Joshua Cohen is a principal at Fat Pencil Studio
When developing a visual story, it’s important to create graphics that are based on a strong foundation that will hold up in court. This, by the way, is a great reason to work with designers who have a technical understanding of the issues you want to present. These graphics, often called demonstrative evidence, are intended to clarify issues in the case and help a judge or jury determine the facts. Maps, charts, timelines, diagrams, and physical objects are commonly used for this purpose.
- Is it relevant? Judges consider the probative value of an exhibit. Will it be useful in proving something important in a trial?
- Is it accurate and reliable? Items depicted in an exhibit should be substantially similar to the real object or place it supposedly represents.
- Is it fair and complete? Nothing should be added or omitted for the purpose of misleading or influencing a viewer.
In theory, any witness can authenticate demonstrative evidence so long as they can testify that it is an accurate, reliable, fair and complete representation. In practice it is useful to consider three categories when deciding how to introduce your demonstratives.
1. Exhibits used to summarize records already in evidence can be introduced by anyone familiar with the data, often without objections from opposing counsel.
2. Expert witnesses may use exhibits to explain their opinions. However, they do not have to personally prepare these graphics, so long as they are able to exercise some direction in their creation.
3. Simulations are a special case where the exhibit is the opinion. These must be based on accurate data and a scientific process, and typically require the testimony of the person who created the simulation.