What Is A Demonstrative In Law?

What Is A Demonstrative In Law
(1) Definition. ‘Demonstrative evidence’ refers to a visual, graphic, or sound aid used to explain or illustrate a witness’s testimony or the presentation of the proponent’s case.

What does demonstrative mean legally?

Demonstrative evidence can be objects, pictures, models, displays, or other devices used in a trial or hearing to support facts that the party is trying to prove. The Federal Rules of Evidence serve as a potential limit to the admissibility of demonstrative evidence, although its broad language would likely allow most forms of relevant demonstrative evidence to be admitted (see Rule 402 ).

For example: papers in evidence, and admitted to be in the handwriting of a certain person, may be compared by the jury with a paper in dispute, to determine whether the latter is in the handwriting of the same person ( see Stokes v.U.S.); in actions for personal injuries, autoptic preference is always proper unless reasons of policy apply to exclude it ( see Rich v.

Ellerman & Bucknall S.S. Co.); when age of person before triers of fact is in issue, triers of fact may draw inference as to person’s age from his physical appearance ( see U.S. ex rel Fong On v. Day ); and introduction of tire and rim in a wrongful death action against a tire manufacturer for a defective tire design ( see Walker v.

What is an example of demonstrative evidence?

Examples – Examples of demonstrative evidence include photos, x-rays, videotapes, movies, sound recordings, diagrams, forensic animation, maps, drawings, graphs, animation, simulations, and models. It is useful for assisting a finder of fact (fact-finder) in establishing context among the facts presented in a case.

  • To be admissible, a demonstrative exhibit must “fairly and accurately” represent the real object at the relevant time.
  • See Federal Rules of Evidence 901, 902, and 1001-1004 for an example from United States law.
  • Other examples of demonstrative evidence include case specific medical exhibits, colorized diagnostic films, general anatomy and surgery exhibits.

These forms of demonstrative evidence are commonly used as a personal injury lawyer resource. Demonstrative evidence with dramatic impact can maximize the value of a case by effectively depicting catastrophic/traumatic injuries, complex surgical procedures, surgical mistakes or summarize injuries suffered by an individual.

  1. These examples of demonstrative evidence are used for settlement conferences, arbitration, mediation, medical expert depositions and trial presentations.
  2. Demonstrative evidence is an effective aid in infringement litigation.
  3. Whether prosecuting an infringer or defending a patent, originally filled patent drawings which are a part of most patent applications, can play an imperative part in any upcoming litigation.

If the original patent drawings are not complete, accurate and exact, then the resulting output for litigation graphics is unreliable and could even hurt a case. There are many ways to convert patent drawings into effective litigation graphics. Here are a few ways: A patent drawing can be made visually transparent and overplayed onto an opposing image to show likeness or differences.

Color can be applied to elements of the original patent drawings and the same colors on similar elements of an opposing images to highlight likeness. A front view from the application can be placed alongside a front view of the opposing invention with additions outlined in color to emphasize differences A process flow chart from a utility patent application can be used alongside a flow chart of the opposing party with an insert between the two to indicate differences or similarities in process.

Callout information on a patent drawing can clarify key elements of the invention and emphasize important features. Drawings from a patent application can be used in PowerPoint to create a simple tutorial using animation with color arrows, overlays and voice over to explain an invention.

Original patent drawings can be used as a basis to create complex 3D animations. Operation, technical procedures, incompatibilities between inventions and moving parts of an invention can be clearly presented. Furthermore, animations can indicate time, motion or speed, compare alternative theories or simplify highly complex data.

There are endless ways to manipulate original patent drawings to make compelling litigation graphics, each circumstance unique based on the setting, the invention, the desired outcome and budget. Using original patent drawings as a starting point can save cost of having to start from scratch.

  1. In many patent lawsuits filed, a substantial amount is spent on demonstrative evidence.
  2. WIPO Magazine stated, “according to a recent study by PricewaterhouseCoopers over 5,000 patent lawsuits – an all-time record – were filed, each costing on average around US$2.8 million.” Those numbers are for 2012; it is unlikely that costs have come down.

See the following link for WIPO article “What Place for Patent Drawings” IP Litigation: What Place for Patent Drawings?

What are the 3 kinds of evidence?

The probative value of evidence. Relevant evidence. Direct evidence. Circumstantial evidence.

What is a demonstrative court case?

Demonstrative evidence is evidence presented at trial that is not the actual thing, but represents the actual thing. Demonstrative evidence is used to illustrate or clarify witness testimony. Examples of this type of evidence include photographs, videotapes, models, maps, graphs, computer graphics and animations.

How do you use demonstrative in court?

Proskauer’s perspective on developments and trends in commercial litigation. – During trial, lawyers make many strategic decisions to try to appeal to a jury. For example, they consider not only the substance of the evidence they present, but also the emotional impact of that evidence.

But the impact of a witness’ testimony can be blunted if your jury is not following the testimony, so the use of demonstrative exhibits can be a useful tool to ensure the jury remains focused on the testimony. Demonstrative exhibits can be powerful ways to present evidence to a jury. Multimedia presentations are more likely to keep a juror’s interest, so mixing up your evidentiary presentations is a good idea in general.

Additionally, some jurors may be better visual learners than audio learners, which means that some people may not absorb oral testimony as well as others. Visual learners, who learn best by reading or seeing images and diagrams, will be better served by visual representations of testimony.

  • Under California law, demonstrative exhibits can be admissible evidence.
  • If the judge allows it, the jury can take evidence that has been admitted back to the jury room to review and consider during deliberations.
  • Thus, if a lawyer wants the jury to be able to refer to the demonstrative while deliberating, it is important to meet certain benchmark requirements.

As outlined by the California Supreme Court, demonstrative evidence “must accurately depict an expert opinion, the expert opinion must fairly represent the evidence, the trial court must provide a proper limiting instruction, and the animation must be otherwise admissible under Evidence Code section 352.” People v.

  1. Caro, Although the Court in Caro was discussing computer animation specifically and demonstratives prepared in connection with an expert opinion, the same principles would apply to hand-drawn images or static graphics, whether used in connection with an expert or fact witness.
  2. A key component of the requirements from Caro is that the proposed exhibit be a helpful and accurate depiction of the testimony.

See People v. Hung Tran, This is where admissible demonstrative evidence differs from the more traditional use of demonstratives in closing argument, where they are not admissible. In Hung Tran, the Court of Appeal allowed an expert witness to use complicated software to enhance surveillance videos.

The expert used color-coded arrows to identify specific people, and “hese arrows essentially functioned like a witness writing an X on a map or placing a Post-It note with a name on an enlarged photograph.” The court allowed the demonstrative to be admitted because it “simply helped the jury observe what the videos showed.” Hung Tran is a valuable illustration of the importance of demonstrative exhibits.

The expert was testifying about where specific people were on a low-quality surveillance tape. If the witness was just testifying orally, a juror may have had difficulty following along. But with the physical demonstration that the jury could then review during deliberations, the witness’s testimony was clear.

When a witness’s testimony and demonstrative are both admissible, the jury has multiple ways to refer to that evidence during deliberations. Different presentations may resonate with different jurors in different ways, so presenting key evidence through the use of demonstratives is a valuable tool in a trial lawyer’s toolbox.

When on trial in California, in order to make sure the jury is armed with all of your persuasive evidence, it is important to make sure your demonstratives meet the requirements for admissibility. Tags: admissibility standard, California evidence code, California Law, California Supreme Court, Demonstrative Exhibits, Evidence, Expert Witness, Jury, jury trials, witness testimony

What is the difference between a demonstrative and evidence?

Demonstrative vs. Substantive Evidence There are two main types of evidence presented in a trial: demonstrative and substantive (impeachment is a third, but that is discussed elsewhere). Demonstrative evidence usually explains other evidence or testimony.

  • It is not directly relevant, rather it relies on other evidence that is material.
  • It may be used in the courtroom for illustrative purposes, or it may become an exhibit.
  • Demonstrative evidence can be further divided into two categories: pedagogical and substitute.
  • Substitution evidence is evidence that summarizes other material evidence.

For example, a summary of a 10,000 page financial statement. There are certain requirements that summary evidence must meet and that is found under SCRE 1006. Pedagogical evidence is a demonstration of evidence that is already entered into evidence. An example of this would be a witness saying that she jumped on one foot the night of the incident, and the attorney jumping on one foot to demonstrate what the witness said.

  1. If it is determined that the evidence that is being introduced is real or substantive evidence, then it will need to pass all of the regular Rules of Evidence that are applicable.
  2. However, if the evidence is considered demonstrative, then there are likely two Rules of Evidence that will come into play (at least at first).

If the demonstrative evidence is a summary of other material evidence, then look to SCRE 1006. If the demonstrative evidence is pedagogical, then start with SCRE 611. This rule gives the trial judge discretion to determine if the evidence is a fair and accurate representation of what it is trying to depict.

To determine the fairness and accuracy, a trial judge should also look to the rules concerning authentication, relevance, and probative/prejudicial value. In his book Navigating the Federal Trial, United States Magistrate Judge Robert Larsen explains the process for using demonstrative evidence in a closing argument: Yes.

Pedagogical devices and other illustrative items that have not been admitted in evidence may be used during the closing argument. When intending to use such a device or item, alert opposing counsel and request permission from the trial judge before the arguments begin.

In fact, it is probably a good idea to raise the subject in a motion in limine before the trial begins. Additionally, make sure the device or item accurately reflects the evidence at trial, or is not otherwise misleading in any respect. The judge’s decision on whether or not to allow such devices or items is reviewed on appeal for abuse of discretion.

There is a difference between demonstrative evidence and substantive evidence. It is important to distinguish which type of evidence is being sought to be introduced in order to make sure it complies with the correct Rule of Evidence. In this case, an expert testified for the defense on accident reconstruction.

  1. He created a video of the accident to go along with his testimony to explain that the defendant did not do what the State claimed that he did.
  2. The judge allowed the testimony but excluded the video from being admitted as evidence.
  3. The Supreme Court held that video re-creation of the accident was not demonstrative evidence, but rather it was substantive evidence.

It was substantive evidence because the video was offered prove how the incident did not happen. “The results of experiments are substantive evidence.” Because it was substantive evidence, the trial judge should have used the proper Rules of Evidence to decide whether to admit the video and make a finding on the record of the rules that were used.

· Hamrick v. State, 426 S.C.638 (2019) Demonstrative evidence usually explains other evidence or testimony. It is not directly relevant, rather it relies on other evidence that is material. Demonstrative evidence may be used in the courtroom for illustrative purposes, or it may become an exhibit. This case is from 2000, and the Supreme Court noted that computer-generated videos were “not an everyday occurrence.” The Court distinguishes between computer animations and computer simulations.

They held that the computer-generated video in this case was an animation and thus it was demonstrative evidence. A simulation on the other hand is based on science and data entered into a computer that subsequently draws a conclusion. · Clark v. Cantrell, 339 S.C.369 (2000) ” The trial court did not err in allowing the State to present still frames from the surveillance video to the jury during closing argument. See Clark v. Cantrell (‘Demonstrative evidence includes items such as a photograph, chart, diagram, or video animation that explains or summarizes other evidence and testimony.’); id.

(‘Such evidence has secondary relevance to the issues at hand; it is not directly relevant, but must rely on other material testimony for relevance.’); id. (‘Demonstrative evidence is distinguishable from exhibits that compromise ‘real’ or substantive evidence, such as the actual murder weapon or a written document containing allegedly defamatory statements.’); id.

(‘Demonstrative evidence often is admitted only for use in the courtroom to explain and illustrate a witness’s testimony, but it also may be admissible as an exhibit for the jury to examine and consider during deliberations.’). Here, the State used the still video frames to summarize the entire surveillance video, which had already been admitted into evidence.

  • The trial court did not allow the still frames to go back with the jury, and Petitioner used the same video and paused it throughout his closing argument.” (cleaned up).
  • · Brown v.
  • State, No.2017-002269, 2020 WL 5946149 (S.C. Ct. App.
  • Oct.7, 2020) (Unpublished Opinion) SCRE 1006 allows for parties to introduce summaries of evidence when the underlying evidence is extremely voluminous.

Before introduction, these requirements must be met: “The party seeking to admit a summary must demonstrate (1) the contents of the documents upon which the summary is based are so voluminous it would be inconvenient to examine them in court; (2) the underlying documents are admissible in evidence; (3) the summary is a faithful rendering of the underlying data, and any inferences it contains are supported by the contents and are neutral and non-argumentative; and (4) the originals or duplicates of the underlying documents have been made reasonably available to the other parties.

  1. Rule 1006 should be interpreted in light of its intended purpose as an exception to the best evidence rule of Rule 1002, SCRE.
  2. This does not mean a summary may not include anything not in the contents of the underlying documents; it may contain fair inferences and conclusions supported by the documents.2 McCormick on Evidence § 241 (8th ed.2020).

But the more inferences a summary chart contains, the less likely it will be admissible under Rule 1006, the more likely it will draw an objection based on other grounds (including Rule 403, SCRE), and the more likely the trial court will decide not to admit the summary as an exhibit but restrict it to being a demonstrative aid.” · State v.

How do you use demonstrative evidence?

As for relevancy, in order for the demonstrative evidence to be admissible, the demonstrative exhibit must actually be used to illustrate or explain the verbal testimony of a witness as to a matter that is relevant to the case in question.

What is the weakest evidence?

Testimonial evidence—the fancy auditor term for verbal evidence—is the weakest type of evidence. The GAO lists three types of audit evidence in the government audit standards.

Physical evidence Documentary evidence Testimonial evidence

What is the strongest evidence in court?

Challenges of Digital Evidence – Collecting digital evidence requires a skillset not always needed for physical evidence. There are many methods for extracting digital evidence from different devices and these methods, as well as the devices on which evidence is stored, change rapidly.

Investigators need to either develop specific technical expertise or rely on experts to do the extraction for them. Preserving digital evidence is also challenging because, unlike physical evidence, it can be altered or deleted remotely. Investigators need to be able to authenticate the evidence, and also provide documentation to prove its integrity.

To combat this challenge, when you uncover a piece of digital evidence, document it right away. Take a screenshot or screen capture video that clearly shows the time and date. That way, if the accused person deletes the item, you have proof that it was there.

  1. Once you have your documentation record (e.g.
  2. Image or recording), pop it into your case management system right away.
  3. With i-Sight, not only can you store your records right in the case file, but these so you can prove what pieces of evidence you uploaded and when.
  4. In this free webinar, you’ll learn where and how to find the most helpful information on your subject in the shortest amount of time.

The most powerful type of evidence, direct evidence requires no inference and directly proves the fact you are investigating. The evidence alone is the proof, if you believe the accounts. “Usually,”, “direct evidence will be eyewitness testimony regarding something that was actually observed.” Some examples of direct evidence in your workplace investigations could include:

  • A victim’s complaint that a coworker made a discriminatory comment toward them
  • A witness’s account of another employee not abiding by safety protocols
  • A customer’s report that they were harassed by an employee

What are the two kinds of demonstrative evidence?

Demonstrative Evidence – INTRODUCTION Demonstrative evidence can be very persuasive. Research has shown that people remember what they hear much better when visual displays accompany the spoken word.1 Our society is becoming increasingly visually oriented.

  1. Jurors who are accustomed to watching television, movies and videos on the Internet are prone to tune out evidence from witnesses without visual displays.
  2. A good advocate must consider what demonstrative evidence will make his or her case more persuasive.
  3. It is important to have a good understanding of the law as it relates to the admissibility of demonstrative evidence.

REAL EVIDENCE vs. ILLUSTRATIVE EVIDENCE One of the most confusing things about the law relating to demonstrative evidence is the terminology. Many different terms have been used by judges and legal commentators to describe different types of demonstrative evidence.

The terminology is not used consistently. There are three types of evidence adduced at trial: oral evidence from witnesses, documentary evidence and demonstrative evidence. Demonstrative evidence is evidence that can be seen and viewed. Some commentators use the term “visual evidence” as opposed to the term demonstrative evidence.2 There are two types of demonstrative evidence: real evidence and illustrative evidence.

Real evidence is something that the trier of fact can use to draw inferences and conclusions from directly. The authors of The Law of Evidence in Canada define real evidence as follows:3 When things are produced before the court, the court applies its own senses and draws conclusions.

The classification commonly used is “real evidence”The term is used in a number of different ways, but in its widest meaning includes any evidence where the court acts as a witness, using its own senses to make observations and draw conclusions rather than relying on the testimony of a witness. As Geoffrey Adair explains in O n Trial, real evidence is on the same footing as oral evidence and documentary evidence in that the trier of fact can draw conclusions and make inferences directly from it:4 The drawing of conclusions directly from real evidence is the feature that such evidence shares in common with all other forms of evidence, including viva voce and documentary evidence.

Real evidence encompasses anything that the jury can look at and use to draw inferences and conclusions about the case independent of other evidence. Some examples of real evidence include the following:

  • The gun used in a robbery. The jury can look at the gun and make any number of inferences about the facts in dispute.
  • A photograph of damage to a vehicle. The jury can look at the photograph and draw inferences about the nature and severity of the collision.5
  • A videotape of a robbery. The jury can view the videotape and make a conclusion about the identity of the accused.6
  • An x-ray or MRI film. The jury can view the films and draw conclusions about the nature and extent of the injury.
  • A photograph of a scar or injury. A jury can look at the photograph and draw inferences about the nature or impact of the injury.7
  • A day in the life video showing the injured plaintiff carrying on activities of daily living or a defence surveillance video showing the plaintiff engaging in activities. A jury can look at the video and draw conclusions about the plaintiff’s impairments and need for care.8

Illustrative evidence is used to illustrate, summarize or explain oral or documentary evidence. The purpose of illustrative evidence is to make other admissible evidence easier to understand. Unlike real evidence, the jury cannot use the evidence directly to draw conclusions.

  • Rather, illustrative evidence is intended to assist the trier of fact in understanding oral evidence or documentary evidence so that the trier of fact is in a better position to draw conclusions from the oral and documentary evidence.
  • The authors of a helpful American article on the subject describe illustrative evidence as follows:9 any display that is principally used to illustrate or explain other testimonial, documentary, or real proof, or judicially noticed face.
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It is, in short, a visual (or other) sensory aid. The distinction between real evidence and illustrative evidence has been described as follows:10 Real evidence is used to help prove directly the existence of a fact of consequence in the action, where as demonstrative proof is only offered derivatively, to help explain or illustrate other admissible evidence.

  • Anatomical models and medical diagrams. Models and diagrams can assist the jury in understanding complex expert evidence.11
  • Treatment charts. A chart summarizing the treatment received by an injured person can help the jury understand and wade through voluminous medical records by summarizing the dates and nature of treatment received.12
  • Aerial photographs and maps. While taken after the fact and not showing the scene as of the day of a collision, an aerial photograph can assist a jury in understanding lay and expert evidence as to what happened in a motor vehicle collision.
  • Scale diagrams. A scale diagram showing an intersection, the involved vehicles and the distances involved can assist a reconstruction engineer in explaining his or her evidence to the jury.
  • Animations. An animation showing the impact of degenerative arthritis on a joint can assist an orthopaedic surgeon in explaining future degeneration of the joint. An animation of a collision can assist a reconstruction engineer in explaining his or her evidence to the jury.

Some commentators have objected to the characterization of illustrative evidence as “evidence” at all, preferring instead to refer to use the term “demonstrative aid” or “illustrative aid”. Geoffrey Adair makes the following comments in On Trial :13 These “aids”, even though frequently marked as exhibits, no doubt for the sake of a complete record, do not constitute evidence in the classic sense.

The trier of fact is not free to draw independent conclusions from demonstrative aids but is only free to utilize same to better understand or remember the evidence of a witness from which the actual conclusions of fact will be drawn. While illustrative evidence may not constitute evidence in the classic sense, it is filed as evidence and can be referred to by the trier of fact in the decision making process to assist in understanding all of the evidence.

Models, diagrams, charts and animations all become evidence once they are found to be admissible and marked as exhibits. ADMISSIBILITY OF DEMONSTRATIVE EVIDENCE: GENERAL PRINCIPLES Justice Dickson made the following comments about the law of evidence in R.v.

Abbey : The law of evidence, however, reposes on a few general principles riddled by innumerable exceptions.There are also exceptions to the exceptions. With such a description, it may seem as though understanding the law pertaining to demonstrative evidence is a daunting task. The key to understanding the law is to understand a few key general principles.

They are as follows: 1) The demonstrative evidence must be relevant.2) The demonstrative evidence must be accurate and fair.3) The probative value of demonstrative evidence must outweigh any prejudicial effect of the evidence.4) The demonstrative evidence must not offend any exclusionary rule.

  • These four principles apply equally to real evidence and illustrative evidence.
  • For illustrative evidence, there is also an inquiry into whether the evidence is helpful in assisting the trier of fact understand facts and evidence.
  • These principles all foster the underlying goals of the law of evidence.

Those goals are to search for the truth, enhance efficiency in the trial process and to ensure fairness in the trial process. As Barbara Legate points out in a helpful article on the law relating to demonstrative evidence, questions of admissibility should always be answered with these goals in mind:15 Evidence which meets these very fundamental goals ought to be admitted by the trial judge.

Demonstrative evidence which assists the trier of fact in the search for the truth, enhances the efficiency of the trial process and is not excluded because of overriding prejudicial effect is admissible using this approach. IS THE DEMONSTRATIVE EVIDENCE RELEVANT? Relevant evidence is that which is “logically probative”.16 Evidence is relevant if it has “some tendency” to make the proposition for which it is advanced more likely than the proposition would be in the absence of the evidence.17 The question is whether the evidence bears upon an issue in dispute.

Relevance is to be assessed as a matter of common sense and logic.18 It is a basic principle of the law of evidence that relevant evidence is prima facie admissible.19 This principle applies to all forms of evidence, including demonstrative evidence.

IS THE DEMONSTRATIVE EVIDENCE ACCURATE AND FAIR? Once it is established that demonstrative evidence is relevant the inquiry shifts to whether the evidence is accurate and fair. As Geoffrey Adair states:20 The real evidence must be accurate, fair in the sense of an absence of intention to mislead and verified upon oath to the extent such verification is reasonably available.

For real evidence, the key to accuracy and fairness inquiry is establishing authenticity. For a medical instrument used in an operation to be admitted into evidence in a medical malpractice case there should be evidence that the instrument tendered is the one that was used and that it has not been altered.

  • For a photograph or video to be admitted as real evidence, there must be evidence from a witness to establish that the photograph or video accurately and fairly depicts what it purports to show.
  • It is not necessary that the photographer or videographer testify.
  • All that is required is some oral evidence to establish that the photograph accurately and fairly depicts what it purports to show.21 The evidence confirming the accuracy and fairness of a photograph or video may come from a person who witnessed what the photograph or video shows.

Sometimes there is no one who witnessed what the photograph or video shows (for example video taken from automatic video-surveillance). As Justice Tobias pointed out in the case of R.v. Lahay, the evidence will be admissible if there is some evidence to show that the video is fair, unbiased and reliable:22 A long series of cases has established that the product of the automatic video surveillance is admissible as evidence so long as the framework in which it was produced can be shown to be fair, unbiased and reliable.

  • If a photograph or video does not accurate or fairly depict what it purports to show then it will not be admissible.
  • As Goldstein states in his text Visual Evidence, photographs and videos can be distorted in a way that renders them inaccurate or unfair and, thus, inadmissible:23 The image reproduced in the photograph, motion picture film, or videotape should be free from distortion and misrepresentation which could affect the admissibility and weight afforded the videotape.

If the distortion alters physical facts which are relevant to an essential or crucial issue in the case, then such distortion will go to the issue of the admissibility of the evidence and render it inadmissible. Visual evidence, like any other kind of evidence, is subject to fabrication and falsification.

  1. Photographs, films and tapes can be altered to misrepresent the facts.
  2. Techniques such as editing, selective lighting, retouching, camera angle and multiple exposure can be employed to modify the picture image.
  3. The resulting evidence is misleading because it creates a false impression in the mind of the trier of fact.

The requirement for accuracy and fairness applies equally to illustrative evidence. For a medical illustration to be admitted into evidence, there must be oral evidence to confirm that it is an accurate and fair depiction of what it purports to show. For a treatment chart to be admitted into evidence, it must be an accurate and fair summary of oral or documentary evidence.

In Owens v. Grandell these same principles were applied in relation to an animation illustrating a reconstruction of a motor vehicle collision:24 If proven to be accurate, then it should be admitted like any other piece of demonstrative evidence, such as a chart or mapOverall it must be proven that the procedures used to feed the data into the computer were reliable and that someone checked the accuracy of the data and the computer operationsThe court must be careful not to attach undue weight to evidence that might confuse, mislead, or overwhelm the trier of fact.

Whatever the form of demonstrative evidence, there must be oral or documentary evidence to confirm that it is accurate and fair. DOES THE PROBATIVE VALUE OUTWEIGH THE PREJUDICIAL EFFECT? There is a judicial discretion to exclude evidence that has a prejudicial effect outweighing its probative value:25 The occasions are frequent upon which a judge trying a case with the assistance of a jury is called upon to determine whether or not a piece of evidence technically admissible may be so prejudicial to the opposite side that any probative value is overcome by the possible prejudice and that therefore he should exclude the production of the particular piece of evidenceThe matter is always one which is difficult for the trial judge an in itself essentially a decision in which the trial judge must exercise his own carefully considered personal discretion.

  • As Ms. Legate points out, demonstrative evidence is prejudicial when it causes the jury to lose objectivity:26 It would appear that to be prejudicial, some demonstration that the jury would take leave of its objectivity should be shown.
  • The argument that a jury should not see a photograph or other piece of demonstrative evidence because it is too graphic is a difficult one to make.

As Justices Sopinka, Lederman and Bryant point out, demonstrative evidence is rarely found to be inadmissible on this basis:27 Circumstances in which a judge in a civil case would exclude evidence because of its inflammatory nature would be rare. People today, because of their exposure to television and motion pictures, can be expected to be much less sensitive to graphic displays of injuries than the average nineteenth or early twentieth century citizen.

  • In deciding to allow autopsy photographs to be admitted into evidence on a murder trial, Justice Doherty made the following comments:28 I have considerable difficulty in accepting the submission that the photographs had any significant potential to inflame the jury against the appellant.
  • Clearly, the jurors would routinely see much more graphic pictures and photographs in the popular media.

The judicial discretion to exclude evidence based on its prejudicial effect outweighing its probative value is a cost-benefits analysis. Where the demonstrative evidence is of marginal relevance, it is more likely excluded. DOES AN EXCLUSIONARY RULE APPLY? Like the other forms of evidence, demonstrative evidence must not offend any of the exclusionary rules of evidence.

  1. Where demonstrative evidence is sought to be introduced through a witnesses who is not the primary source for all of the facts depicted or conveyed in the evidence, hearsay issues may arise.
  2. This was the case in R.v.
  3. Zundel29 where a motion picture film made during the liberation of Nazi concentration camps was tendered by the prosecution.

The film contained a narrative and the narrator was not made available for cross-examination. The Court admitted the video but determined that the narrative was inadmissible hearsay. Illustrative evidence is often adduced to help explain expert evidence.

For the illustrative evidence to be admissible, the expert evidence that is exists to explain and illustrate must also be admissible. In the case of R.v. Mohan,30 the Supreme Court set out a number of principles applying to expert evidence. The Supreme Court indicated that expert evidence should only be admitted where it is relevant and necessary (in terms of assisting the trier of fact).

The Court indicated that the principles of relevance and necessity would be strictly applied where the expert evidence was on the ultimate issue to be determined: 24. There is also a concern inherent in the application of this criterion that experts not be permitted to usurp the functions of the trier of fact.

Too liberal an approach could result in a trial’s becoming nothing more than a contest of experts with the trier of fact acting as referee in deciding which expert to accept.25 These concerns were the basis of the rule which excluded expert evidence in respect of the ultimate issue. Although the rule is no longer of general application, the concerns underlying it remain.

In light of these concerns, the criteria of relevance and necessity are applied strictly, on occasion, to exclude expert evidence as to an ultimate issue. Given this statement, it is reasonable to conclude that illustrative evidence that bears upon the ultimate issue to be decided (such as animations of a collision in a motor vehicle case) will be more closely scrutinized than more mundane forms illustrative evidence.

  1. IF THE DEMONSTRATIVE EVIDENCE IS ILLUSTRATIVE, IS IT HELPFUL? Some commentators have suggested the in addition to meeting all the other requirements for admissibility that illustrative evidence must also be proven to be necessary or helpful in illustrating or explaining other evidence.
  2. Geoffrey Adair states that the party tendering the illustrative evidence must:31 Satisfy the court that the use of the demonstrative aid is reasonably necessary to help illustrate or explain the evidence of a live witness.

Barbara Legate suggests that the following questions be asked:32 Does it aid the trier of fact in the search for truth?

  • by supporting the evidence of a witness, explaining or corroborating other evidence,
  • providing detail of a relevant issue,
  • assisting in the determination of a witness’ credibility,

Does the evidence tendered enhance the efficiency of the litigation process? (by saving time, explaining or illustrating complicated or lengthy evidence, focusing testimony, and enhancing the ability of the trier of fact to come to a decision. As Ms. Legate points out, the “helpfulness” inquiry should also consider the benefits of illustrative evidence: Evidence must be relevant but must be limits placed upon the evidence that can be adduced at trial to ensure the attainment of the goal of efficiency.

  • Evidence should not only be excluded under this heading but should be permitted if it enhances the attainment of the goal of efficiency.
  • Surely, enhancing the retention of information by the jury, the summarization of large amounts of information in an understandable fashion, the unravelling of complexities through the use of visual aids, and assisting the witness in explaining his or her testimony, all add to the ultimate goal of the process.

Probably of greatest concern in the current environment of trial delay, backlog and excessive trial duration, is the ability to use any device that will shorten the length of the trial in a fair and reasonable fashion. Good demonstrative evidence can accomplish that.

  1. See Elliot Goldstein, Visual Evidence: A Practitioner’s Manual (Toronto: Carswell, 1991), at 1-2.
  2. 2. Ibid.
  3. Sopinka, Lederman and Bryant, The Law of Evidence in Canada 2 nd ed. (Toronto: Butterworths, 1999), at p.17.
  4. Geoffrey Adair, On Trial: Advocacy Skills Law and Practice, 2 nd ed. (Toronto: LexisNexis Canada, 2004), at p.24.
  5. See Rodger v. Strop, O.J. No.2769 (Gen. Div.).
  6. R.v. Nikolovski (1994), 19 O.R. (3d) 676 (C.A.). In this case, the Court held that a video-tape, without any corroborating evidence, could provide the necessary evidence to establish identity.
  7. See Draper v. Jacklyn (1970), 9 D.L.R. (3d) 264 (S.C.C.). The plaintiff sought to introduce photographs of the plaintiff’s face which showed the condition of scarring and showed two Kirschner pins sticking out of the plaintiff’s head to hold fractured bones together. The Court held that the photographs were relevant and admissible.
  8. See Teno v. Arnold (1974) 7 O.R. (2d) 276, at 297 (H.C.J.). In the trial decision, Justice Keith admitted a day in the life video into evidence. Justice Keith said the following about the video: “I cannot conceive of a more graphic portrayal of what I must try to express in words”. See also Rodger v. Strop, supra, note 5.
  9. Brain and Broderick, “The Derivative Relevance of Demonstrative Evidence: Charting its Proper Evidentiary Status” (1992) 25 U.C. Davis L. Rev.957, at 968.
  10. Barbara Legate, “The Admissibility of Demonstrative Evidence in Jury Trials: Applying the Principled Approach to the Law of Evidence” Paper Delivered to OBA Central East Advocacy Conference, May 1, 2004.
  11. See Majcenic v. Natale, 1 O.R.189 (H.C.).
  12. See Calic v. Aitchison, O.J. No.154 (Gen Div), at 19. Justice Hockin commented that the plaintiff’s medical history was lengthy and complicated and that “counsel for Mr. Calic usefully summarized the history by tracing Mr. Calic’s five year journey from one specialist to another in documentary form exhibit”.
  13. Supra, note 4, at p.26.
  14. 2 S.C.R.24, at 40.
  15. Barbara Legate, supra, note 10.
  16. R.v. Nikolovski 3 S.C.R.1197, at p.1206.
  17. R.v.J.-L.J., 2 S.C.R.600, at p.623.
  18. Sopinka, Lederman and Bryant, The Law of Evidence in Canada, supra, note 3, at p.24.
  19. Ibid. See also R.v. Watson, (1996) 30 O.R. (3d) 161, at p.176.
  20. Geoffrey Adair, On Trial: Advocacy Skills Law and Practice, supra note 4, at p.25. See also Sopinka, Lederman and Bryant, The Law of Evidence in Canada, supra, note 3 at p.19.
  21. Sopinka, Lederman and Bryant, supra, note 3, at p.19.
  22. R v. Lahay, O.J. No.4299 (Gen. Div.).
  23. Goldstein, supra, note 1, at p.2-17, 2-18.
  24. Owens v. Grandell, O.J. No.496 (Gen. Div.).
  25. Draper v. Jacklyn, S.C.R.92. Photographs showing the injury to the plaintiff’s face were admitted.
  26. Legate, supra, note 10, at p.13.
  27. Sopinka, Lederman and Bryant, The Law of Evidence in Canada, 2 nd ed., supra, note 3.
  28. R.v. Wade (1994) 18 O.R. (3d) 33 (C.A.), at p.40-41
  29. (1987) 58 O.R. (2d) 128 (C.A.).
  30. R.v. Mohan, 2 S.C.R.9.
  31. Geoffrey Adair, On Trial, supra, note 4, at 29.
  32. Legate, supra, note 10, pp.10-11

About the Author

What documents are not admissible as evidence?

Abdul Rahaman Kunji v. State of West Bengal (Wb/0828/2014) –

In this case, while deciding the admissibility of an electronic record that is an email it was stated that an email which can be downloaded and printed directly from the email account of an individual can be proved by Section 65B along with Section 88A of the Indian Evidence Act, 1872.

The High Court of Calcutta passed a judgment that the testimony of a witness to carry out certain procedures to download and print the same is sufficient enough to prove the electronic communication and can be termed as electronic or digital evidence if it satisfies other factors of admissibility. Hence, an evidence is admissible in Court proceedings only if it is relevant to the facts or issues or matters in dispute.

If evidence is admissible but irrelevant to the case then it is only a waste of time for the Court. Thus, evidence shall be relevant and shall also satisfy all the specified provisions of admissibility then only it can be admissible in the Court of Law.

  • As of the present situation, even the electronic or digital records are admissible as evidence as they are reliable, relevant and obtained from an authentic source of electronic communication.
  • Evidence is the most integral and indispensable element of any proceedings either criminal or civil and shall be safeguarded from any kind of manhandling or else it might turn inadmissible in the Court.

LawSikho has created a telegram group for exchanging legal knowledge, referrals and various opportunities. You can click on this link and join: What Is A Demonstrative In Law

Is demonstrative evidence real evidence?

Demonstrative evidence – Many cases involve the use of demonstrative evidence. This type of evidence can consist of diagrams or charts to help illustrate witness testimony. An example of demonstrative evidence would be if someone presented a crime scene diagram to a jury.

Is hearsay demonstrative evidence?

(2) Hearsay – A demonstrative summary exhibit cannot summarize or include inadmissible hearsay. Even where only portions of the underlying source material constitute improper hearsay, those defects may be imputed to the summary exhibit as a whole. See Wright & Gold, 31 Federal Practice and Procedure § 8043, at 527.

  1. A proposed summary exhibit that listed trade secrets allegedly disclosed to the defendant was ruled to be improperly admitted in Peat, Inc.v.
  2. Vanguard Research, Inc.
  3. 378 F.3d 1154 (11th Cir.2004).
  4. The district judge’s admission of that exhibit was an abuse of discretion because it constituted improper hearsay.

Of course, the hearsay exceptions contained in Rules 803 – 804 are equally applicable when dealing with demonstrative exhibits. See e.g., United States v. Samaniego, 187 F.3d 1222, 1224 (10th Cir.1999). (“The obligation of establishing the applicability of a hearsay exception for records falls upon the government as the proponent of the evidence.”).

  1. The business records hearsay exception found in Rule 803(6) is frequently applied to admit summaries of voluminous business records.
  2. A summary of the plaintiff’s damages was admitted in State Office Systems, Inc.v.
  3. Olivetti Corp.
  4. Of America, 762 F.2d 843 (10th Cir.1985), when the plaintiff’s president and treasurer testified that he prepared the summary based on the company’s business records.

Id, at 845. Invoking the business records exception obligates the proponent to lay a proper foundation, not just for the summary exhibit itself, but also for the underlying records. As one treatise instructs: Since the proponent must establish that the underlying documents are themselves admissible, the same general foundation must be laid as if the underlying materials were actually being offered in evidence, minus the sort of item-by-item-in-court identification which ordinarily attends that process.29A Am Jur 2d Evidence § 1079.

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Rule 803(6) requires a custodian to testify that the records were made contemporaneously with the events and prepared and maintained in the course of a regularly conducted business activity. Based on these requirements, the Seventh Circuit ruled that it was error for the district court to permit the introduction of subpoenaed telephone records without testimony from an appropriate custodian.

United States v. Oros, 578 F.3d 703, 708-09 (7th Cir.2009). Although the Government argued that the testimony of the inspector who subpoenaed those records was enough to establish that they were of the type commonly viewed as trustworthy, the Seventh Circuit held that the inspector’s testimony ” short of the requirements set by Rule 803(6).” Id,

  1. Namely, he couldn’t testify about the phone company’s practices with respect to those records. See id,
  2. By contrast, the Tenth Circuit has recognized that summaries of some bank records may be admitted through judicial notice of the exception under Rule 803(6), but only if the judge is able to observe the underlying records beforehand.

See United States v. Johnson, 971 F.2d 562, 571 (10th Cir.1992). Without a live witness, litigants can still invoke the business records exception by submitting a certification under Rule 902(11). This can be easily overlooked when attempting to introduce a summary in lieu of the underlying business records themselves.

  • For instance, in Tsoa, the district court recognized that the business records hearsay exception likely applied to the underlying data, but reserved ruling on admission of the summary exhibit because the prosecution had not yet filed its Rule 902(11) certificate.2013 U.S. Dist.
  • LEXIS 165895, at *16.
  • Furthermore, merely proffering a Rule 902(11) certificate is not sufficient to gain admission of a summary exhibit; rather the certificate must be entered into evidence along with the summary.

See United States v. Hemphill, 514 F.3d 1350, 1359 n.3 (D.C. Cir.2008).

What is it called when you disagree with a court decision?

Legal Terms Glossary

  • The Legal Terms Glossary defines over 100 of the most common legal terms in easy-to-understand language. Terms are listed in alphabetical order and can be better accessed by choosing a letter here:
  • | | | | | | | | | | K | | | | | | Q | | | | | | | X | Y | Z
  • acquittal – Judgment that a criminal defendant has not been proven guilty beyond a reasonable doubt.

affidavit – A written statement of facts confirmed by the oath of the party making it. Affidavits must be notarized or administered by an officer of the court with such authority. affirmed – Judgment by appellate courts where the decree or order is declared valid and will stand as decided in the lower court.

  1. Alford plea – A defendant’s plea that allows him to assert his innocence but allows the court to sentence the defendant without conducting a trial.
  2. Essentially, the defendant is admitting that the evidence is sufficient to show guilt.
  3. Such a plea is often made for purposes of negotiating a deal with the prosecutor for lesser charges or a sentence.

allegation – Something that someone says happened. answer – The formal written statement by a defendant responding to a civil complaint and setting forth the grounds for defense. appeal – A request made after a trial, asking another court (usually the court of appeals) to decide whether the trial was conducted properly.

  1. To make such a request is “to appeal” or “to take an appeal.” Both the plaintiff and the defendant can appeal, and the party doing so is called the appellant.
  2. Appeals can be made for a variety of reasons including improper procedure and asking the court to change its interpretation of the law.
  3. Appellate – About appeals; an appellate court has the power to review the judgment of another lower court or tribunal.

arraignment – A proceeding in which an individual who is accused of committing a crime is brought into court, told of the charges, and asked to plead guilty or not guilty. arrest warrant – A written order directing the arrest of a party. Arrest warrants are issued by a judge after a showing of probable cause.

Bail – Security given for the release of a criminal defendant or witness from legal custody (usually in the form of money) to secure his/her appearance on the day and time appointed. bankruptcy – Refers to statutes and judicial proceedings involving persons or businesses that cannot pay their debts and seek the assistance of the court in getting a fresh start.

Under the protection of the bankruptcy court, debtors may discharge their debts, perhaps by paying a portion of each debt. Bankruptcy judges preside over these proceedings. bench trial – Trial without a jury in which a judge decides the facts. In a jury trial, the jury decides the facts.

  • Defendants will occasionally waive the right to a jury trial and choose to have a bench trial.
  • Beyond a reasonable doubt – Standard required to convict a criminal defendant of a crime.
  • The prosecution must prove the guilt so that there is no reasonable doubt to the jury that the defendant is guilty.
  • Binding precedent – A prior decision by a court that must be followed without a compelling reason or significantly different facts or issues.

Courts are often bound by the decisions of appellate courts with authority to review their decisions. For example, district courts are bound by the decisions of the court of appeals that can review their cases, and all courts – both state and federal – are bound by the decisions of the Supreme Court of the United States.

  1. Brief – A written statement submitted by the lawyer for each side in a case that explains to the judge(s) why they should decide the case (or a particular part of a case) in favor of that lawyer’s client.
  2. Capital offense – A crime punishable by death.
  3. In the federal system, it applies to crimes such as first degree murder, genocide, and treason.

case law – The use of court decisions to determine how other law (such as statutes) should apply in a given situation. For example, a trial court may use a prior decision from the Supreme Court that has similar issues.

  1. chambers – A judge’s office.
  2. charge – The law that the police believe the defendant has broken.
  3. charge to the jury – The judge’s instructions to the jury concerning the law that applies to the facts of the case on trial.

chief judge – The judge who has primary responsibility for the administration of a court. The chief judge also decides cases, and the choice of chief judges is determined by seniority. circumstantial evidence – All evidence that is not direct evidence (such as eyewitness testimony).

  • Clerk of court – An officer appointed by the court to work with the chief judge in overseeing the court’s administration, especially to assist in managing the flow of cases through the court and to maintain court records.
  • Common law – The legal system that originated in England and is now in use in the United States.

It is based on court decisions rather than statutes passed by the legislature.

  • complaint – A written statement by the plaintiff stating the wrongs allegedly committed by the defendant.
  • continuance – Decision by a judge to postpone trial until a later date.
  • contract – An agreement between two or more persons that creates an obligation to do or not to do a particular thing.
  • conviction – A judgment of guilt against a criminal defendant.
  • counsel – Legal advice; a term used to refer to lawyers in a case.

counterclaim – A claim that a defendant makes against a plaintiff. Counterclaims can often be brought within the same proceedings as the plaintiff’s claims. court – Government entity authorized to resolve legal disputes. Judges sometimes use “court” to refer to themselves in the third person, as in “the court has read the briefs.”

  1. court reporter – A person who makes a word-for-word record of what is said in court and produces a transcript of the proceedings upon request.
  2. cross-examine – Questioning of a witness by the attorney for the other side.
  3. damages – Money paid by defendants to successful plaintiffs in civil cases to compensate the plaintiffs for their injuries.
  4. default judgment – A judgment rendered because of the defendant’s failure to answer or appear.
  5. defendant – In a civil suit, the person complained against; in a criminal case, the person accused of the crime.
  6. defense table – The table where the defense lawyer sits with the defendant in the courtroom.

deposition – An oral statement made before an officer authorized by law to administer oaths. Such statements are often taken to examine potential witnesses, to obtain discovery, or to be used later in trial.

  • direct evidence – Evidence that supports a fact without an inference.
  • discovery – Lawyers’ examination, before trial, of facts and documents in possession of the opponents to help the lawyers prepare for trial.
  • docket – A log containing brief entries of court proceedings.

en banc – “In the bench” or “full bench.” Refers to court sessions with the entire membership of a court participating, rather than the usual quorum.U.S. courts of appeals usually sit in panels of three judges, but may expand to a larger number in certain cases they deem important enough to be decided by the entire court.

They are then said to be sitting en banc. evidence – Information presented in testimony or in documents that is used to persuade the fact finder (judge or jury) to decide the case for one side or the other. exculpatory evidence – Evidence which tends to show the defendant’s innocence. exhibit – Physical evidence or documents that are presented in a court proceeding.

Common exhibits include contracts, weapons, and photographs. federal question – Jurisdiction given to federal courts in cases involving the interpretation and application of the U.S. Constitution, acts of Congress, and treaties. In some cases, state courts can decide these issues, too, but the cases can always be brought in federal courts.

felony – A crime carrying a penalty of more than a year in prison. file – To place a paper in the official custody of the clerk of court to enter into the files or records of a case. Lawyers must file a variety of documents throughout the life of a case. grand jury – A body of citizens who listen to evidence of criminal allegations, which are presented by the government, and determines whether there is probable cause to believe the offense was committed.

As it is used in federal criminal cases, “the government” refers to the lawyers of the U.S. Attorney’s office who are prosecuting the case. Grand jury proceedings are closed to the public, and the person suspected of having committed the crime is not entitled to be present or have an attorney present.

States are not required to use grand juries, but the federal government must do so under the Constitution. habeas corpus – A writ that is often used to bring a prisoner before the court to determine the legality of his imprisonment. A prisoner wanting to argue that there is not sufficient cause to be imprisoned would file a writ of habeas corpus.

It may also be used to bring a person in custody before the court to give testimony, or to be prosecuted. hearsay – Statements by a witness who did not see or hear the incident in question but learned about it through secondhand information such as another’s statement, a newspaper, or a document.

Hearsay is usually not admissible as evidence in court, but there are many exceptions to that rule. impeachment – (1) The process of calling something into question, as in “impeaching the testimony of a witness.” (2) The constitutional process whereby the House of Representatives may “impeach” (accuse of misconduct) high officers of the federal government for trial in the Senate.

inculpatory evidence – Evidence which tends to show the defendant’s guilt. indictment – The formal charge issued by a grand jury stating that there is enough evidence that the defendant committed the crime to justify having a trial; it is used primarily for felonies.

  1. information – A formal accusation by a government attorney that the defendant committed a misdemeanor.
  2. initial hearing – Court proceeding in which the defendant learns of his rights and the charges against him and the judge decides bail.
  3. injunction – An order of the court prohibiting (or compelling) the performance of a specific act to prevent irreparable damage or injury.

interrogatories – Written questions asked to one party by an opposing party, who must answer them in writing under oath. Interrogatories are a part of discovery in a lawsuit. interview – A meeting with the police or prosecutor. issue – (1) The disputed point in a disagreement between parties in a lawsuit.

(2) To send out officially, as in to issue an order. judge – Government official with authority to decide lawsuits brought before courts. Judicial officers of the Supreme Court and the highest court in each state are called justices. judgment – The official decision of a court finally determining the respective rights and claims of the parties to a suit.

jurisdiction – (1) The legal authority of a court to hear and decide a case. Concurrent jurisdiction exists when two courts have simultaneous responsibility for the same case. Some issues can be heard in both state and federal courts. The plaintiff initially decides where to bring the suit, but in some cases, the defendant can seek to change the court.

(2) The geographic area over which the court has authority to decide cases. A federal court in one state, for example, can usually only decide a case that arose from actions in that state. juror – A person who is on the jury. jury – Persons selected according to law and sworn to inquire into and declare a verdict on matters of fact.

State court juries can be as small as six jurors in some cases. Federal juries for civil suits must have six jurors criminal suits must have twelve. jury instructions – A judge’s explanation to the jury before it begins deliberations of the questions it must answer and the law governing the case.

  • jurisprudence – The study of law and the structure of the legal system.
  • lawsuit – A legal action started by a plaintiff against a defendant based on a complaint that the defendant failed to perform a legal duty, resulting in harm to the plaintiff.
  • law clerk (or staff attorney) – Assist judges with research and drafting of opinions.
  • librarian – Meets the informational needs of the judges and lawyers.

litigation – A case, controversy, or lawsuit. Participants (plaintiffs and defendants) in lawsuits are called litigants. magistrate judges – Judicial officers who assist U.S. district court judges in getting cases ready for trial. They may decide some criminal and civil trials when both parties agree to have the case heard by a magistrate judge instead of a district court judge.

misdemeanor – Usually a petty offense, a less serious crime than a felony, punishable by less than a year of confinement. mistrial – An invalid trial caused by fundamental error. When a mistrial is declared, the trial must start again, beginning with the selection of a new jury. motion – Attempt to have a limited issue heard by the court.

Motions can be filed before, during, and after trial. nolo contendere – No contest. Has the same effect as a plea of guilty as far as the criminal sentence is concerned, but the plea may not be considered an admission of guilt for any other purpose. Sometimes, a guilty plea could later be used to show fault in a lawsuit, but the plea of nolo contendere forces the plaintiff in the lawsuit to prove that the defendant committed the crime.

oath – A promise to tell the truth. objection – A protest by an attorney, challenging a statement or question made at trial. Common objections include an attorney “leading the witness” or a witness making a statement that is hearsay. Once an objection is made, the judge must decide whether to allow the question or statement.

opinion – A judge’s written explanation of a decision of the court. In an appeal, multiple opinions may be written. The court’s ruling comes from a majority of judges and forms the majority opinion. A dissenting opinion disagrees with the majority because of the reasoning and/or the principles of law on which the decision is based.

  1. oral argument – An opportunity for lawyers to summarize their position before the court in an appeal and also to answer the judges’ questions.
  2. panel – (1) In appellate cases, a group of judges (usually three) assigned to decide the case; (2) In the jury selection process, the group of potential jurors.
  3. parties – Plaintiffs and defendants (petitioners and respondents) to lawsuits, also known as appellants and appellees in appeals, and their lawyers.

petit jury (or trial jury) – A group of citizens who hear the evidence presented by both sides at trial and determine the facts in dispute. Federal criminal juries consist of 12 persons. Federal civil juries consist of six persons. plaintiff – The person who files the complaint in a civil lawsuit.

plea – In a criminal case, the defendant’s statement pleading “guilty” or “not guilty” in answer to the charges in open court. A plea of nolo contendere or an Alford plea may also be made. A guilty plea allows the defendant to forego a trial. plea deal (or plea bargain or agreement) – Agreement between the defendant and prosecutor where the defendant pleads guilty in exchange for a concession by the prosecutor.

It may include lesser charges, a dismissal of charges, or the prosecutor’s recommendation to the judge of a more lenient sentence. pleadings – Written statements of the parties in a civil case of their positions. In federal courts, the principal pleadings are the complaint and the answer.

precedent – A court decision in an earlier case with facts and law similar to a dispute currently before a court. Precedent will ordinarily govern the decision of a later similar case, unless a party can show that it was wrongly decided or that it differed in some significant way. Some precedent is binding, meaning that it must be followed.

Other precedents need not be followed by the court but can be considered influential. procedure – The rules for the conduct of a lawsuit; there are rules of civil, criminal, evidence, bankruptcy, and appellate procedure. preliminary hearing – A hearing where the judge decides whether there is enough evidence to require the defendant to go to trial.

Preliminary hearings do not require the same rules as trials. For example, hearsay is often admissible during the preliminary hearing but not at trial. pretrial conference – A meeting of the judge and lawyers to discuss which matters should be presented to the jury, to review evidence and witnesses, to set a timetable, and to discuss the settlement of the case.

probable cause – An amount of suspicion leading one to believe certain facts are probably true. The Fourth Amendment requires probable cause for the issuance of an arrest or search warrant.

  • probation – A sentencing alternative to imprisonment in which the court releases convicted defendants under supervision as long as certain conditions are observed.
  • probation officers (or pretrial services officers) – Screen applicants for pretrial release and monitor convicted offenders released under court supervision.
  • pro se – A Latin term meaning “on one’s own behalf”; in courts, it refers to persons who present their own cases without lawyers.

prosecute – To charge someone with a crime. A prosecutor tries a criminal case on behalf of the government.

  1. public defenders – Represent defendants who can’t afford an attorney in criminal matters.
  2. record – A written account of all the acts and proceedings in a lawsuit.
  3. remand – When an appellate court sends a case back to a lower court for further proceedings. The lower court is often required to do something differently, but that does not always mean the court’s final decision will change
  4. reporter – Makes a record of court proceedings, prepares a transcript, and publishes the court’s opinions or decisions.

reverse – When an appellate court sets aside the decision of a lower court because of an error. A reversal is often followed by a remand. For example, if the defendant argued on appeal that certain evidence should not have been used at trial, and the appeals court agrees, the case will be remanded in order for the trial court to reconsider the case without that evidence.

search warrant – Orders that a specific location be searched for items, which if found, can be used in court as evidence. Search warrants require probable cause in order to be issued. sentence – The punishment ordered by a court for a defendant convicted of a crime. Federal courts look to the United States Sentencing Commission Guidelines when deciding the proper punishment for a given crime.

service of process – The service of writs or summonses to the appropriate party. settlement – Parties to a lawsuit resolve their difference without having a trial. Settlements often involve the payment of compensation by one party in satisfaction of the other party’s claims.

  • sidebar – A conference between the judge and lawyers held out of earshot of the jury and spectators.
  • statement – A description that a witness gives to the police and that the police write down.
  • statute – A law passed by a legislature.
  • statute of limitations – A law that sets the time within which parties must take action to enforce their rights.
  • subpoena – A command to a witness to appear and give testimony.
  • subpoena duces tecum – A command to a witness to produce documents.

summary judgment – A decision made on the basis of statements and evidence presented for the record without a trial. It is used when there is no dispute as to the facts of the case, and one party is entitled to judgment as a matter of law. temporary restraining order – Prohibits a person from an action that is likely to cause irreparable harm.

This differs from an injunction in that it may be granted immediately, without notice to the opposing party, and without a hearing. It is intended to last only until a hearing can be held. testify – Answer questions in court. testimony – Evidence presented orally by witnesses during trials or before grand juries.

tort – A civil wrong or breach of a duty to another person as outlined by law. A very common tort is negligent operation of a motor vehicle that results in property damage and personal injury in an automobile accident. transcript – A written, word-for-word record of what was said, either in a proceeding such as a trial or during some other conversation.

trial – A hearing that takes place when the defendant pleads “not guilty,” and the parties are required to come to court to present evidence. uphold – The decision of an appellate court not to reverse a lower court decision. Also called “affirm.” U.S. Attorney (or federal prosecutor) – A lawyer appointed by the President in each judicial district to prosecute and defend cases for the federal government.U.S.

Marshal (or bailiff) – enforce the rules of behavior in courtrooms.

  1. venue – The geographical location in which a case is tried.
  2. verdict – The decision of a petit jury or a judge.
  3. victim advocate – work with prosecutors and assist the victims of a crime.
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voir dire – The process by which judges and lawyers select a petit jury from among those eligible to serve by questioning them to determine knowledge of the facts of the case and a willingness to decide the case only on the evidence presented in court.

  1. Voir dire” is a phrase meaning “to speak the truth.” warrant – An arrest warrant is a written order directing the arrest of a party.
  2. A search warrant orders that a specific location be searched for items, which if found, can be used in court as evidence.
  3. Search warrants require probable cause in order to be issued.

witness – A person called upon by either side in a lawsuit to give testimony before the court or jury. writ – A formal written command, issued from the court, requiring the performance of a specific act. writ of certiorari – An order issued by the Supreme Court directing the lower court to transmit records for a case for which it will hear on appeal.

Why is demonstrative evidence important?

Effective Use of Demonstrative Evidence

By: IRA H. LEESFIELDLeesfield Scolaro2350 South Dixie HighwayMiami, Florida 33133(305) 854-4900

I. Introduction: “A Picture is Worth a Thousand Words.” In the age of interactive technology, high-resolution televisions, digital video displays, virtual reality, and satellite dish receivers, our society has become accustomed to receiving information from visual stimuli.

  1. Our interest and ability to learn from visual stimulation, however, is not a new concept.
  2. Indeed, dating as far back as the Stone Age, when early humans used hieroglyphics to tell their stories, there is ample evidence to suggest that people learn and perceive more information through a combination of verbal communication and visual stimuli.

In fact, studies have shown that humans, on average, retain only 15% of information that we receive from audible sources, however, retention climbs to 65% when the information is delivered visually. With this in mind, you can imagine the advantage that the attorney who is well-versed in the use of demonstrative aids has over his competition.

  1. The courtroom by its very nature tends to be a bland and sterile environment.
  2. It doesn’t take long for the average juror to grow restless and bored.
  3. Jurors suffer from shortened attention spans.
  4. They watch television often and they expect to be entertained when they are in the courtroom.
  5. More often than not, jurors lose focus and either forget, or simply tune-out portions of the testimony.

However, what they do remember is how the witness described the accident scene re-produced on the blow-up or the expert’s explanation of the plaintiff’s injuries using a model of a human leg. They remember because humans are visual creatures. It is much easier for us to see a picture and retain that image than it is to try and create an image in our “mind’s eye” and hold onto that image for the rest of the trial.

In fact, studies confirm that jurors’ recall of details is far greater if associated with a visual image. While demonstrative evidence is not a new concept, the technology used to create and deliver the evidence is continually described as revolutionary. The overhead projector and blackboard are rapidly being replaced by computer animation and video depictions.

In addition, many large law firms have developed visual aid departments that specialize in creating state-of-the-art exhibits for the courtroom. These techniques, however, should not be limited to large firm practitioners, as the effect they have on a jury is often invaluable.

  • Furthermore, demonstrative evidence does not have to be an expensive venture.
  • Demonstrative evidence can be produced and utilized even on a small firm budget and the results will amaze, entertain, and capture the attention of the jury.A.
  • Defining Demonstrative Evidence Traditionally, courtroom evidence has been defined as either real, testimonial, or demonstrative.

Real evidence is defined as “evidence furnished by things themselves, on view or inspection, as distinguished from a description of them by the mouth of a witness.” In other words, real evidence is generally evidence that was actually involved in the incident.

For instance, the murder weapon or the actual defective part would be considered real evidence. Testimonial evidence is evidence spoken directly from a witness’s mouth or read into evidence from a deposition. Testimonial evidence may be provided by live or recorded witness statements. This evidence is usually offered to prove or disprove a material fact.

In other words, “it is usually offered substantively rather than demonstratively.” Demonstrative evidence, on the other hand, is evidence that in-and-of itself has no probative value, but rather serves to illustrate and enhance oral testimony. As distinguished from real evidence, demonstrative evidence played no part in the actual incident, but merely serves to assist the jury in understanding the events of the case.

  1. Demonstrative evidence is often described as litigation-crafted “representative evidence” that aids in the comprehension of the facts.
  2. An example of demonstrative evidence is the model of an eye that is used to explain to the jury how the eye was damaged by the injury or a day-in-the-life video used to show how the injuries have effected the daily living conditions of the plaintiff.

Demonstrative evidence will clarify the witness’s testimony and will provide a visual image for the jury to become attached to. The jurors will associate the substance of the testimony with the demonstrative evidence presented to them and they will take that visual image into the deliberation with them.

  • II. admissibility of demonstrative evidence The introduction of demonstrative evidence normally requires a proper evidentiary foundation.
  • This generally means that counsel must provide “source identification and testimony to the effect that the object or thing, that is the demonstrative evidence, is in fact, a fair and accurate representation of what it is purported to be.” In addition, the court has broad discretion in evaluating the “relevancy and value of the demonstrative evidence in assisting the jury’s understanding of the case’s pertinent issues.” The only acceptable uses of demonstrative evidence is “to educate, to teach, to inform, and to simplify” the issues presented to the trier of fact.

The demonstrative exhibit, to be admitted into evidence, must be relevant and must be authentic or accurate. Pretrial conferences, motions in limine, and stipulations are the best ways by which to obtain pretrial rulings on the admissibility of demonstrative exhibits.

  • The foundation for the admission of various demonstrative exhibits can be boring, time-consuming, and distracting to the jury so it is preferred to obtain advance rulings.
  • Furthermore, if the admissibility of the demonstrative exhibit is determined before the trial begins, then the exhibit may be referred to in the opening statement and planned for and utilized during closing arguments.

III. the effective use of demonstrative evidence A. The Role of Demonstrative Evidence 1. Provides Information in an Interesting Manner.2. Simplification and Clarification of Issues and Facts.3. Improves Recollection and Retention of Evidence of Testimony.B.

Examples of Demonstrative Evidence 1. Photographs / X-Rays/ Slides: Photographs are among the most common types of demonstrative evidence. They can be powerful and influential in the jury’s mind. Photographs are also generally easy to admit into evidence. X-rays serve a similar purpose as of photographs.

However, x-rays require an expert to explain what the image represents and therefore, require more of an evidentiary foundation. Slides are excellent for presenting sequential events. They are admissible as pictorial representations.

Accident Scene: For instance, aerial photographs are extremely helpful in depicting railroad crossings, intersections, and highway accidents. Photographs may also be used to show the conditions existing at the time of the accident. Photos of Injuries: The use of exhibits is crucial in providing visual depictions of your client’s injuries and the subsequent changes in your client’s life. Photos of your client’s injuries, treatment of those injuries, and interoperative photos are powerful. Enlarged, blow-up pictures of actual injuries and medical illustrations of these injuries will aid the jury in identifying with your client’s case. Exhibits are an effective and dramatic way to illustrate to the jury your client’s injuries. SLIDES: Slides, presenting sequential events, can be used to show a day-in-the-life presentation of your client. They can be just as attractive as photographs. One disadvantage, however, of slides is the need for a dark courtroom and for the slide-projector. MRI’s, CT Scans: X-Rays may be made into positives, which allows jurors to view them without the use of a shadow box. MRI’s are generally accepted in the scientific community. Like X-rays, they require an expert to interpret them, though, to the jury.

2. Diagrams, Charts, Models, and Anatomical Exhibits

Models, Diagrams, Anatomical Exhibits: In cases such as malpractice lawsuits, models, diagrams, charts, and anatomical exhibits are essential. They can be used to demonstrate a plaintiff’s specific injury and to elucidate often difficult to perceive anatomical problems. They also clarify difficult areas of medicine. Diagrams, charts, and graphs can be inexpensive forms of demonstrative exhibits. CHARTS: Charts are incredibly versatile and can be used to summarize important points or arguments. During opening statements, summation, and testimony, charts can be utilized by counsel and the witness to point-out key facts and essential notes to the jury. MODELS: Models, although a bit more costly than charts, can be just as effective as diagrams and charts. They can be multidimensional exhibits that demonstrate more complex matters. For example, skeletal and other anatomical models of physical injuries will best illustrate to the jury the injuries suffered by your client. Medical Reports & Medical Records: Can be summarized and delivered in a time-line fashion or diagramed so as to make their content more user-friendly to the jury. Medical reports can chart the treatment time line and demonstrate to the jury the damages. These kinds of demonstrative evidence and exhibits have a powerful effect on jurors. Although somewhat technical, medical reports and medical records, accompanied by explanatory testimony from a medical witness, can lend an air of credibility to the claims of injury.

3. Video Projections: Videotapes and video projections are the most effective forms of demonstrative exhibits for our current television-watching generation of jurors. Because jurors are accustomed to watching many hours of television, they will identify greatly with the presentation of evidence in the form of a video.

Day-in-the-life films: A Day-in-the-Life film of your client can provide an excellent documentary of your client’s daily activities and trials and tribulations. This film can show any physical limitations your client suffers as a result of the injuries and can exhibit to the jury any difficulty your client has in conducting life now that life has changed. Some disadvantages to videotapes are the expense of documenting your client’s life, and some admissibility problems. Video Depositions / Statements:Producing a video of a deposition or a sworn statement is far more effective than reading a transcript into the record. In addition, video depositions can be used to impeach a witness with remarkable effectiveness. To hear and see the same person contradict himself on tape rather than through a written transcript is very powerful. The lawyer should ensure, however, that the videotaped deposition is properly admitted into evidence. Video Presentation of a Product in Use: Ideal for product liability cases. For instance, the video may show just how easily an accident could occur and the dangers of a particular product. The jury will then be able to identify with the reasonableness of your client’s expectation that the product will work properly safely in the manner in which it was intended to be used.

4. Computers and Computer Animation

Computers have become essential tools in preparing demonstrative evidence. The computer may be used to create three-dimensional animation, to create slides, and to create many of the diagrams, charts, and graphs discussed infra. Computer Animation: Computer animation can be an expensive venture into the world of demonstrative evidence. Used as a demonstrative exhibit, the computer animation must be a fair and accurate depiction of what it purports to depict, in order to be admissible into evidence. The court in Pierce v. State, 671 So.2d 186 (Fla.4th DCA 1996), allowed computer animation as demonstrative evidence. The court also held that as a demonstrative exhibit used to illustrate a witness’s testimony, computer animations are not subject to the Frye admissibility standard.

IV. Conclusion To be an effective advocate for the client, a trial attorney must convey the plaintiff’s message to the jury. The manner by which your client’s story is relayed can influence and sway a verdict. Demonstrative evidence, used as a tool to facilitate “connecting” with the jurors, allows the trial attorney to make a visual impact that will resonate in jurors’ minds, long after its presentation during the course of the trial.

The jury will return to the deliberation room and will remember those visual images placed into their minds through your effective use of powerful demonstrative evidence. By recognizing exactly how visually-oriented today’s jurors are, a trial attorney will capitalize on this attribute of the jury and demonstrative evidence will help you win your case.

Michael E. Cobo, ” A Strategic Approach to Demonstrative Exhibits and Effective Jury Presentations,” 395 PLI/Lit 359 (1990). Robert D. Brain & Daniel J. Broderick, “The Derivative Relevance of Demonstrative Evidence: Charting its Proper Evidentiary Status,” 25 U.S.

  1. Davis L. Rev.957, 978 (Summer, 1992).
  2. Harvey Weitz, ” Demonstrative Evidence,” 290 PLI/Lit 267 (September 1, 1985). Id. Thomas A.
  3. Heffernan, ” Effective Use of Demonstrative Evidence-‘Seeing is Believing,” 10 Am.J.
  4. Trial Advoc.109 (1987).
  5. Michael A.
  6. Amen, ” Demonstrative Evidence,” Fla.
  7. Civil Trial Practice, 5 th Ed.

(1998). Id. : Effective Use of Demonstrative Evidence

What does demonstration definition mean?

Demonstration noun (SHOW) the act of showing someone how to do something, or how something works : This disaster is a clear demonstration of the need for tighter controls.

What is the difference between real and demonstrative evidence?

Understanding different types of evidence I heard a lawyer describe different kinds of evidence. I always thought evidence was all the same? Are there really different kinds, or is evidence just evidence? All evidence may be similar, but evidence is broken up into types, because different rules apply to the different types of evidence.

  • Furthermore, evidence may only be heard and considered by a judge or jury after it has been properly presented.
  • The different types of evidence also have different ways in which they are presented, so that the evidence may be considered by the judge or jury.
  • Generally speaking, there are four main kinds of evidence.

These are testimonial, documentary, demonstrative, and what’s called real evidence. Testimonial evidence is the type that you generally see on television. It is oral evidence. Testimonial evidence is generally provided by witnesses who first take an oath or affirmation that they will tell the truth.

  1. Documentary evidence is the kind contained in documents.
  2. Documentary evidence can include contracts, business records, or other types of items upon which information is recorded.
  3. Documentary evidence includes some electronic storage in situations where a company, for example, operates its business almost exclusively on an electronic basis.

Demonstrative evidence is the kind that is designed to assist the trier of fact in helping to create the context for other evidence. Demonstrative evidence can include things like photographs, film recordings, or x-rays. Real evidence is the kind that you may see on television also.

  1. Think of real evidence as something that is three dimensional, like an object.
  2. Real evidence can include the weapon used in a crime, for example, or a piece of jewelry that is the subject of a lawsuit.
  3. Real evidence ultimately is anything that can convey to the trier of fact (the judge or jury) a first-hand sense impression of certain facts in a case.

For example, in a murder-for-hire trial, a witness identifies the defendant as the one who shot the victim. The prosecution introduces the gun used in the crime, photographs of the crime scene, and a contract calling for a murder in exchange for money that has been signed by the defendant.

  • In this example, all three types of evidence exist: the witness is testimonial evidence; the gun is real evidence; and the contract is documentary evidence.
  • Question: My son served on a jury last week.
  • I always wanted to, but never got called for jury duty.
  • My son said that the judge told the jury that certain pieces of evidence were allowed to be considered by the jurors for only a certain purpose.

Why would evidence only be allowed for a certain purpose? Your question really gets to the purposes for which certain evidence can be considered. All evidence is governed by the rules of evidence admissibility. During the course of any trial, evidence must be presented, but no one can simply present any evidence they want.

There are limits on what evidence can be presented, and these limits are usually directly related to either the issues in a case or important principles that relate to all cases. When evidence is presented for a limited purpose, the trier of fact (the jury in a jury trial or the judge in a bench trial) can only consider that evidence for the purpose for which it was presented.

For example, in a lawsuit against a truck driver following an accident, evidence of a confession by the driver that he caused the accident could be admitted for any purpose, including that the driver caused the accident. However, if the lawsuit was against the driver’s trucking company for hiring the driver or letting him drive their trucks, evidence of the driver’s confession might only be admitted to show that the company’s employee (the driver) caused the accident, but the evidence would not be admitted to show that the company knew the driver was not a good driver.

An example of admission for a limited purpose when it is governed by an important legal principle of justice would be in a criminal trial. In criminal cases, the trier of fact is generally not allowed to hear evidence of the defendant’s prior criminal history. The reason is that hearing evidence of this kind might make a jury, for instance, find the defendant guilty just because he has a criminal history.

However, evidence of the defendant’s (or even any witness’) prior record can be heard in order to impeach the defendant’s credibility if and when the defendant testified, but a jury would be instructed to consider the defendant’s criminal history only as it relates to his credibility, not his guilt.

  • Regardless of the reason why the evidence would only be admitted for a limited purpose, a judge is required to instruct a jury that the evidence can only be considered by them for that purpose.
  • If a judge fails to do so, he is in error, and a mistrial will occur, which will require an entirely new trial.

Have questions for Brendan Bukalski? E-mail him at [email protected], or write him, c/o The Edwardsville Intelligencer, 117 N.2nd St., Edwardsville, IL 62025. Editor’s note – the answers provided in this column are general in nature, and should not be relied upon as legal advice or interpreted as creating an attorney-client relationship.

How is demonstrative evidence authenticated?

The Basic Law of Demonstrative Evidence Because its purpose is to illustrate testimony, demonstrative evidence is authenticated by the witness whose testimony is being illustrated.

What does civil demonstration mean?

Civil Protest – A civil protest will usually take the form of an organized public demonstration of disapproval or display disagreement with an idea or course of action. It should be noted that in many cases campus protests such as marches, meetings, picketing and rallies will be peaceful and non-obstructive.

  • Disruption of the normal operations of the University.
  • Obstructing access to offices, buildings, or other University facilities.
  • Threat of physical harm to persons or damage to University facilities.
  • Willful demonstrations within the interior of any University building or structure, except as specifically authorized and subject to reasonable conditions imposed to protect the rights and safety of other persons and to prevent damage to property.
  • Unauthorized entry into or occupation of any University room, building, or area of the campus, including such entry or occupation at any unauthorized time, or any unauthorized or improper use of any University property, equipment, or facilities.