Inexpensive Demonstrative Evidence
As trial Judge, I was afforded the utmost opportunity to see the dreadful extent of such disabilities in her daily life and in this connection I would be remiss, if I failed to acknowledge the assistance that I received from her counsel in the presentation of the evidence with respect to this in a most imaginative and, I believe, unique way in trials to date in Canada. Arrangements has [sic] been made by counsel to have the technical crew of a local television station in Windsor, attend at the Teno home in August, 1973, and record on video tape with sound track about one-and-a-half hours of Diane’s daily life with her mother and brothers and sister. This evidence was introduced after a proper foundation had been laid as to the technical aspects of the equipment, by use of closed circuit television, with commentary from time to time of doctors who were familiar with the child. I cannot conceive of a more graphic portrayal of what I must try to express in words. I should also mention that all counsel conceded that the evidence was properly admitted. After all, it is only a marked improvement on ordinary motion pictures which have been used at trial for many years.”
Teno et al. v. Arnold et al. [1974], 7 O.R. (2d) 276 at para. 91 (H.C.J.)1
The Honourable Mr. Justice Keith wrote his decision in Teno in 1974, after presiding over a trial in which plaintiffs’ counsel were Earl Cherniak, Q.C. and Martin Wunder, Q.C., both of whom still practice in this area. Coincidentally, one of the defence lawyers at trial was Barry Percival, Q.C. who is still a stalwart of the defence bar. These gentlemen have seen a host of technological advancements in the 35 years since the Teno trial. Fortunately for all of us who work in personal injury law in 2009 the creation of demonstrative aids and evidence for use at trial is no longer as expensive and time consuming at it must have been in the days of Teno.
Demonstrative aids and evidence are effective, persuasive and compelling tools for counsel in jury and judge alone trials. While demonstrative evidence is not new – as the Teno case demonstrates – nonetheless many still take the approach that demonstrative evidence by its nature is expensive, complicated and should only be reserved for the “really big cases”. Quite frankly, this is simply not true. Great advancements in technology has decreased the cost and increased the accessibility and popularity of demonstrative evidence.
Studies have indicated that demonstrative aids can greatly assist members of the jury and the judge in understanding and remembering the case being led by the party. Demonstrative aids can also enhance the excitement in the courtroom and help alleviate boredom. This paper will attempt to demonstrate several types of budget friendly demonstrative evidence that can be used to present even the smallest of cases in a compelling and professional manner.
WHAT IS DEMONSTRATIVE EVIDENCE?
We use the term demonstrative evidence to refer to photographs, charts, maps, medical-legal illustrations, anatomical models, videos, slides, tables, schedules, graphs, animations, story boards, diagrams and anything else used to explain a series of events, a procedure, an injury, or other relevant issue in a case. These demonstrative aids become demonstrative evidence once they have been admitted as exhibits by the trial judge. The trial judge is given a considerable amount of discretion about whether or not to admit demonstrative materials as evidence. The Court of Appeal is unlikely to overturn such a discretionary ruling.
The law of evidence starts with the general proposition that all relevant, or logically probative, evidence is admissible. However a finding that evidence is relevant does not mean that it is automatically admissible.
As long as the proposed evidence is accurate, fair, relevant and does not create unjustified prejudice it should be admissible. The Court will also look at the question of whether the proposed evidence is unduly complex or unnecessarily repetitive of other evidence. The trial judge generally applies a common sense approach to deciding whether a demonstrative aid will be admitted. However it is important to remember that relevant evidence will still be excluded if it runs afoul of a specific exclusionary rule or if the trial judge exercises his or her discretion to exclude it e.g. where the prejudicial effect of the evidence outweighs its probative value.
As mentioned above, the trial judge will not receive into evidence demonstrative material which produces a prejudicial effect which outweighs its probative value. In personal injury law this usually means that demonstrative evidence which graphically depicts physical injury or property damage is objected to on the grounds that it would unduly create sympathy for the injured plaintiff. This objection is rarely successful in the modern era where jurors are routinely exposed to violence in television, video games and other media.2
When putting together demonstrative aids it is important to remember the test for admitting demonstrative evidence in Canada. That test is:
- Provide verification of the accuracy of the demonstrative aid as truly representing what it reports to represent.
- Satisfy the Court that the use of the demonstrative aid is reasonably necessary to help illustrate or explain the evidence of a live witness.
- Satisfy the Court that there is no reasonable prospect of the demonstrative aid creating unfair prejudice to the opposite side.3
Charts
One of the types of the demonstrative evidence that we use frequently is a summary chart. We often provide these charts as a summary of our clients’ prescription history, treatment since the collision, and employment history. These charts are fairly routinely admitted as demonstrative evidence since it is well established in Ontario that a summary chart which is subsequently authenticated by a fact witness is admissible. These charts are relatively inexpensive to pull together, requiring just the time of a clerk to prepare the information and compile them in a chart form. In our experience, these charts are well received and helpful to the trier of fact. For example in Calic v. Ontario, the plaintiff was injured in a motor vehicle collision and later underwent extensive treatment as a result of injuries that he sustained. Mr. Justice Hockin admitted into evidence the summary chart of the plaintiff’s treatment stating “counsel for Mr. Calic usefully summarized the history by tracing Mr. Calic’s five year journey from one specialist to another in documentary form (Exhibit 5).” [The Exhibit referred to is a treatment chronology.]4 It is important to ensure that the chart is completely accurate and that there is no editorialization on the chart. For example some counsel believe that they can simply make a chart containing only the medical appointments which are supportive of their theory of the case. This is not so. In order to be admitted as evidence the document needs to be completely fair and accurate in what it depicts.
Photographs of the client
A relatively cheap and easily attainable, but quite effective, type of demonstrative evidence is photographs. Photographs depicting a client both before and after the collision help to demonstrate the changes that the client has undergone due to their injuries and impairments. This is especially so if they are presented side by side. Photographs have been routinely admitted in personal injury cases since the seminal Supreme Court of Canada decision of Draper v. Jacklyn 5 where the court allowed plaintiff�s counsel to introduce photographs of the plaintiff�s face with two large pins sticking out of it. The pins were used to keep the facial fractures from separating.
Photographs of the collision location
Another type of demonstrative evidence that we frequently use is photographs of the collision location. These photographs can be obtained through the police or else a clerk can attend at the intersection and take photographs at a later date. If one is going the latter route it is preferable that the photographs be taken when the lighting conditions and weather are similar to those that occurred on the date and time that the collision occurred. In addition to photographs taken by the police or a clerk one can always obtain photographs of the intersection of an aerial variety which are available over the internet on websites such as Google Maps. These satellite photos may still be admitted into evidence as long as a fact witness who was at the scene of the collision can attest that the photograph is a reasonable, accurate and fair representation of the intersection as it was on the date of the collision.
Collision damage photographs
Another valuable source of photographs is the collision damage photographs available though your client’s property damage insurer. If there is significant damage to your client’s vehicle the jury or judge will be more likely to understand how such a crash could cause the severe injuries at issue in your action. You may also obtain the collision damage photographs of the defendant’s vehicle by way of undertaking at the examinations for discovery. These photographs are not costly to obtain and can be easily proven by the client on the witness stand.
Blown up documents
In the same vein, another reasonably inexpensive way of obtaining demonstrative evidence is to blow up a key piece of medical evidence. It could be an Ambulance Call Report which shows that your client was unconscious at the scene or a medical report in which a doctor opines that your client’s injuries are catastrophic. These blown up documents can grab the jury’s attention to a potentially important document in the case. As long as the document is prepared to scale it will be very difficult for any defence counsel to keep those enlarged documents out of evidence. Having said, it is important to remember that in all cases, the judge will weigh the probative value of a document against the prejudicial effect it may have, as well as whether the proposed evidence is accurate and whether it would mislead or inflame the jury.
Medical Illustrations
We often retain a medical legal illustrator to prepare illustrations that demonstrate the orthopaedic or other injuries that our clients’ have suffered and the various methods by which the doctors have attempted to repair our clients’ injuries.This type of demonstrative evidence are comparatively expensive, however a similar effect may be achieved by using stock anatomical drawings available on the internet and through text books. Websites such as www.netterimages.com and www.wikipedia.org have numerous anatomical drawings that can be printed and put on an overhead projector. These drawings may not illustrate the particular location where the injury occurred to your client however the orthopaedic surgeon or other expert who testifies at the trial can attest to the accuracy of the drawings and describe for the jury where on that particular part of the body the client was injured. This evidence helps the judge or jury understand the part of the body involved in this case and helps them get a better understanding of the medicine involved as well.
Anatomical Models
In addition, anatomical models of various parts of the body available for purchase from online sources and other retailers.These models are not incredibly expensive and are three dimensional. The three dimensional models accurately depict various parts of the body and again, in my experience, are of great assistance to a lay person in attempting to understand the injuries and resulting impairments at play in a particular case.
Timelines
Another type of demonstrative evidence which can be compiled at little expense is a timeline document. A timeline document is similar to a treatment chart in that it lays out the important events that took place thereby allowing the jury to visually link them and appreciate their significance. This can easily be proven through a fact witness at trial and will often be of great assistance to the trier of fact.
“Day in the Life” Video
Another simple and straight forward type of demonstrative evidence is a “day in the life” video. This can be done by a clerk using a video camera. The video can be edited using relatively inexpensive software on your computer at the office. These “day in the life” videos are useful in cases where people have severe injuries such as spinal cord or brain injuries. The real struggle that the person has to undergo to simply get through the day can be powerful images for the jury. It is important that this video have no sound. There should be no headings, “theme music” or “voiceover” on the video as this is editorialization and is frowned upon by most courts. If the video is done in this manner it would be difficult to object to the video as being prejudicial or somehow not subject to proof at trial. The witness who proves the video must be able to give some indication as to the circumstances under which the film was made and that it is accurate. As long as it is authentic and admissible it can be admitted as an exhibit.
PROCEDURAL ISSUES
All of the demonstrative evidence that you intend to rely upon in the trial of your action must be provided to the opposing parties well in advance of the trial so that they can examine it and determine whether they have any objections to such evidence being put to the jury or judge. One way to avoid having any disputes at trial about these documents is to serve them with a Request to Admit on opposing counsel at least twenty days before the commencement of trial. The Request to Admit asks defence counsel to verify that these documents are accurate and truly represent what they purport to represent. If the opposing counsel admits that these documents are accurate and does not object to them being submitted as evidence it will avoid the necessity of proving the documents through the normal course at trial. If the lawyer whom you work for intends to rely upon these pieces of demonstrative evidence and to use them in his opening statement he or she must obtain leave of the Court before such documents may be referred to. What lawyers say in an opening statement is not evidence and therefore they are not allowed to show things to the jury without getting permission of the Court. As long as counsel undertakes to prove the demonstrative evidence once the trial starts and the document or photograph is admissible and not too prejudicial the Court will allow leave to the counsel to present those pieces of demonstrative evidence to the jury in the opening statement.
It is my hope that this paper has provided you with some ideas and impetus to go out and attempt to use demonstrative evidence on the next case that your office brings to trial. This type of evidence is no longer reserved for the big cases or the lengthy trial and the judiciary is much more prone to admit it than in years past. As John Sopinka said in The Law of Evidence in Canada “the circumstances in which a judge in a civil case would exclude evidence because of its inflammatory nature would be rare. People today because of their exposure to television and motion pictures can be expected to be much less sensitive to graphic displays of injury than the average 19th or early 20th century citizen.” 6 Since demonstrative evidence has become so commonplace in the courtrooms today it is important that counsel and clerks alike view demonstrative aids as an important part of any case and do their best to find ways to include it even if it is done on a tight budget.
- Varied on other grounds: [1976], 11 O.R. (2d) 585 ( C.A.); Court of Appeal decision reversed by [1978] S.C.R. 287 (S.C.C).
- Draper v.Jacklyn (1970),9 D.L.R. 264 (S.C.C.).
- Adair, G. On Trial; Advocacy Skills Law and Practice (Markham: Lexus Nexus Canada Inc, 2004) (2nd edition) at page 29.
- Calic v. Ontario, [1996] O.J. No. 154 at para 19 per Hawkin, J. (Gen. Div.)
- [1970] 9 D.L.R. (3d) 264 (S.C.C.).
- John Sopinka et al., The Law of Evidence in Canada (Toronto: Butterworths, 1999) at pg. 37.
