By: Timothy Q. Delaney and Charles M. McMahon
National Law Journal
Jumping Over the Evidence Hurdle at TrialTrial counsel can get demonstratives admitted, or keep them out, if they follow some basic suggestions and know the law.
Most litigants use demonstrative evidence, and courts permit its use in varying degrees. Demonstrative evidence is any secondary proof that illustrates or explains documentary, testimonial or other substantive evidence. It is typically specially prepared for trial, unlike substantive evidence, which has an independent existence. Demonstrative exhibits may take the form of charts. graphs, maps. diagrams, photographs, videos, models and even demonstrations or experiments conducted in the courtroom. A recent addition to the list is computer simulations or animation.
Demonstrative evidence generally should be distinguished from substantive evidence. Substantive evidence is submitted to prove a material fact. In contrast, demonstrative evidence merely illustrates factual contentions and assists the jury in understanding the case. These definitions may seem simple, but in practice they can be difficult to apply.
To further complicate matters, courts have adopted various, and sometimes inconsistent, terminology in addressing these types of evidence. For instance, when considering the admissibility of charts or summaries, courts have distinguished between those constituting formal evidence under Federal Rule of Evidence 1006 and those constituting “pedagogical devices.”1
Under this analysis, pedagogical devices are not referred to as evidence at all. Yet it is not the terminology that is important, so much as the purpose for which the evidence is offered. Evidence offered to prove a fact is generally subject to stricter standards of admissibility than that used merely to assist the jury in understanding testimony.
A review of the Federal Rules of Evidence reveals no rule that explicitly addresses demonstrative evidence.2 The only reference can be found in the Advisory Committee Notes to Rule 401, which defines relevant evidence. According to the committee, demonstrative evidence is “helpful” and is “universally offered and admitted as an aid to understanding.”
In the absence of any direction from the federal rules, the use and admissibility of demonstrative evidence has fallen largely to judicial discretion. Although each judge’s discretion differs, some general guidelines can be noted.
To be admissible, demonstrative evidence must at least meet the minimal evidentiary standards of relevance, materiality and competency.3 It must also aid the trier of fact in understanding or evaluating the evidence. like other types of evidence, all demonstrative evidence meeting these standards is admissible unless its probative value is substantially outweighed by prejudice, confusion or delay, or unless it is prohibited by other rules.4 Because demonstrative evidence usually assists in the presentation of witness testimony, a court has broad discretion in deciding whether to admit such evidence once these minimal standards have been met.5
In addition to the admissibility standards that purely demonstrative evidence is required to meet, exhibits constituting substantive evidence are subject to additional rules, including those of authentication, hearsay and best evidence.6 Frequently, these rules are used to frame objections by parties opposing the introduction of a demonstrative exhibit.
Recently, considerable attention has been paid to the use of computer-generated demonstrative exhibits. New technology is rendering such demonstrations more common, but there are concerns that computer-generated evidence might be particularly prejudicial because of its multimedia appeal. For example, people are accustomed to watching television and videos, and jurors may take computer-generated demonstrative exhibits as fact, without appropriately acknowledging that these demonstratives have been created as representations of facts. A variety of judicially created tests for evaluating admissibility, therefore, have been applied. Generally, a court admits such evidence if it is useful and if an adequate foundation for it has been laid, unless the exhibit will tend to confuse or mislead the jury.7
Because trial courts generally have broad discretion in deciding evidentiary issues, appellate courts give great deference to trail courts on these issues. Once a court has ruled on admissibility, an appeals court is unlikely to disturb the lower court’s ruling.
Fed R. Evid. 90l(a) requires that a proponent of evidence “support a finding that the matter in question is what its proponent claims.” This foundation may mean different things for different types of evidence. For instance, if a witness is using a drawing of an object to describe that object, the witness may simply testify that the drawing is a fair and accurate depiction of the object itself. Similarly, if illustrative evidence such as a graph or computer animation is created through use of a particular process or system, a foundation may be laid through evidence describing the process or system used to produce the result and showing that the process or system produces an accurate result.
There are special foundational requirements for simulations or re-creations, whether they are live, by video or by computer animation. These requirements are imposed out of concern that such simulations and re-creations have the potential to be very prejudicial. Accordingly, the proponent of a simulation that purports to re-create an event must demonstrate that the simulation was created under conditions substantially similar to those at issue in the trial.8
What's the relevance?
Relevance is one of the threshold requirements of admissibility for all evidence.9 Even though the scope of relevant evidence is broad, opposing counsel nevertheless may attempt to block demonstrative evidence as irrelevant. In response, the proponent of the exhibit should stress the presumption in favor of admissibility. In addition, the proponent should be prepared to show that the demonstrative evidence accurately depicts the facts or events it is offered to illustrate. If the facts are relevant, then the demonstrative evidence is as well.
Fed. R. Evid. 403 allows a court to exclude evidence if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues or misleading of the jury. Trial courts have broad discretion in conducting this balancing test. There are generally two components of a successful argument to overcome a Rule 403 objection. First, one must generally argue that the evidence is highly probative and will aid the court or jury in understanding the complex issues at trial. Second, the proponent of such evidence must minimize the potential prejudicial effect of the evidence.
Demonstrative evidence may be of particular concern under Rule 403 because it is generally created specifically for trial. This provides significant opportunity to manipulate or bias the evidence during creation. Also, the powerful impact of multimedia evidence such as videotaped or computer-animated simulations raises additional concerns of prejudicial effect.10 If a simulation is used in connection with an expert’s testimony, opposing counsel will have the opportunity to cross-examine the expert and discredit the simulation. However, it may be difficult to cross-examine meaningfully the proponent of such evidence. After all, seeing is believing.
To deal with these potential prejudices, courts have devised methods of minimizing their effect, including the use of limiting instructions and the requirement that simulations be based on conditions substantially similar to those at issue in the trial.11
The U.S. Court of Appeals for the 11th Circuit used the “substantially similar” rule to reverse the submission of a live demonstration in U.S. v. Gaskell.12 In Gaskell, a criminal case involving allegations of shaken baby syndrome, the prosecution sought to have their medical expert use a doll to demonstrate the amount of force necessary to cause the victim’s injuries. The trial court allowed the demonstration to take place in front of the jury, but the court of appeals reversed because the prosecution had failed to establish any connection between the physical characteristics of the victim and those of the doll, and the conditions of the demonstration were substantially dissimilar from the actions at issue in the case.
The general rule that the conditions of a re-creation must be substantially similar may be moderated if the actual events are the issue disputed by the parties.13 In such a case, the evidence offered generally does not purport to be a re-creation of the actual events. Instead, one or both parties offer a demonstration of their theory of the actual events.
Courts allow such evidence as long as the jury understands that they are seeing one party’s theory of the events rather than a true re-creation.14 Generally, the jury is made aware of this fact through use of a limiting instruction by the court. This also applied to evidence used by expert witnesses to demonstrate their theories or relevant scientific principles.15
Fed. R. Evid 801 limits the use of hearsay as evidence. This applies equally to demonstrative evidence. Even if an exhibit itself is not hearsay, the underlying data used to create the exhibit might be. The hearsay objections must be addressed at both levels.
There are two possible responses to a hearsay objection in the context of demonstrative evidence. First, if the demonstrative exhibit is not offered for its truth, it does not constitute hearsay and should not be prohibited on that basis. If however the exhibit is offered for its truth, its admissibility depends on the various exceptions in Rule 803. These exceptions include business records, public records, market reports and commercial publications. If none of the specific exceptions to Rule 803 applies, hearsay may still be admissible under the catchall exception of Rule 803(24).
The ‘yada, yada, yada’ rule
Fed. R. Evid. 611 allows a court to preclude questions calling for narrative responses. This rule is of potential concern, particularly with computer animation that may run uninterrupted while a witness is on the stand.
The purpose of Rule 611 is to prevent surprise testimony to which opposing counsel does not have time to object. In the case of computer-generated evidence, this problem can be prevented by showing the evidence to opposing counsel before the jury sees it and resolving objections at that time.
Before any trial, both sides should thoroughly investigate the predilections of the judge. Some judges are very loose with the Federal Rules of Evidence, while others are sticklers. It is better to have a learning experience before trial rather than during trial.
Getting it admitted
§ Lay the proper foundation. Don't take shortcuts. Before offering an exhibit into evidence, establish the relevancy, authenticity and other foundational elements that may apply.
§ Make early disclosure. Particularly with models and computer simulations, produce them to the opposing side as soon as possible. Indicate that you will provide reasonable discovery on the exhibit. § Pretrial motion. Move for pre-admission of crucial exhibits.
§ Bench memorandum. Prepare a short legal memorandum with case copies attached for areas in which vigorous objections are anticipated.
§ Annotate copies. On the top pages of exhibit copies, note the opponent’s objections and a summary of a planned response.
§ Offer a summary. Fed. R. Evid. 1006 permits summaries to be offered into evidence in place of voluminous records.
§ Fallback positions. Agree to a limiting instruction or offer the evidence only “for illustrative purposes.” Be prepared to modify a controversial exhibit to remove objectionable material or prepare a less objectionable alternative.
§ Argue reciprocity. If an opponent has used a demonstrative item similar to the one he or she is now objecting to, point it out to the judge.
Keeping it out
§ Motion in limine. Move to exclude the exhibit before or during trial, with a brief setting forth the governing authority. If the motion is granted, be prepared to remind the court when an opponent attempts to sneak in that exhibit, or a close substitute, at trial.
§ Prepare counterexhibits. Lessen the impact of an opponent’s exhibit by preparing a similar exhibit that supports the opposite position.
§ Discovery. Request discovery even during trial to evaluate the accuracy of the demonstrative item and in order to prepare for adequate cross-examination.
§ Voir dire. Request an opportunity to question the witness about the foundation for the exhibit outside the presence of the jury. § Cross-examination. Prepare a cross-examination that identifies oversimplification or error in a demonstrative exhibit.
§ Argue fairness, not prejudice. It can be expected that any exhibit an opponent seeks to offer is prejudicial to one side; therefore, arguments based on prejudice alone are rarely persuasive. The focus of the argument should rest on fairness.
Support an argument of jury confusion. If the exhibit is important enough, consider having a survey expert evaluate its likely ability to confuse the jury.
The use of demonstrative exhibits at trial is a common and necessary part of complex jury trials. An effective trial lawyer must master the techniques for admitting and excluding such evidence. He or she would be well-served by placing demonstrative evidence high on the list of items to address during trial preparation.
(1) See, e.g., Pierce v. Ramsey Winch Co., 753 F.2d 416, 431 (5th Cir. 1985); Gomez v. Great Lakes Steel Div. Nat'l Steel Corp., 803 F.2d 250, 257-258 (6th Cir. 1986).
(2) Of course, Rule 1006 addresses charts and summaries, which are one type of demonstrative evidence.
(3) Fed. R. Evid. 401, 402.
(4) Fed. R. Evid. 402, 403.
(5) Robinson v. Missouri Pacific R.R. Co., 16 F.3d 1083, 1086 (10th Cir. 1994) (admission or exclusion of evidence lies within the sound discretion of the trial court and cannot be reversed absent an abuse of discretion); U.S. v. Gaskell, 985 F.2d 1056, 1060 (11th Cir. 1993) (general rule is that the district court has wide discretion to admit evidence of experiments).
(6) Fed. R. Evid. 802, 901, 1002.
(7) See Hinkle v. City of Clarksburg, W.Va.. 81 F.3d 416 (4th Cir. 1996) (affirming admission of computer-generated animation in a case in which there was no reason for the jury to credit the illustration any more than they credited the underlying opinion); Racz v. R.T. Merryman Trucking Inc., No. 92-3404, 1994 WL 124857 at *5 (E.D. Pa. April 4. 1994) (precluding simulation because relevance of computer animation was outweighed by danger of confusion and prejudice).
(8) See U.S. v. Gaskell, 985 F.2d 1056, 1060 (11th Cir. 1993) (the burden is on the party offering a courtroom demonstration or experiment to lay a proper foundation establishing a similarity of circumstances and conditions).
(9) Fed. R. Evid. 401, 402.
(10) Robinson, 16 F.3d at 1088; Racz, at *5. Another case involved a plaintiff who argued his claim before two juries, both of which were unable to reach a decision. For the third trial, plaintiff produced a computer-animated simulation of his theory. This time, the jury found in the plaintiffs favor. Strock v. Southern Farm Bureau Cas. Ins. Co., No. 92-2357, 1993 WL 270069 at *1 (4th Cir. July 12, 1933).
(11) Fusco v. G.M. Corp., 11 F.3d 259, 264 (1st Cir. 1993) (if a re-creation could resemble the actual occurrence, courts fear that jurors might be misled because they don't appreciate the variations between the original and staged occurrences).
(12) U.S. v. Gaskell, 985 F 2d 1056 (11th Cir. 1993).
(13) Hinkle, 81 F.3d at 424.
(14) Id. at 425.
(15) Robinson, 16 F.3d at 1086.
Reprinted with permission from the August 7, 2000 edition of the National Law Journal, © 2000 ALM Properties, Inc. All rights reserved. Further duplication without permission is prohibited.