Demonstrative Evidence

CHAPTER 14 DEMONSTRATIVE EVIDENCE
ERVIN A. GONZALEZ12
SYNOPSIS
§ 14.1. INTRODUCTION
A. Importance Of Demonstrative Evidence
B. Nature And Definition
C. Demonstrative Aids
§ 14.2. ADMISSIBILITY
A. In General
B. The Court’s Discretion
C. Pretrial Procedures
D. Laying Foundation
§ 14.3. TYPES
A. In General
B. Charts
C. Models
D. Demonstrations And Experiments
E. Photographs
1. Relevancy
2. Foundational Issues
3. Pictorial Testimony Or Silent Witness
F. Video Demonstrations and Recordings
G. Replicas
H. Real Evidence
I. Scientific Tests
1. General Standard
2. Particular Applications
a. X-Rays
b. Magnetic Resonance Imaging (MRI)
c. Liquid Crystal Thermography (LCT)
d. Polygraphs
e. DNA Evidence
f. Sexual Abuse Legitimacy Scale
g. Serum Blood Alcohol Test
h. Computer Animation
§ 14.4. PRACTICAL CONSIDERATIONS
A. Logistics
B. Video Recordings
C. Graphics
D. Real Evidence
E. Computer Animation And Simulation
F. Highlighting And Zooming
G. Conclusion
§ 14.1. INTRODUCTION
A. Importance Of Demonstrative Evidence
Our contemporary society is visually oriented. Television and the Internet are the dominant transmitters of information. Research indicates that visual aids in conjunction with oral presentations can increase understanding and retention levels by as much as 65%. Butera, Seeing Is Believing: A Practitioner’s Guide to the Admissibility of Demonstrative Computer Evidence, 46 Clev.St.L.Rev. 511 (1998). Quite simply, “[demonstrative] evidence is generally more effective than a description given by a witness, for it enables the jury, or the court, to see and thereby better understand the question or issue involved.” Mitsubishi Motors Corp. v. Laliberte, 52 So.3d 31, 37 (Fla. 4th DCA 2011), quoting Alston v. Shiver, 105 So.2d 785, 791 (Fla. 1958). Both judges and juries will remember more of what they see than what they hear. They will also understand more of what they hear when it is linked by visual images. This is especially true during tedious, technical, or complicated oral testimony. Some studies indicate that after 12 hours a person remembers only 10% of information received aurally; if that same information is accompanied by a visual image, “retention rates rise up to 65% and 85%.” Note, Kissane-Gaisford, The Case for Disc-Based Litigation: Technology and the Cyber Courtroom, 8 Harv. J. L. & Tech. 471, 476 (Spring 1995). See also Moncus, The Ipad: Litigation and Trial in a New Digital World, 75 Ala. Law. 48 (Jan. 2014) (visual presentations to be 43% more persuasive than oral presentations).

Demonstrative evidence can also be a helpful tool in the art of public speaking. Lecturers, teachers, and other public speakers often rely on charts, pictures, graphs, and other visual aids in their speeches. The trial lawyer likewise may find such tools useful, not only for the orderly presentation of information, but also as a “crutch” in remembering what information needs to be presented.
B. Nature And Definition
Although demonstrative evidence is not defined in the Florida Evidence Code, treatises generally distinguish demonstrative evidence from traditional forms of admissible evidence, such as real, documentary, or testimonial evidence. Demonstrative evidence is “representative” or “illustrative” evidence that serves as an aid to the comprehension of facts and testimony (e.g., by way of diagrams, maps, or charts), but which otherwise has no probative value in itself. Certain types of demonstrative evidence—such as replicas or reproductions of real evidence that have gone missing or have been destroyed—may be admitted into evidence. Alston v. Shiver, 105 So.2d 785, 791 (Fla. 1958). But other demonstrative evidence, also called a demonstrative “aid”, is merely shown to the jury during the trial, and otherwise not admitted into evidence or available during jury deliberations. Mitsubishi Motors Corp. v. Laliberte, 52 So.3d 31, 37-38 (Fla. 4th DCA 2011).
C. Demonstrative Aids
The demarcation between admissible demonstrative evidence and an inadmissible “demonstrative aid” is not always readily apparent. Generally, however, the more accurate the exhibit, the more likely it is to be admitted into evidence.

Nevertheless, a trial lawyer must be cognizant of how demonstrative evidence is properly used, as failure to do so can result in reversible error. For example, Gold, Vann & White, P.A. v. DeBerry by & through DeBerry, 639 So.2d 47 (Fla. 4th DCA 1994), involved a medical malpractice action arising from a child’s development of brain damage after birth. The court found that it was a reversible error to allow charts and summaries filled in by the expert witness during his testimony to go to the jury room. The court issued the following advice:
While there is certainly no problem in such an expert witness writing down their figures as he or she testified … we believe the better practice is to mark such exhibits as “Court Exhibits _______, Not in Evidence.” They can then be made part of the record, for appellate review, but should not be in evidence, nor given to the jury for their deliberations.

Id. at 57. See also Newberry Square Development Corp. v. Southern Landmark, Inc., 578 So.2d 750 (Fla. 1st DCA 1991) (allowing jury back into courtroom to view chart of claimed damages, which then remained out of jurors’ view, was not reversible error); Louisiana-Pacific Corp. v. Mims, 453 So.2d 211 (Fla. 1st DCA 1984) (use of chart during argument is widely accepted practice, but when argument is over, chart must be promptly removed). But see Broward County Sheriff’s Office v. Brody, 969 So.2d 447 (Fla. 4th DCA 2007) (erroneous admission of poster boards consisting of certain events concerning medical treatment performed on driver constituted harmless error).
§ 14.2. ADMISSIBILITY
A. In General
Because demonstrative exhibits often resonate powerfully with a jury, courts weigh their admissibility carefully. A demonstrative exhibit must be relevant to material issues in the case and “constitute an accurate and reasonable reproduction of the object involved.” Taylor v. State, 640 So.2d 1127, 1134 (Fla. 1st DCA 1994), quoting Alston v. Shiver, 105 So.2d 785 (Fla. 1958), in order for it to be admitted. Further, if the exhibit is real evidence, it must be authentic, relevant, and not hearsay (or must fall within an exception to the hearsay rule), and it must not appear misleading. See generally 23 FLA.JUR.2d Evidence and Witnesses § 349.

Where a proponent offers demonstrative evidence to illustrate an expert’s opinion, he or she must lay the foundational requirements necessary to introduce the expert’s opinion. Pierce v. State, 718 So.2d 806 (Fla. 4th DCA 1997). In Pierce, the court explained the foundation necessary to introduce an expert’s opinion through a demonstrative exhibit using computer animation. The court ruled, consistent with prior cases, that
(1) the opinion evidence must be helpful to the trier of fact; (2) the witness must be qualified as an expert; (3) the opinion evidence must be applied to evidence offered at trial; and (4) pursuant to [F.S. 90.403], the evidence, although technically relevant, must not present a substantial danger of unfair prejudice that outweighs its probative value.

Id. at 809.
B. The Court’s Discretion
Whether to allow the use of a demonstrative exhibit is a matter strictly within the trial court’s discretion. First Federal Savings & Loan Ass’n of Miami v. Wylie, 46 So.2d 396 (Fla. 1950); Brown v. State, 550 So.2d 527 (Fla. 1st DCA 1989). The last threshold for admissibility is F.S. 90.403, which states: “Relevant evidence is inadmissible if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of issues, misleading the jury, or needless presentation of cumulative evidence.” Appellate courts generally acknowledge that the trial court has a superior vantage point in ruling on the admissibility of demonstrative exhibits. Therefore, the trial court’s findings will not be disturbed absent a clear abuse of discretion. Chamberlain v. State, 881 So.2d 1087 (Fla. 2004) (citing Harris v. State, 843 So.2d 856 (Fla. 2003)).
C. Pretrial Procedures
Establishing the foundation for admitting demonstrative exhibits at trial can be time-consuming and potentially distracting to the jury. Therefore, it is best to obtain pretrial rulings on the admissibility of demonstrative exhibits through the use of pretrial conferences, motions in limine, and stipulations. In addition to eliminating potentially boring and repetitive testimony, the obvious advantage of advance rulings is that they reduce the delay of the actual trial and the attorney does not face the uncertainty of proceeding at trial with a document of questionable admissibility. Also, if the admissibility of exhibits is determined before trial, the exhibit may be referred to in the opening statement and planned for and incorporated in the summation. See F.S. 90.901, 90.951.

Many state circuit courts insist that the parties identify all exhibits that they anticipate using at trial and indicate whether they have objections to each other’s proposed exhibits. Seasoned practitioners will use these deadlines as a means for obtaining advance stipulations and rulings on the admissibility of their demonstrative exhibits, thus achieving the practical advantages described above.

D. Laying Foundation
Before a demonstrative exhibit may be used at trial, the witness should establish that the exhibit resembles and is substantially the same as the object or area in question. If a model is used, it must fairly and accurately represent the original and should be built to scale. This must be established before the use of the exhibit is allowed. A witness intending to use an exhibit as an aid should first explain that the use of the exhibit will facilitate the presentation of the testimony to the jury. Under F.S. 90.901, “[a]uthentication or identification of evidence is required as a condition precedent to its admissibility.” The evidentiary requirement of this statute is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims. Demonstrative evidence must “constitute an accurate and reasonable reproduction of the object involved” in the actual case. State v. Duncan, 894 So.2d 817, 829 (Fla. 2005), quoting Brown v. State, 550 So.2d 527, 528 (Fla. 1st DCA 1989); see also Brooks v. State, 175 So.3d 204 (Fla. 2015).

When objecting to a demonstrative exhibit, the trial attorney should argue that the exhibit does not truly and accurately portray what it purports to portray. The attorney may also argue that the exhibit is not necessary to assist the witness in explaining his or her testimony, and if otherwise appropriate, may also object on hearsay grounds. Finally, if the exhibit is of the type that may mislead the jury or cause confusion or undue prejudice, the trial attorney may make a motion under F.S. 90.403, arguing that the probative value of the exhibit is greatly outweighed by its prejudicial effect.
§ 14.3. TYPES
A. In General
The following are examples of demonstrative evidence, some of which are discussed in greater detail below:
• Charts (inclusive of graphs and diagrams)
• Anatomical models
• Models of product, building, materials, or matter at issue
• Component parts of the subject of litigation
• Maps
• Videotapes, DVD, film, audiotapes, and recordings
• Photographs
• Replicas and reproductions
• Computer animations
• Powerpoint Presentations
• Enlargements of trial or deposition transcripts
• X-rays
• Handwriting exemplars
• Timelines
• Reenactments
• Demonstrations and experiments
• Scientific tests
• Original objects (e.g., weapons and defective products)
B. Charts
Charts, including graphs and diagrams, are probably the most versatile type of demonstrative exhibit. Charts can be used to summarize major points or list key facts, and can be used effectively during opening statement, testimony, and summation. Charts can also be used by witnesses, including expert witnesses, to explain, supplement, and illustrate their oral testimony. See Duss v. Garcia, 80 So.3d 358 (Fla. 1st DCA 2012) (approving use of chart summarizing governmental study as demonstrative aid to expert’s testimony).

The most common objection to the use of a chart at trial (other than relevance) is lack of foundation. To lay the appropriate foundation, the witness must attest that the chart constitutes a fair and accurate representation of the information it contains. An example is as follows:

Attorney: Where did this happen?
Witness: In the lobby of the hotel.
A: Please let the record reflect that I am showing plaintiff’s exhibit #1 to opposing counsel. May I approach the witness?
Judge: You may.
A: I am handing you what has been marked as plaintiff’s exhibit #1 for identification and ask whether you recognize it.
W: Yes.
A: What is it?
W: It’s a diagram of the lobby of the hotel.
A: How do you know that?
W: I know the hotel very well. For over four years now I have eaten in the restaurant in the lobby at least three times a week and continue to do so at the present time.
A: Does this diagram fairly and accurately depict the relative positions of the restaurant, lounge, and elevators?
W: Yes, it does.
A: Is it drawn to scale?
W: Not exactly, but everything is roughly the right size. The relative positions of the restaurant, lounge, and elevators are all very accurate.
A: Your Honor, I offer into evidence plaintiff’s exhibit #1, which is a diagram of the hotel lobby.
Opposing Counsel: Your Honor, I request a limiting instruction that the diagram is not to scale.
J: Yes. The exhibit will be received. Ladies and gentlemen of the jury, the attorney for the plaintiff is now going to show you a diagram of the hotel lobby. Although the witness has testified that the diagram is basically accurate, he has also testified that the diagram is not to scale. Accordingly, in deciding what weight to attach to the diagram, you should consider the fact that the diagram is not to scale.
A: May I publish the diagram to the jury?
J: You may.

If the chart involves a drawing to scale, it may be necessary to call two witnesses: one who prepared the exhibit and will attest that it is to scale and another who can testify as to the relevant facts and circumstances in issue.

An attorney offering a chart as demonstrative evidence should also make sure that the chart is not merely cumulative of other testimony, is not misleading, and does not contain inaccuracies, unfairly prejudicial captions, or otherwise inadmissible statements (e.g., hearsay). If the attorney encounters an apparently insurmountable objection, strategic maneuvering includes requesting a limiting instruction (e.g., that the chart is not to scale or can be viewed for only a limited purpose) or using the chart solely as a demonstrative aid.

There are certain limitations on the use of charts. In Louisiana-Pacific Corp. v. Mims, 453 So.2d 211 (Fla. 1st DCA 1984), for example, the court held that designating a chart prepared by plaintiff’s counsel for closing arguments as a “court’s exhibit” and allowing the jury to review it during deliberations was error requiring a new trial. The appellate court held that “[t]he designation of the chart as a court’s exhibit, lending to it the sanction and influence of the judge, is an error far more grievous than leaving it in view of the jury during phases of the trial for which its use is unnecessary.” Id. at 212–213. But see Newberry Square Development Corp. v. Southern Landmark, Inc., 578 So.2d 750 (Fla. 1st DCA 1991) (allowing jury back into courtroom to view chart of claimed damages, which then remained out of jury’s view, was not reversible error).
C. Models
Models can be particularly interesting and persuasive because of their multidimensional character. They can also be costly. Therefore, it usually benefits counsel to ensure, either by stipulation or pretrial ruling, that the model will be admissible. Otherwise, to admit a model as a demonstrative exhibit, the attorney must show that: (1) the model is helpful or necessary to explain relevant testimony; (2) the model depicts a particular object; (3) the witness is familiar with the object being depicted; (4) the witness has a basis for such familiarity; and (5) the model fairly and accurately depicts what it purports to represent and does not prejudicially distort the object.

When presenting medical expert testimony, skeletal and other anatomical models can enhance the expert’s testimony and make it significantly more intelligible to the jury. Medical models that are available for purchase by catalog companies include herniated intervertebral discs, life-size hearts with coronary bypasses, spinal columns with muscles and ligaments, and real-bone adult human skeletons.

The below colloquy is example for how to lay the appropriate predicate for admitting a medical model into evidence:

Attorney: You previously testified, Doctor, that after making an incision in the patient’s nasal cavity, you started to insert a scalpel into his head, is that correct?
Doctor: Yes.
A: How were you able to regulate the movement of that scalpel?
D: This is a difficult procedure to explain without the use of a model.
A: Why is that?
D: There is a new procedure that was developed to minimize trauma on the patient during surgery. But it is impossible for me to explain it in words. I really need to use a model to make my testimony understandable.
A: May I approach the witness?
Judge: You may.
A: I am showing you what has been previously marked as defendant’s exhibit #1 for identification. Doctor, do you know what this is?
D: Yes. As you can see, it is a replica of a human skull. It is used as a teaching aid at medical schools throughout the country. I routinely use it in my classes with surgical residents.
A: Is it an accurate model of the skull?
D: It is extremely accurate. It needs to be because it is used to teach residents.
A: Will this model help you explain your testimony about the specific surgery you performed on the patient?
D: Yes.
A: Your Honor, I move that defendant’s exhibit #1 be entered into evidence.
Opposing Counsel: I object. The model is not to scale and is therefore prejudicial.
A: Your Honor, the model is to be used only for demonstrative evidence as an aid to help the witness explain his testimony and to help the jury understand it better.
J: Objection overruled.
A: Would you show us how you performed the operation on the patient using defendant’s exhibit #1, Doctor?
D: Yes … .

In the face of an objection to the introduction of a model into evidence, it should be made clear that it is not the intent to equate the model with an identical replica of the object; the model is being used to facilitate an understanding of the witness’s testimony and should be admitted on that basis. See First Federal Savings & Loan Ass’n of Miami v. Wylie, 46 So.2d 396 (Fla. 1950); see also Cloyd v. State, 943 So.2d 149 (Fla. 3d DCA 2006) (permitting 14 mugs of beer as demonstrative evidence of number and size of beers consumed by pilots before flight in prosecution for operating aircraft while intoxicated); Rigterink v. State, 193 So.3d 846 (Fla. 2016) (permitting introduction of exemplar shoes where empty shoebox was found at defendant’s residence). Even if the exhibit is not admitted into evidence, it may still be used as a demonstrative aid if the foundation is met.
D. Demonstrations And Experiments
Generally, courtroom demonstrations are the most dramatic type of evidence; they are also the riskiest. To reduce the risk, the attorney should consider presenting demonstrations by recorded videotape when feasible, especially when the demonstrations are complex. On the other hand, simple demonstrations such as exhibiting a plaintiff’s range of motion in a personal injury case should be presented live in the courtroom.

To present evidence of a demonstration or experiment, an attorney must show that the test conditions are “substantially similar” to those of the actual act or event in question. Complete identity, however, is not required. In Rindfleisch v. Carnival Cruise Lines, Inc., 498 So.2d 488, 492 (Fla. 3d DCA 1986), the court acknowledged the general rule that evidence of an experiment is not admissible “where the conditions attending the alleged occurrence and the experiment are not shown to be similar.” Nevertheless, it noted that “very few tests can be made under the exact conditions present when a prior event occurred,” which means that “the trial court is allowed considerable latitude in determining whether the conditions are sufficiently similar to permit testimony” regarding tests and experiments that may be shown to a jury. Id. at 493. “If enough of the obviously important factors are duplicated in the experiment,” it concluded, “then the issue is one of [the] weight to be given the evidence, rather than its relevancy or materiality.” Id.

Similarly, in Dempsey v. Shell Oil Co., 589 So.2d 373, 380 (Fla. 4th DCA 1991), the court reversed the trial court’s exclusion of evidence and found “no factual basis to support the trial court’s conclusion that the important circumstances involved in the accident and the experiment were dissimilar.” The test in Dempsey involved a measurement of the distance headlights would project. The court found that although speed and other specific conditions at the scene of the accident logically would affect visibility, those matters would go to the weight, not the admissibility, of the evidence.

Finally, in Brown v. State, 550 So.2d 527 (Fla. 1st DCA 1989), the court found that the prosecutor did not commit fundamental error by inserting a knife into a model of the victim’s head during closing argument. Defense counsel alleged that the prosecutor was inserting a knife into the styrofoam model with more force and pressure than was necessary. However, the record failed to demonstrate “such prejudice as would constitute fundamental error,” id. at 528, and the defense attorney had neither requested a curative jury instruction nor moved for a mistrial.

Despite the foregoing cases, which indicate certain liberal treatment by the courts, the original conditions and circumstances at issue should be duplicated as closely as possible. It is preferable to go beyond the scope of what may be required because the admissibility of this type of evidence resides totally within the discretion of the court. To maximize the probability that the appropriate foundation will be laid, the expert who conducted the experiment or supervised the demonstration should be in court to present the evidence. See generally 23 FLA.JUR.2d Evidence and Witnesses § 389.
E. Photographs
1. Relevancy
Photographs are among the most readily available and common types of demonstrative evidence. They are also extremely powerful pieces of evidence. Photographs of victims or their body parts before and after receiving injuries can be poignant and persuasive. Aerial photographs are extremely useful when overviews of locations and scenes serve to aid the trier of fact in understanding the case.

The primary focus of the court in admitting photographs is relevancy. This is so even if the photograph is gory or gruesome. Larkins v. State, 655 So.2d 95 (Fla. 1995). In Larkins, the photograph depicted a person lying in a pool of blood, but it was admitted to help explain the medical examiner’s testimony. The appellate court upheld its admissibility. If the photographs are helpful in showing the cause, type, extent, location, or mechanism of death or injury, or the intent of the defendant, they are relevant and should be admitted into evidence. See Bruno v. Moore, 838 So.2d 485 (Fla. 2003); Philmore v. State, 820 So.2d 919 (Fla. 2002); Naylor v. State, 748 So.2d 385 (Fla. 3d DCA 2000); Citrus County v. McQuillin, 840 So.2d 343 (Fla. 5th DCA 2003).

Nevertheless, where photographs are cumulative or are only tangentially relevant, their admission can result in reversible error. In Gomaco Corp. v. Faith, 550 So.2d 482 (Fla. 2d DCA 1989), the trial court admitted photographs, taken before surgery, of the victim’s nearly severed foot, on the basis that they would purportedly assist the testifying surgeon in describing his treatment of the injuries. The appellate court, however, ruled that photographs should not have been admitted, as they were not relevant to a material part of the plaintiff’s case and were so inflammatory and prejudicial that they conceivably tainted the entire jury.

Likewise, in Bartholomew v. State, 101 So.3d 888 (Fla. 4th DCA 2012), a case involving a robbery that ended in a store-owner’s murder, the trial court admitted seven autopsy photographs which depicted gunshots to the victim’s head, even though the defendant was not alleged to have been a direct participant in the shooting (the state contended that he planned the robbery, even if he did not physically participate in it). Noting that “[t]he victim’s injuries, manner of death, [and] locations of [his] wounds were … not at issue,” the appellate court reversed. Id. at 895. “The photographs were not relevant to prove any material fact in dispute,” and therefore should have been excluded, given their lack of probative value and risk of causing unfair prejudice to the defendant. Id. See also Johnson v. Florida Farm Bureau Casualty Insurance Co., 542 So.2d 367 (Fla. 4th DCA 1989) (finding exclusion of photograph to be harmless error, if error at all; though photograph of deceased child may perhaps be relevant to mother’s emotional pain and suffering, it was likely cumulative of mother’s other testimony).

Although the key to admissibility is relevancy, a photograph of an object that was not the actual defective object, but still has a bearing on another issue in the case, is relevant for the purpose of explaining testimony and aiding the jury in understanding the case. In Simmons v. Roorda, 601 So.2d 609 (Fla. 2d DCA 1992), a construction accident case, the court allowed the testimony of a witness regarding his inspection of a crack in the truss system, which he discovered after the accident but which was not in the same truss that had collapsed under the plaintiff. The trial court had refused to admit a photograph of this other crack discovered after the accident. The appellate court reversed, finding the photograph relevant to the issue of failure to inspect.

Although photographs made after an event may be admissible for some purposes, they are not admissible as proof of negligence. F.S. 90.407 (admissibility of subsequent remedial measures). In Pensacola Inn Ltd. v. Tuthill, 404 So.2d 1173 (Fla. 1st DCA 1981), a premises liability case, the court found that the photographs impermissibly depicted subsequent remedial measures. The court acknowledged the general rule that “photographic evidence which is relevant for some legitimate purpose does not become inadmissible in every instance simply because the photographs may depict some post-accident change in the scene surrounding the site of an accident.” Id. at 1175. However, the photographs showed, with great clarity, improvements made by the hotel owners four or five days after the accident. Accordingly, the court found that the probative value of the photographs was substantially outweighed by the danger of unfair prejudice, especially because they showed nothing unique or unusual in the physical layout of the hotel that would necessitate their use for explanatory purposes. Nonetheless, photographs made after an event may be admissible for reasons other than proof of negligence, “such as proving ownership, control, or the feasibility of precautionary measures, if controverted, or impeachment.” F.S. 90.407.
2. Foundational Issues
Relevancy aside, any photograph, whether gruesome or not, must be properly authenticated before it will be admitted into evidence. F.S. 90.901. To establish the authenticity of a photograph, the proponent must show that the photograph fairly and accurately represents the depicted condition, product, person, or scene. See Dolan v. State, 743 So.2d 544 (Fla. 4th DCA 1999) (computer enhancements of video surveillance tape). Any witness who has personal knowledge of the facts portrayed in the picture may authenticate it; testimony from the actual photographer is unnecessary. See Hillsborough County v. Lovelace, 673 So.2d 917 (Fla. 2d DCA 1996). But see Breeding’s Dania Drug Co. v. Runyon, 2 So.2d 376 (Fla. 1941) (if photograph is being offered to prove that something occurred at particular time rather than how it looked, opposing counsel must have opportunity to cross-examine the photographer and explain or refute genuineness of photograph).

Even when it is not necessary to call a photographer to authenticate a photograph, it is a good idea to employ a professional photographer to take any important photographs. What appears to be a relatively easy object to photograph can have focus, lighting, or compositional problems. It is important to capture the desired scene or object while eliminating extraneous or misleading information. Photographs can be attacked as exaggerating or reducing distances, altering apparent height or other measurement, and showing more or less of a scene than is necessary to prevent a partial view from being misleading. If any of these objections are encountered, the attorney should emphasize that the objections are directed at the weight and credibility of the photograph but not its admissibility. Problems with photographic authenticity have greatly increased since the use of photographic computer programs has become common. Now just about anyone with a computer can alter a photograph.
3. Pictorial Testimony Or Silent Witness
In Hannewacker v. City of Jacksonville Beach, 419 So.2d 308, 310 (Fla. 1982), the Florida Supreme Court analyzed two theories under which photographs are admissible: the “pictorial testimony” theory and the “silent witness” theory. The former theory admits the photographs as nonverbal modes of expressing witnesses’ testimony but does not recognize pictures as having independent evidentiary value. In other words, it requires the testimony of a witness to establish that, based on the witness’s personal knowledge, the photographs fairly and accurately reflect the events or scenes. Id. See also Dolan v. State, 743 So.2d 544 (Fla. 4th DCA 1999).

The “silent witness” theory recognizes that once properly authenticated, photographs have independent evidentiary value and can speak for themselves. The court in Hannewacker used the “silent witness” theory to acknowledge that a photograph standing alone can, under certain circumstances, provide a basis for an inference of time: “If the photograph portrays a condition that has some distinguishing feature which clearly shows that the defect has existed for a long period of time, it may afford the jury a basis to infer that a significant period of time has passed.” Id. at 311.
F. Video Demonstrations and Recordings
Not that long ago, recorded depositions were usually reserved for out-of-town experts whose fees, travel costs, or scheduling problems justified their use. Today, however, the use of recordings has become increasingly pervasive in the courtroom as the availability and ease of operation continues to increase while the cost continues to decrease. Some attorneys routinely record all depositions; some use their own staff and equipment in conjunction with a court reporter and in compliance with the notice requirements of Fla.R.Civ.P. 1.310(b)(4). In personal injury and medical malpractice cases, plaintiffs use day-in-the-life recordings in mediations and in trial to depict the problems and difficulties an injured plaintiff suffers on a daily basis. Day-in-the-life recordings are best prepared by experts who are trained and experienced in forensic videography.

Video recordings can also be used for experiments and demonstrations and to show scenes of accidents or objects that cannot be brought into the court and for which a still photograph would be ineffective or inappropriate. For a complete discussion of all aspects of videotaping, see Kornblum & Short, The Use of Videotape in Civil Trial Preparation and Discovery, 23 AM.JUR. Trials § 95 (2007 Supp.); Gruber, Nicholson & Reichek, Video Technology, 58 AM.JUR. Trials § 481 (2007 Supp.). Like photographs, a video recording may be authenticated by any witness who is familiar with the person or thing portrayed. See generally Dolan v. State, 743 So.2d 544 (Fla. 4th DCA 1999); Smith v. Geico Casualty Co., 127 So.3d 808, 811 (Fla. 2d DCA 2013) (where time lapse video was essentially “four to five still photographs per second shown in rapid succession,” it could be authenticated in same manner as photograph could be). However, if the video recording was edited or enhanced, if the date of the recording is at issue, or if the recording was made via a remote method, the operator will often be a necessary witness in order to lay a predicate regarding his operating procedures as well as the condition of the equipment. See Bryant v. State, 810 So.2d 532 (Fla. 1st DCA 2002) (jury was entitled to compare original time-lapse videotapes with edited, fully enhanced version presented at trial). The attorney should be prepared to counter the argument that evidence presented by recording will have an unfairly prejudicial impact on the jury.

The lawyer should also ensure that a videotaped deposition that is played during trial is admitted properly into evidence or else transcribed as part of the trial court record. In Matson v. Wilco Office Supply & Equipment Co., 541 So.2d 767, 769 (Fla. 1st DCA 1989), the court struck an appellant’s initial brief where it cited a video deposition that was played during trial but was not made a part of the trial court’s record. As the court commented,
use of technology in court proceedings brings new issues to the judicial system. When a videotaped deposition is played in the trial court, it is evidence adduced at trial. What the jury saw and heard should be made a part of the record on appeal and no more. … [W]hen a videotape is played in the trial court, the court reporter should not cease reporting but continue so that a stenographic record is made of the evidence being presented to the court. When the videotape has ended, counsel should submit it to the court as an exhibit.

Id. See also Travieso v. Golden, 643 So.2d 1134 (Fla. 4th DCA 1994) (where appellant relied upon videotaped depositions at trial, he must provide transcripts as part of his record on appeal).

Furthermore, when testimony is presented to the jury by video recording, the jury must rely on its recollection of the testimony just as it would a live witness. “Testimony presented by way of videotape is not permitted in the jury room … even if [it] has been properly admitted into evidence [at trial.]” Campoamor v. Brandon Pest Control, Inc., 721 So.2d 333, 335 (Fla. 2d DCA 1998).
G. Replicas
Replicas are useful when the original historical evidence is not available. As noted in Alston v. Shiver, 105 So.2d 785, 791 (Fla. 1958), “[t]he person offering such evidence should be required to give a good reason for its acceptance into evidence, and this is particularly true if the object be not the original, but only a replica or a facsimile” any deviation from reasonable exactitude in the replica could be fatal to its admissibility. In Alston, a personal injury suit, the plaintiff offered a replica of the ax handle into evidence. The defendant objected, noting that the actual ax handle was shorter than the replica and was slightly cracked on the corner. After the trial court admitted the evidence, the Florida Supreme Court reversed and remanded for new trial. It commented thusly:
[I]t is essential, in every case where demonstrative evidence is offered, that the object or thing offered for the jury to see be first shown to be the object in issue and that it is in substantially the same condition as at the pertinent time, or that it is such a reasonably exact production or replica of the object involved that when viewed by the jury it causes them to see substantially the same object as the original.

Id. See also Chamberlain v. State, 881 So.2d 1087 (Fla. 2004).

Furthermore, a replica may be introduced as follows:

Attorney: Please take plaintiff’s exhibit #1 in your hand. Examine it and tell me when you finish your examination.
Witness: I have finished.
A: Is exhibit #1 similar to the club that the defendant hit you with?
W: Yes.
A: Is it the same length?
W: Yes.
A: Is it the same width?
W: Yes.
A: Is it the same weight?
W: Yes.
A: Are there any differences between plaintiff’s exhibit #1 and the club with which you were beaten?
W: No. They are exactly alike.
H. Real Evidence
Real evidence is evidence that actually played a role in the time and place of the issues in the case. Injured body parts, defective products, weapons, and jewelry are examples of real evidence. Although real evidence is still subject to relevancy requirements as well as F.S. 90.403, relevance is typically established by the context of the case. It is the evidence as the attorney finds it, not as the attorney creates it. The concern with real evidence is its authenticity. It is therefore important to remember that the foundational elements differ considerably from the other types of demonstrative evidence discussed in this chapter. If the object is unique and has a one-of-a-kind characteristic—as, for example, an heirloom, an oil painting, or a monogrammed watch—the foundation is complete as long as the witness (1) previously observed the characteristic; (2) presently recalls the characteristic; and (3) can identify the object based on the distinctive characteristic and otherwise.

If the object is not inherently identifiable, or if issues as to the condition of the object are at issue, a chain of custody must be established. The chain of custody must show that the object in the courtroom is the same one involved in the events of the case. Gencorp, Inc. v. Wolfe, 481 So.2d 109 (Fla. 1st DCA 1986). Gencorp involved a defective tire. An expert showed a tire to the jury and explained why it was defective. However, the plaintiff failed to show that the tire about which the expert testified was in substantially the same condition at trial as it was at the time of the accident or that it was, in fact, the same tire that was involved in the blowout. The court found that “[t]he lack of such evidence is fatal to the admissibility of demonstrative evidence.” Id. at 111.

Once it is established that the object is in substantially the same condition, the burden shifts to opposing counsel to prove that the object is untrustworthy. To prove the untrustworthiness of records, the party opposing their admission must show that a break in the chain of custody occurred or that the records were probably tampered with. If the objecting party is unable to carry this burden, the records will be admitted into evidence. Love v. Garcia, 634 So.2d 158 (Fla. 1994). The trial court’s decision to admit the object will not be overturned on appeal absent a finding of abuse of discretion. Hellman v. State, 492 So.2d 1368 (Fla. 4th DCA 1986).

The court in Gavin v. Promo Brands USA, Inc., 578 So.2d 518, 519 (Fla. 4th DCA 1991), noted that “[a]t the outset, chain of custody presents a mixed question of law and fact in which the court determines whether a sufficient showing has been made of the item’s genuineness. Once admitted, however, it is the fact finder who determines its evidentiary weight.”

The foundational requirements for a chain of custody are that the witness (1) received the object at a certain time and place; (2) can document, step by step, the detailed method that was used to ensure that the object remained in the same condition as when it was first received and that the object was not substituted or altered; (3) can explain how the object got to the courtroom (if it was not retained by the witness but was transferred, another witness may need to be called to complete the chain); (4) can identify the object in court as the object he or she originally received; and (5) can state that the object is in the same condition as it was when he or she originally took possession of it.

Real evidence that has been transferred to many different individuals or has been subject to testing before it is brought into the courtroom requires a lengthier chain of custody foundation. Therefore, it may be advisable to offer opposing counsel the opportunity to inspect the evidence to alleviate any concerns he or she may have as to its authenticity in exchange for a stipulation as to its admission into evidence.
I. Scientific Tests
1. General Standard
Effective July 1, 2013, the Frye test of admissibility of expert testimony based on “general acceptance” within the scientific community (see Frye v. United States, 293 F. 1013, 1014 (D.C. Cir. 1923), 34 A.L.R. 145) was replaced in Florida by the Daubert standard (see Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993)). Under Daubert, scientific testimony must satisfy three threshold requirements to be admissible at trial: (1) it must be based on sufficient facts and data; (2) it must be the product of reliable principles and methods; and (3) the expert must have applied those principles and methods reliably to the facts of the case. See § 9.4.F of this manual for further discussion of Frye and Daubert. For an extensive examination of those cases, see Chapter 13 of BUSINESS LITIGATION IN FLORIDA (Fla. Bar CLE 9th ed. 2016).
2. Particular Applications
a. X-Rays
In most personal injury cases, x-rays form part of the evidence to be presented to the court. Although they are nothing more than photographic negatives (and thus arguably should be subject the same foundational requirements as photographs), a lawyer intended to submit x-rays should be prepared to present an expert who can explain the images to the jury. It should be noted that x-rays can be converted to “positive” prints that may be easier to use in the courtroom. It should also be noted that x-rays, if lost, are subject to the best evidence rule, and a witness may be barred from describing their contents if the originals are not produced at trial. Hernandez v. Pino, 482 So.2d 450 (Fla. 3d DCA 1986).
b. Magnetic Resonance Imaging (MRI)
Magnetic resonance imaging (MRIs) create “images” of the human body by producing photographic pictures of the body’s organs, including muscles and ligaments, through the use of a highly energized magnetic field. Like x-rays, MRIs are also common in personal injury cases and require an expert to interpret them to the jury. Diamond R. Fertilizer v. Davis, 567 So.2d 451 (Fla. 1st DCA 1990).
c. Liquid Crystal Thermography (LCT)
Liquid Crystal Thermography (LCT) is an imaging process used to demonstrate the process of soft-tissue injuries such as sprains and neuralgia by measuring variations in the heat emitted by regions of the body and transforming them into visible signals that can be recorded photographically for the purpose of diagnosing abnormal underlying conditions. Under the former Frye rule, Florida courts were divided over admissibility of thermograhic testing. See, e.g., Farmer v. Protective Casualty Insurance Co., 530 So.2d 356 (Fla. 2d DCA 1988); Palma v. State Farm Fire & Casualty Co., 489 So.2d 147 (Fla. 4th DCA 1986); Crawford v. Shivashankar, 474 So.2d 873 (Fla. 1st DCA 1985), 56 A.L.R.4th 1097; Fay v. Mincey, 454 So.2d 587 (Fla. 2d DCA 1984). However, at the date of publication, no Florida court has yet addressed this issue under the Daubert standard.
d. Polygraphs
Polygraph tests, also known as lie detector tests, have historically been inadmissible under Florida law unless stipulated to by the parties. Delap v. State, 440 So.2d 1242 (Fla. 1983) (polygraph tests are inadmissible); Shannon v. State, 753 So.2d 148 (Fla. 3d DCA 2000); but see Jenkins v. State, 380 So.2d 1042 (Fla. 4th DCA 1980) (finding no error in admitting polygraph test results where testimony was elicited by defense, and noting that such evidence is admissible upon stipulation of parties); La Rocca v. State, 401 So.2d 866, 868 (Fla. 3d DCA 1981) (“The general rule that absent stipulation of the parties, the results of polygraph examinations are not admissible … does not compel reversal where … the error in the introduction of or comment upon polygraph evidence was introduced by the defendant on cross-examination.”). Although Florida courts have not addressed the admissibility of polygraph tests under the Daubert standard, the Eleventh Circuit has affirmed lower court orders ruling polygraph evidence inadmissible under this standard. See, e.g., United States v. Henderson, 409 F.3d 1293 (11th Cir. 2005).

e. DNA Evidence
DNA (deoxyribonucleic acid) testing process and probability and statistical analysis of DNA samples are used predominantly in criminal and paternity cases. The Florida Supreme Court has opined several times regarding the admissibility of DNA evidence under the Frye standard, finding it to be admissible. Everett v. State, 893 So.2d 1278 (Fla. 2005); Butler v. State, 842 So.2d 817 (Fla. 2003). While Florida courts have not yet considered the admissibility of DNA evidence under Daubert, at least one has acknowledged “DNA evidence is now routinely admitted in trial courts in many states” under both Frye and Daubert standards. Brim v. State, 779 So.2d 427 (Fla. 2d DCA 2000).
f. Sexual Abuse Legitimacy Scale
In Page v. Zordan by & through Zordan, 564 So.2d 500 (Fla. 2d DCA 1990), the court found no evidence to support recognition and acceptability within the scientific community of the sexual abuse legitimacy scale, and therefore reversed the trial court because the court had allowed a clinical psychologist to testify concerning that test. No other appeals courts have since revised this issue under the Daubert standard. As to other sexual abuse tests, see Correia v. State, 695 So.2d 461 (Fla. 4th DCA 1997).
g. Serum Blood Alcohol Test
Under Frye, serum blood alcohol tests have been held by the Florida Supreme Court to meet the standard of general scientific acceptance. Domino’s Pizza v. Gibson, 668 So.2d 593 (Fla. 1996). At the time of publication, the Florida Supreme Court has not revisited this finding under the Daubert standard.
h. Computer Animation
In Pierce v. State, 718 So.2d 806 (Fla. 4th DCA 1997), see § 14.2.A, the court addressed the admission of computer animation as a demonstrative exhibit. The court found that where a computer animation is offered solely as a demonstrative exhibit to illustrate a witness’s testimony, it is not expert testimony, and no expert predicate is required (see § 14.3.I.1). Instead, the computer animation is subject to the same foundational requirements as any pictorial representation—that it is a fair and accurate depiction of what it purports to depict. The court quoted People v. McHugh, 476 N.Y.S.2d 721, 722–723 (Sup.Ct. 1984), which stated:
A computer is not a gimmick and the court should not be shy about its use, when proper. Computers are simply mechanical tools—receiving information and acting on instructions at lightning speed. When the results are useful, they should be accepted, when confusing, they should be rejected. What is important is that the presentation be relevant[,] that it fairly and accurately reflect the oral testimony offered and that it be an aid to the jury’s understanding of the issue.
Pierce, 718 So.2d at 809. Though Pierce concerned application of the Frye standard, its reasoning appears to apply with equal force to the newly-implemented Daubert standard.

§ 14.4. PRACTICAL CONSIDERATIONS
A. Logistics
Whether an exhibit is to be used by counsel or by a witness, the attorney should consider how it is physically handled in the courtroom in relation to the bench and the jury box. Blowups that seem large enough in the attorney’s office may not be viewable by the judge or the jury. The practitioner should be certain that the lighting in the courtroom will allow effective use of certain graphic presentations. If the lawyer intends to present demonstrative evidence through advanced technology that is not common practice before the presiding judge, he or she should raise the issue with the court and opposing counsel at a pretrial conference. If the lawyer decides to use computer animation or video, it is good practice to have a designated person responsible for the cuing of the video or animation and to operate the equipment.
B. Video Recordings
If a video recording is an important part of the case, it is important to ensure that (1) the machine being used is in working order; (2) the machine can be used with a minimum amount of fast forwarding and rewinding to find the right section to be played; and (3) all the necessary wiring and electrical outlets are available in the courtroom. The attorney should consider viewing the court’s video equipment well in advance of the trial in order to resolve any connectivity or compatibility problems. The attorney should also consider bringing their own equipment, such as a backup projector and screen, as well as additional copies of the video recording on both digital and traditional media. If the video recording is of deposition testimony for which there are objections, there must be either an edited recording after the court has ruled on the objections or an agreement to turn the volume off as appropriate so the jury does not hear inadmissible testimony.
C. Graphics
Counsel should consider what kind of graphics best suit the evidence. For example, time lines work well in telling a story and are useful in personal injury, medical malpractice, commercial, and many other types of litigation. Pie charts are effective for explaining allocation of damages and other percentage type issues. Graphs and charts, on the other hand, may be most useful in explaining concepts and themes.
D. Real Evidence
When dealing with real evidence, it helps to be mindful of one’s apparent attitude and physical movements with respect to particular objects. For example, the attorney should not hold or present a work of art or a diamond necklace in the same manner as a weapon or an automobile tire.
E. Computer Animation And Simulation
Computer animation and simulations are very effective in causing jurors to feel that they are having a first-hand experience. However, they are extremely expensive. Therefore, before spending the money to create the exhibits, the lawyer should be as sure as possible of their admissibility.
F. Highlighting And Zooming
It has become increasingly popular to use courts’ video technology to display exhibits, such as documents and photos, on computer screens simultaneously with the presentation of the actual exhibit to a witness. In doing so, lawyers also have the ability to zoom in on particular portions of an exhibit, or to highlight particular text or images. However, just because this can be done does not mean it should be done. The lawyer must consider the budget for the case and whether this method of presentation will truly assist the jury in understanding the case.
G. Conclusion
All too often the creation of demonstrative evidence becomes a last-minute decision before trial. Fortunately, companies that specialize in trial graphics can usually accommodate an attorney’s request within hours rather than days. However, properly developed and effective demonstrative evidence requires careful planning. In working on each phase of trial—whether the opening statement, fact witness testimony, expert witness testimony, or summation—the attorney’s analysis should include whether demonstrative evidence would be necessary or advantageous.

It is first necessary to decide whether the use of demonstrative evidence is warranted for either proof, reinforcement, explanation, or illustration of an issue. Then counsel should decide the optimal medium for presenting the evidence (e.g., video or photograph, diagram or drawing, chart or time line, blowup poster or original-size exhibit). and then anticipate the admissibility and foundational issues this evidence is likely to face at trial issues. Strategically, stipulations or pretrial rulings avoid the need for laying a lengthy evidentiary foundation in front of the jury. However, there are circumstances when the thoroughness of a foundation can play an important role in jury persuasion. For example, it may serve to emphasize the importance of a particular piece of evidence, or establish its credibility beyond reporoach.

Although few deny the value and effectiveness of demonstrative exhibits, some people believe that too much technology in the courtroom and too much information in a sophisticated software-produced chart is counterproductive. See McElhaney, Gizmos in the Courtroom, 83 A.B.A. J. 74 (Nov. 1997). Professor McElhaney’s anecdotes include lawyers who use only “plain vanilla” blowups that “don’t go away when you turn off the switch,” and lawyers who do not use blowups anymore but prefer “little snapshots” so none of the evidence seems “manipulated or contrived.” Id. at 75. Exhibits that are too glitzy or too detailed may lack persuasive force. In the same vein, using too many demonstrative exhibits in trial may dilute the impact of all of them. Nevertheless, we are living in a high-tech era, so the use of modern demonstrative aids is sometimes essential.