February 26, 2020 Articles

Dos and Don’ts of Demonstrative Evidence at Trial

Guidance in navigating the not-so-clear issue of demonstrative evidence at trial, whether you are seeking to have it admitted or objecting to it.

By Hon. David K. Thomson

The distinction between real and demonstrative evidence is often overlooked, but it shouldn’t be. In trial practice, we learn that people are more likely to remember what they see, not what they hear. Illustrative evidence can be extremely effective in helping a jury to understand a complicated issue or fact pattern. This is especially true today where the possibilities of how technology can transform and display information are endless. Regardless, demonstrative evidence should not be treated as a fallback to real evidence; instead, it must be scrutinized to ensure there is not uncritical acceptance of the evidence by the fact finder.

Real physical evidence, through the introduction of exhibits, requires a firm foundation and caution by the trial court to make sure it does not mislead a jury. Articles IV, VI, and IX of the Federal Rules of Evidence are rooted in this concept. When demonstrative evidence is purely illustrative, it does not necessarily have to comply with the Rules of Evidence because it may not actually be admitted into evidence even though it is shown to the jury. Critics find this infuriating because it permits the jury to see and absorb persuasive evidence that is not “real evidence.” Even more frustrating is when demonstrative evidence that is not real evidence bleeds into the realm of real evidence. This article attempts to provide guidance in navigating the not-so-clear issue of demonstrative evidence at trial.

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