation of one’s arguments. Demonstrative evidence will usually prove effective in clarifying the testimony of expert witnesses (and sometimes that of lay witnesses as well) and can also be used as a means of imprinting the high points of one’s case during final arguments
II. REQUIREMENTS FOR THE USE OF DEMONSTRATIVE EVIDENCE
A. Demonstrative Evidence Must Explain a Relevant Issue
Whenever a fact in dispute can be explained by the presentation of an actual object discussed in the testimony, it is proper to display that object to the jury. Duplicates, models, diagrams or other forms of demonstrative evidence that assist in the presentation of testimony may be used with the permission of the court.
B. Demonstrative Evidence Must Not Be Inflammatory or Prejudicial
Inflammatory or prejudicial evidence should never be considered. All demonstrative evidence may, in some ways, be considered inflammatory, or at least unfair, from the point of view of one of the litigants. The court must weigh the explanatory value of such disputed demonstrative evidence relative to its prejudicial effects. Counsel should identify early any potential disputes surrounding the use of demonstrative evidence and resolve them with the court as soon as possible.
C. Foundation Testimony Requirements for the Admissibility of Demonstrative Evidence
The source or origin of the demonstrative evidence must be identified. The similarity of the demonstrative evidence to the actual object in its most relevant characteristics must be established, as well as the fact that the demonstrative evidence is a fair representation of the whole.
III. CRITERIA FOR SELECTING DEMONSTRATIVE EVIDENCE
A. Practicality
The demonstrative evidence must be practical for use in the courtroom where the trial will actually take place—that is, the types of facilities available must be compatible with the form of demonstrative evidence used. Are there electrical outlets, tables, easels? If not, will the court allow their use if brought in? How is the courtroom actually laid out? Where will the jurors be seated? Where will the demonstrative evidence be displayed so it can be seen by the jury and still be able to be explained by a witness? How will the demonstrative evidence be moved into the courtroom, set up and then removed?
B. Judge’s Role
The judge will determine what type of demonstrative evidence will be allowed in his or her courtroom. What types of demonstrative evidence has the trial judge allowed in the past? What types of demonstrative evidence does the trial judge like or dislike? How sympathetic will the judge be to the opposition’s objections to the use of certain kinds of demonstrative evidence? How open is the judge to new types of demonstrative evidence—for example, computer simulations?
C. Quality of the Demonstrative Evidence
The demonstrative evidence must be persuasive. Although demonstrative evidence is supposed to speak for itself, it will usually need the testimony of witnesses—expert, lay or both—to fully explain it. The witness who will use the demonstrative evidence during his or her testimony usually will provide the necessary foundation for its admission. All witnesses who will use a piece of demonstrative evidence during their testimony should be familiar with the evidence and the path of the direct examination prior to testifying.
Counsel should avoid any situation in which one of his or her witnesses could disagree with another on the accuracy or meaning of a piece of demonstrative evidence. The demonstrative evidence itself must be of high quality, pleasing in appearance, but not overdone. The demonstrative evidence should simply and clearly present the facts of the case as counsel understands them. Demonstrative evidence that is overdone either in length or detail, or is ostentatious, can bore, confuse or alienate the jury.
IV. DEVELOPMENT OF DEMONSTRATIVE EVIDENCE
A. The Evidence Team
The development of effective demonstrative evidence requires a team effort, usually involving at least three people: the lawyer, the witness and a technician. The lawyer must decide where the demonstrative evidence fits into the overall trial plan and how it will help persuade the jury. The witness must be able to use the demonstrative evidence to testify effectively. The technician must be able to produce high-quality demonstrative evidence.
B. Groundwork
Counsel must first decide what to imprint on the jurors and then consider the types of demonstrative evidence that may be available under the practical constraints of the courtroom and the judge. The available alternatives should be discussed with the witness who will use the demonstrative evidence and the technician who will create it. Time and money constraints should also be considered. Once agreement is reached on the demonstrative evidence to be produced, a time schedule should be established for its development. There should be an opportunity to review the first cut of the demonstrative evidence, allowing ample time for changes. Counsel should anticipate making several reviews of the demonstrative evidence before the final product is complete. However, counsel cannot make significant changes and expect costs to stay the same. Any changes must be clearly communicated between the lawyer, witness and technician. The more complicated the demonstrative evidence, the more carefully the activities of these three people must be coordinated and the more time that must be allotted to the entire development process.
C. Practice
Counsel should conduct a dry-run use of the demonstrative evidence prior to the trial in front of a group of people unfamiliar with the case to work out any problems with the use of the evidence on direct examination. In addition, polling the audience will give counsel some idea of the persuasiveness of the demonstrative evidence. If the development of the demonstrative evidence has been properly scheduled, there will still be time for fine-tuning. To reiterate, the development of effective demonstrative evidence requires time and attention to detail.
V. TYPES OF DEMONSTRATIVE EVIDENCE
A. Actual Objects and Duplicates/Exemplars
1. DefinitionsThe article at issue in a case will usually become a piece of demonstrative evidence. “Duplicates” or “exemplars” are other objects that are exactly the same in all relevant ways, but which may differ in insignificant ways such as color.
The advantage of using the actual object is that the object is the most relevant type of demonstrative evidence. It gives the jury the opportunity to see, feel and perhaps hear the object—in general, to sense it fully. Because of its relevance, the actual object will almost always be admitted as evidence. It may become a joint exhibit and, thus, opposing counsel will not object to its use. The disadvantages of using the actual object are that it may be too large or inconvenient to present in the courtroom. Although the jury may be brought to view the object, such objects usually cannot be used with the testimony of witnesses under such circumstances and cannot go into the jury room during deliberations. Also, the object may be inflammatory or, at least, prejudicial to one side; it may be too complicated to be easily understood; and it may also be difficult for a witness to discuss parts of the object that cannot be seen and that are difficult to expose by disassembly.
While there is usually no cost or time involved in preparing the actual object, duplicates can be very expensive depending on the nature of the object. Either type nonetheless requires time to plan and practice with the witnesses to ensure that the demonstrative evidence is used effectively.
3. Using the Object at Trial
Counsel should never use an actual object or duplicate that can injure a juror, witness or counsel, or even get one of them dirty. If the object goes into the jury room, no one can ensure that it is handled properly. Duplicates should be clean and in mint condition, if at all possible
The object should be kept out of the jury’s view until it is to be used with a witness. If it must be present in the courtroom when not in use, it should be completely covered. Prior to using it in testimony, counsel should arrange to have the object moved into the courtroom and sited before the jury, judge and opposing counsel appear. The trial judge should be consulted about where to place the object before anything is moved into or around...
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