Call Today!


     As trial approaches we, as trial counsel, should reach out to opposing counsel in an effort to formulate any stipulations possible with respect to the admission of evidence.  When we can get opposing counsel to stipulate to the authentication of our evidence all the better as we don’t want to waste trial time developing a foundation for our proposed items of evidence.  Laying a foundation is time consuming and bores the jurors.  We need our jurors paying attention not sleeping in our trials.    

     When you can’t get counsel to stipulate as to admission or authentication then you will need to be prepared to lay a foundation for each item of proposed evidence.  An item of evidence that often needs introduction at trail is that of the X-ray.  If you are lucky enough, you will be able to lay a foundation for an X-ray as a business record.  Simply demonstrate that the X-ray is and was kept in the ordinary course of the hospital’s business.  Then have your witness testify to chain of custody for the X-ray from being kept as a record at the hospital to its presentation in trial today.  If your trial judge refuses to treat the X-ray as a business record then you will need to go further.  In this case you will need to demonstrate the X-ray operator’s qualifications to take X-rays, that the operator filmed a certain part of a person’s body at a certain time and place, the working order of the machine, that proper procedures were followed, that some type of identification was used so as to identify the image at a later date, and demonstrate chain of custody for the developed X-ray film.  Finally, as always, have your witness testify that he or she recognizes the exhibit in trial as the film which he or she developed in the laboratory.  Fortunately, X-ray technology has been around for some time and it is thus well accepted by trial judges as being reliable evidence and thus not needing such foundational testimony. 

     Given the general acceptance, of X-rays, your trial judge will likely take judicial notice of the validity of the X-ray process.  Keep in mind, however, that there are many different imaging technologies available these days.  For the more common techniques like X-rays, MRIs, CT scans, and the like, your judges may not require you to prove the scientific validity of the scientific technique employed to create that image.  However, if you are attempting to introduce a more obscure imaging technique then you will more likely be held to a higher standard.  For these technologies you will need to lay a foundation that will satisfy the Daubert or Frye tests depending on your jurisdiction. 

     More commonly, in our current era, we have the opportunity to present computer animation and simulations to the jurors.  This is fantastic as it gives the jurors a more thorough understanding of the subject material.  Computer animations also provide a break from what might become monotonous witness testimony.  Whenever we can we should implement this technology for the benefit of our case.  With respect to computer animations, we will be confronted with two different animals to choose from.  The first is the illustrative demonstrative and the second is the substantive computer simulation.  The illustrative demonstrative is the easier of the two to introduce into evidence.  This type of computer simulation is often used simply to illustrate a witness’s description of a particular event.  These types of demonstrations are simply illustrative.  To introduce this type of illustrative demonstrative evidence you simply need to have your witness tell the court that he or she has watched the animation and that this animation accurately depicts what the witness initially observed. 

     The other type of evidence, which is more challenging to authenticate, is that of substantive simulations.  These simulations are based on scientific equations and principles.  Sophisticated computer programs take a series of inputs and produce a simulation of what must have occurred based on principles of physics and mathematics.  To show accuracy here we need to demonstrate that the scientific principles behind the making of the simulation are grounded and qualified.  We then need to demonstrate that the input data used to produce the ultimate simulation is also good data which we can rely on.  Here, you want to start your examination by confirming your expert’s scientific qualifications.  You can then use your expert to discuss how these computer simulations are produced and the scientific laws that are relied upon.  Have your expert opine as to how well these scientific propositions are accepted in today’s society.  Have your expert discuss the computer software itself and how that software takes data and makes calculations to produce the resulting output.  Finally, have your expert walk you through the actual process as it occurred in this case of taking data and processing that data to produce the simulation.  Finally, as always, approach the witness for the purpose of having him or her identify your proposed exhibit as the same one he produced on an earlier occasion and have your witness tell the court the basis for his ability to accurately identify that exhibit today.  After your exhibit has been admitted into evidence request permission of the court to publish your exhibit to the jury.

     Another item of evidence which you may need to introduce is that of the enhanced photograph.  There are a variety of reasons why you may need to enhance a photograph.  For instance, you may need to blow your photograph up so that the jurors can easily see it.  You may need to have more contrast in the photo so that some parts of the photo can be more easily discerned.  Most photos today are digital photos.  These digital photos can be enhanced in a wide variety of ways.  If you are dealing with an analog photo then your expert will have to digitize this analog photo before the photo can be enhanced.  The introduction of your enhanced photo will be similar to that of the computer generated simulation outlined above.  You need to start by demonstrating the basis for your expert’s expertise.  You can then have your expert discuss image enhancement technology generally.  Your expert should then discuss the actual procedures used to enhance the images in the case at hand.  Your expert needs to explain why these were the procedures used here were the proper procedures to take in enhancing the photograph you are attempting to introduce.  Finally, have your expert testify that she recognizes the exhibit offered in trial as the same photo she enhanced in her laboratory.    

     The above article reflects some evidentiary rules as promulgated by the Federal Rules of Evidence.  Remember that states have their own rules of evidence which may or may not reflect the Federal Rules of Evidence.  For more information on this topic I refer you to Edward Imwinkelried, (2012) Evidentiary Foundations which is an excellent book on this subject matter and the source of the majority of my own information, as outlined above, on this topic.