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Continued... Page 5 > The Visualized Opening Statement

The State's objection seems largely motivated by the novelty of the evidence. Novelty in an exhibit, however, does not make it inadmissible. 12

The lack of use of visual evidence in opening statement is not the result of reluctant judiciary, but rather the failure of imagination on the part of the trial bar.

SCOPE OF PERMISSIBLE EVIDENCE IN: OPENING STATEMENT

As a general matter, authentication and identification of visual evidence for use in any portion of the trial including opening is straight-forward and simple. In both state and federal courts, the only authentication needed for such evidence is testimony of a witness with knowledge of the event or able to describe the process contained within the visual evidence, concluding that it is a reasonable representation of the subject matter. 13 Anyone with first-hand knowledge of the subject of the visual evidence can provide the necessary foundation. 14

It is well established that any party in a lawsuit may, in opening statement, refer to admissible evidence to be presented at trial. 15 The party seeking to admit relevant and properly identified visual evidence has a right to introduce it. 16

Federal Rule of Evidence 611(a) and its state court counterparts gives the trial court broad authority over the mode and order of presenting evidence. The rule requires only that the court's control be ìreasonableî and that it serve the general objectives of ascertaining the truth, avoiding needless consumption of time and protecting witnesses from harassment and embarrassment. 17

Similar to Federal Rule of Evidence 102, a trial court's discretion to determine the presentation of evidence in specific instances is not limited by ER 611(a). The purpose of ER 611(a) is only to define general guidelines for the exercise of judicial discretion at trial:

Rule 611 deals with matters that are known virtually by instinct by every experienced trial lawyer and judge. Rule 611(a) grants the trial court broad discretion over the proceedings to ascertain the truth, to avoid needless consumption of time, and to protect witnesses from harassment and embarrassment. 18

In addition to the broad grant of discretion to the trial court on the admission of demonstrative evidence generally, appellate decisions are of limited precedental value in this area:

The court's decision invariably turns on the articular facts and circumstances of the individual case, and the trial court is affirmed with little or no discussion in the vast majority of cases. 19

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