BY: Dr. Peter A. Barone, Esq.
When examining the rules of evidence
governing demonstrative evidence in a case used to illustrate expert opinion testimony
we see that the existing rules vary slightly from those that are in place to
govern exhibits which are associated with the fact witnesses. When dealing with
experts the attorney presenting the evidence to the court must first ensure
that the exhibit illustrates an expert’s opinion. If they do this then they
must then lay the foundational requirements necessary to introduce the expert’s
opinion.
On July 1, 2013 the Florida
Legislature amended the relevant statute to replace the Frye Test with the
Daubert test from Daubert v. Merrel Dow Pharmaceuticals, Inc. 509 U.S. 579 (1993).
The Daubert test raises the
following issues when evaluating whether to allow an expert’s testimony. In
making the significant change the legislature in its codification of federal
Daubert test, made clear that “pure opinion testimony” was no longer
admissible. Daubert was expanded upon by the case of General Electric Company
v. Joiner (1997) and Kumbo Tire Company Limited v. Carmichael (1997) which
rendered the Daubert test applicable not only to new or novel scientific
evidence, but to all expert opinion testimony. In the Daubert standard the proponent
of the evidence has the burden of establishing the admissibility and they must
accomplished this by the standard of the preponderance of the evidence.
When dealing with Expert Testimony
the question of admissibility is naturally raised as relates to the
demonstrative evidence being presented from which the expert intends to rely
upon for the rendering of their expert opinion. It must be remembered that
expert witnesses have their own set of rules for lay a foundation. The
following steps must be accomplished and are necessary for the admission of an
expert’s opinion and their corresponding exhibits. The opinion evidence must be
helpful to the trier of the fact (jury in a jury trial and the bench if it is a
bench trial); the witness, the expert, must be qualified as an expert; the
opinion evidence must be applied to evidence offered at trial; and pursuant to
section 90.403, Florida’s Statutes, the evidence, although technically
relevant, must not present a substantial anger of unfair prejudice that outweighs
it probative value Kruse v. State, 483 So. 2d 1383, 1384 (Fla. 4th
DCA 1986).
In order to have the expert introduce
tests such as drug test, DNA for blood or seaman or studies or experiments the
proponent should argue that the expert relied on the proffered tests to render
their opinions. This knowledge is critically important for the law enforcement
official in that they are usually the individuals in a case that seeks out the
expert in order to obtain the evidence they need to create the legal probable
cause to either charge the suspect or have the Prosecutor seek an arrest
warrant. One of the areas that presents an issue is when there is a shooting or
murder and x-rays are required to be placed into evidence and it is important
to understand that the doctor that read and interpreted the x-rays and wrote
the report needs to be the same person (expert) who testified in the court
proceeding.
Experts using items such as computer
animations or video recordings as demonstrative exhibits must remember that the
use of these items require solid foundational requirements in that the items
must fairly and accurately depict exactly what they are purported to show Smith
v. Geico Gas Company 127 So. 3d. 808, 810-11 (Fla. 2d. DCA 2013).
The importance of this is that then the law enforcement official is seeking out
an expert to produce and testify to these types of evidence they need to verify
that the item is extremely accurate. It is important that the model or replica
or model must accurately portray the object or the location which is at issue.
When dealing with photographs and videos the law enforce official must be able
to assure the accuracy and not be seen to have exaggerated or reduced the distances,
or altering the apparent height or any other relevant measures to prevent a
misleading depiction. This is especially an issue today in the technology which
has now become common with the increased ability to have access to mechanisms
to photograph-altering. When dealing with the use of digitally enhanced stills
can survive if they prove to be fair and accurate and it is demonstrated that there
is no distortion of the stills on the original videotape. The judge’s ultimate decision in the admission
of demonstrative evidence is based upon the judge’s decision because it will
depend on the accuracy of the exhibit to the actual facts of the case as well
as the strength of the objections that may come from the other side.
References
General
Electric Company v. Joiner 522 US 136, 118 S. Ct. 512, 139 L. Ed. 2d 508 – (Supreme
Court, 1997).Kruse v. State, 483 So. 2d 1383, 1384 (Fla. 4th DCA 1986).
Kumbo Tire Company Limited v. Carmichael (1997).
Smith v. Geico Gas Company 127 So. 3d. 808, 810-11 (Fla. 2d. DCA 2013).
