Chapter 7

• Jurisdiction: New York

CHAPTER SEVEN

PHYSICAL AND DEMONSTRATIVE

EVIDENCE

PHYSICAL AND DEMONSTRATIVE EVIDENCE§ 7.0

51

[7.0] I.PHYSICAL EVIDENCE

[7.1] A. Admissibility1

Non-testimonial evidence—such as a photograph, diagram or sketch of

a crime or accident scene—are often offered into evidence because they

make the case clearer and more alive for the jury. They can demonstrate or

illustrate a basis for oral testimony. To be admissible, however, their rele-

vance to the case must be established and authenticated by credible evi-

dence that they accurately portray a crime or accident scene or objects

involved in the case or the characteristic of a place or thing.

It also must be shown, as a condition of admissibility, that the exhibit is

probative of a disputed fact. This chapter sets forth illustrations of the

kind of evidence needed to satisfy these conditions.

In general, several basic issues must be resolved before physical items

can be introduced into evidence. First, the materiality of the exhibit to the

case must be established. Even if the identity, operability or content of the

item can be shown, if its materiality is not established, it will not be admit-

ted. Second, the object must be the same object that was recovered (unless

an item is being introduced as demonstrative evidence).2

The most important evidentiary rule is that the proponent of physical

evidence—a document, narcotics, the proceeds of a crime or a weapon—

must lay a foundation for its admission into evidence, its authenticity or a

proper chain of custody, and that any changes to the exhibit are not rele-

vant or significant to the case and will go only to the credibility of the

exhibit, not its admissibility.

The nature of the object often will dictate the requirements for intro-

duction. When evidence is fungible and not unique, such as a narcotic drug

or a blood sample, and was tested in a laboratory before trial, attorneys

must show that the exhibit tested was the same one recovered and that it

was in the same condition when tested as it was when recovered. There-

fore, a reliable chain of custody—that is, a lack of opportunity for the item

1Model questions for laying a foundation for the introduction of most physical evidence are set

forth in QS7-1. Also see QS7-2 (General Introductory Questions for All Police Officers) and

QS7-3 (General Questions for Introduction of Most Physical Objects into Evidence Through a

Police Officer).

2 People v. Del Vermo, 192 N.Y. 470, 482 (1908); People v. Felder, 182 A.D.2d 495, 582 N.Y.S.2d

20 (1st Dep’t), appeal denied, 80 N.Y.2d 830, 587 N.Y.S.2d 915 (1992).

§ 7.1FOUNDATION EVIDENCE, 5TH ED.

52

to have been contaminated, tampered with or replaced accidentally by a

similar item—is critical.

When evidence is not fungible and there is no need to establish its

operability or chemical makeup (e.g., a knife), the principal need then is

to establish that the property is the same property that was recovered. A

chain of custody is easier to establish because there is little concern about

tampering.3

A nonfungible object that is also unique because of specific identifying

features (e.g., a driver’s license) is usually the least difficult form of phys-

ical evidence to introduce at trial. Whether the identifying feature is a

serial number, a signature, a photo or some other unique feature, the need

for an unbroken chain of custody with this kind of evidence is even less

significant. As long as the witness can identify the object by its unique

features, the object should be admitted once its materiality is established.

Objects may present a combination of issues that counsel must consider

when preparing foundation testimony. For instance, a firearm is usually

unique because of its serial number. Even so, it is important to establish that

from the time of recovery to the time of testing and from the time of recov-

ery to the time it was vouchered, the gun or ammunition was not acciden-

tally tampered with or replaced by a similar firearm or ammunition.4

Counsel must be prepared to follow basic rules of procedure for the

introduction of evidence and use common sense when calling witnesses.

Some courts adhere strictly to the rules of evidence and require that every

detail or condition be covered by the proffering party. Others are less

demanding or may have unique procedures they prefer to follow. Counsel

should therefore know the correct procedures for laying a proper founda-

tion and be flexible enough to use alternate approaches if a judge finds a

particular method unacceptable or insufficient.

There is a presumption in some jurisdictions that evidence in the cus-

tody of some responsible institutions—such as hospitals, police depart-

ments or laboratories—without a stake in the results of the case have been

3People v. Williams, 5 A.D.3d 705, 774 N.Y.S.2d 722 (2d Dep’t 2004).

4See model questions in QS7-4.