Expert Demonstrative ce Richard M. Bogoroch and Melanie A. Larock - - PowerPoint PPT Presentation

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Expert Demonstrative ce Richard M. Bogoroch and Melanie A. Larock - - PowerPoint PPT Presentation

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Expert Demonstrative ce Richard M. Bogoroch and Melanie A. Larock Demonstrative Evidence is essential to: Explain Illustrate Summarize page 2 Demonstrative Evidence is essential to: Simplify technical / legal issues

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ce Expert Demonstrative

Richard M. Bogoroch and Melanie A. Larock

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  • Explain
  • Illustrate
  • Summarize

Demonstrative Evidence is essential to:

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  • Simplify technical / legal issues
  • Improve juror comprehension / retention

Demonstrative Evidence is essential to:

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Amendments to Rule 53.03 Rules of Civil Procedure Promote expert evidence that is fair,

  • bjective, and non-partisan

Demonstrative Evidence

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Completely within the discretion of the trial judge

Admissibility of Demonstrative Evidence

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  • Relevant
  • Accurate and fair
  • Probative value must outweigh prejudicial effect
  • Must not offend any exclusionary rule
  • Be of assistance to the court

Admissibility of Demonstrative Evidence

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Admissible UNLESS:

  • Caught by exclusionary rule
  • Prejudicial effect outweighs probative value

Admissibility of Demonstrative Evidence

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Sopinka, Lederman & Bryant: The Law of Evidence in Canada, 3rd ed. (Markham: Lexis Nexis, 2009, authors Bryant, Lederman, Letterman & Fuerst , s. 12.126

Admissibility of Demonstrative Evidence

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To be admissible, the expert evidence that it exists to explain and illustrate must also be admissible

Admissibility of Demonstrative Evidence

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Supreme Court of Canada

  • R. v. Mohan (1994), 114 D.L.R. (4th) 419

Pre-conditions for admission of expert evidence:

  • Relevance
  • Necessity in assisting the trier of fact
  • Absence of any exclusionary rule
  • Properly qualified expert

Admissibility of Demonstrative Evidence

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  • R. v. Abbey, [2009] O.J. No. 3534
  • evidence must meet 4 prerequisites of admissibility of

expert evidence as identified in R. v. Mohan

  • trial judge must determine that expert evidence

is beneficial to the trial process

Admissibility of Demonstrative Evidence

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Rule 53.03 Requirements for expert report:

a. Expert’s name, address, area of expertise b. Expert’s qualifications, employment, educational experiences c. Instructions provided to the expert d. Nature of opinion being sought e. Expert’s opinion respecting each issue f. Expert’s reasons for his/her opinion g. Acknowledgement of expert’s duty under Rule 4.1 signed by expert

Demonstrative Evidence

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  • Probative potential of evidence
  • Significance of issue to which evidence is directed

Demonstrative Evidence

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Reliability Concerns:

  • Subject matter of evidence
  • Methodology used by expert in arriving at opinion
  • Expert’s expertise
  • Language used in explaining opinion
  • Extent of impartiality / objectivity

Demonstrative Evidence

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Risks “consumption of time, prejudice and confusion”

Binnie J. in J.-L.J., para. 47

Demonstrative Evidence

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McCormick on Evidence, (5th) ed., Volume 2 at pp. 17-19

Demonstrative Evidence

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Photographs/Videotapes

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Expert Opinion

Cost Benefit Analysis

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Expert Opinion

Cost Benefit Analysis

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Expert Opinion

Cost Benefit Analysis

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Jenkyns v. Kassam (2006), Carswell Ont. 8890 (S.C.J.)

  • Expert’s testimony is relevant and admissible;

demonstrative aid relates to evidence

  • Expert whose testimony the demonstrative aid depicts is

familiar with it

  • Demonstrative aid fairly and accurately reflects expert’s

evidence

  • Demonstrative aid will aid

trier of fact

Demonstrative Evidence

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The introduction of demonstrative evidence must be done in a manner that will ensure the integrity of the evidence so tendered. Greer (Litigation Guardian of) v. Kurtz, [2008] O.J. No. 2925 at para. 10.

Integrity of Evidence

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Accurate? Fair?

Integrity of Evidence

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Integrity of Evidence

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Admissibility of computer-generated reconstruction animation

Owens (Litigation Guardian of)

  • v. Grandell [1994] O.J. No. 496,

46 A.C.W.S. (3d) 796 (Gen. Div.)

Integrity of Evidence

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Computer-generated reconstruction animation

  • Testimony from A.R. expert: data points measured at accident

were accurate

  • Testimony from data entry person: data entered correctly
  • Algorithms used in form and motion software:

» Validly apply law of physics » Validly render accurate images of scenes depicted

Admissibility

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Computer-generated reconstruction animation

  • Testimony from A.R. expert: additional modifications to exhibit

after first renderings are valid

  • Testimony from experts that they are familiar with demonstrative

exhibit

  • Exhibit will aid the trier of fact in understanding testimony

Admissibility

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Lancaster (Litigation Guardian of) v. Santos, [2011] O.J. No. 3706

  • Engineer’s calculations not provided to court
  • Data not proven reliable or accurate

Admissibility

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Greer (Litigation Guardian of) v. Kurtz

  • Both reconstruction engineer / forensic animator testified to

accuracy of animations Justice B.H. Matheson: “all the safeguards had been met.”

Admissibility

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Uses and Abuses of Demonstrative Evidence

(Geoffrey D.E. Adair)

  • Place reasonable limit on number of demonstrative aids

employed

  • Avoid undue use of aids
  • Use professional looking aids
  • Employ sign-message demonstrative aids
  • Use in the natural flow of the case
  • Make copies of visual material available
  • Use only where truly

effective

Guidelines

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Demonstrative Evidence

  • Persuasive
  • Simplifies complex subjects
  • Memorable
  • Reduces boredom / renews interest
  • Enhances ability to come to conclusion

Conclusion

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Appendix

Forms of Demonstrative Evidence

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Draper v. Jacklyn (1970), 9 D.L.R. (3d) 264 (S.C.C.): Photographs may be admitted if: 1. they are relevant; 2. they assist the jury’s understanding

  • f the treatment and condition of the

plaintiff;

Photographs

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Draper v. Jacklyn (1970), 9 D.L.R. (3d) 264 (S.C.C.): Photographs may be admitted if: 3. the photographs are accurate; and 4. the prejudicial effect of the photographs is not so great that it would exceed the probative value

Photographs

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Teno v. Arnold (1974), 7 O.R. (2d) 276: “day in the life” video The test to be applied in considering the admission

  • f videotape and photographs is the same:

Rodger v. Strop (1992), 14 C.P.C. (3d) 289.

Video Tapes

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  • R. v. Nikolovski (1994), 19 O.R. (3d) 676 (Ont. C.A.)

approved following test for admissibility of video tapes:

  • 1. the accuracy of the tapes in truly

representing the facts

  • 2. their fairness and absence of intention

to mislead; and

  • 3. their verification on oath by a person

capable of doing so

Video Tapes

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Calic v. Aitchison et al, [1996] O.J. No. 154 (Gen. Div.). Justice Hockin stated, “Mr. Calic’s medical history since the accident is lengthy and complicated. 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).”

Treatment Chronologies

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Owens v. Grandell, [1994] O.J. No. 496 (see above) McCutcheon v. Chrysler Canada Ltd., [1998] O.J. No. 5818 stated criteria for admissibility: 1. the computer animation is relevant to the issues in the proceeding; 2. the hardware and software methods employed by the animator are verified by the animator;

Computer Generated Animations

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3. the computer animation does not contain editorial comments other than the usual headings; 4. the computer animation accurately represents the plaintiff’s condition; 5. the computer animation is necessary considering that it would be difficult for a witness to describe the effects of the injury and the jury’s understanding of the issues would be greatly assisted by the animation;

Computer Generated Animations

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  • 6. the prejudicial value does not outweigh the probative

value considering that the animation is presented in a way very simple straightforward manner, without sound

  • r editorializing and with few headings; and
  • 7. the presentation was not misleading or unfair to the

defendant.

Computer Generated Animations

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Cejvan v. Blue Mountain Resorts Limited, [2008] O.J. No. 5443: Three-dimensional computer model of the ski run used by the plaintiff. The animation was accepted only for the limited purpose of showing the general topography of the area. L.C. Templeton J. was critical of the animation because it lacked accuracy, relied upon too many unknown factors and was prejudicial.

Computer Generated Animations

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Majencic v. Natale, [1968] 1 O.R. 189 (H.C.J.) Jenkyns v. Kassam, [2006] O.J. No. 5494

Anatomical Illustrations or Models

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  • R. v. Sandham (2009), Carswell Ont 6592 (S.C.J.):

admissible

  • R. v. Paul (2004), Carswell Ont 1256: inadmissible

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