Real and Real and Demonstrative Demonstrative

EvidenceEvidence

Big Difference – Requires a Big Difference – Requires a Testimonial Basis to be Testimonial Basis to be

AdmittedAdmitted

Real EvidenceReal Evidence

“…“…that evidence which may be directly that evidence which may be directly inspected by the Court…” e.g. physical inspected by the Court…” e.g. physical objectsobjects

““..phenomena which can convey a relevant ..phenomena which can convey a relevant firsthand sense impression to the trier of firsthand sense impression to the trier of fact, as opposed to those which serve fact, as opposed to those which serve merely to report the secondhand sense merely to report the secondhand sense impressions of others…”impressions of others…”

Requirement for Admissibility: Requirement for Admissibility: AuthenticationAuthentication

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

General Rule (subject to exception)General Rule (subject to exception)

Real evidence must be introduced through Real evidence must be introduced through a witness who can connect the evidence, a witness who can connect the evidence, through his personal knowledge, with through his personal knowledge, with some relevant issue.some relevant issue.

The trier of law determines whether there The trier of law determines whether there is sufficient (some) evidence for the item is sufficient (some) evidence for the item to go to the trier of fact.to go to the trier of fact.

The trier of fact determines ultimate The trier of fact determines ultimate authenticity, and what weight, if any to authenticity, and what weight, if any to give the item in considering all of the give the item in considering all of the evidence.evidence.

In other words …In other words …

The TOL (gatekeeper) may find some The TOL (gatekeeper) may find some evidence that the item is what it evidence that the item is what it purports to be and therefore admit it purports to be and therefore admit it into evidence.into evidence.

The TOF (decision maker) may The TOF (decision maker) may decide it is not what it purports to be decide it is not what it purports to be and give it no weight.and give it no weight.

Best Evidence RuleBest Evidence Rule

Does not prevent admissibility of an Does not prevent admissibility of an item of real evidence, but may go to item of real evidence, but may go to weight.weight.

E.g. copies, handdrawings, maps but E.g. copies, handdrawings, maps but not satellite mapsnot satellite maps

How does a piece of real evidence How does a piece of real evidence become an exhibit?become an exhibit?

By application of the proponent to the trier By application of the proponent to the trier of law.of law.

The trier of law looks to the opponent for any The trier of law looks to the opponent for any objection (note that lack of objection only objection (note that lack of objection only goes to your concession as to admissibility, goes to your concession as to admissibility, not that you accept the piece of evidence as not that you accept the piece of evidence as true).true).

Having heard the evidence of the Having heard the evidence of the authenticating witness, and having had the authenticating witness, and having had the item proferred as an exhibit, and having item proferred as an exhibit, and having listened to the objections (or not) of counsel, listened to the objections (or not) of counsel, the trier of law makes a ruling directing the the trier of law makes a ruling directing the item to become an exhibit or to be excluded.item to become an exhibit or to be excluded.

Exhibits – Numerical v. Exhibits – Numerical v. AlphabeticalAlphabetical

An exhibit which is authenticated, and An exhibit which is authenticated, and ruled admissible, is marked as the next ruled admissible, is marked as the next NUMERICAL exhibit, regardless of who the NUMERICAL exhibit, regardless of who the party who proffered it was.party who proffered it was.

ie. Exhibit 1, 2, 3 and so onie. Exhibit 1, 2, 3 and so on An exhibit which is referred to, but is not An exhibit which is referred to, but is not

admitted to evidence for the review of the admitted to evidence for the review of the trier of fact, becomes an ALPHABETICAL trier of fact, becomes an ALPHABETICAL exhibit. An Exhibit for Identification.exhibit. An Exhibit for Identification.

ie. Exhibit A for identification.ie. Exhibit A for identification.

Exhibits for IdentificationExhibits for Identification

If an exhibit for identification is later If an exhibit for identification is later identified by an authenticating identified by an authenticating witness, the proffering party should witness, the proffering party should move to have Exhibit A become the move to have Exhibit A become the next numbered Exhibit.next numbered Exhibit.

Practice Point: show it to more than Practice Point: show it to more than one witness to find an authenticator.one witness to find an authenticator.

Practice Point: remember Practice Point: remember habit/standard practice is available.habit/standard practice is available.

Practice PointPractice Point

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

NoteNote

An authenticating witness need not always An authenticating witness need not always be someone who saw the facts in issue be someone who saw the facts in issue occur, they may, for example, identify the occur, they may, for example, identify the handwriting and signature on the letter, and handwriting and signature on the letter, and authenticate it that way, even if they did not authenticate it that way, even if they did not witness the production of the letter itself.witness the production of the letter itself.

Sometimes they are the “recordkeeper” and Sometimes they are the “recordkeeper” and are able to authenticate for that reason.are able to authenticate for that reason.

Sometimes they recognize a photo or a map Sometimes they recognize a photo or a map of the area at issue, even if they did not of the area at issue, even if they did not witness the event at issue.witness the event at issue.

Special Rules for Special ItemsSpecial Rules for Special Items

PhotosPhotos

(a)(a) Require an authenticating witness: Require an authenticating witness: photographer, one who recognizes photographer, one who recognizes what is depicted, party-witness etc.; what is depicted, party-witness etc.; they are not admissible unto they are not admissible unto themselvesthemselves

(b)(b) Must be a “true and accurate Must be a “true and accurate depiction of what it purports to depiction of what it purports to depict”depict”

DiscussionDiscussion

Phrases such as “must fairly portray the Phrases such as “must fairly portray the scene without intention to mislead”, is scene without intention to mislead”, is just another way of saying its probative just another way of saying its probative value must exceed its prejudicevalue must exceed its prejudice

Where photos of a victim are not Where photos of a victim are not relevant to any (fact in) issue and the relevant to any (fact in) issue and the effect of them is inflammatory, they can effect of them is inflammatory, they can be excluded under the third prong of the be excluded under the third prong of the testtest

DiscussionDiscussion

““Exception” a photo need not be Exception” a photo need not be verified by a witness where the verified by a witness where the photograph is tendered, not to prove photograph is tendered, not to prove the contents as a fact, but to establish the contents as a fact, but to establish guilty intent or identity by proving guilty intent or identity by proving possession of the photo itself.possession of the photo itself.

This is true because the fact in issue is This is true because the fact in issue is different in the two situations.different in the two situations.

DiscussionDiscussion ““A document is considered real evidence where A document is considered real evidence where

it is tendered as original evidence or as part of it is tendered as original evidence or as part of the res gestae.”the res gestae.”

Discussion: admissibility is often determined by Discussion: admissibility is often determined by the purpose of the evidence.the purpose of the evidence.

If the proof of the truth of the contents is the If the proof of the truth of the contents is the purpose of the evidence, documentary/hearsay purpose of the evidence, documentary/hearsay rules apply (e.g. photo of a contract, where rules apply (e.g. photo of a contract, where terms are fact in issue).terms are fact in issue).

If there is evidential value merely in, for If there is evidential value merely in, for example, possession of the item with the printed example, possession of the item with the printed content, then all that is required is content, then all that is required is authentication (ie. alleged bank robber’s authentication (ie. alleged bank robber’s possession of map of financial institution).possession of map of financial institution).

In other words …In other words … If the fact-in-issue is the physical layout of the If the fact-in-issue is the physical layout of the

financial institution, then the plans have to be financial institution, then the plans have to be properly authenticated by a person in a position properly authenticated by a person in a position to know they are accurate. They are then in as to know they are accurate. They are then in as evidence for the Proof of the Truth of Their evidence for the Proof of the Truth of Their Contents (POTOC).Contents (POTOC).

If the fact-in-issue is the intent of someone If the fact-in-issue is the intent of someone caught in the ducting after hours, then certainly caught in the ducting after hours, then certainly his mere possession of the plans of the building his mere possession of the plans of the building (whether accurate or not) are probative without (whether accurate or not) are probative without proof of accuracy. The authenticating witness proof of accuracy. The authenticating witness then is the person who found the plans on the then is the person who found the plans on the person of the alleged robber.person of the alleged robber.

Videotapes/Digital RecordingsVideotapes/Digital Recordings

Must be accurate and fair through Must be accurate and fair through eyewitness testimony or technical eyewitness testimony or technical evidence concerning the method and evidence concerning the method and manner of obtaining the videotaped manner of obtaining the videotaped evidence.evidence.

In other words, an authenticating witness In other words, an authenticating witness is either one who can comment on the is either one who can comment on the fairness of the video in relation to what fairness of the video in relation to what happened, or is a witness describing the happened, or is a witness describing the process by which the tape came about.process by which the tape came about.

Non-Monitored CameraNon-Monitored Camera

Someone to describe the system, Someone to describe the system, process of recording and extraction, process of recording and extraction, and identify the results.and identify the results.

Normal Speed?Normal Speed?

Remember that the manner of Remember that the manner of recording may satisfy concerns over recording may satisfy concerns over accurate depiction, but the manner accurate depiction, but the manner of playing may raise them again.of playing may raise them again.

In other words, whether the editing In other words, whether the editing occurs outside or in the courtroom, occurs outside or in the courtroom, said editing may call into question said editing may call into question the fairness and accuracy of the the fairness and accuracy of the depiction.depiction.

As the opponent, insist on two As the opponent, insist on two things:things:

(a)(a) That the original tape is at least That the original tape is at least present in the court (and marked), present in the court (and marked), if not the one that’s actually played. if not the one that’s actually played.

(b)(b) And, depending on the fact in issue, And, depending on the fact in issue, insist that it be played at normal insist that it be played at normal speed. This is especially true if speed. This is especially true if actual time and perception are at actual time and perception are at issue, as opposed to identity.issue, as opposed to identity.

e.g. Nikolovskie.g. Nikolovski

Once admitted, such tapes can speak Once admitted, such tapes can speak for themselves, ie. as to identity.for themselves, ie. as to identity.

General proposition, once admitted, General proposition, once admitted, a piece of real evidence speaks for a piece of real evidence speaks for itself, and it is open for a trier of fact itself, and it is open for a trier of fact to make their own observations to make their own observations thereon, even ones not drawn by thereon, even ones not drawn by counsel through a witness. counsel through a witness.

Practice PointPractice Point

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

Tape Recordings/Telephone CallsTape Recordings/Telephone Calls

Simply require authentication, Simply require authentication, someone to identify the tape and someone to identify the tape and some evidence of who the voices aresome evidence of who the voices are

TranscriptsTranscripts

Transcripts can be entered through a Transcripts can be entered through a witness who has checked their witness who has checked their accuracy against the recording, accuracy against the recording, again though, in the absence of again though, in the absence of agreement with counsel, the original agreement with counsel, the original tape must go in.tape must go in.

The transcript is seen as an “aide”, The transcript is seen as an “aide”, the best evidence being the original the best evidence being the original recording itself. recording itself.

Real EvidenceReal Evidence

All admissible exhibits go to the jury room All admissible exhibits go to the jury room to be used in deliberation.to be used in deliberation.

A trier of law has the discretion to keep A trier of law has the discretion to keep certain items from them, such as certain items from them, such as audiotapes, out of concern for undue audiotapes, out of concern for undue emphasis or manipulation in the jury emphasis or manipulation in the jury room.room.

The TOF will have access, it just may be The TOF will have access, it just may be supervised by the TOL in open Court.supervised by the TOL in open Court.

Charts, Graphs, SummariesCharts, Graphs, Summaries

Require an authenticating witness as Require an authenticating witness as a general rule.a general rule.

Require a factual/testimonial Require a factual/testimonial foundation.foundation.

May require the May require the preparing/authenticating witness to preparing/authenticating witness to be an expert.be an expert.

Factual FoundationFactual Foundation A forensic accountant who brings a summary of A forensic accountant who brings a summary of

the monies embezzled by the Defendant to the monies embezzled by the Defendant to Court, must:Court, must:

(a)(a) Be qualified as an expert;Be qualified as an expert;(b)(b) The proponent must enter the foundational The proponent must enter the foundational

documents/evidence (there is no “opinion” documents/evidence (there is no “opinion” without foundation – this is an issue of without foundation – this is an issue of admissibility not weight);admissibility not weight);

(c)(c) The witness then describes his methodology, The witness then describes his methodology, and is then asked to identify/authenticate the and is then asked to identify/authenticate the “summary” “chart” or “graph” he has brought “summary” “chart” or “graph” he has brought to represent his testimony or manipulation of to represent his testimony or manipulation of the numbers.the numbers.

Views – Jury and Non-Jury TrialsViews – Jury and Non-Jury Trials

S. 652 CCodeS. 652 CCode Rule 252/253 AROCRule 252/253 AROC

Judge’s discretion. This is not a tour with a Judge’s discretion. This is not a tour with a running commentary. The trier of fact is running commentary. The trier of fact is taken to the location, walks around, makes taken to the location, walks around, makes notes, and makes of it whatever the trier of notes, and makes of it whatever the trier of fact wants.fact wants.

Counsel are present, as are parties, as is Counsel are present, as are parties, as is court clerk. This is not the trier of fact out on court clerk. This is not the trier of fact out on its own.its own.

The parties are present to ensure and The parties are present to ensure and comment on the fairness of the view.comment on the fairness of the view.

In asking for a view, you must essentially show as the In asking for a view, you must essentially show as the proponent what could be gained by such an exercise.proponent what could be gained by such an exercise.

In general, our system relies on oral explanations of In general, our system relies on oral explanations of places and things, assisted sometimes by real evidence.places and things, assisted sometimes by real evidence.

Normally, we do not take the trier of fact to see the real Normally, we do not take the trier of fact to see the real evidence unless something more could be gained than evidence unless something more could be gained than from testimony with the aid of exhibits. The trier of law from testimony with the aid of exhibits. The trier of law is looking for the probative value in the exercise.is looking for the probative value in the exercise.

A view will only be ordered where no other means can A view will only be ordered where no other means can elucidate the facts as well.elucidate the facts as well.

Evidence is generally not given at a view. If it was, it Evidence is generally not given at a view. If it was, it would be on the record, under oath, subject to cross, would be on the record, under oath, subject to cross, and in the presence of the parties.and in the presence of the parties.

Re-Enactments, Experiments and Re-Enactments, Experiments and DemonstrationsDemonstrations

““Demonstrative evidence” has no Demonstrative evidence” has no evidential value in itself, its evidential value in itself, its evidential value comes from the evidential value comes from the underlying factual foundation. Where underlying factual foundation. Where allowed, it is nothing more than a allowed, it is nothing more than a demonstration of what already exists demonstration of what already exists in the evidence.in the evidence.

To be allowed, it must be found to To be allowed, it must be found to “assist the trier of fact” and be “assist the trier of fact” and be necessary for that purposenecessary for that purpose

General RuleGeneral Rule

Where what is demonstrated could Where what is demonstrated could easily be described orally, then that easily be described orally, then that is likely what will be ordered.is likely what will be ordered.

Don’t have your witness Don’t have your witness demonstrate, have them describe. If demonstrate, have them describe. If a demonstration is still necessary a demonstration is still necessary after a description, ask for leave of after a description, ask for leave of the Court, and then describe what is the Court, and then describe what is being demonstrated.being demonstrated.

ExperimentsExperiments

Should not be allowed in the jury Should not be allowed in the jury room.room.

Same rule, describe the experiment, Same rule, describe the experiment, do not, in general, have it re-created do not, in general, have it re-created in the courtroom.in the courtroom.

Re-Enactments Re-Enactments

Re-enactments by counsel rarely Re-enactments by counsel rarely allowed, little probative value.allowed, little probative value.

Counsel essentially giving evidence, Counsel essentially giving evidence, and final argument is not a time for and final argument is not a time for the giving of evidence.the giving of evidence.

R . v. Watson (1996) 108 CCC(3d) R . v. Watson (1996) 108 CCC(3d) 310 (Ont. C.A.)310 (Ont. C.A.)

Generally, in-court demonstrations Generally, in-court demonstrations will only be permitted in rare will only be permitted in rare circumstances. They can create circumstances. They can create problems. It is best left to the trier of problems. It is best left to the trier of law to determine whether the law to determine whether the potential gain from the re-enactment potential gain from the re-enactment is worth the risk inherent in it.is worth the risk inherent in it.

Risks: potential to mislead, delayed Risks: potential to mislead, delayed proceedings, hard to keep appellate proceedings, hard to keep appellate record.record.

Computer ReconstructionComputer Reconstruction

Would follow the same rules.Would follow the same rules.