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Modern Visual Evidence

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Gregory P. Joseph

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“An essential volume in a winning trial lawyer's library.”
Benjamin Civiletti, former U.S. Attorney General, Venable LLP

Make your courtroom presentations more persuasive! Modern Visual Evidence book and CD shows you how to use—and limit—video, audiovisual and computer-generated evidence in tort, commercial and criminal cases, complex securities actions, antitrust cases, environmental suits, infringement actions and any action involving expert witnesses. It features discussions of: digital photography in the courtroom; the latest developments in the use of trial testimony by contemporaneous transmission between locations; ABA standards for electronic discovery as well as preserving and producing electronic information; admissibility of e-mail, text and social network content and other computer-generated evidence; guidelines and case law on the use of video depositions, surveillance tapes, computer-generated recreations of events, and digitally enhanced images; and many other cutting-edge issues. The appendices, featured on the accompanying CD-ROM, contain numerous interactive illustrations and textual information to help you prepare state-of-the-art exhibits.

Book #00588; looseleaf, one volume, 816 pages and one CD-ROM; published in 1984, updated as needed. ISBN: 978-1-58852-027-2


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  • Availability: Available
  • Brand: Law Journal Press
  • Product Type: Books
  • Edition: 0
  • Page Count: 816
  • ISBN: 978-1-58852-027-2
  • Pub#/SKU#: 00588
  • Volume(s): 1
  • CDs: 1

Author Image
  • Gregory P. Joseph
Gregory P. Joseph heads his own litigation firm in New York City.

He is a Fellow and past President of the American College of Trial Lawyers (2010-11), and former Chair of the 60,000-member Section of Litigation of the American Bar Association (1997-98). By appointment of the Chief Justice of the United States, he served on the Advisory Committee on the Federal Rules of Evidence of the U.S. Judicial Conference for six years (1993-99).  Mr. Joseph is the President of the U.S. Supreme Court Historical Society.

Mr. Joseph is the winner of the Second Annual Achievement Award of the Demonstrative Evidence Specialists Association. In addition, he has written and edited several books on evidence, trial practice and sanctions.


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 Video-Recorded Evidence
[1] Video-Recording vs. Film
[2] Basic Video Equipment
[3] Evidential Uses of Video
§ 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
Video-Recorded Depositions—Pretrial Considerations

§ 2.01 Introduction
§ 2.02 Tactical Considerations Involved in the Decision to Video Record
[1] The Deponent
[2] The Testimony
[3] The Case
[4] The Adversary
[5] Strategy
§ 2.03 The Law Governing Video-Recorded Depositions
[1] Federal
[2] State
§ 2.03A Depositions by Video-Conferencing
§ 2.04 Aspects of Technique in Video Recording Depositions
[1] Rudimentary Camera Shots, Angle and Movements
[2] Video Recording the Deposition
§ 2.05 Post-Recording 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 Video Recording and Transcript

CHAPTER 3
Video Recorded 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 Video Recorded Testimony
[1] Practical Considerations
[2] Substantive Impact
§ 3.04 The Prerecorded Videotaped Trial
[1] The Video Recorded Trial Process
[2] Noteworthy Features of the Video Recorded Trial
[3] Problematic Aspects of the Video Recorded Trial
[4] The Future of the Prerecorded or Virtual Trial
§ 3.05 Proposed Statutory and Rule Refinements
§ 3.06 Taxing Costs of Video Recorded Testimony After Trial
[1] Federal
[2] State
§ 3.07 Objections and Cautions
[1] Binding Oneself to a Video Recording
[2] Objections
[3] The Rule of Parity

CHAPTER 4
Real and Demonstrative Video Evidence

§ 4.01  Introduction
§ 4.02  General Law Governing Video Evidence
[1]  The Reported Case Law
[2]  The Requisite Foundation
[3]  Other Prerequisites to Admissibility
[4]  Hearsay
[5]  Best Evidence
[6]  Fairness and the Ex Parte Preparation of Video Exhibits
§ 4.03  Video Recorded 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 Videos
[1]  Introduction
[2]  Standard of Admissibility
[3]  Grounds for Exclusion
[4]  Appraisal
§ 4.07  Objections and Cautions
[1]  Previewing Opponents’ Video-Recorded 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
§ 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 Video Recording

§ 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 Recorded Settlement Brochure
[5] Alternate Dispute Resolution Applications
[6] Motion Practice
[7] Parties’ Right to Make Videos During Discovery
[8]  Disclosure and Discoverability of Recorded Demonstrative Evidence
§ 6.03  Trial
[1]  Structuring the Case
[2]  The Authenticating Witness
[3]  Pre-Jury View of Video
[4]  Video/Witness Interaction: Freeze Frame and Frame-by-Frame Replay and Expert Interpretation
[4A]  Use of Transcript to Assist Factfinder
[4B]  Inaudible or Unintelligible Videos
[5]  In-Court Recording for Demonstrative Effect
[6]  Summary Videos
[7]  Argument
[8]  Jury Access to Video Recording or Transcript During Deliberations
[9]  Foundation and Other Expert Videos
[10]  Taxing the Costs of Video Recorded 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)(ii) vs. Rule 26(a)(3)(A)
[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 (As Restyled in 2007)
[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(c)-(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
§ 13.12 December 1, 2010 Proposed Amendments to the Federal Expert Disclosure and Discovery Rules
[1] Three Principal Changes
[2] Draft Expert Reports
[3] Impact on Discovery and Cross-Examination
[4] Rules Enabling Act Issues
[5] Privilege Implications
[6] Disclosures for Non-Reporting Experts

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—Social Networks, Blogs and Text Messages

§ 15.01 Introduction
§ 15.02 Internet Evidence
[1] Authentication
[2] Hearsay
§ 15.03 Email Evidence
[1] Authentication
[2] Hearsay
[3] Privilege
[4] Text Messages

CHAPTER 16
Taxing Costs of Modern Visual Evidence and Imaging Systems in Federal Court

§ 16.01 Overview of Governing Rule and Statute
§ 16.02 Taxing Costs of Videotaped Depositions
§ 16.03 Taxing Costs of Demonstrative Evidence, Animations and Imaging Systems

CHAPTER 17
Electronic and Expert Spoliation: Electronic Discovery

§ 17.01 Overview
§ 17.02 Negligent Spoliation of Electronic Data
§ 17.03 Intentional Spoliation of Electronic Data
§ 17.04 Expert Spoliation
§ 17.04A Spoliation as an Independent Tort
§ 17.05 Electronic Discovery and the American Bar Association Standards
[1] Data Preservation
[2] Discovery of Electronic Data
[3] Facilitating Discovery Electronically
[4] Effective Initial Discovery Conferences
[5] Effective “Meet-and-Confer” Discovery Conferences
[6] Unraveling Knotty Privilege Issues
[7] Addressing Unknown Technology
§ 17.06 2006 Electronic Discovery Amendments to the Federal Rules of Civil Procedure
[1] Parties’ Initial Discovery Conference (Rule 26(f))
[2] Initial Court Conference (Rule 16(b))
[3] “Reasonably Accessible” Electronic Information (Rule 26(b)(2))
[4] Claw-Back of Privileged Information (Rule 26(b)(5))
[5] Interrogatories (Rule 33)
[6] Document Requests (Rule 34)
[7] Sanctions Safe Harbor (Rule 37(e) (Formerly, Rule 37(f))
[8] Conforming Amendments
§ 17.07 Unaddressed Electronic Discovery & Spoliations Problems and Proposed Solutions
[1] Pre-Litigation Preservation
[2] Post-Commencement Preservation and Production

CHAPTER 18
Jury Trials in the Internet Era—Jury Instructions to Prevent Unauthorized Resort to Electronic Information

§ 18.01 Introduction: The Problem
§ 18.02 U.S. Judicial Conference Proposed Model Jury Instructions: The Use of Electronic Technology to Conduct Research on or Communicate about a Case
[1] Before Trial
[2] At the Close of the Case
§ 18.03 American College of Trial Lawyers Proposed Instructions
[1] Summons to Prospective Jurors
[2] Instructions for Impaneled Jurors
[3] Courtroom Conduct
[4] Suggested Message for Impaneled Jurors to Send to Family and Friends
[5] Suggested Statement of Compliance for Jurors to Sign
§ 18.04 Third Circuit Instructions
[1] Civil
[2] Criminal
§ 18.05 Eighth Circuit Preliminary Instructions
[1] Preliminary Instructions for Use at Commencement of Trial
[2] Preliminary Instructions Before Opening Statements
§ 18.06 Ninth Circuit Instructions
[1] Civil
[2] Criminal
§ 18.07 California Instructions
§ 18.08 Connecticut Instructions
[1] Civil
[2] Criminal
§ 18.09 Florida Instructions
§ 18.10 Indiana Instructions
§ 18.11 Michigan Instructions
§ 18.12 Missouri Instructions
§ 18.13 New York Instructions
[1] Civil
[2] Criminal
§ 18.14 Ohio Instructions
§ 18.15 South Carolina Instructions
§ 18.16 Wisconsin Instructions

APPENDICES ON ACCOMPANYING CD-ROM
Table of Cases
Index