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    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.

    When Seeking to Admit Demonstrative Evidence

    • Do build your argument around the rules of evidence. Demonstrative evidence that is purely illustrative of testimony may face less critical review by a trial court. However, if it looks more like substantive evidence, a judge may require closer conformance to the Rules of Evidence (especially Rules 401 and 402) to allow a jury to view it.
    • Don’t forget about Rule 403. Despite its probative value, a court may still exclude demonstrative evidence because of its unfair prejudice, confusion, ability to mislead the jury, or cumulative nature. Winning or losing the evidentiary argument often comes down to the application of this rule.
    • Do clearly articulate the purpose for which you are offering the evidence. Explaining to the court your precise purpose for offering the particular piece of evidence helps the trial court draft an appropriate limiting instruction and is also helpful for appellate courts, given the abuse of discretion standard of review applied to trial court evidentiary determinations.
    • Don’t forget about the record. Whether you are using a simple demonstrative like a sketch or a more technologically complex demonstrative, find a way to preserve it for the record. Sometimes the most effective way to do this is to proffer the evidence to the trial judge. Even if the judge excludes the evidence, the proffer will be on the record for the appeal.
    • Do consider the complexity of the evidence. The more complex or technology-driven the demonstrative, the more work it will take to authenticate. Here, focus on Articles VI and IX of the Federal Rules of Evidence.
    •  Do consider preemptively disclosing more information. If you’re offering a computer-generated (or otherwise complex) type of demonstrative evidence, such as a digital three-dimensional diagram, consider disclosing information that shows the accuracy of the diagram before trial. This allows opposing counsel and the court a fair opportunity to assess the credibility of the evidence.
    •  Do consider whether Federal Rule of Civil Procedure 26 (a)(2)(B)(iii) applies. This rule requires the disclosure of exhibits an expert will rely on to support his or her testimony. Even if your demonstrative exhibit is just illustrative and you don’t plan to have it admitted into evidence, if you’re anticipating your expert will use the demonstrative during his or her testimony, disclose it ahead of time.

    When Objecting to the Admission of Demonstrative Evidence

    • Do hold the party offering the evidence accountable for disclosing information on the credibility of the evidence. It is the proffering attorney’s responsibility to show that the demonstrative evidence, whether it is a video, experiment, or reenactment, is a credible representation of what might have actually occurred. If prior to trial opposing counsel offers no notice of the source or basic foundation of the demonstrative evidence, a trial court might have concerns about the fairness of presenting it to a jury.
    • Don’t forget to ask for a limiting instruction. If you can’t convince a court to exclude the evidence entirely, a limiting instruction might be appropriate. Argue that the jury should be allowed to view the evidence only for a limited purpose and articulate clearly what that purpose is.
    • Don’t assume the evidence goes back to the jury room. Seeing the evidence is one thing; taking it back to the jury room is another. Even if the judge allows the evidence in the courtroom during trial, the evidence may be precluded from use in the jury room during deliberations. Jurisdictions differ on this point. Know your jurisdiction’s rule about evidence going back to the jury room, and be prepared to argue it.

    Justice David K. Thomson was sworn in as a justice of the New Mexico Supreme Court on February 1, 2019. He serves on the Executive Committee of the American Bar Association and the Judicial Division of Appellate Judges Conference.

    Copyright © 2020, American Bar Association. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or downloaded or stored in an electronic database or retrieval system without the express written consent of the American Bar Association. The views expressed in this article are those of the author(s) and do not necessarily reflect the positions or policies of the American Bar Association, the Section of Litigation, this committee, or the employer(s) of the author(s).