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Lies, Damn Lies, and Deceptive Demonstrative Exhibits

Summary:

Demonstrative exhibits, particularly those that ultimately become demonstrative evidence, are subject to certain rules of evidence, and by extension, standards of professional conduct. But are these rules and standards uniformly or even broadly observed? In our experience, a large number of the demonstratives marked for identification or entered into evidence fail to meet minimum qualifications or expectations
of the court. This often occurs because counsel chooses not to make an issue about marginally questionable exhibits (not an incorrect choice).

For example: stipulations to allow not-to-scale, but purportedly accurate diagrams prepared by police officers, or eyewitness visibility photographs taken with telephoto lenses, or statistical charts that display rough approximations of data points. Generally, there is no material harm in relaxing the rules for these types of demonstratives, especially if they are not entered into evidence.


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