Published on February 15th, 2013 | by Trey Cox0
Admissibility of Demonstrative Exhibits
Demonstrative evidence is cool and persuasive, but how do we take that next step and place it in the jury room for deliberations – the real final argument? It is really not that hard. With a few basic predicates and some supporting substantive evidence, demonstrative aids are generally no problem to admit in evidence.
Demonstrative evidence is generally admissible if it is shown to be relevant, if it will assist a witness in explaining his or her testimony, and if its probative value outweighs its prejudicial effect. As a result, the primary foundational elements for the use of demonstrative proof should be that it (1) relates to a piece of admissible substantive proof, (2) fairly and accurately reflects the substantive proof and (3) aids the trier-of-fact in understanding or evaluating the substantive evidence. In other words, the demonstrative aid must be relevant and the witness must testify that it will help him with his explanation to the jury.
Whether a particular exhibit is to be used as an aid or admitted into evidence may well depend on the difficulty of laying the predicate for admissibility and the trial judge’s attitude regarding admissibility of demonstrative evidence. The trial judge is given broad discretion in determining whether to admit or reject evidence, and the judge’s ruling will be overturned only when there is a clear abuse of discretion. If you want to admit a medical illustration of the heart in a medical malpractice case, the exchange with your expert would go as follows:
Q1: Dr. Jones, you intend to testify regarding the condition and function of a healthy heart in order to explain the actual complications Mr. Patient suffered from prior to the operation?
Q2: And for the benefit of the jury, you intend to use this diagram of the heart, which we have marked as Exhibit 13 for identification?
Q3: Does Exhibit 13 fairly and accurately reflect the condition and function of a healthy heart?
Q4: Your honor, Defendant moves to admit Exhibit 13.
Now, your show-and-tell can begin. Everyone can see and hear at the same time. I know, I know, you are thinking “objection, leading. You can’t do that on direct with my own witness.” Not true. Rule 104 permits you to suspend the Rules of Evidence when you present issues regarding the admissibility of evidence1. So what you have done is lead the witness in a perfectly acceptable way through the predicate to admit a demonstrative exhibit.
As the proponent of demonstrative evidence, you may also need to respond to a Rule 403 objection. The balancing approach of Rule 403 states that evidence, even though otherwise admissible, “may be excluded if its probative value is substantially outweighed by the risk of: (a) undue prejudice, confusion of issues, or misleading the jury; or (b) undue delay, waste of time, or needless presentation of cumulative evidence.”2 This “catchall” objection is used frequently as a last resort by those attempting to exclude demonstrative evidence. Generally, courts welcome and appreciate demonstrative aids, but be prepared to have a sponsoring witness testify that the demonstrative aids fairly and accurately represent some substantive evidence (see Q3 in the example above), and that the demonstrative evidence will help explain his or her testimony to the jury (see Q2 in the example above).
1 See Federal Rules of Evidence 403; Tex. R. Civ. Evid. 403; Ford Motor Co. v. Miles, 967 S.W.2d 377, 389 (Tex. 1998).
2 See Robert D. Brain and Daniel J. Broderick, “Demonstrative Evidence: Clarifying its Role at Trial,” Trial, Sept. 1994, at 74; “The Derivative Relevance of Demonstrative Exhibits: Charting its Proper Evidentiary Status,” 25 U.C. Davis L.. Rev. 957, 968 (1992).
3 See Goff v. Continental Oil Co., 678 F.2d 593, 596 (5th Cir. 1982).