Expert Demonstrative Evidence - Bogoroch & Associates

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assist the court with opinion evidence that is fair, objective and non-partisan. Therefore, the first step proposed by Mr. Justice Doherty would also include statutory compliance with Rule 53.03, which provides for the following requirements for an expert report: (a) The expert’s name, address and area of expertise; (b) The expert’s qualifications and employment and educational experiences in his or her area of expertise; (c) The instructions provided to the expert in relation to the proceeding; (d) The nature of the opinion being sought and each issue in the proceeding to which the opinion relates; (e) The expert’s opinion respecting each issue and, where there is a range of opinions given, a summary of the range and the reasons for the expert’s own opinion within that range; (f) The expert’s reasons for his or her opinion, including, a description of the factual assumptions on which the opinion is based, a description of any research conducted by the expert that led him or her to form the opinion, and a list of every document, if any, relied on by the expert in forming the opinion; and, (g) An acknowledgement of expert’s duty under Rule 4.1 signed by the expert. 5 Rule 53.03 goes on to provide that an expert witness may not testify with respect to an issue, except with leave of the trial judge, unless the substance of his or her testimony with respect to that issue is set out in a Rule 53.03 compliant report. If an expert report contains a reference to a demonstrative aid or it is intended that the expert witness shall refer to a demonstrative aid that can be considered to be a “document”, opposing counsel should be given an opportunity to review the demonstrative evidence. The gatekeeper inquiry consists of a cost-benefit analysis, which is case-specific. The "benefit" side of the evaluation requires a consideration of the probative potential of the evidence and the significance of the issue to which the evidence is directed. When one looks to potential probative value, one must consider the reliability of the evidence. 5 Rules, supra note 1, r. 53.03 as amended by O.Reg. 438/08, s. 48. 4
Reliability concerns reach not only the subject matter of the evidence, but also the methodology used by the proposed expert in arriving at his or her opinion, the expert's expertise, the language used in explaining the opinion and the extent to which the expert is shown to be impartial and objective. The "cost" side of the ledger addresses the various risks inherent in the admissibility of expert opinion evidence, described succinctly by Binnie J. in J.-L.J. at para. 47 as "consumption of time, prejudice and confusion". There is a risk that a jury may abdicate its fact-finding role. Expert opinion evidence can also compromise the trial process by unduly protracting and complicating proceedings. Circumstances in which a judge in a civil case would exclude demonstrative evidence because of its inflammatory nature should be rare because of our regular exposure to popular media. observations: In McCormick on Evidence, (5th) ed., Volume 2, the authors make the following Again, even if no essentially emotional response is likely to result, demonstrative evidence may convey an impression of objective reality to the trier. Thus, the courts are frequently sensitive to the objection that the evidence is misleading,' and zealous to insure that there is no material differential between objective things offered at trial and the same or different objective things as they existed at the time of the events or occurrences in litigation. … A still different set of problems is presented by photographs or videotapes which do not portray original facts in controversy, but rather represent one party's staged reproduction of those facts. Here the extreme vividness and verisimilitude of pictorial evidence is truly a two-edged sword. For not only is the danger that the jury may confuse art with reality particularly great, but the impressions generated by the evidence may prove particularly difficult to limit or, if the film is subsequently deemed inadmissible, to expunge by judicial instruction. The latter difficulty may be largely eliminated by a preliminary viewing by the court in chambers, and the decided cases suggest that this expedient is widely employed. 6 6 Strong, Brown, Dix, Imwinkelried, Kaye, Mostellen and Roberts, “McCormick on Evidence, 5 th Ed., Volume 2.” (1999) West Publishing Co. at pp. 17-19. 5
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