This is especially important when your demonstrative is a depiction of an event, place, or condition. In many cases, this is not complicated. A photograph, illustration, video, or animation can be authenticated by a witness with knowledge of what the visual evidence is depicting.
This is often someone who was at the scene that is being depicted at the time being depicted, or by the person who created or designed the visual. Sapp , P. Newman , 4 Wash. For example, a demonstrative demonstrating an internal injury might need a medical expert to support it. An animation of an accident that had no witnesses or videotape might need an accident reconstruction expert to support it.
There is no hard and fast rule for setting a foundation, because who you can call and who you want to call will vary from case to case, but you should keep in mind who needs to testify as to the accuracy of the demonstrative evidence. And if you hire Cogent, we have vast experience dealing with these issues. At Cogent Legal, we are ready to help you navigate these rules and get your demonstrative exhibits admitted at trial.
Our goal is to never create a demonstrative exhibit that our client cannot use. See Sapp , P. See also ER b 4. However, that typically requires circumstantial evidence such as where a photograph was found. That extension of the rule is typically not relevant to demonstrative evidence created for a case.
Before joining Cogent Legal as the Executive Director of the Seattle office, Tyler Weaver was a partner at Hagens Berman Sobol Shapiro LLP in Seattle, where he oversaw the day-to-day litigation of complex cases in a wide array of subject areas intellectual property, consumer protection, civil rights, securities, and antitrust, to name just a few. With regard to the information that you looked at, obviously, I think that we have heard you didn't do any of the direct testing yourself; correct?
We have work sheets in conjunction with these standard operating procedures. So we require our analysts, for example, every time that they put a sample into the oven, they have to record the time and the date that that sample was placed in the oven, as well as when it was taken out.
Each step of the procedure has a permanent record that is maintained in the form of a case file. Everything that was, I could see that everything was done adequately from this documentation.
I did draw my own interpretation and my own conclusions from it. Based upon your knowledge of the workings of Orchid, was Yes, it was. Not only based on the standard of the operating procedures, I have also reviewed all of the laboratory documentation and the supporting documents that indicate that the testing was performed appropriately. She responded that the word "predominate" was used "in order to be conservative" because "there was some additional peaks detected below threshold," but that based on her independent review of the data and her discussions with the laboratory analysts, her opinion was that there was a single contributor.
VRP Apr. The Court also stated that the confrontation clause does not bar testimonial statements offered for some other purpose than proving the truth of the matter asserted.
Instead, he argued that the clause was designed to reach only "formalized testimonial materials" and none of the statements made to police in Davis were sufficiently formal to make the declarants "witnesses" within the meaning of the confrontation clause. The majority acknowledged that most of the early American cases excluding evidence for lack of confrontation involved very formal testimonial statements such as sworn testimony or depositions under oath.
Nevertheless, it rejected Justice Thomas's interpretation out of concern that it could lead prosecutors to avoid calling a defendant's accusers as live witnesses by sending police officers to conduct "informal" interrogations of those witnesses and then presenting the accusations through the officers' testimony.
He stated that he joined the majority opinion because the documents at issue satisfied this test. Several state statutes permit nearly all laboratory results or forensic science findings to be admitted through certificates. Jennifer L. Washington, 15 J. Based on Justice Thomas's concurrence in Melendez-Diaz, it is not clear that a majority of the Court supports this broad definition.
But for purposes of our analysis, we assume that the underlying reports are "testimonial. Harruff's testimony regarding Boussiacos's nicotine test results and body temperature measurement is viewed as merely repeating the assertions of others, we conclude the error, if any, is harmless. Lui speculated that someone could have followed Boussiacos if she had been sneaking out to smoke. And in closing argument, the prosecutor made a passing reference to the lack of nicotine in her blood.
But in the context of the State's entire case, this evidence was marginally relevant. Lui never claimed Boussiacos left the house to smoke. His suggestion was merely conjecture. And there was no testimony about how long nicotine would have been detectable in her blood in any event.
Similarly, the record demonstrates that Dr. Harruff's time of death testimony based in part on Boussiacos's body temperature measurement supported both the State and Lui's theory about when she died. See footnotes 2 and 3. There is no reasonable probability this evidence contributed prejudicially to the verdict. Hopkins, Wash. But in that case, there is no suggestion that the doctor did anything other than read the nurse's statements to the jury.
It appears from the opinion that the nurse was unable to testify because of a sudden emergency. It was not essential to the Court's holding and its applicability to situations not involving police evasion is unclear. And on appeal, he does not challenge the admissibility of the disputed evidence based on ER or Under ER , "[t]he expert may testify in terms of opinion or inference and give reasons therefore without prior disclosure of the underlying facts or data, unless the judge requires otherwise.
The expert may in any event be required to disclose the underlying facts or data on cross examination. Tegland explains,. The courts will not allow Rule to be used as a vehicle for having an expert witness read from materials, otherwise objectionable as hearsay, when the expert did not rely upon the materials in reaching his or her opinion.
In addition, ER is substantially the same as the corresponding federal rule. Goldstein, 6 N. We are not persuaded by this argument. The very fact that an expert has an articulable basis for an opinion can assist the jury in deciding what weight to give the opinion. Moreover, Goldstein is factually dissimilar because it presented a different hearsay question, which involved statements made to a psychiatrist who was evaluating the defendant's sanity.
We decline to adopt its reasoning in this context. Redmond, Wash. The record here shows no limiting instruction was requested or given. See, e. Dungo, Cal. But we conclude the line of cases discussed above is more persuasive. Your Notes edit none. Cited By 13 This case has been cited by other opinions: State v. Jasper State v. Lucas State v. Lui State v. Authorities 13 This opinion cites: Crawford v. Massachusetts, U. Goldstein, N. Hopkins, P. Please support our work with a donation.
Sione P. LUI, Appellant. Court of Appeals of Washington, Division 1. November 23, Deborah A. LAU, J. NOTES [1] ER provides, "The facts or data in the particular case upon which an expert bases an opinion or inference may be those perceived by or made known to the expert at or before the hearing.
On the time of death, he testified on direct, "Q. Doctor, can you tell us what the temperature of Ms. Boussiacos' body was at the time? Why is that? It is cooler. So given those conditions, is it ever possible to set an exact time of death for any one?
It is extremely difficult and not possible to fix the time exactly. Regarding the time of death, you say that it is hard to determine. Yes, very difficult, yes. Is death on the 4th within the range of possibilities?
Death on the 5th? Death on the 6th? Probably so. On the 7th? I want to refer or direct your attention to the actual testing that was done in this case. I was a case reviewer in that case. What does that mean?
Did you look at all of the testing and the procedures that were documented by the analysts? Yes, I did. In this respect the rule is designed to broaden the basis for expert opinions beyond that current in many jurisdictions and to bring the judicial practice into line with the practice of the experts themselves when not in court. Thus a physician in his own practice bases his diagnosis on information from numerous sources and of considerable variety, including statements by patients and relatives, reports and opinions from nurses, technicians and other doctors, hospital records, and X rays.
Most of them are admissible in evidence, but only with the expenditure of substantial time in producing and examining various authenticating witnesses. The physician makes life-and-death decisions in reliance upon them.
His validation, expertly performed and subject to cross-examination, ought to suffice for judicial purposes. The rule also offers a more satisfactory basis for ruling upon the admissibility of public opinion poll evidence. Attention is directed to the validity of the techniques employed rather than to relatively fruitless inquiries whether hearsay is involved.
See Judge Feinberg's careful analysis in Zippo Mfg. Rogers Imports, Inc. See Comment, Cal. Law Rev. Comm'n, Recommendation Proposing an Evidence Code — Rule has been amended to emphasize that when an expert reasonably relies on inadmissible information to form an opinion or inference, the underlying information is not admissible simply because the opinion or inference is admitted. Courts have reached different results on how to treat inadmissible information when it is reasonably relied upon by an expert in forming an opinion or drawing an inference.
Compare United States v. Rollins , F. Commentators have also taken differing views. See, e. When information is reasonably relied upon by an expert and yet is admissible only for the purpose of assisting the jury in evaluating an expert's opinion, a trial court applying this Rule must consider the information's probative value in assisting the jury to weigh the expert's opinion on the one hand, and the risk of prejudice resulting from the jury's potential misuse of the information for substantive purposes on the other.
The information may be disclosed to the jury, upon objection, only if the trial court finds that the probative value of the information in assisting the jury to evaluate the expert's opinion substantially outweighs its prejudicial effect.
If the otherwise inadmissible information is admitted under this balancing test, the trial judge must give a limiting instruction upon request, informing the jury that the underlying information must not be used for substantive purposes.
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