20 January 2010

Demonstrative Evidence at Trial


1. UCMJ or Manual References. None directly address demonstrative evidence. General provisions regarding authentication, relevance and prejudice apply to demonstrative evidence.

2. Counsel’s Objective. To illustrate, amplify, punctuate, and explain the direct evidence in the case. This is accomplished through physical items created for use in trial -- charts, graphs, models, etc. -- as well as through adaptation of the real evidence -- as in blow-ups of handwriting exemplars.

a. Demonstrative evidence “illustrates or clarifies the testimony of a witness, such as by the use of models or not-to-scale diagrams. Substantive or real evidence, however, is introduced to prove or disprove a fact in issue, e.g., a firearm, the photograph of a footprint, or a photograph of the latent fingerprint vis-a-vis the accused’s fingerprint.” United States v. Heatherly, 21 M.J. 113, 115 n.2 (C.M.A. 1985) (emphasis added).

b. People retain more information the more their senses are engaged. Demonstrative evidence involves the members in the evidence because it engages more than their ears. Nearly every case can use demonstrative evidence on either the merits or sentencing. Even an ordinary drug case can be punctuated by, e.g., a film of a unit performing routine field duties (raising the question of how a soldier using drugs could perform such work effectively or reliably).

3. Key Points.

a. Do's.

(1) Lay a foundation that ties the demonstrative evidence to other evidence in the case. You only need to establish that the items are sufficiently explanatory or illustrative of relative testimony and that it is of potential help to the trier of fact.
(2) Work closely with your experts in developing demonstrative evidence. Many experts are creative people with a teacher’s sense of how to present complicated information in a simple and intelligible way. Both you and the expert should think of ways to supplement testimony with something tangible. This can be as simple as a fingerprint examiner using an enlargement of known and unknown prints to point out the whorls and peaks of a print, or a forensic pathologist using a skeleton to show in three dimensions how and where the victim was injured.
(3) Have the witness testify from memory first, followed by reference to the demonstrative evidence. This provides both a legal and practical foundation for the demonstrative evidence. If the witness first testifies about the location of the crime or the scientific analysis he performed, the members already will be oriented. After the witness describes the scene or the tests, he can then approach the demonstrative evidence and simply answer “yes” to the trial counsel's query “Is Prosecution Exhibit 10 for Identification a fair and accurate representation of?”
(4) Be prepared to answer an opposing counsel’s objection under Military Rule of Evidence (Rule) 403. Opposing counsel will assert that the proffered evidence is more prejudicial than probative. You can answer such an objection by: (a) making as specific a tie as possible to the real and testimonial evidence of your case (how this evidence can best illustrate the dry, theoretical or one dimensional evidence of record), (b) calling the witnesses who will use the demonstrative evidence in support of your offer of proof, and (c) arguing that Rule 403 is designed to encourage maximum information to the panel. The test favors admission of evidence unless its prejudicial effect substantially outweighs its probative value.
(5) Show the evidence to your opposition before trial. Nothing is gained from playing “hide-the-ball” with such evidence. It is more important that you admit the evidence than that you surprise opposing counsel. Your chances for admissibility -- and forcing your opposition to respond practically and psychologically to your evidence -- are enhanced by being able to state on the record that the evidence has been previously shown to opposing counsel. In addition, notify the judge before trial any time you are using novel evidence. An out-of-court session under Rule for Courts-Martial (RCM) 802 might be appropriate in certain circumstances.
(6) Seek admission of the evidence in a pretrial Article 39(a) session. This enables you to use the evidence, when appropriate, in your opening statement. More importantly, it helps you plan your case and you can assure witnesses that they will be able to use and refer to the evidence during their testimony.
(7) Talk to the record. If the witness insists on saying “over here” and “he came out of there,” interrupt the witness to say that “the witness pointed to the intersection of 4th and Macomb” or “the witness is referring to the room labeled ‘kitchen’.” Before trial brief your witnesses on the importance of such clarity. Be prepared to step in if the witness fails to talk to the record. An easier method is done by simply giving clear directions to your witness, and when they comply with the directions, it will be evident from the record. For example, you can tell a witness, “Using the red marker, write the letter ‘A’ on the diagram where you first saw the alleged victim.” If you give clear directions, it is unnecessary to say things such as, “Let the record reflect that the witness is drawing a red ‘A’ on the diagram about 3 inches from the left side and 4 inches down from the top.” Failure to do so will leave you with a piece of demonstrative evidence that carries no weight when appellate courts cannot decipher the record.
(8) Consider the use of facsimile or “like” evidence when the original is unavailable. If the original weapon cannot be found but a witness testifies that the wounds are consistent with a jagged 5” blade or a 2” diameter lead pipe, find an item like that described and introduce it as facsimile evidence. It is helpful to the fact finder in envisioning the crime and gives you something to hand to the witness and to the panel.
(9) Consider using medical illustrations in lieu of or to supplement photographs. Some military medical centers have medical illustrators who can assemble a picture (or series of pictures, sometimes using acetate overlays) of victims of crimes. Such illustrations dramatically portray the victim’s “constellation of injuries” on one piece of evidence, instead of a series of photographs and, perhaps, autopsy sketches. They also help avoid objections for gruesomeness of photographs.
(10) Ensure the exhibit can be reproduced for the record. Ask the judge on the record for permission to substitute copies or photographs of bulky or unwieldy evidence for the record. Ensure that the photographs include as many angles as necessary and include the judge’s markings and, when relevant, a ruler or color chart laid next to the evidence. See RCM 1103(b)(2)(D)(v).
(11) Discover the resources in your local community. Look first on your installation. The Training Aids Support Center (TASC) usually has a photo lab and a small army of photographers and illustrators. Learn what they can do. Engineering units or employees of the Directorate of Engineering and Housing may draw maps and diagrams or build scale models. Contact the post hospital, which may have skeletons and other medical models. Also use local colleges, universities and hospitals, all of which may have resources that may help you.
(12) Think through all of your practical needs. Scope out the courtroom so you know where to place screens, easels and cameras. Warn and accommodate the court reporter in advance. Have extra light bulbs, marking pens, butcher paper and extension cords so that you are not left fumbling during the trial. Ensure that the evidence is visible to the members, the military judge and opposing counsel.

b. Don'ts.

(1) Don't use in-court demonstrations without first giving your plan a lot of thought. Those demonstrations that rely on the acting out of some physical activity (e.g., falling, or positioning the key players in an assault) run a high risk of being insufficiently probative because of the difficulty of incorporating all of the variables. Those that show the obvious may be kept out simply as “unhelpful.” Most of all, you run a great risk of forfeiting the members’ attention and good will by portraying an event or activity ineffectively.
(2) Don’t fail to set forth a strong, specific showing of relevance when suggesting in-court demonstrations of forensic tests. A CID agent’s in-court demonstration of a marijuana field test “was of great inflammatory potential and of little relevance” to a prosecution for sale of marijuana. United States v. Pejcha , 7 M.J. 455, 456 (C.M.A. 1979).
(3) Don’t bank on using novel or unusual demonstrative evidence until it is admitted. Because demonstrative evidence is not “real” evidence, trial judges have broad discretion in determining whether and under what conditions to admit it. Therefore, do not risk committing yourself to a certain piece of evidence during an opening statement that you are later unable to present. Conversely, do not tie your witnesses so rigidly to the anticipated demonstrative evidence that they find themselves unable to testify effectively when that evidence is not admitted or is altered. This is another reason to seek admission of evidence before trial.
(4) Don’t forget that diagrams can be improperly “leading.” Don’t put too many labels on your diagrams and maps. When placement of individuals or evidence is central to a diagram, allow the witness to write in that information while testifying. If a witness refers to a map that already suggests some of the relevant testimony, you may be faced with an objection that the diagram leads the witness, making the diagram inadmissible.
(5) Don’t forget to protect your evidence. Once your witness has marked the map or diagram, move it into evidence. If not admitted, your opposing counsel may be able to in cross-examination or otherwise, suggest other markings that neutralize the exhibit or leave it unhelpful to the panel, if not unintelligible. In the alternative, provide an acetate overlay on which your opposition can make its markings without disturbing your evidence.

4. Practice Sample--Using a diagram:

TC: Where were you when the accused called to you?
A: About 20 feet from the intersection of 4th and Macomb, here on the installation.
TC: When did he catch up to you?
A: After I had gone another 10 feet or so.
TC: What direction were you walking?
A: East on Macomb toward my billets.
TC: I’m now showing you Prosecution Exhibit 10 for identification. What is that?
A: It’s a diagram of the area where I was assaulted.
TC: Is it a fair and accurate representation of that area as it appeared on the day of the crime?
A: Yes, it is.
TC: I’m handing you a marker and ask you to approach the diagram and place an “A” where the accused first yelled to you. [The witness did as directed.]
TC: Now, please place a “B” where the accused assaulted you. [The witness did as instructed.]

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