7. Real Evidence

Author:David M. Paciocco - Lee Stuesser
Profession:Justice of the Ontario Court of Justice - Professor of Law, Bond University

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7. 1) General Principles

Real evidence refers to tangible items exhibited to the judge or jury. This evidence may be directly linked to the occurrence (such as "the murder weapon") or may be "demonstrative evidence," which

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refers to aids used to help witnesses better illustrate or explain their evidence. The evidence is admissible provided it is properly authenticated. The trial judge must be satisfied that there is a sufficient basis to support the identification of the exhibit, its continuity, and its integrity.

Real evidence may also be excluded where its potential to arouse undue prejudice outweighs its probative value.

Our trial system is based on an oral tradition. Most evidence is introduced through the testimony of witnesses, which means that the evidence is received secondhand in that the trier of fact must rely upon the testimonial capacity and sincerity of the witnesses. By contrast, "real" evidence is received firsthand - it is direct - as the triers of fact rely on their own senses to draw conclusions. Observing the demeanour of witnesses is an informal type of real or direct evidence. In other situations, the real evidence is formally placed before the court. One form of real evidence involves "original" things that allegedly played a part in the action now before the court, and it is to this evidence that the phrase "real evidence" usually is applied. For example, in a murder case, the jury is shown the alleged murder weapon, the torn clothes of the victim, a bloody glove found near the body, and numerous photographs of the scene. A second type of real evidence, usually called "demonstrative evidence," involves the use of visual aids to illustrate or explain. This evidence is used to assist a witness in the giving of testimony. In our murder case, a map may be introduced that will help the witnesses explain, and the judge or jury understand, the location of various sites referred to in testimony. An expert called may use a chart or diagram to explain blood typing or DNA matching. Another expert may use an anatomical model to explain the wounds suffered by the victim. The expert may then go on to demonstrate how, in her opinion, the victim was killed. As can be seen, demonstrative evidence is a testimonial aid and is not original evidence of what occurred. For this reason the common question asked of the witness before admitting this evidence is: "Would that diagram (map, chart, graph, model) help you in explaining your testimony to the jury?" Or, "Would that diagram (map, chart, graph, model) aid the jury in understanding your testimony?"

Real evidence, as with any evidence, must be relevant and otherwise admissible. The relevance of real evidence is inextricably linked to its authenticity. For example, in our murder case, the introduction into evidence of the bloody glove, which connects the accused to the murder, will have relevance only if it is indeed the same glove taken from the murder scene. Forensic tests may also be conducted on the

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glove, and the validity of these tests rests on preserving the integrity of the exhibit - showing that the exhibit has not been tampered with or otherwise contaminated. The obligation is on the Crown to provide a sufficient foundation for the reception of the glove into evidence. The Crown must establish the "continuity" of the exhibit in that the exhibit is accounted for from pick-up at the scene to presentation in court. The police officer, who found the glove at the scene, the detective, who then took possession of the glove, and the identification officer, who ultimately assumed the care and custody of the glove, will all have to be called. The calling of these witnesses may be dispensed with where opposing counsel concedes the authenticity or continuity of the evidence. The trial judge rules on the admissibility of the exhibit. The threshold of proof is not high. The trial judge must be satisfied that there is evidence to support the conclusion that the item of real evidence is what the party claims. Once admitted, the trier of fact makes the final determination as to authenticity and determines what weight to attach to the evidence.

The second concern is with undue prejudice. Visual, tangible evidence has powerful impact. The trial judge, as a matter of discretion, may exclude the real evidence if its prejudicial effects outweigh its probative value. The prejudice may relate to inflaming emotional passions or to the potential for misleading the trier of fact. In our murder case, the judge may exclude autopsy photographs of the victim if the photographs are particularly gruesome and of minimal probative value. For example, there may be no issue as to the cause of death; the only issue is identification, about which the autopsy photographs have no value. Compare this to R. v. Muchikekwanape, where the Manitoba Court of Appeal upheld the admissibility of a particularly graphic photograph of the deceased in a first degree murder case.186The Crown theory was that the accused had beaten the victim to death and then had thrown her body into a nearby river. The defence theory was that the deceased, who was very intoxicated, had fallen down the river embankment. A "terrible" photograph of the deceased’s face, taken at the autopsy, was admitted into evidence for the purpose of showing the extent of the dislocation of the bones in her face. The photograph had specific probative value and was relied upon by the respective experts who gave contrasting opinions on the cause of death. In these circumstances, the trial judge identified the proper purpose for admitting the photograph and also warned the jury against its improper use.

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7. 2) Views

Should it be impractical to bring the evidence to the court, the court may go to the evidence by way of a view. The trial judge has the discretion whether or not to undertake a view.187The value in conducting a view must be weighed against the inconvenience and disruption necessitated in essentially moving the court participants to the site.

Preserving a record as to what occurs and what is said during the course of a view is a concern. Sometimes attempts are made to conduct views without commentary. This is impractical in most instances. Some explanation will almost inevitably be required. Therefore, a recommended practice is to have a court reporter present to record any commentary and which also allows for the parties and the judge to put on the record what is occurring. The view record could also be preserved through videotaping.188One issue that arises is the purpose of a view. The Ontario Court of Appeal in Chambers v. Murphy said that it was "well settled and beyond all controversy that the purpose of a view by a Judge or jury of any place is ‘in order to understand better the evidence.’"189Murphy involved an automobile accident that occurred at the intersection of two highways. The defendant had testified that his vision was obstructed. There was no evidence to the contrary. The judge and counsel viewed the scene and, based on his own observations, the judge rejected the defendant’s claim that his vision was blocked. The Court of Appeal said the rejection was "unwarranted" in that the judge was effectively relying on his own evidence. The Manitoba Court of Appeal in Meyers v. Manitoba rejected this limitation.190The court concluded that the observations of the trier of fact made during a view were evidence. The court quoted from Lord Denning in Buckingham v. Daily News Ltd., where he said:

Everyday practice in these courts shows that, where the matter for decision is one of ordinary common sense, the judge of fact is en-

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titled to form his own judgment on the real evidence of a view, just as much as on the oral evidence of witnesses.191Mr. Justice Schultz in the Manitoba Court of Appeal then went on to state a far broader proposition, which would apply to all real or demonstrative evidence:

I think it is a matter of everyday practice in our Courts that scale models, or similar objects, are tendered and accepted as real evidence. Such evidence may offer stronger and more convincing proof of the fact claimed than the oral evidence of witnesses. The Judge who views them in the court room is in no different position there than when, with all the necessary safeguards and conditions met, he views them outside the court room.192This statement of the law as it applies to views or other real evidence is sound. It is illogical to ask judges or jurors to ignore what they have observed.193

7. 3) Photographs and Videotapes

The admissibility of photographs or videotapes depends upon (1) their accuracy in truly representing the facts; (2) their fairness and absence of any intention to mislead; and (3) their verification on oath by a person capable of doing so.194The person verifying the authenticity of the photographs or videotapes need not be the photographer. An eyewitness of the scene or events may confirm that the photograph or videotape is a fair and accurate reproduction. This is true even if the photograph of the scene is taken well after the events, as long as a witness testifies that it is a fair and accurate reproduction of the scene as it looked at the time of the incident.

A good case to illustrate the concerns about accuracy and fairness is R. v. Maloney (No. 2).195In a National Hockey League game, Maloney, who played for the Detroit Red Wings, got involved in a fight with a Toronto Maple Leaf player. During the course of the fight, Maloney repeatedly smashed the Toronto player’s head into the ice. Maloney was charged with assault causing bodily harm. The Crown sought to intro-

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duce videotapes taken of the game. Certain of the videotapes were out of sequence or in slow-motion and the...

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