One of the main goals of an advocate is to tell a believable story. One way to achieve this goal is to present evidence in understandable, believable and compelling ways. Regardless of the oratory skill of the advocate or witnesses, the use of effective exhibits in conjunction with narration is far more effective in terms of memory retention and persuasiveness to the trier of fact, than narration alone.
Demonstrative evidence appeals to people because it involves more of our senses. Any time that an advocate can do more than allow his audience to hear the case, he or she is being more effective. When you add visual perception and tactile perception, you increase the ability of people to understand your case.
I. Demonstrative Evidence v. Real Evidence
There is some cross over between the terms real evidence and demonstrative evidence. Typically “real evidence” is used to refer to an actual physical object such as a murder weapon. When an object is merely illustrative, such as a model, reenactment, or exemplar, the evidence tends to be lumped into the term “demonstrative evidence”. Regardless of how it is referred to, most types of evidence are generally admissible in Missouri courts with the appropriate foundation.
II. Foundation for the Introduction of Demonstrative Evidence.
The use of demonstrative evidence is well accepted in Missouri courts after a proper foundation is laid. The individual exhibit and its use will determine the appropriate foundation for admissibility. The following example foundations are provided for some of the more typical types of demonstrative evidence.
A. Verification of photographs. The foundational elements are:
1. The testifying witness is familiar with the object or scene that is depicted.
2. The witness explains a basis for his or her familiarity with the object or scene;
3. The witness recognizes the object or scene in the photograph that is presented;
4. The photograph accurately and/or fairly depicts the object or scene at the relevant time.
B. Diagrams or charts. The elements for foundation are:
1. The diagram or chart depicts a certain area, object or theory;
2. The witness is familiar with that area, object or theory;
3. The witness explains a basis for their familiarity with the area, object or theory;
4. In the witness’ opinion the diagram or chart is an accurate depiction of the area, object or theory;
5. If the chart or diagram includes the report of experimental tests or evidence a conditional foundation must be laid including that the witness is qualified to establish the theories, validity and reliability of any instrumentation.
6. The underlying theory is scientifically valid in the witness’ field;
7. The theory is generally accepted;
8. The instrumentation and methods are reliable;
9. The instrumentation’s are generally acceptable and reliable;
10. The witness is qualified to conduct and interpret the test;
11. The instrumentation used to arrive and validate the theory was in good working condition;
12. The proper procedures were followed and that the witness states the results in conjunction with the depiction in the diagram or chart showing the theory.
C. Computer Animations and Simulations.
Foundation for computer animation or simulation will depend on how it is to be used. Will it be used as evidence to illustrate an expert witness opinion, or will it be used as substantive evidence.
Use of such evidence is generally limited when the attempt is to introduce it as an example of what happened in a particular situation, unless a foundation is laid showing substantial similarity between the conditions at the time of the event depicted and those assumed in the simulation or animation. See Richardson v. State Hwy. and Transp. Comm’n, 863 S.W.2d 876, 882 (Mo. Bane. 1993). Sometimes, such animations may also be excluded on the simple fact that they are more prejudicial than probative, as was the case in State v. Star, 998 S.W.2d 61, 67-68 (Mo. App. 1999), where the court concluded that a forensic animation video depicting and recreating the defendant’s version of a shooting incident, was not admissible.
The proper foundation to admit animation evidence is similar to other scientific evidence with some variations. Case specific research should be done, but a general foundation would be:
1. There are valid scientific equations and principals known to science underlying the issues;
2. The computer technology can produce simulations or models based upon scientific equations and principals which are scientifically valid;
3. The principals, equations and formulas that are scientifically valid have been appropriately programmed and put into a computer program or particular software;
4. To generate the animation or simulation, certain inputs must be made (usually mathematical) and the nature of the measurements that are made;
5. The source of the measurements and their validity;
6. The software in question in capable of converting the inputted information into accurate images and fair depictions representing a scientific principle to be demonstrated;
7. Someone qualified has input the data needed to use the program and the principles and scientific equations that have been implemented in the program;
8. The actual physical computer was checked to insure the data was inputted properly and that the system is working correctly;
9. The operator(s) were qualified not only to use the computer but also to input the specific information;
10. The images were recorded to a medium that is reliable;
11. A witness qualified by experience and education recognizes the depiction to say that it fairly and accurately depicts the preceding elements of the foundation.
III. Typical Types of Exhibits
1. The actual physical object in question;
2. Reproductions or models;
4. Close up or enhanced photographs;
5. Aerial photographs;
7. CAT scans;
8. MRI films;
9. Medical video tapes (procedures);
10. Videotape or motion pictures;
16. Medical or anatomical drawings;
17. Anatomical models;
18. Contracts, letters and relevant documents;
20. Sound recordings such as 911 tapes.
IV. Questions of Admissibility
A. Considerations for Admission.
In addition to doing case specific research for a proper foundation, you should anticipate in the development of exhibits not only the effect they will have on the jury but the effect they will have on your opponent. In addition to anticipating specific objections, determine whether or not the exhibit results in unfair prejudice or if it misleads the jury.
Demonstrative evidence does have the capacity to move people emotionally and to make a significant impact. Care must be taken to insure that while the evidence is effective, it does not unduly emphasize objectionable concepts or unduly emphasize human responses such as revulsion, contempt or pity. Counsel should also pay attention to whether or not the exhibit can mislead the jury.
An example of when an exhibit can mislead a jury is found in Gladhill v. General Motors Corp., 743 F.2d 1049 (4th Cir. 1984). In that case, the trial court allowed a video tape demonstration by the defense of braking characteristics of a 1980 Chevrolet Citation. Unfortunately, the plaintiffs accident occurred at night on a sharp downhill curve and the demonstration was done in the daytime on level ground and was conducted by an experienced test driver. On appeal, the defense argued that the videotape was not a reconstruction of the accident, but was “a demonstration of certain operating characteristics of the vehicle in question”. The court of appeals did not agree, but felt that the testimony was misleading because the Citation was shown on a wide open asphalt road traveling a straight line with an experienced test driver rather than the circumstances that were actually relevant in the particular case.
B. Typical Objections
Typical objections to demonstrative evidence usually include: lack of foundation, lack of relevancy or unduly prejudicial.
In addition to these general objections, the attack on demonstrative evidence can be made on a core foundation issue. An example would be a digital representation of a test may be attacked as to underlying results, or that the information is unreliable, or that there is no adequate chain of custody or that the results themselves are inaccurately depicted.
V. Why Use Visual Presentations/Demonstrative Evidence
In the age of video games, television and movies, we have to take into account that we are all multimedia learners. Numerous researchers, jury consultants and others have studied the effects of visual presentations and our ability to learn. One such notable paper Marino and Mayer, Visual Presentations in Multimedia Learning: Conditions That Overload Visual Working Memory, University of California, Psychology Department reports that visual presentation in conjunction with auditory narration is the most effective presentation for learning. Everybody has a capacity to memorize information. However, studies such as this one have shown that memory can be overloaded by such things as visual presentation in conjunction with visual text. The most effective method of learning appears to be pictorial information combined with auditory information, sequencing the two together.
This sort of presentation is perfect for the trial and mediation environment. At a mediation, the presenting attorney or narrator can use visual diagrams, charts or pictures to make points in their explanation of the case. At trial, the normal question and answer method of listening to evidence in conjunction with visual presentation and explanation provides an effective means of educating the jury.
For additional information and ideas on presenting visual information, you may want to read E. Tufte, Visual Explanations, Images and Quantities, Evidence and Narrative. An additional source geared more to attorneys is S. Hamlin, What Makes Juries Listen Today.
VI. Common Mistakes in Exhibit Preparation
Every visual presentation is intended to promote some idea or concept. Unfortunately, unless the exhibit is clear and easy to read, it will not be effective.
Common mistakes include problems with color and contrast. The following are just a few tips when preparing exhibits. Blue text on black background or similar color combinations are difficult to read due to the lack of contrast. Other color combinations such as blue and red can cause illusions when positioned closely together. Yellow, which is a very effective color for presentations, tends to disappear on a white or light colored background.
When preparing exhibits, you should always take into account the practical problems such as the color contrast listed above. Also, there is an occurrence known as “simultaneous contrast” that can happen when opposing colors are placed in close proximity to each other. The text may appear to vibrate or cast a shadow. Eye strain and fatigue will be increased by the use of strongly opposing colors and should he avoided where possible.
VII. Order of Colors
Colors are attached to emotions and intellectual cues regarding the color’s “action”. Typically cool, lowly saturated colors such as blue are “passive” and are generally associated with goodness. Warmer, more highly saturated colors such as red, are generally considered “active” and associated with bad outcomes.
A good example of this would be an instruction/warning manual. Warnings, when associated with death or serious injury, are typically presented by a red or dark orange symbol.
Since people are accustomed to this association, the use of such colors in sequencing can be effective when presenting evidence.
VIII. Color Blind
Color is important in the use of effective exhibits. It should be noted that a certain segment of the population is color blind. Generally speaking, males have more problems than females. About 8% of Caucasian males, 5% of Asiatic males and 3% of other males are affected by some degree of color blindness. Typically, these people can perceive only two or three primary colors.
While you cannot take into account all individual problems, one way to address the color issue is to include some questions on voir dire when you are depending on visual exhibits to make your case. You can compensate for color deficiency in the design process. Color blind people tend to have problems differentiating between color combinations more than actual colors. One way to account for this is to emphasize text with colors that contrast but are not closely associated colors. Thus, do not transition from red, to red-orange, to orange but instead transition from blue to yellow or black to white. Also, associating color transitions with an icon is an effective way of presenting an exhibit to people with some color deficiency.
IX. Cost of Presenting Evidence
Anytime you undertake a new case it is a good idea to have a budget. When you are considering the presentation of exhibits, having a good idea of what you can afford up front is critical. It is very easy to spend substantial sums of money when preparing exhibits. Each case has an amount of money that can be legitimately justified to spend on exhibit cost. Depending upon the size of the case, your budget may greatly influence how you make that presentation.
Generally speaking, the cost of exhibits can be broken down into the cost of creating the exhibit and the cost of presenting the exhibit. In our practice, we have found that an investment in equipment which allows us to in-source some of the preparation and presentation of exhibits allows us to create cost effective exhibits that otherwise might be out of reach for the particular case. Some suggestions include the following:
1. Videotape your own depositions. Most practitioners already own a video camera and a VCR or DVD player to present the taped deposition or other video evidence.
2. A digital camera or a film camera with a scanner hooked to a computer and a color printer can produce page size photo exhibits of fairly high quality that can then be passed to the jury. These same images can also be output through television, data monitors or an LCD projector in the courtroom as an alternate presentation medium.
3. Many exhibits that are text based, with color added, can be easily prepared on common computer software already available on most computers. For example, the word processing programs such as Microsoft Word and Word perfect can be used to produce page size exhibits, jury instructions, flow charts and yes/no boards. These exhibits can then be printed, enlarged, and/or mounted by an outside vendor such as a professional exhibit firm or copying service.
4. Our firm does not edit our own videotapes, but computer software is available to allow video editing on a personal computer. If you are computer savvy or willing to learn, this could also substantially reduce your costs.
B. Advantages and Disadvantages of Methods of Presentation
Boards: can be a centerpiece of attention, but can be awkward if courtroom is too small; multiple boards can be difficult to handle.
TV: easy to use, unable to handle PowerPoint or multimedia; can’t project so jurors can see easily, often distorts images or colors
Data Monitors: high Quality Images; required software use, higher associated cost, requires skilled AV setup
Multi-Monitor: everyone can clearly see evidence as shown, courtroom may be too small to handle multiple monitors, requires skilled AV setup
LCD Projectors: cuts down on equipment in the courtroom, must be perfectly positioned so everyone can see, quality has greatly improved; images are brighter and clearer and can be enlarged
VCRs: easy to use, no instant access to as clips are pre-edited, only a four-head VCR can pause and display a clear image,
Visual Presenters (ELMO): can display anything that fits on the base, documents must be shown as half pages to be readable, similar to a small camera
Trial Software: instant access to all documents, depositions, video clips and demonstratives, requires extensive pretrial work, experienced technician & logistically capable courtroom.
PowerPoint or Presentation Software: can create a linear slide show and easily make changes; can embed visuals, poor way to handle documents, most effectively used for summary or bullet-point slides
Interactive Software: can create a flexible non- linear presentation, must predetermine & test all information.
QuickTime VR: audience can accurately view a site, area or object, does not work in settings that are constantly changing
There are advantages and disadvantages to each presentation medium, and the inputs that you use to present them. Our own experiences have shown that boards are the easiest and most reliable method to present evidence. Unfortunately, in larger cases, boards can be very expensive and awkward to handle. Our solution to this problem is case dependent. In a larger case where the costs can be justified, we continue to use boards as a primary method to use visual persuasion in the courtroom. We have invested, however, in an ELMO presenter, televisions and other equipment needed to use an ELMO visual presenter integrated with a VCR and occasionally a laptop. This allows the flexibility of having smaller visual exhibits prepared which can he put on the ELMO and presented on the screen, substantially reducing the cost of preparing the exhibits and, therefore, lowering the overall cost of presenting the evidence.
The cost of an ELMO should be considered, but is not out of the reach of most law offices, including sole practitioners. If you will be trying lawsuits, you should consider it as a potential investment. Our firm was able to purchase an ELMO presenter along with the necessary equipment to distribute the signal from the VCR, laptop and all the televisions for under $4,000.00. With the help of an assistant in the courtroom, this system substantially reduces the cost of presenting evidence.
We have found that when presenting evidence, boards and televisions work best under most settings. We handle cases all over the state of Missouri, and therefore, face many different courtroom challenges when trying to plan the presentation of evidence. Overhead projectors and LCD monitors are wonderful tools, but the lighting in many courtrooms often limit their use. We have also found that televisions are inexpensive to use, are familiar to jurors and are easily replaced if damaged.
Our firm has several software packages including Sanction II, Powerpoint and Presentations. Our experience has shown that Powerpoint and Presentations are extremely useful for mediation presentations but are not flexible enough for use in the courtroom. These programs may be used effectively in opening or closing, but generally speaking, have too many limiting factors. Trial presentation software has many useful features. Our experience, however, has been that it requires such extensive pretrial work that cost savings are outweighed by the work necessary to input all of the data. Furthermore, we have experienced technical difficulties during presentations which have required us to use alternate methods to present evidence at the last minute. Our suggestion is that unless you have extensive computer knowledge (we don’t) or professional support staff, the use of such software be limited.
A. Stock Exhibits – Charts/Models
Stock exhibits can be a way to present evidence in a visually appealing way that helps to make information more clear. In our personal injury practice, we often use anatomic models. In the hands of an expert, these can be excellent visual aids and teaching tools to help jurors clearly understand the anatomy and injuries involved. The appeal of these models is that they are generally inexpensive, can be reused, and therefore, are cost effective as well. Stock exhibits such as medical diagrams are also effective for the same reasons. Charts can be purchased over the internet or as part of a full library. Several services produce charts of the whole human body and are available for a few hundred dollars. Most word processing programs such as Microsoft Word or Wordperfect can be used to edit these images if they are available on disc or CD rom. This allows some level of customization of your charts.
B. In House Exhibits
In house exhibits can be of high quality and very cost effective. Common word processing software such as Microsoft Word and Wordperfect can be used to make effective exhibits when combined with color and imbedded pictures. Programs such as Powerpoint and Presentations can also be used to add bullet points, arrows and create visual charts which then can be printed on a color printer. These exhibits can be passed to the jury or presented through blowup to a board or shown electronically.
C. Custom Made Exhibits
Custom made exhibits generally look the best and are always the most expensive. In larger cases, we rely to a great extent on custom made exhibit boards. When these exhibits are mounted on gator board and printed out on a high quality large format printer, they are very expensive. However, the cost can be reduced by having an outside consultant prepare the exhibits and provide them electronically. They can then be presented by laptop through one of the presentation mediums. We have found this can save as much as 40% off the price of the custom prepared exhibit. We have also found it cost effective to purchase a few custom made exhibits and to also have the third party vendor prepare our in-house exhibits on professional looking boards in larger cases.
We hope there are a few thoughts or suggestions in this paper and the presentation that you will find useful in your practice. Good luck with your cases.