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The admissibility of graphics and presentations as demonstrative aids in Canadian court proceedings.

This article originally appeared in the April 2012 Trial Techniques and Tactics Committee Newsletter.

We are often asked by our international colleagues and clients what use, if any, can be made of computer graphics and presentations as demonstrative aids during Canadian court proceedings. (2) The use of simple demonstrative aids (3) is becoming commonplace in Canadian trials. But even very recently, Canadian counsel may have advised that the use of computer graphics and presentations is unusual, and largely limited to criminal and complex personal injury cases. While this is a valid perception, it is our view that the traditional reluctance to use demonstrative aids in Canadian courtrooms outside of that context is no longer warranted. There is a sparse, yet expanding, body of case law that can be applied to support new and effective uses of computer graphics and presentations at trial. The growing complexity of litigation, combined with cases involving complex scientific, medical, financial and other technical issues, have led to a growing acceptance among the bench to innovative, electronic forms of organizing and presenting evidence and argument at trial.

However, the movement towards increasing use of trial graphics and presentations has not changed the very formal nature of Canadian trial practice. All demonstrative aids are potentially subject to strict requirements as to their admissibility and use, particularly in jury trials. (4) Counsel and clients from outside Canada should be aware of the nuances of this emerging area of Canadian law and practice, as well as the potential pitfalls, in order to maximize the power of graphics and presentations. Ultimately, counsel may not be able to simply import or use graphics or presentations from other jurisdictions "as is", but may be able to use such aids with appropriate revisions for the Canadian context. In this article, we address the following issues: (1) the admissibility and use of graphics and presentations as demonstrative aids, (2) presenting factual evidence using these types of demonstrative aids, (3) presenting expert evidence using these types of demonstrative aids, (4) the use of demonstrative aids in opening argument, and (5) the use of demonstrative aids in closing argument.

1. The Admissibility of Demonstrative Aids

Demonstrative aids can be utilized in Canadian trials to present, illustrate, simplify or summarize other evidence. In order to be admissible, demonstrative aids must:

1. be relevant to the issues,

2. assist the trier of fact to better understand the evidence, and 3. have probative value that is not outweighed by the potential prejudicial effect. (5)

Additionally, a proper evidentiary foundation must be established. There are some specific requirements for certain types of demonstrative aids (e.g. computer animated reconstructions), but generally, a demonstrative aid must be authenticated by a witness, either factual or expert, who can testify as to the method of preparation of the aid, verify that the aid in question is a fair and accurate representation of what it purports to represent, and affirm that the aid was created without any intention to mislead. (6) In some circumstances, counsel may be able to have the demonstrative aid admitted into evidence as a summary of other information or data already admitted as evidence. (7)

There is a significant difference in practice, if not in law, in the approach to demonstrative evidence in a judge-alone trial than in a jury trial. In a jury trial, the prejudicial effect and usefulness of the demonstrative aid are the primary, competing factors to be considered in determining whether to allow its use. More extensive scrutiny of the nature and preparation of the aid are warranted, because even a simple demonstrative aid, such as a chart or a diagram, may give the evidence "an aura of cogency which on close analysis it does not deserve". (8) However, civil jury trials are uncommon in Canada, particularly in complex cases. A trial judge sitting alone has substantial discretion to determine whether to admit demonstrative aids based upon whether he or she finds it helpful and whether there are any concerns about misrepresentation of the evidence. (9) In judge-alone trials, a judge's willingness to allow the use of graphics and presentations may depend in part on the individual judge's comfort level and experience with technology. Although in our experience, most Canadian judges will permit the use of graphics and presentations that are helpful in understanding the evidence or argument.

There is no existing rule of general application requiring pre-trial disclosure of demonstrative aids. In some cases, the court may impose a pre-trial requirement that demonstrative aids be disclosed to opposing counsel in advance. This most often occurs as part of the case management process if requested by one party or raised by the court. The practice of providing demonstrative aids to opposing counsel in advance ensures the efficient conduct of the trial and is usually in the best interests of both parties, assuming that both parties intend to use demonstrative aids. Otherwise, a recess or adjournment may be required to allow opposing counsel to review and assess the content of graphics or presentations prior to making submissions on the appropriateness of their use or their admissibility.

Different considerations arise when demonstrative aids are used in opening or closing argument, however. Strategic concerns, such as remaining flexible to respond to the plaintiff's submissions and avoiding advance disclosure of the content of the argument, may dictate that demonstrative aids not be provided to opposing counsel in advance. There remains a debate as to whether counsel ought to provide advance disclosure of demonstrative aids to opposing counsel in advance, where it is not required by a pretrial direction. This needs to be assessed based on the particular circumstances of each case. Generally, counsel should err on the side of disclosure in jury trials and with respect to demonstrative aids to be used with witnesses.

Both the relative novelty of the use of computer graphics at trial in Canada and the fact that most Canadian trials are by judge alone import other practical considerations about the content of demonstrative aids. Generally, counsel will find the use and content of graphics in Canadian trials more conservative than may be common in some other jurisdictions. Precision and accuracy in every element of the graphic or presentation, and completeness on the matters addressed, are critical to the admissibility of the demonstrative aid itself and to the credibility of the witness and counsel using the aid. Canadian judges sitting alone are also likely to appreciate more detail than might ordinarily be appropriate for a jury. On the other hand, the use of clip art or icons, for example to emphasize key points, should generally be avoided unless they are necessary to explain the evidence, as these may inadvertently come across as condescending to a trial judge.

2. Presenting Factual Evidence

Simple demonstrative aids, such as graphs, charts, illustrations, drawings, and photographs are routinely admitted through factual witnesses, provided that the witness can give evidence that provides sufficient foundation to authenticate and verify the aid. However, it can be harder to use text-based graphics or comprehensive slide presentations (such as PowerPoint) with factual witnesses. The use of such aids may raise concerns that the witness' evidence has been scripted, which would amount to a form of leading the witness. (10)

Although there is some precedent for the use of computer presentations with factual witnesses, (11) it is much more likely to result in objections from opposing counsel, and the court is also more likely to scrutinize such presentations carefully to assess whether they are prejudicial or undermine the ability of opposing counsel to test the reliability or veracity of the witness' evidence or the trier of fact's ability to assess it. Depending on time limitations for a witness' evidence (especially independent witnesses not under a subpoena), the time required to argue a motion for leave to use text-based graphics or a slide presentation with a factual witness and the attendant delay and interruption in the witness' evidence, may not be worth any potential advantage over less contentious traditional demonstrative aids, particularly when such graphics or presentations can be used later during closing argument.

3. Presenting Expert Evidence

Demonstrative aids are frequently used at trial to illustrate the evidence of expert witnesses and to assist the trier of fact in understanding the opinions that are given. The scope of aids that may be utilized with expert witnesses is broader than with factual witnesses. Comprehensive presentations of the expert's testimony--which may set out the expert's opinion, methodology or approach, background assumptions, the information relied upon and summarize the key points of the expert's evidence are an increasingly important, influential tool to effectively present expert evidence and educate the trier of fact with respect to complex scientific, medical or financial matters. (12) Canadian judges have repeatedly recognized the value of graphics and presentations in this regard. (13)

The use of demonstrative aids during expert evidence does not give rise to the same concerns about leading the witness' testimony that arises from their use with fact witnesses. The credibility of experts' recollections of facts that may form the basis of their opinions is generally not at issue. The role of experts, by design, is to educate the trier of fact on issues beyond the expertise and knowledge of others and to ensure that the judge or jury understands the expert evidence. As one Canadian judge has noted, there is no "leading" of an expert witness in the classic sense because the expert witness prepares or directs the content of their own presentation: "they are putting words in their own mouth. It is analogous to an expert's report, which is prepared in advance by the expert and disclosed to the defence.... Having the report synthesized in Power Point format and presented to the jury is essentially no different." (14) Further, using a presentation that notes the key evidence of the expert is no different than having that witness testify slowly, and allowing the jurors to make their own notes of those findings. (15)

There is no requirement that the expert must have prepared the presentation, only that he or she is familiar with and directed the content of the presentation. This ensures that the demonstrative aids that can be used to illustrate an expert's evidence are not artificially limited by his or her knowledge of various presentation programs or software. A presentation prepared by counsel or a third-party professional may be used at trial provided that the expert also testifies that he or she dictated the content and that it accurately represents his or her evidence. (16) Concerns about the input of counsel or others in the preparation of demonstrative aids used by an expert or the subjective opinions incorporated therein are generally matters that affect the weight rather than the admissibility of the demonstrative aid. (17)

However, there are concerns and pitfalls to be aware of when using graphics or presentations with expert witnesses. There is a danger that a comprehensive presentation may minimize the role of counsel in eliciting the evidence and that counsel will lose control over the content and flow of the expert's testimony. Even with an eminently qualified expert, this may reduce the effectiveness of the testimony and the ability of counsel to be flexible and responsive to questions from the judge or the body language of the trier of fact. Counsel should remain an active participant in presenting the expert's evidence, framing the questions to focus the expert's testimony and the trier of fact's attention on the central points that need to be made.

Another frequent difficulty is that presentations and graphics should avoid mixing fact and opinion. They should clearly differentiate between the information and facts that are relied upon for the expert's opinion, which must be proved separately, and the expert's own opinion or interpretation. (18)

Demonstrative aids used to present expert testimony may not be admissible as evidence of the truth of their contents, absent agreement of the parties. The information or data contained in expert presentations technically constitutes hearsay. Hearsay evidence is admissible in Canada to show the information on which the expert's opinion is based, but not as evidence proving the existence of the facts on which the opinion is based. (19) For example, if an expert's presentation includes charts that graphically illustrate data from a clinical study, but the data upon which the graphic is based is not in evidence, that particular chart, if admissible at all, may only be used to show the basis for the expert's opinion, not to establish the truth of the data. In some cases, where the data or information has not been published or entered into evidence, but presented as factual evidence rather than merely the basis for the expert's opinion, concerns about the reliability and veracity of the demonstrative aid may render it inadmissible. (20)

In a judge-alone trial, the use of graphics or a presentation by an expert during his or her evidence that do not satisfy the admissibility requirements to be formally marked as an exhibit is rarely problematic. Where there is insufficient foundation for the graphic or presentation to be entered into the trial record as evidence, it may nonetheless be marked for identification and used as an aide memoire by the judge. In a jury trial, however, the court is likely to take a more strict approach to the use of graphics that do not have a sufficient foundation, given that graphics tend to give information an aura of truthfulness that may not be warranted.

4. Opening Argument

The most critical consideration in preparing demonstrative aids for opening is that counsel must be careful to only use aids that contain facts that they are certain can later be proved through admissible evidence. If the content of the graphic cannot later be proven or an aid is found to be inadmissible, this will undermine counsel's credibility at the very least, and in a jury trial, could potentially result in a mistrial. (21) In order to use a demonstrative aid as part of opening argument, counsel should be prepared to undertake to prove the information in text-based aids and the accuracy of any graphic aids. Significant issues as to the admissibility or fairness of the proposed demonstrative aid should be avoided. If there is any concern that the aid will mislead or misrepresent matters to the trier of fact, it may be excluded. (22)

While leave of the court is necessary to use a demonstrative aid in opening to a jury, (23) leave does not need to be expressly requested in a judge-alone trial. (24) The requirements to use demonstrative aids during opening are also applied more stringently in a jury trial. In our experience, judges find demonstrative aids that are relevant and helpful to be of great assistance to them in opening. Provided that the aid is not misleading or inflammatory, judges sitting alone will rarely refuse the use of a demonstrative aid in opening.

Graphics that provide an outline or overview of the argument can be effective and helpful, particularly if opening argument is lengthy. (It is not unusual in a long Canadian trial for opening argument to exceed one or two days.) Without any demonstrative aids, the trier of fact may have difficulty understanding the framework for the argument and placing specific points into their larger context. Judicious use of computer graphics and presentations should be encouraged to help hold the trier of fact's attention and interest. However, due to the limitations on opening argument generally, and a desire to avoid interruption of the opening caused by objections and argument as to the appropriateness of such demonstrative aids, there is more restraint in their use in the opening argument of Canadian trials than during closing or while presenting the evidence.

5. Closing Argument

At closing, counsel knows exactly what graphics have been made exhibits and what facts have been proved, so there is significantly less risk in summarizing the evidence with graphics during closing argument than in opening. In a judgealone trial, counsel can also use graphics to present their legal argument on the theory of the case, but should be cautious and differentiate between the evidence and argument.

The golden rule for the use of demonstrative aids and graphics presentations during closing is that any evidence referred to must either be in testimony or marked as an exhibit. However, this does not prevent counsel from combining exhibits or using evidence from more than one exhibit into a single graphic during closing. When done properly, this can be a very effective way of synthesizing various pieces of evidence for the court and illustrating the conclusion that counsel wants the trier of fact to draw. Combining evidence from different sources can also be a powerful tool to compare and contrast the evidence of competing witnesses or to demonstrating gaps in the evidence.

Further, graphics or a presentation used during closing argument functions as a useful compendium of counsel's argument, which the trier of fact may refer to during deliberations. (25) This is an often overlooked opportunity for advocacy, whether the trial is heard by a judge alone or jury. A judge sitting alone will almost invariably request a copy of the presentation, and it is likely to be a resource that the judge returns to while writing the decision. In a jury trial, use of a presentation or graphics that summarize key evidence from the trial may not only improve the jury's understanding of the closing argument, but may also be available for reference later during deliberations, unlike the oral evidence. (26) In a long, complex trial, the trier of fact will likely find demonstrative aids assist in dealing with the evidence and legal argument effectively and expeditiously.

6. Conclusions

Canadian courts are receptive to the use of demonstrative aids such as computer graphics and presentations during trial, but care must be taken to ensure that the aids utilized are admissible and assist the trier of fact to understand the evidence and theory of the case. The primary consideration of Canadian courts in assessing whether demonstrative aids are appropriate is whether they are a fair and accurate representation of the evidence. Graphics must be exceedingly faithful to the evidence.

Graphics used to present evidence and legal argument during closing argument should be prepared in a way that maximizes their effectiveness as a compendium or an aide memoire, especially in a judge-alone trial where there is considerable discretion and latitude for a trial judge to allow the use of demonstrative aids that assist in understanding the evidence and argument.

By: S. Gordon McKee, Jill M. Lawrie, Robin L. Reinertson and Nicole Henderson (1)

(1) This article is based in part on the authors' recent experience defending a leading medical device manufacturer in a lengthy class action trial in Toronto, Canada. We appreciate the comments received on a draft of this article from our U.S. colleagues who assisted with the trial, Steven M. Kohn, J. David Bickham, and Gary Jeffrey of Reed Smith's San Francisco office, from Andrew Spingler of The Focal Point, and from Elizabeth Porter, Senior Corporate Attorney, St. Jude Medical, Inc. The authors take sole responsibility for the final content.

(2) Computer graphics and slide presentations are uncommon in motion practice in Canada for a variety of reasons, though judicious use of such demonstrative aids may be appropriate in some cases.

(3) The term "demonstrative aids" is used in this article to refer to visual or graphical aids that are used to help illustrate, explain, or summarize other oral or documentary evidence adduced at trial. Demonstrative aids, such as graphs, charts, chronologies, illustrations, diagrams, scale models, and PowerPoint or other computer generated presentations are derivative of other evidence and are conceptually distinct from "real" evidence, such as unannotated photographs, x-rays, diagnostic imaging, or a piece of an engine in a defective products case. Unlike with demonstrative aids, a trier of fact can draw inferences and conclusions from real evidence directly, and in that sense real evidence is equivalent in evidentiary value to oral evidence and documentary evidence.

(4) It should be noted that in Canada, bench trials are far more common than jury trials for civil cases. Jury notices are rarely served in commercial disputes, class actions and complex matters.

(5) Draper v. Jacklyn, [1970] S.C.R. 92.

(6) Jenkyns v. Kassam, infra at note 9; Andersen v. St. Jude Medical, [unreported], October 7, 2010.

(7) R. v. Scheel, [1978] O.J. No. 888, 42 C.C.C. (2d) 41 (C.A.).

(8) R. v. Portillo, [2003] O.J. No 3030, 176 C.C.C. (3d) 467 (C.A.) at para. 36.

(9) Jenkyns v. Kassam, [2006] O.J. No. 5494, 47 C.P.C. (6th) 71 (S.C.J.) at para. 3-4; Marchand v. The Public General Hospital Society of Chatham, [2000] O.J. No. 4428, 51 O.R. (3d) 97 (C.A.) at para. 109.

(10) R. v. Sandham, [2009] O.J. No. 4517 (S.C.J.) at paras. 16-17.

(11) See e.g. In R. v. M.N., [2004] O.J. No. 4895, 2004 ONCJ 307; R. v. Mohamed, [2009] O.J. No. 398 (S.C.J.).

(12) Sandham, supra at note 10, at paras. 15 and 23.

(13) See e.g. Sandham, supra at note 10, at paras. 22-23; Jenkyns v. Kassam, supra at note 9, at paras. 8-11.

(14) Sandham, supra at note 10, at para. 24.

(15) Id. at para. 26.

(16) See e.g. Jenkyns v. Kassam, supra at note 9, at para. 6; McCutcheon v. Chrysler Canada, [1998] O.J. No. 5818, 32 C.P.C. (4th) 61 (Gen. Div.).

(17) Id. at para. 17.

(18) Sandham, supra at note 10, at para. 26. We note that the separation of fact and the expert's opinion is particularly important in the circumstance where an expert was involved in the contemporaneous events at issue in the litigation and gives both opinion and factual evidence at trial (e.g. where the witness has previously consulted for one of the parties).

(19) R. v. Lavallee, [1990] 1 S.C.R. 852 at para. 66.

(20) Andersen v. St. Jude Medical, supra at note 6.

(21) J.A. MCLEISH AND R.G. OATLEY, THE OATLEY-MCLEISH GUIDE TO DEMONSTRATIVE ADVOCACY, 211 (Markham: Lexis-Nexis Canada Inc., 201 1).

(22) Whitford v. Swan, [1995] O.J. No. 4189 (Gen. Div.) at para. 3; Jenkyns v. Kassam, supra at note 9, at para. 16.

(23) This is one of the reasons that demonstrative aids should generally be disclosed to opposing counsel in advance in a jury trial.

(24) MCLEISH AND OATLEY, supra at note 21, at 210 and 214.

(25) One effective approach is to incorporate evidence citations, exhibit numbers, and transcript references into the graphics or presentation.

(26) R. v. Bengert (1980), 53 C.C.C. (2d) 481 (B.C.C.A.) at para. 144.

The authors are with the Canadian firm Blake, Cassels, & Gravdon LLP, and were members of a team of lawyers that represented a multinational medical device manufacturer in the first class action of its kind to go to trial in Canada. Gord McKee and Jill Lawrie are partners in the Blakes Toronto office and led the trial team, which included Robin Reinertson, an associate in the Blakes Vancouver Office and Nicole Henderson, an associate in the Blakes Toronto office. Gord and Jill focus on class action and product liability defence, regularly defending leading manufacturers of drugs, medical devices and consumer products in serious product liability claims and class actions in Canada. Robin and Nicole are also developing a focus in these areas within their more general commercial litigation practices.
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Author:McKee, S. Gordon; Lawrie, Jill M.; Reinertson, Robin L.; Henderson, Nicole
Publication:Defense Counsel Journal
Date:Apr 1, 2012
Words:3938
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