GILBERTSON DAVIS EMERSON LLP

Demonstrative Evidence: Critical albeit Clichéd

Jody W. Iczkovitz.

Believe nothing you hear, and only half of what you see.

— Mark Twain

Demonstrative evidence is perhaps the most powerful and effective tool of persuasion available to the trial lawyer,¹ and as a result of the growing use of such evidence by the courts, especially in civil cases, the legal landscape is littered with clichéd aphorisms: Seeing is believing; A picture is worth a thousand words; If it don’t fit, you must acquit. Many would argue, at least about the first two, truer words have never been uttered.

Persuasion, in this context, is prefaced on the idea that the trier of fact must be persuaded or induced to remember what it is that one would have them believe. In light of today’s short attention spans and long trials, this, sadly, is much easier said then done, particularly in situations of complex and confusing expert testimony. Compare attendance at a movie premiere to a book reading, and it is easy to accept the fact that we are no longer in the age when oral story-telling is a highly prized art and form of entertainment. As a result it follows that people in modern society have, to accompany their only moderately developed visual memory, auditory faculties which are nowhere as developed as they once were.²

It has been psychologically proven that the amount of information retained by a person is substantially increased when spoken statements are supported with visual aids.³ A proof, which itself, is more convincing and persuasive when presented as a visual graph or chart.⁴ Demonstrative evidence permits the trier of fact to visualize what is given in oral testimony; it graphically portrays and underscores the testimony being presented. ⁵

In addition, properly admitted demonstrative evidence can on occasion step beyond being remembered and walk right into the jury room or judge’s chambers, extending its lasting effect and its versatility in presenting a case.⁶ Similarly, it can be introduced into the trial record and maintained for future appeals. In the context of expert evidence, a properly prepared illustration, graph, chart, photo, movie, or similar, can essentially be the best method to legitimately enter the expert beyond the courtroom and into the deliberation room.

Yet, interestingly, demonstrative evidence, unqualified, is a misnomer; demonstrative evidence can be real evidence or illustrative evidence.⁷ Demonstrative evidence, maps, diagrams, charts, models, etc. are tools to assist the trier in understanding the evidence. Real evidence, the gun, the narcotics, the bloodstained shirt, tendered as an exhibit within the courtroom is not a helpful aid but rather is evidence itself. Real evidence needs to be authenticated. With demonstrative evidence, its worth depends on whether it is an accurate representation. ⁸ Demonstrative evidence, such as photographs, video or audio recordings, x-rays, and similar media can, and often do, tenuously walk the line between real evidence and assistive tool.

Demonstrative evidence is defined by the purpose for which it is introduced. That purpose can be to explain or illustrate other previously or contemporaneously admitted evidence (spoken, written, or real), so it assists in an understanding of the admitted evidence.⁹ This is typically the case when dealing with expert evidence. The judge needs to be content that the demonstrative evidence will legitimately assist the trier of fact and not distort the fact-finding process.¹⁰ However, the purpose of demonstrative evidence can also hinge on the evidence having its own substantive weight beyond its illustrative purpose.¹¹

To that end, there are two competing theories which provide the theoretical basis for the admissibility of demonstrative evidence. The Illustrative Theory suggests that the demonstrative evidence is used to illustrate, corroborate and explain other evidence, such as testimony and expert opinion. This theory highlights the traditional use of demonstrative evidence, but its strict application can potentially bar highly reliable evidence in situations where there is no proper witness for verification. The Silent Witness Theory allows the demonstrative evidence to speak for itself once a proper foundation has been laid for its admission. This, more expansive, theory allows for the circumstance where the person who authenticates the evidence, need not be the person who created the evidence, or who was present at the time, but simply someone who can be qualified to state that the representation is true and accurate.¹²

As with most evidence, admissibility of demonstrative evidence is at the discretion of the trial judge.¹³ The trial judge will consider relevancy, probative value versus prejudicial effect, continuity and the possibility of alteration, and its ability to be made part of the trial record.¹⁴ These factors are worthy of detailed consideration when utilizing demonstrative evidence, since they also frequently form the basis for objections to its admission. Overall, the admissibility of demonstrative evidence depends upon: its accuracy in truly representing the facts; its fairness and absence of any propensity to mislead; and its verification on oath by a person capable of doing so.¹⁵

Expert evidence is admitted as an exception to the general rule that prohibits witnesses from offering opinions as evidence. The rationale for this is based on the principle that drawing conclusions, inferences or opinions, is solely within the province of the trier of fact.¹⁶

In the 1993 Daubert v. Merrell Dow¹⁷ decision, the United States Supreme Court articulated specific criteria for the admissibility of scientific expert testimony, and it follows, in the U.S., by way of a Daubert motion, it is possible to challenge the methodology and reasoning of an expert’s evidence, before or during trial, in an effort to exclude the presentation of unqualified evidence to the jury. However, since in Ontario an expert is not obligated to disclose their methodology/reasoning in advance of trial and it is only at trial, when giving their evidence, that their methodology/reasoning becomes manifest, a Daubert challenge to expert testimony is not viable, and the issue is one not of admissibility but weight.¹⁸

The seminal Canadian authorities on the admissibility of expert scientific evidence are the decisions of the Supreme Court of Canada in R v. Mohan¹⁹ and R v. J.J²⁰, wherein the Court stated that an expert’s opinion could be admitted into evidence contingent on:

its relevance;
the necessity of assisting the trier of fact;
the absence of any exclusionary rule, and
a properly qualified expert.

Further, expert evidence, including demonstrative evidence, which advances a novel scientific theory is to be subjected to special scrutiny to determine whether it meets a basic threshold of reliability.²¹ As a cautionary illustration of the application of this Mohan principle in a civil case, take the case of Green v. Lawrence²², where it was not the expert who was disqualified, but, notwithstanding his having disbursed great expense for his experiments and animations, his methodology.

Demonstrative evidence can include photographs, movies and video recordings, audio recordings, slides, overhead projections, x-rays, diagnostic tools, as well as black boards, or sketch pads, to name only a few.²³ Demonstrative evidence can include the traditional notions of those types of media, but with the ever modernizing courtroom they also include their digital contemporaries. For example, slides and overhead projectors are rapidly being replaced by PowerPoint presentations or similar presentations.²⁴

Digital and electronic demonstrative evidence is subject to the same rules of admissibility, but one should always be cognizant that as technologies advance so too does the scrutiny of them for reliability and continuity. Particularly new technology and digital mediums, such as computer re-enactments, will force courts to examine their probative value over prejudicial effect, authenticity, relevancy, and accuracy, in light of their ability and propensity to be altered or even fabricated.

Demonstrative evidence prepared by an expert must be sufficiently detailed to illustrate the point, without being overly complex and thereby vitiating its utility. It is prudent for counsel to provide other parties with copies of any demonstrative evidence to be relied on before trial.²⁵ The expert must be prepared to testify not only to what the evidence purports to show, but also as to how it was created and developed. Care must be taken not to distort the facts or illustrate them in such a way they cannot be proven.

An example of poorly prepared expert demonstrative evidence is bad charts. Data charts can suffer from three fundamental elements of bad graphical display: data ambiguity, data distortion, and data distraction. Data ambiguity arises from the failure to precisely define just what the data represent. Data distortion arises when relational proportionality is not maintained.²⁶ Data distraction arises from the inclusion of extraneous information or detail.²⁷ All three elements, if not addressed properly by the expert, can lead to an attack on both the expert’s credibility and his or her evidence and conclusions.

Demonstrative evidence can stretch beyond the types of evidence enunciated thus far, and can in select circumstances enter the courtroom without an examination of admissibility. What of the plaintiff who walks to witness stand limping, with a cane, while wearing a brace or the convict who enters the courtroom shackled and in their prison oranges? Although neither of these situations is specifically demonstrative evidence as defined herein, the effectiveness of these demonstrative images can not be lost on even the most casual observer.

We are all taught at a young age not to believe everything we hear. Demonstrative evidence is the best and only way to combat the implications of that time-tested adage, and as such, truly, a picture is worth a thousand words; seeing must be believing. If it don’t fit… well, there is an exception to every rule.

Jody W. Iczkovitz practises insurance law and civil litigation at Gilbertson Davis Emerson LLP.

Olah, J., The Art and Science of Advocacy (Toronto: Carswell, looseleaf (1990-2006)) (2 volumes). [Advoacy]
Freckelton, I. & Selby, H., The Law of Expert Evidence (Sydney: Lawbook Co., 1999). [ Expert1]
Advoacy, supra note 1.
Jurors retain about 20% of the content of evidence presented from oral testimony alone. But when oral testimony is combined with illustrative demonstrative evidence, such as graphs, pictures or blow-ups of documents, jurors can retain up to 80% of the evidence being offered. See also Advocacy, ibid.
Advoacy, supra note 1.
Ibid.
Best, A., Wigmore on Evidence 4 th ed. (New York: Aspen, 2007).
Deslisle, R. & Stuart D., Evidence Principles and Problems 8 th ed., (Toronto: Carswell, 2007). [Evidence]
Expert1, supra note 2. See also: Brain and Broderick, "Demonstrative Evidence, Clarifying Its Role at Trial," 1994 Trial 73 (September).
Evidence, supra note 8.
Advoacy, supra note 1.
Goldstein, E., Visual Evidence: a Practitioner’s Manual, (Toronto: Carswell, looseleaf (1991-2007)) (2 volumes).
Draper v. Jacklyn , [1970] S.C.R. 92.
Advoacy, supra note 1.
Expert1, supra note 2.
Anderson, G., Expert Evidence, (Markham: LexisNexis, 2005). [Expert2] See also: Freiman, M. & Berenblut, M. The Litigator’s Guide to Expert Witnesses (Aurora: Canada Law Book, 1997).
Daubert v. Merrell Dow Pharmaceuticals, (1993) 509 U.S. 579. See also, Kumho Tire Co. v. Carmichael , (1999) 526 U.S. 137, where the United States Supreme Court extendedDaubert's general holding to include non-scientific expert testimony as well.
Expert2, supra note 16.
[1994] 2 S.C.R. 9 .
[2000] 2 S.C.R. 600 .
Mohan , supra note 17.
Green v. Lawrence, [1997] M.J. No. 56. See also: Expert2, supra note 16.
Advoacy, supra note 1.
Although outside the scope of this paper, one must also consider the ramifications of provincial and federal privacy laws when determining the use and admissibility of many forms of demonstrative evidence.
Expert, supra note 2.
The 2D circular pie chart, stretched into a 3D ellipse, exemplifies the idea of Data distortion. Although both charts might be accurate, the 3D chart skews the viewer’s perception of the data what is contained in the chart alone.
Klass, G. How to Construct Bad Charts and Graphs, Illinois State University, 2002