Preface to the Third Edition
Foreword
About the Author
1 Defining Terms
1-1 The Purpose of Using Evidence
1-2 Drawing Distinctions
Illustrative Case – Abraham Lincoln
1-3 Real Evidence at the Crux of the Matter
1-4 The Special Case of Jury Views
1-5 The Demonstration in Demonstrative Evidence
(a) Maps and Models
(b) Photographs, Films, and Video Tapes
(c) Experiments, Demonstrations, and Reenactments
(d) Diagrams, Drawings, and Graphs
1-6 The Modern Courtroom
1-7 Selecting an Appropriate Exhibit
1-8 Planning the Exhibit
Checklist for Planning a Demonstrative Exhibit
1-9 Foundations
1-10 Strategic Concerns in Demonstrative Evidence
1-11 The Dangers of Over-Production
1-12 Ethical Considerations
Checklist for Persuasive Exhibits
1-13 Stipulations
2 Finding and Preparing the Evidence
2-1 Considering Cost
2-2 Memorializing the Scene
2-3 Protecting Your Equipment and Images
2-4 Preparing Photographic Prints, Presentation Programs, and Videos
2-5 Which Type of Photographic Evidence Is Best?
(a) Digital Video
(b) Slides and Presentation Programs
(c) Print Photos
(d) Taking Photographs and Slides
Tips to Maximize Sharpness
(e) Preparing Charts, Graphs, and Diagrams
2-6 Making a Model
2-7 Considerations of Color and Size
2-8 Preparing Exhibits on a Computer
2-9 Finding Ready-Made Exhibits
2-10 Hiring an Expert to Prepare an Exhibit
Checklist for Hiring Someone to Prepare an Exhibit
2-11 Uncovering Surveillance Materials
(a) Use of Surveillance Materials
Surveillance Video – An Illustrative Case
2-12 Uncovering Computer Evidence
Checklist of Frequently Overlooked Data
3 Real and Demonstrative Evidence Away from Trial
3-1 The Value of Evidence at Every Phase
3-2 Settlement Negotiations
3-3 A Special Note on Mediation
3-4 Discovery
(a) Establishing a Foundation during a Deposition
(b) Particular Discovery Issues
[i] Uncovering Computer Evidence
[ii] Surveillance Materials
Maintaining Equipment – An Illustrative Case
3-5 Motion Practice
(a) Motions in Limine
(b) Offer of Proof
3-6 Preparation of Witnesses
3-7 Protecting the Record
3-8 Appeals and Other Post Judgment Proceedings
4 Use at Trial
4-1 Courtroom Logistics
4-2 The Jury Book
4-3 Materials Presented by the Attorney
(a) Use in Opening Statements
Illustrative Case
(b) Use during the Examination of Witnesses
[i] Direct Examination
[ii] Example of Having an Exhibit Marked for Identification
[iii] Foundation Issues
[iv] Manufacturing an Exhibit to Illustrate Examination
[v] Cross-Examination
Trial Transcript – the Sacco and Vanzetti Case
Trial Transcript – The Rodney King Trial
(c) Use in Closing Arguments
Trial Tactic – Criminal Defense Example
Trial Transcript – An Added Benefit of Use in Closing Argument
Illustrative Cases
(d) Use by the Jury during Deliberations
(e) The Reason for Concern
Illustration
4-4 Jury Views
(a) The Court’s Discretion
(b) Changed Conditions
(c) The Procedure of a View
(d) Tactical Considerations
Illustrative Case
4-5 Countering an Opponent’s Demonstrative Evidence
4-6 Duty to Disclose
5 Foundations
5-1 Foundation Ground Rules
General Foundation Checklist
5-2 Real Evidence
Illustrative Case – Chain of Custody
5-3 Substantial Similarity
Example of Foundation Testimony
5-4 Foundations for Demonstrative Evidence
Illustrative Cases
5-5 Demonstrations, Reenactments, and Experiments
5-6 The Balancing of Probative Value and Prejudicial Impact
Illustrative Cases
6 Objections
6-1 Objections – A Double-edged Sword
Checklist of Common Objections
(a) Timing of an Objection
(b) Tactical Checklists
6-2 Planning in Advance for Objections
6-3 Adopting Your Opponent’s Exhibit
6-4 Probative Value and Prejudicial Impact
6-5 Prejudice in the Exhibition
Illustrative Cases
6-6 Stipulations
Illustrative Cases
6-7 Not Substantially Similar/Changed Circumstances
6-8 Cumulative
Illustrative Case
6-9 Foundation Problems
6-10 Relevancy and Materiality
6-11 Hearsay
6-12 Best Evidence
6-13 Unfair Surprise
6-14 Other Objections
7 Handling the Exhibit in the Courtroom
7-1 Marking the Exhibit
7-2 Show the Exhibit to Opposing Counsel
7-3 Show the Exhibit to the Witness
7-4 Lay the Foundation for the Exhibit
7-5 Offer the Exhibit into Evidence
7-6 Publish the Exhibit
7-7 Exhibits Designed to Illustrate the Testimony of Witnesses
7-8 iPads and Other Tablets
8 Real Evidence at Trial
8-1 Introduction
8-2 Foundations
8-3 People as Real Evidence
8-4 Body Parts
8-5 Animals
Example of Foundation for Real Evidence
8-6 An Alternative Foundation
8-7 Use at Trial
8-8 An Unethical Use?
9 Photographic Evidence
9-1 The Question in the Capture
9-2 Substantive and Illustrative Photographs
(a) Illustrative Photographs
(b) Substantive Photographs
Illustrative Case
(c) Different Uses of Substantive and Illustrative Photographs
9-3 Foundations
Trial Tips
Foundation Checklist for Photographic Evidence
(a) Who Should Lay the Foundation
(b) When No One Sees the Picture Being Taken
Transcript Example – The Chappaquiddick Inquest
9-4 Prejudicial Impact versus Probative Value
9-5 Film Illustrating Testimony
(a) Injuries
Trial Transcript
(b) Photographs of Dead Bodies
Illustrative Case
(c) Changed Conditions
[i] Lighting Conditions
(d) Distortions
(e) Considerations of Color
9-6 Special Photographs
(a) Aerial Photographs
Checklist for Aerial Photographs
(b) Retouched Photographs
(c) Posed Photographs
(d) Enlarged Photographs
(e) Three-Dimensional Photographs
9-7 Objections
(a) Color and Brightness Problems
(b) Exaggeration and Minimization
(c) Close-ups, Omissions, and Over-inclusiveness
(d) Backward Prints and Optical Illusions
9-8 Jury Considerations
9-9 X-Rays, Sonograms, and Other Matters Not Visible to the Naked Eye
(a) Presenting X-Ray Evidence in Court
(b) Prejudice in the Exhibition?
(c) Foundations
(d) Reports on X-Rays
Example of Laying a Foundation for X-Ray Evidence
Foundation Checklist for X-Ray Evidence
(a) Potential Problems with X-Ray Evidence
(b) Other Matters Not Visible to the Naked Eye
9-10 Videos and Film
(a) Video versus Film
(b) Cost Considerations
(c) Foundations
Foundation Checklist for Video Evidence
Trial Transcript – Video Exhibit
(d) Computer Production
(e) Recorded Views, Experiments, and Demonstrations
(f) Video Summaries
(g) Use at Trial
(h) The Written Log
(i) Day-in-the-Life Films and Videos
Illustrative Case
[i] Preparation of a Day-in-the-Life Video or Film
“Day-in-the-Life” Checklist
[ii] Admissibility
[iii] Objections
[iv] Undue Prejudice
[v] Discoverability and Participation in the Preparation
[vi] Assessing Potential Prejudice during Voir Dire
9-9 Victim Impact Films
(a) Surveillance Films of Plaintiffs
Illustrative Case
(b) Discoverability of Surveillance Films
9-10 Recorded Depositions
9-11 Common Video Objections
9-12 Motion Pictures
(a) Foundation
(b) Objections
(c ) Use at Trial
9-13 Display Software
Checklist for Display Slideshows
9-14 Slides
9-15 Overhead Projections
9-16 Video Imagers, and Digital Display Systems
10 Audio Recordings
10-1 Sound – The Telling Sense
10-2 Foundational Requirements
Illustrative Case
10-3 Voice Identification
10-4 Example of a Foundation for a Sound Recording
10-5 Handling Unintelligible or Foreign Language Recordings
10-6 “911” Recordings and Transcripts
10-7 Using Recordings at Trial
10-8 Charming the Beast
10-9 Anticipating Objections
10-10 Preparing Transcripts
Illustrative Case
10-11 Transcript Foundations
11 Diagrams, Drawings, Maps, Charts and Graphs
11-1 The Graphic Explanation: Why Less Is More
11-2 Maximizing Visibility of Exhibits
11-3 Diagrams: Important Considerations
(a) Diagram Foundation: Four Requirements
(b) Scale Diagrams
Trial Transcript
(c) Diagrams Not Drawn to Scale
Example of a Foundation for a Diagram
Foundation Checklist for Diagrams
(d) Use of Diagrams at Trial
Example of Working with a Witness
(e) Objections to Diagrams
11-4 Drawings
(a) Foundation for Drawings: More Difficult to Establish
Example of Offering a Drawing into Evidence
(b) In-Court Drawings and Diagrams
Example of a Foundation for a Witness to Prepare a Diagram
(c) Objections to Drawings
11-5 Maps
(a) Map Foundation: Accuracy a Must
(b) Objections to Maps
11-6 Charts and Graphs
(a) Selecting the Right Type of Graph
(b) Line Charts
(c) Bar Charts and Graphs
(d) Pie Charts
(e) Timelines
(f) Overlay Charts
(g) Tables
(h) Boards
(i) Summaries
11-7 Displaying the Exhibit
12 Models
12-1 The Benefit of Using a Model
12-2 Should You Use One?
12-3 Preparation of the Model
12-4 Constructing the Model
12-5 Hiring a Model Maker
12-6 Decisions as to Scale
12-7 Models Not Built to Scale
12-8 Foundations
12-9 Foundation for a Full-Size, Stock Model
Example of a Foundation for a Full-Size Model
12-10 Foundation for Scale Models
Example of a Foundation for a Scale Model
12-11 Foundation for Models Not Built to Scale
Example of a Foundation for a Model Not to Scale
Foundation Checklist for Models
12-12 Use of Models at Trial
12-13 Special Considerations: Care and Use
12-14 Attorney Work Product and Discovery
12-15 Using a Model as Part of a Demonstration
12-16 Objections
Objection Checklist
13 Reenactments, Demonstrations, and Experiments
13-1 The Proof of the Pudding [Is in the Eating]
Illustrative Cases
13-2 Who Should Present the Demonstration?
Trial Transcript
13-3 Planning for the Presentation
13-4 Countering a Difficult Demonstration
13-5 Filmed Experiments and Reenactments
Illustrative Case
13-6 Problems with Recorded Reenactments
Illustrative Cases
13-7 In-Court Reenactments
Illustrative Cases
13-8 Foundation
Illustrative Cases
Trial Tip
Transcript: Laying the Foundation for an In-Court Demonstration (with objections)
13-9 Demonstrations as Opposed to Recreations
13-10 Virtual Reenactments and Demonstrations
13-11 Experiments
Illustrative Case
13-12 Filmed or Recorded Out-of-Court Experiments
Illustrative Case
13-13 Use of a Model for an Experiment/Demonstration
13-14 Destructive Testing
Illustrative Case
13-15 When It Goes Wrong
14 Animations and Other Computer-based Evidence
14-1 Cyber-evidence
14-2 Costs
14-3 Doing Your Own Computer Work
14-4 Inputting the Data
14-5 Computer Printouts
(a) Printout Foundations
Checklist for Admissibility of Computer Printout Evidence
(b) Presenting Printout Evidence to the Jury
Example of an Expert’s Testimony on Printout Evidence
14-6 Computer Graphics
14-7 Animation
Illustrative Cases
14-8 Taking Animation a Step Further
Illustrative Case
14-9 Simulations versus Reconstructions
14-10 Computer Enhancements
Illustrative Case
14-11 Preparing a Computer Animation
14-12 Disclosure to Opposing Counsel
14-13 Questions of Complexity
14-14 Photorealistic Graphics
Illustrative Case
14-15 Animation Foundation
Checklist for Admissibility of Computer-Generated Evidence
14-16 Special Concerns in Criminal Cases
Illustrative Case
Checklist for Computer Animations
14-17 The Presentation
14-18 Prejudice versus Probative Value
14-19 Working with an Expert Witness
14-20 Tactical Considerations
14-21 iPads and Other Tablets
14-22 Discovery and Confidentiality Concerns
14-23 E-discovery Overview
14-24 Cloud Storage
14-25 Presenting the Computer Graphic to the Jury
(a) Physical Setup
14-26 Objections to Computer Evidence
14-27 Computer Evidence as Hearsay
14-28 Purchasing Hardware
14-29 Purchasing Software
Checklist for Buying Software
14-30 The Possible Impact on Other Exhibits
15 Documents
15-1 Avoiding the Paper Chase
15-2 Organization
(a) Using a Computer for Organization
Illustrative Case
15-3 Foundations
(a) Signature
[i] Having the Witness Verify His or Her Signature
[ii] Testimony of a Witness Who Observed the Document’s Execution
Witness Who Observed the Document’s Execution Foundation Checklist
[iii] Testimony of a Witness Familiar with the Author’s Handwriting
Witness Familiar with the Author’s Handwriting Foundation Checklist
Trial Transcript – the Timothy McVeigh Case
[iv] Handwriting Experts Used to Identify a Signature
[v] Having the Jury Compare Signatures
(b) Document under Seal
(c) The Reply Letter Doctrine
Reply Letter Doctrine Foundation Checklist
(d) The Hearsay Objection
15-4 Displaying Your Documents to the Jury
(a) Copies
(b) Enlargements
(c) Multimedia Projectors
(d) Overhead Projections
(e) iPads and Other Tablets
15-5 Use by the Jury during Deliberations
15-6 Summaries
Illustrative Case
Checklist for Using Summaries
Example of Foundation Testimony for a Summary
(a) Objections to Summaries
15-7 Duplicates and the Best Evidence Rule
Best Evidence Issues Checklist
(a) Laboratory Reports
Illustrative Case
(b) Microfilm
(c) Tactical Considerations When Using Microfilm
15-8 Deposition Transcripts
15-9 Admission of Statements by a Party-Opponent
15-10 Written Confessions in Criminal Cases
15-11 Books and Texts
15-12 Pleadings
16 New Scientific Evidence
16-1 Scientific Techniques in Court
16-2 The Traditional Standard – Frye
Illustrative Case
16-3 The Federal Rules
16-4 Non-Scientific Expert Testimony
16-5 What Your Expert Must Know
16-6 A Mixed Rule?
16-7 The Relationship between Frye and the Federal Rules
Illustrative Case
16-8 Scheduling the Daubert Process Checklist
17 Working with Expert Witnesses
17-1 Reasons for Using an Expert
17-2 Hiring an Expert
17-3 Reviewing Credentials
17-4 Law the Expert Must Know
17-5 Planning the Expert’s Testimony
17-6 Foundation – The Expert’s Qualifications
Trial Transcript – The Wayne Williams Trial
17-7 Opposing the Foundation
Trial Transcript from the Lindbergh Kidnapping Trial
17-8 Designing an Exhibit
17-9 Working with the Expert in Court –Tactical Considerations
Trial Tactic: Suppress the Word “Expert”
17-10 Reliance of the Expert on an Inadmissible Exhibit
17-11 Discovery Concerns
Checklist for Expert Deposition
18 Remote Sensing and Satellite Imaging
18-1 A Brave New World
18-2 Understanding the Process
18-3 Preparation of the Exhibit
18-4 Processing Satellite Data
(a) Not “True” Photographs
(b) Data Subject to Alteration
18-5 Foundation
18-6 Anticipating Objections
18-7 Special Concerns
(a) Security and Admissibility
(b) Fraudulent Images
18-8 Still a Means of Getting at the Truth
Timing, Modeling, and Plumes
Illustrative Cases
18-9 Persuading the Jury
Example of Foundation Testimony
18-10 Tapping a Rich Evidentiary Resource
Appendix A Selected Bibliography
Appendix B The Federal Rules of Evidence
Appendix C Examples of Real and Demonstrative Evidence
Table of Cases
Index
