Show and Tell: Summaries and Demonstrative Evidence

Demonstrative evidence is different from a photograph of a site, enlargement of a document, or an economic modeling chart showing price effects, which are considered substantive evidence. Nonetheless, demonstrative evidence can either be admitted as evidence or used purely as a visual aid to assist the court.

Demonstrative evidence can be especially useful when complex testimony or entered exhibits may be difficult to understand on their own and empower the finder of fact to absorb what you want them to. Countless studies have posited that learning and retention are significantly better if information is communicated visually, and multiple channels of information processing are better than one. As visual learners, people find a picture is worth a thousand words, and demonstrative evidence can help explain a concept to the trier of fact. As litigators, our job is to make things as easy as possible for the trier of fact to understand.

Examples of demonstrative evidence attorneys can use include:

• Charts;
• Graphs;
• Maps;
• Diagrams;
• Models;
• Computer animations and simulations;
• Summaries; and
• Reenactments.

In the federal system, Federal Rules of Evidence 611 and 1006 apply to admission of demonstrative exhibits. Under Rule 611, the party offering the evidence must satisfy four elements:

1. The summarized material must be “voluminous” and not conveniently subject to examination in court;
2. The summary or chart must be an accurate compilation of the voluminous records;
3. The records summarized must be otherwise admissible into evidence; and
4. The underlying documents must be made available to the opposing party for examination and copying.

But note that other Federal Rules of Evidence still apply, and visual evidence that is biased, misleading, or incomplete and may mislead or prejudice the jury may be excluded from presentation.

When introducing demonstrative evidence, it is key that you lay the proper foundation, as this will sway the court in determining what should and should not be presented to the jury. When laying this foundation, make sure you demonstrate that:

1. The witness has personal knowledge both of the relevant fact and of the illustrative exhibit;
2. The exhibit will be helpful to explain the witness’s testimony to the jury;
3. The witness is familiar with the illustrative exhibit; and
4. The illustrative exhibit fairly and accurately portrays the matter.

When thinking about which demonstratives you want to use, the following tips can help guide you:

1. Be creative but clear: The demonstrative should be memorable, not bore the trier of fact, and consistent with the theme of your case, e.g., consider using a color scheme that directs the viewer’s eye to the appropriate place.
2. Be honest: Do not try to mislead the jury or introduce a demonstrative that can be used against you; for example, do not omit information when summarizing underlying documents or create a model that is not to scale.
3. Make it useful at all stages of litigation: Demonstrative evidence can be used in pleadings and motions papers as well; for example, consider a summary of a large number of bank statements to help the judge understand the point you are making (e.g., track all the withdrawals from an account in a spreadsheet that is easy to understand).

In family law in particular, a few types of demonstrative evidence are used frequently:

1. Summaries of underlying financial documents. During an equitable distribution case, I entered sixty bank statements from three different accounts to trace my client’s premarital monies and offered into evidence a chart summarizing the bank statements and the tracing. Having the tracing on one sheet made it easier for the judge to follow along and resulted in my client getting a separate property credit for his premarital monies.
2. Custody calendars. A visual aid is much easier to read than a complicated explanation of which parent has access to the children on which specific days (clients also love these and it makes it easier for them to testify).
3. Reenactments. I have found these to be of particular use in order of protection hearings where it is important to explain and demonstrate what occurred during a physical attack on your client.

As with all evidence, use demonstrative evidence where it will create an impact on the trier of fact and help them better understand your client’s position, with the goal of getting a favorable ruling. fa