Real and Demonstrative Evidence Big Difference – Requires a Testimonial Basis to be Admitted

Real Evidence “…that evidence which may be directly inspected by the Court…” e.g. physical objects “..phenomena which can convey a relevant firsthand sense impression to the trier of fact, as opposed to those which serve merely to report the secondhand sense impressions of others…”

Requirement for Admissibility: Authentication Authentication? Some evidence, normally viva voce, that the item is what it purports to be – in other words, drawing the relevance of the physical item to the facts in issue before the Court.

General Rule (subject to exception)  Real evidence must be introduced through a witness who can connect the evidence, through his personal knowledge, with some relevant issue.  The trier of law determines whether there is sufficient (some) evidence for the item to go to the trier of fact.  The trier of fact determines ultimate authenticity, and what weight, if any to give the item in considering all of the evidence.

In other words …  The TOL (gatekeeper) may find some evidence that the item is what it purports to be and therefore admit it into evidence.  The TOF (decision maker) may decide it is not what it purports to be and give it no weight.

Best Evidence Rule  Does not prevent admissibility of an item of real evidence, but may go to weight.  E.g. copies, handdrawings, maps but not satellite maps

How does a piece of real evidence become an exhibit?  By application of the proponent to the trier of law.  The trier of law looks to the opponent for any objection (note that lack of objection only goes to your concession as to admissibility, not that you accept the piece of evidence as true).  Having heard the evidence of the authenticating witness, and having had the item proferred as an exhibit, and having listened to the objections (or not) of counsel, the trier of law makes a ruling directing the item to become an exhibit or to be excluded.

Exhibits – Numerical v. Alphabetical  An exhibit which is authenticated, and ruled admissible, is marked as the next NUMERICAL exhibit, regardless of who the party who proffered it was. ie. Exhibit 1, 2, 3 and so on  An exhibit which is referred to, but is not admitted to evidence for the review of the trier of fact, becomes an ALPHABETICAL exhibit. An Exhibit for Identification. ie. Exhibit A for identification.

Exhibits for Identification  If an exhibit for identification is later identified by an authenticating witness, the proffering party should move to have Exhibit A become the next numbered Exhibit.  Practice Point: show it to more than one witness to find an authenticator.  Practice Point: remember habit/standard practice is available.

Practice Point  In the absence of statutory changes to the common law, if you have an exhibit to get in, always have an identifying witness present. They are able to recognize the item as the item, and draw its relevance to the trier of fact.

Note  An authenticating witness need not always be someone who saw the facts in issue occur, they may, for example, identify the handwriting and signature on the letter, and authenticate it that way, even if they did not witness the production of the letter itself.  Sometimes they are the “recordkeeper” and are able to authenticate for that reason.  Sometimes they recognize a photo or a map of the area at issue, even if they did not witness the event at issue.

Special Rules for Special Items  Photos (a) Require an authenticating witness: photographer, one who recognizes what is depicted, party-witness etc.; they are not admissible unto themselves (b) Must be a “true and accurate depiction of what it purports to depict”

Discussion  Phrases such as “must fairly portray the scene without intention to mislead”, is just another way of saying its probative value must exceed its prejudice  Where photos of a victim are not relevant to any (fact in) issue and the effect of them is inflammatory, they can be excluded under the third prong of the test

Discussion “Exception” a photo need not be verified by a witness where the photograph is tendered, not to prove the contents as a fact, but to establish guilty intent or identity by proving possession of the photo itself. This is true because the fact in issue is different in the two situations.

Discussion  “A document is considered real evidence where it is tendered as original evidence or as part of the res gestae.”  Discussion: admissibility is often determined by the purpose of the evidence.  If the proof of the truth of the contents is the purpose of the evidence, documentary/hearsay rules apply (e.g. photo of a contract, where terms are fact in issue).  If there is evidential value merely in, for example, possession of the item with the printed content, then all that is required is authentication (ie. alleged bank robber’s possession of map of financial institution).

In other words …  If the fact-in-issue is the physical layout of the financial institution, then the plans have to be properly authenticated by a person in a position to know they are accurate. They are then in as evidence for the Proof of the Truth of Their Contents (POTOC).  If the fact-in-issue is the intent of someone caught in the ducting after hours, then certainly his mere possession of the plans of the building (whether accurate or not) are probative without proof of accuracy. The authenticating witness then is the person who found the plans on the person of the alleged robber.

Videotapes/Digital Recordings  Must be accurate and fair through eyewitness testimony or technical evidence concerning the method and manner of obtaining the videotaped evidence.  In other words, an authenticating witness is either one who can comment on the fairness of the video in relation to what happened, or is a witness describing the process by which the tape came about.

Non-Monitored Camera  Someone to describe the system, process of recording and extraction, and identify the results.

Normal Speed?  Remember that the manner of recording may satisfy concerns over accurate depiction, but the manner of playing may raise them again.  In other words, whether the editing occurs outside or in the courtroom, said editing may call into question the fairness and accuracy of the depiction.

 As the opponent, insist on two things: (a) That the original tape is at least present in the court (and marked), if not the one that’s actually played. (b) And, depending on the fact in issue, insist that it be played at normal speed. This is especially true if actual time and perception are at issue, as opposed to identity.

e.g. Nikolovski  Once admitted, such tapes can speak for themselves, ie. as to identity.  General proposition, once admitted, a piece of real evidence speaks for itself, and it is open for a trier of fact to make their own observations thereon, even ones not drawn by counsel through a witness.

Practice Point  When referring a witness to a marked exhibit, make your reference clear on the record. “I am referring you to Exhibit 1…”

Tape Recordings/Telephone Calls  Simply require authentication, someone to identify the tape and some evidence of who the voices are

Transcripts  Transcripts can be entered through a witness who has checked their accuracy against the recording, again though, in the absence of agreement with counsel, the original tape must go in.  The transcript is seen as an “aide”, the best evidence being the original recording itself.

Real Evidence  All admissible exhibits go to the jury room to be used in deliberation.  A trier of law has the discretion to keep certain items from them, such as audiotapes, out of concern for undue emphasis or manipulation in the jury room.  The TOF will have access, it just may be supervised by the TOL in open Court.

Charts, Graphs, Summaries  Require an authenticating witness as a general rule.  Require a factual/testimonial foundation.  May require the preparing/authenticating witness to be an expert.

Factual Foundation  A forensic accountant who brings a summary of the monies embezzled by the Defendant to Court, must: (a) Be qualified as an expert; (b) The proponent must enter the foundational documents/evidence (there is no “opinion” without foundation – this is an issue of admissibility not weight); (c) The witness then describes his methodology, and is then asked to identify/authenticate the “summary” “chart” or “graph” he has brought to represent his testimony or manipulation of the numbers.

Views – Jury and Non-Jury Trials  S. 652 CCode  Rule 252/253 AROC  Judge’s discretion. This is not a tour with a running commentary. The trier of fact is taken to the location, walks around, makes notes, and makes of it whatever the trier of fact wants.  Counsel are present, as are parties, as is court clerk. This is not the trier of fact out on its own.  The parties are present to ensure and comment on the fairness of the view.

 In asking for a view, you must essentially show as the proponent what could be gained by such an exercise.  In general, our system relies on oral explanations of places and things, assisted sometimes by real evidence.  Normally, we do not take the trier of fact to see the real evidence unless something more could be gained than from testimony with the aid of exhibits. The trier of law is looking for the probative value in the exercise.  A view will only be ordered where no other means can elucidate the facts as well.  Evidence is generally not given at a view. If it was, it would be on the record, under oath, subject to cross, and in the presence of the parties.

Re-Enactments, Experiments and Demonstrations  “Demonstrative evidence” has no evidential value in itself, its evidential value comes from the underlying factual foundation. Where allowed, it is nothing more than a demonstration of what already exists in the evidence.  To be allowed, it must be found to “assist the trier of fact” and be necessary for that purpose

General Rule  Where what is demonstrated could easily be described orally, then that is likely what will be ordered.  Don’t have your witness demonstrate, have them describe. If a demonstration is still necessary after a description, ask for leave of the Court, and then describe what is being demonstrated.

Experiments  Should not be allowed in the jury room.  Same rule, describe the experiment, do not, in general, have it re-created in the courtroom.

Re-Enactments  Re-enactments by counsel rarely allowed, little probative value.  Counsel essentially giving evidence, and final argument is not a time for the giving of evidence.

R. v. Watson (1996) 108 CCC(3d) 310 (Ont. C.A.)  Generally, in-court demonstrations will only be permitted in rare circumstances. They can create problems. It is best left to the trier of law to determine whether the potential gain from the re-enactment is worth the risk inherent in it.  Risks: potential to mislead, delayed proceedings, hard to keep appellate record.

Computer Reconstruction  Would follow the same rules.