The Uses and Abuses of Demonstrative Evidence

• Author: Geoffrey D.E. Adair, Q.C.
• Pages: 365-377

The

Uses

and

Abuses

of

Demonstrative Evidence

Geoffrey

D.E.

Adair,

Q.C.*

A.

INTRODUCTION

Perhaps

the

most remarkable change

in the

litigation process over

the

past decade

has

been

the

blossoming courtroom

use of

visual material

to aid in

proof

of the

case.

It

seems that hardly

a day

goes

by

without

illustrations,

charts,

models, photographs, movies,

and the

like being

pressed

upon

a

judge

or

jury

for one

purpose

or

another.

The

presence

of

what

is

loosely

referred

to as

"demonstrative evidence"

is on the

rise.

Few

topics

in

modern advocacy

are as

widely promoted

and

poor-

ly

understood

as

so-called demonstrative evidence.

Trial

demonstra-

tions, lectures

on

trial skills,

and

books

on

advocacy urge

the use of

demonstrative evidence,

yet

they

often

fail

to

draw

the

necessary dis-

tinction between real evidence

and

demonstrative aids

or to

appreciate

the

full

range

of

issues

the

introduction

of

such evidence creates. Time

after

time counsel introducing

a

model prepared

by an

expert,

for

exam-

ple,

attempts

to

tender

it as

evidence

when

it is

really

nothing

of the

sort,

as it has

illustrative value only. Opposing counsel

has the

impres-

sion that

the

evidence

is

prejudicial

to his

client

but is

unclear regarding

precisely what

the

real nature

of the

objection

to the

model ought

to be.

The

trial judge looking

for

guidance

in the

case

law is met

with vaguely

worded tests

of

admissibility

and

conflicting

results that

often

seem

to

turn

on how

long

ago the

case

was

decided.

*

Of

Adair Morse LLP.

365