Diagrams

Personal Injury Case. Plaintiff Raymond Cluney sues for injuries when the car in which he was riding asa passenger collided with a car driven by the defendant, Albert Borak, at the intersection of Wood and Vale Street. During his direct examination Plaintiff is asked if use of the blackboard in the courtroom was help him to illustrate his testimony. Upon his affirmative response, he is invited to step down from the witness stand and draw the intersection of Wood and Vale Streets on the blackboard, and then draw in the locations of the two cars after the crash and other pertinent details.

During the direct examination of the defendant, Albert Borak, the witness is shown a pre-drawn daigram of an intersection on a large white easel tablet which has been marked for identification as Exhibit 1. The examination goes as follows:

Q. Do you recognize what has been marked as Exhibit 1 for Identification?

A. Yes...

Q. Does Exhibit 1 for Identification fairly and accurately depict the intersection of Wood and Vale Streets as it existed at the time of the accident?

A. It looks like it.

Q. We offer Exhibit 1 for Identification in evidence as Exhibit 1.

Other lawyer: Objection!

What ruling and why?

Q. Can you indicate on Exhibit 1 where your car just before the accident?

A. It was here - (drawing).

Q. We offer Exhibit 1 for Identification in evidence.

Other lawyer: Objection!

What ruling and why?

The status of diagrams and other graphic illustrations of a witness's verbal testimony is somewhat uncertain in many jurisdictions. There is no Federal Rule which specifically addresses the use of graphic "illustrative aids" to enhance a witness's oral testimony. Among the various states there are wide variations in treatment of this media. In some states illustrations of a witness's testimony such as diagrams, models and computer simulations are treated as visual testimony. They are not considered "real evidence" and they are not sent to the jury room for use by the jurors during their deliberations. In the New England states such diagrams are often referred to as "chalks" deriving from their historical development out of the in-court chalkboard. In other states this kind of media is considered as "demonstrative evidence" and is admitted as a special category of evidence, sometimes with a limiting instruction to the effect that the diagram should be given no greater weight than the supporting witness's testimony. In some states diagrams seem to be treated as ordinary tangible evidence.

Increasing sophistication in the use of visual aids in all teaching settings, whether classroom, salesroom or courtroom, and the opportunities offered by electronic technology for handsome and persuasive visuals have made trials into multi-media events. How can counsel and the court detect and control distortion and subtle messages in fancy computer simulations, charts, and illustrations? Does Rule 403, which applies to material actually offered in evidence, also give the court the power to regulate the use of diagrams and other material developed and used merely to illustrate concededly admissible verbal testimony? Does the sometimes high cost of these aids increase the effect of disparate economic resources on judicial outcomes? What kinds of advance notice and access should afforded opposing parties? Can parties "mark up" or even spoil the opponent's chart during the course of cross examination or argument? Some states have started to try to experiment with regulations governing the use of "illustrative aids" in court. See, e.g. Maine Rule of Evidence 616.