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Modern
Visual Evidence
Gregory
P. Joseph
Detailed
Table of Contents
CHAPTER 1
An Introduction to Modern Visual Evidence
§ 1.01 The Purposes, Uses and Types of Modern Visual Evidence
§ 1.02 The Evidentiary Backdrop: Expansive Evidence Codes
§ 1.03 Videotape Evidence
[1]
Videotape vs. Film
[2]
Basic Videotape Equipment
[3]
Evidential Uses of Videotape
§ 1.04 Computer-Generated Evidence
[1]
Forms of Computer Graphic Output
[2]
Admissibility Issues
[3]
Computer Generated Visual Evidence
§ 1.05 Diagrams, Charts and Graphs
§ 1.06 In-Court Exhibitions, Demonstrations and Experiments
§ 1.07 Using Modern Visual Evidence Effectively
CHAPTER 2
Videotaped Depositions-Pretrial Considerations
§ 2.01 Introduction
§ 2.02 Tactical Considerations Involved in the Decision to
Tape
[1]
The Deponent
[2]
The Testimony
[3]
The Case
[4]
The Adversary
[5]
Strategy
§ 2.03 The Law Governing Videotaped Depositions
[1]
Federal
[2]
State
§ 2.04 Aspects of Technique in Videotaping Depositions
[1]
Rudimentary Camera Shots, Angle and Movements
[2]
Taping the Deposition
§ 2.05 Post-Taping Procedure
[1]
Logs
[2]
Written Statement for the Court
§ 2.06 Objections and Cautions
[1]
Asserting Objections
[2]
Lawyer Preparations and Behavior
[3]
Witness Preparation and Behavior
[4]
Equipment Considerations
[5]
Cue Consciousness
§ 2.07 Computer-Integrated Tape and Transcript
CHAPTER 3
Videotaped Depositions at Trial
§ 3.01 Introduction
§ 3.02 Excision of Objections and Objectionable Matter
[1]
Pretrial Rulings
[2]
In-Trial Suppression
§ 3.03 Trial Impact of Videotaped Testimony
[1]
Practical Considerations
[2]
Substantive Impact
§ 3.04 The Prerecorded Videotaped Trial
[1]
The Taped Trial Process
[2]
Noteworthy Features of the Videotaped Trial
[3]
Problematic Aspects of the Taped Trial
[4]
The Future of the Taped or Virtual Trial
§ 3.05 Proposed Statutory and Rule Refinements
§ 3.06 Taxing Costs of Videotaped Testimony After Trial
[1]
Federal
[2]
State
§ 3.07 Objections and Cautions
[1]
Binding Oneself to a Tape
[2]
Objections
[3]
The Rule of Parity
CHAPTER 4
Real and Demonstrative Videotape Evidence
§ 4.01 Introduction
§ 4.02 General Law Governing Videotape Evidence
[1]
The Reported Case Law
[2]
The Requisite Foundation
[3]
Other Prerequisites to Admissibility
[4]
Hearsay
§ 4.03 Videotaped Views
[1]
Liability
[2]
Damages
§ 4.04 Demonstrations, Tests and Experiments
[1]
Scene-Based Demonstrations and Tests
[2]
Demonstrating Litigation Theories
[3]
Illustrating Scientific Principles
[4]
Testing Objects for Particular Properties
§4.05 Reconstructions, Recreations and Reenactments
[1]
Judicial Reticence
[2]
The Strict Scrutiny Standard
[3]
A Proposal for Reexamination
§4.06 Day-in-the-Life Tapes
[1]
Introduction
[2]
Standard of Admissibility
[3]
Grounds for Exclusion
[4]
Appraisal
§ 4.07 Objections and Cautions
[1]
Previewing Opponents' Videotape Exhibits
[2]
Anticipating, Obviating and Coping with Adverse Rulings
CHAPTER 5
Use of Videotape Evidence in Criminal Cases
§ 5.01 Introduction
§ 5.02 General Parameters of Admissibility
[1]
Foundation
[2]
"Inherent Prejudice"
[3]
Constitutional and Statutory Issues
§ 5.03 Views of Crime Scene
[1]
Premises Views
[2]
Crime Sequelae
§ 5.04 Crimes in Progress
[1]
General Foundation
[2]
Common Objections
[3]
Breadth of Use by Prosecution
[4]
Use by Defense
[5]
Identification Testimony
§ 5.05 Confessions
[1]
Foundation
[2]
Defensive Utility of Confessions
[3]
"Other Crimes" Evidence
[4]
Pre-Confession Exculpations
§ 5.06 Identification Procedures
[1]
Evidentiary Admissibility
[2]
Constitutional Issues
§ 5.07 Physical or Psychological Condition
[1]
Evidentiary Admissibility
[2]
Constitutional Issues
[3]
Variety of Tapes Admitted
[4]
Defensive Use of Taping Procedures
§ 5.08 Experiments and Reenactments
[1]
Taped Experiments
[2]
Reenactments and Recreations
§ 5.09 Other Evidential Uses of Videotape
[1]
Motion and Post-Trial Practice
[2]
Depositions/Taped Teleconferencing
[3]
Child Crime Victims' or Witnesses' Testimony
CHAPTER 6
Other Litigation Uses, Impacts and Implications of Videotape
§ 6.01 Introduction
§ 6.02 Pretrial
[1]
Containing the Testimony of Potential Trial Witnesses
[2]
Preparation of Trial Witnesses
[3]
Television as a Resource
[4]
The Videotaped Settlement Brochure
[5]
Alternate Dispute Resolution Applications
[6]
Motion Practice
[7]
Parties' Right to Make Tapes During Discovery
[8]
Disclosure and Discoverability of Videotaped Demonstrative Evidence
§ 6.03 Trial
[1]
Structuring the Case
[2]
The Authenticating Witness
[3]
Pre-Jury View of Tape
[4]
Tape/Witness Interaction: Freeze Frame and Frame-by-Frame Replay
and Expert Interpretation
[4A]
Use of Transcript to Assist Factfinder
[4B]
Inaudible or Unintelligible Tapes
[5]
In-Court Taping for Demonstrative Effect
[6]
Summary Tapes
[7]
Argument
[8]
Jury Access to Tape or Transcript During Deliberations
[9]
Foundation and Other Expert Videotapes
[10]
Taxing the Costs of Videotape Demonstrative Evidence
§ 6.04 Appeal
[1]
Making a Record
[2]
Use on Appeal
CHAPTER 7
Computer-Generated Evidence: Governing Law
§ 7.01 A Simplified Approach to Computer-Generated Evidence
and Animations
[1]
Computer Foundation Presumptively Unnecessary: Four Categories
[2]
Hearsay Foundation
[3]
Authentication
[4]
Special Authentication Issues for Computer-Generated Animations
and Simulations
[5]
Practical Issues Bearing on Introduction of Computer-Generated Animations
and Simulations
§ 7.02 Hearsay
[1]
Business Records Exception
[2]
Absence of Business Records or Entry
[3]
Public Records: Entries and Omissions
[4]
Other Exceptions and Exemptions
§ 7.03 Authentication
[1]
In General
[2]
Business Records: Entries and Omissions
[3]
Public Records: Entries and Omissions
§ 7.04 Best Evidence
[1]
Primary vs. Secondary Evidence
[2]
Impact of Hearsay Exceptions
[3]
Unavailability of Data
[4]
Public Records
[5]
Summaries
§ 7.05 Computer-Generated Scientific and Experimental Evidence
[1]
In General
[2]
Expert Testimony
[3]
Novel Scientific or Technical Expertise
[4]
The Proper Focus of Authentication Requirements
§ 7.06 Pretrial Disclosure of Computer-Generated Evidence
[1]
Precondition to Admissibility
[2]
Discoverability
CHAPTER 8
Computer-Generated Visual Evidence and Animations
§ 8.01 Introduction
§ 8.02 Personal Computer Graphics
[1]
Business Graphics
[2]
Admissibility
§ 8.03 Reconstructions and other Simulations
[1]
Simulations Models and Accuracy
[2]
Admissibility
[3]
Illustrative Simulations
§ 8.04 Computer-Enhanced Photographic Images and Digital Photography
[1]
Familiar Computer Enhanced Images
[2]
The Nature of Computer Enhancement
[3]
Typical Enhanced Film Images
[4]
Admissibility
[5]
Digital Photography
§ 8.05 Animations
[1]
Admissibility
[2]
Illustrative Uses of Animation in Reconstruction Simulations
[3]
Taxing the Costs of Computer-Generated Animations
§ 8.06 Virtual Reality Evidence
[1]
Recreations
[2]
Simple Demonstrative Evidence
[3]
Jury Interactivity
CHAPTER 9
Diagrams, Charts, Graphs and Models
§ 9.01 Introduction
§ 9.02 Admissibility and Use of Diagrams, Charts and Graphs
[1]
Illustrative vs. Substantive Exhibits
[1A]
Measuring Distortion: The Lie Factor
[2]
Authenticating Witness
[3]
Use at Trial
§ 9.02A Models
§ 9.03 Style and Format Considerations
[1]
Basic Parameters
[2]
Professionally Prepared Diagrams and Charts
§ 9.04 Taxing Costs of Diagrams, Charts and Graphs
CHAPTER 10
In-Court Exhibitions, Demonstrations and Experiments
§ 10.01 Introduction and Admissibility Generally
§ 10.02 Exhibitions and Displays
§ 10.03 In-Court Demonstrations and Experiments
§ 10.04 Out-of-Court Demonstrations and Experiments
CHAPTER 11
Case Study: The Use of Visual Evidence in a Commercial Case
§ 11.01 Introduction: The Case
§ 11.02 Varieties of Evidence Used
[1]
Highlighting Documents
[2]
Contractual Flow Chart
[3]
Final Argument
[4]
Minimal Text
[5]
Expert Testimony Summaries
[6]
Summaries
[7]
Sequential Charts
CHAPTER 12
Imaging Systems
§ 12.01 Introduction
§ 12.02 System Features
[1]
Types of images
[2]
Access to Images
[3]
Courtroom Display
[4]
Support Capability
[5]
Statutory Criteria
§ 12.03 Sample System Specifications
§ 12.04 Laser Disk Technology
§ 12.05 Photographic Compact Disk System
§ 12.06 Taxing the Costs of an Imaging System
CHAPTER 13
Disclosure and Discovery Issues Under the Federal Rules
§ 13.01 Introduction
§ 13.02 Expert Disclosure Requirements
[1]
Initial Report and Exhibits
[2]
Sanctions for Nondisclosure
[3]
Safe Harbors from Sanctions
§ 13.03 Attorney-Expert Communications: Work-Product Abrogation
[1]
Rule 26(a)(2)(B): Automatic Waiver
[2]
Rule 26(b)(3) vs. 26(b)(4): The Law of Unintended Consequences
[3]
Rules Enabling Act Implications
§ 13.04 Scope of Expert Disclosure Obligations
[1]
Opinion Witnesses: Expert vs. Lay Testimony
[2]
Rule 701 vs. Rule 702 Opinions
[3]
Expert Opinion vs. Factual Testimony
[4]
Rebuttal vs. Impeachment Testimony: Rule 26(a)(2)(C) vs. Rule 26(a)(3)
[5]
Treating Physicians: Unique Disclosure Issues
[6]
Unretained Experts
§ 13.05 Right to Offer Expert Rebuttal Testimony
[1]
Supplemental vs. Rebuttal Experts
[2]
Rebutting Non-Adverse Parties
[3]
Right to Name Rebuttal Experts: Silence of Pretrial Order
§ 13.06 Abusive Supplementation
[1]
Supplementation Duty: Exhibits Included
[2]
Potential Abuses
[3]
Assessing Abuse
[4]
Remedies
§ 13.07 Post-Discovery Disclosure of Exhibits
§ 13.08 Discovery into Disclosure Areas
[1]
Timing of Discovery Information
[2]
Additional Expert Discovery
§ 13.09 2000 Civil Procedure Amendments
[1]
Rule 5(d): Public Access to Discovery Materials
[2]
Rule 26(a)(1): Mandatory Disclosure
[3]
Rule 26(b)(1): Limits on Scope of Discovery
[4]
Rule 26(b)(2): Elimination of Opt-Out
[5]
Rule 26(d): Moratorium on Discovery
[6]
Rule 26(f): Discovery/Settlement Conference
[7]
Rule 30(d): Limits on Depositions
[8]
Rule 37(c)(1): Expansion of Preclusion Sanction
§ 13.10 2000 Evidence Rule Amendments
[1]
Rule 103: Motions in Limine and Other Rulings
[2]
Rule 404(a)(1): Evidence of Accused's Character
[3]
Rule 701: Lay Opinion Testimony
[4]
Rule 702: Expert Opinion Testimony
[5]
Rule 703: Basis of Expert Testimony
[6]
Rules 803 and 902: Self-Authentication of Business Records
§ 13.11 Emerging Expert Issues
CHAPTER 14
The Electronic Courtroom
§ 14.01 Introduction
§ 14.02 Components of the Electronic Courtroom: Courtroom 9,
United States District Court, District of Columbia
§ 14.03 Courtroom 21: William & Mary School of Law
§ 14.04 Transforming a Non-Electronic Courtroom
§ 14.05 Assessments
CHAPTER 15
Internet and Email Evidence
§ 15.01 Introduction
§ 15.02 Internet Evidence
[1]
Authentication
[2]
Hearsay
§ 15.03 Email Evidence
[1]
Authentication
[2]
Hearsay
APPENDICES
Appendix A: Video Deposition Stipulation & Order
Appendix B: Analysis of State Video Deposition Rules (Civil)
Appendix C: Analysis of State Video Deposition Rules (Criminal)
Appendix D: State Video Deposition Rules and Statutes (Civil)
Appendix E: Uniform Audio-Visual Deposition Act
Appendix F: Camera Shots in Taped Depositions
Appendix G: Personal Computer Graphics
Appendix H: Computer-Generated Simulations
Appendix I: Computer Enhanced Photos
Appendix J: Animations
Appendix K: Professionally Prepared Charts, Diagrams and
Scale Models
Appendix L: Graphics Experts
Appendix M: Federal and State Video Deposition Guidelines
Appendix M1: Federal Video Deposition Guidelines
Appendix M2: State Video Deposition Guidelines
Appendix N: Local Federal Video Deposition Rules
Appendix O: ABA Civil Trial Practice Standards
TABLE OF CASES
INDEX
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