permitting witness to use sketch

People v. Murphy, 39 Cal. 52, 1870 WL 828 (1870) (permitting witness to use sketch of house or other object, not introduced in evidence, to explain his testimony as to position of persons and objects, is not error, though sketch is not shown to be correct representation).

Civ. Prac. Guide Ca. Motions in Limine § 4:119

Foundation for “demonstrative evidence” is established by testimony or other evidence establishing that it is a fair representation of the underlying witness testimony or other direct evidence. [People v. Ham (1970) 7 CA3d 768, 780, 86 CR 906, 913 (disapproved on other grounds in People v. Compton (1971) 6 C3d 55, 60, 98 CR 217, 220, fn. 3); see also¶8:441]

(1) [8:478] Requisite degree of proof: The degree of proof required to establish the foundation varies with the nature of the demonstrative evidence.

Cal. Prac. Guide Civ. Trials & Ev. Ch. 8C-D

Graphic illustrations—maps, diagrams and charts: The use of properly authenticated maps, charts and diagrams has long been recognized as a type of “pictorial communication”; i.e., illustrating witness testimony or other evidence. [See People v. Kynette (1940) 15 C2d 731, 755, 104 P2d 794, 807 (overruled on other grounds in People v. Snyder (1958) 50 C2d 190, 197, 324 P2d 1, 6); People v. Sassounian (1986) 182 CA3d 361, 400-401, 226 CR 880, 902]

Cal. Prac. Guide Civ. Trials & Ev. Ch. 8C-D

Admissibility—in general: If the graphic is a “fair representation” of the evidence it purportedly illustrates, it is generally held admissible.

But the trial court has discretion (Ev.C. § 352) to exclude graphics whose probative value is outweighed by risks of confusing the issues, misleading the jury, etc. [Silvey v. Harm (1932) 120 CA 561, 571, 8 P2d 570, 574—map of accident scene may be admissible “although … inaccurate in some particulars”]

(a) [8:485] Common objections: Graphics may be objected to on various grounds, including:

• lack of foundation (no evidence to support entries);
• argumentative (reflecting counsel’s views rather than testimony of witnesses);
• unduly prejudicial (distorting evidence), etc. See discussion in Ch. 8F.

(b) [8:486] Waiver of objection by questioning witness about exhibit: Extensively questioning a witness regarding the contents of an opposing party’s exhibit may waive any objection to its admission into evidence. I.e., where the contents have already been disclosed, the court may find it proper to permit the jury to see the actual exhibit. [People v. Sassounian (1986) 182 CA3d 361, 400-401, 226 CR 880, 902—a “semi-map” of area where killing took place containing various hearsay notations by third persons]

Cal. Prac. Guide Civ. Trials & Ev. Ch. 8C-D

Demonstration by Witness While Testifying

A demonstration by a witness while testifying is admissible to illustrate the witness’s testimony. See, e.g., People v Buttles (1990) 223 CA3d 1631, 1639-1640, 273 CR 397 (witness demonstrated how defendant pointed gun out of car window). The demonstration must be described for purposes of the record either by the judge or the attorney who is examining the witness. Opposing counsel should be afforded an opportunity to raise any objection to this description.

C. [§ 7.32] Demonstration by Witness While Testifying, 20XX WL 10584091

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permitting witness to use sketch

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