Throughout this book, I've been discussing the design and use of jury visuals. There are a lot of names for these visuals: "demonstrative evidence," "demonstrative aids," "demonstratives," "pedagogical aids," and "illustrations" are some of the most common. Whatever they're called, these are typically exhibits with no independent evidentiary value. Rather, they're used to explain, illustrate, or summarize other evidence, testimony, or lawyers' arguments.
Photos, charts, graphs, and videos all can be either substantive evidence or demonstratives, depending on what they feature and how they're used in trial.1 Perhaps predictably, then, courts are inconsistent in their determinations of what is demonstrative and what is substantive. In fact, a party might intend to use something only for illustrative purposes, but the court may find that its use or effect goes beyond that purpose and constitutes substantive evidence, holding it to that standard for use and admissibility.
With no federal evidentiary rules and only a few state rules2 that directly define or govern demonstratives, courts analyze the use of jury visuals in various ways. Some allow lawyers tremendous latitude; others do not allow visuals at all. The propriety of any particular visual will be assessed on a case-by-case basis. This includes courts' assessment of physical objects as demonstrative aids. Scale models, for instance, can do wonders to help jurors visualize and understand something unfamiliar or complicated and are often used for illustrative purposes in court. Some of the cases cited in this chapter involve the use of physical objects as demonstratives, as the reasoning in those cases is largely transferrable to other jury visuals.3
Despite the confusion and inconsistency, there are some recurring considerations that arise when demonstrative evidence is at issue. This chapter provides an overview of how state and federal courts analyze jury visuals, and particularly what facts and factors courts consider when deciding whether to permit their use during trial and whether to send them back to the jury room during deliberations. An awareness of these issues allows you to plan for them in the design and use of your own visuals and arms you with arguments for defending your demonstratives or seeking to exclude your opponent's. In that vein, I've also included citations to state and federal cases from around the country, which are set forth with explanatory parentheticals in the back of this book.
Significance of Demonstratives vs. Rule 1006 Summaries
Federal Rule of Evidence 1006 and its state counterparts permit "the contents of voluminous writings . . . which cannot conveniently be examined in court [to] be presented in the form of a chart, summary or calculation." Often, these exhibits summarize documents that have not themselves been admitted into evidence, and thus the summaries are considered substantive evidence and are sent back with the jury.4
Demonstratives, on the other hand, help illustrate or clarify testimony or evidence and sometimes summarize witness testimony or documents already in evidence. Demonstratives often include express or implied suggestions as to how the jury should weigh or interpret evidence. Courts have mixed views on whether demonstratives themselves are evidence or are merely used to aid the jury in its understanding of evidence that itself has been admitted.5 The Eastern District of New York, in 2004, discussed the issue in some depth in Verizon Directories Corp. v. Yellow Book USA, Inc.6 The court disagreed with the then-prevailing view that pedagogical aids are not themselves evidence.7 Instead, the court reviewed the various uses for such aids, explained their utility (and increasing use) in complex cases, and concluded that "[s]ubject to Rule 403, with somewhat more stringent control in jury trials, pedagogical aids should generally be admitted as evidence. They can be helpful to the court's understanding of the complex and voluminous amount of evidence presented[.]"8 The court further explained its view that a district court's "normal discretion can be utilized to mitigate situations in which the parties have vastly different resources, creating an uneven technological playing field."9
The distinction between Rule 1006 summaries and demonstrative aids can be blurred in a particular jurisdiction or a particular case. As the First Circuit has held (relying on the Sixth Circuit), "in some cases,... pedagogic devices may be sufficiently accurate and reliable that they, too, are admissible in evidence, even though they do not meet the specific requirements of Rule 1006."10 Not surprisingly, pairing argumentative language with an otherwise neutral summary that would satisfy Rule 1006 can turn that summary into a pedagogical aid.11
Some jurisdictions have expressly set forth considerations for the use of demonstrative aids. The Fifth Circuit, for example, has identified four requirements: (1) the aid must be based on competent evidence that is before the jury; (2) the primary evidence used to construct the aid must be available to the other side for comparison; (3) the person who prepared the aid must be available for cross-examination; and (4) the jury must be properly instructed concerning their consideration of the charts.12
The Sixth Circuit has identified a third category of exhibit—a so-called secondary-evidence summary—that doesn't meet the requirements of Rule 1006 but is "so accurate and reliable a summary illustration or extrapolation of testimonial or other evidence in the case as to reliably assist the factfinder in understanding the evidence."13 These secondary-evidence summaries are admitted into evidence in addition to the evidence they summarize, and the jury "should be instructed that the summary is not independent evidence of its subject matter, and is only as valid and reliable as the underlying evidence it summarizes."14
Ultimately, "[fjhere is some diversity of judicial opinion concerning [demonstrative evidence's] precise evidentiary status. Some jurisdictions treat such items as admissible exhibits which may be reviewed on appeal and sometimes viewed by the jury during deliberations. Other courts treat them differently, either admitting them for 'demonstrative purposes' only or refusing to admit them at all as exhibits."15 In the 2013 case Baugh v. Cuprum, the Seventh Circuit, acknowledging that the Tenth and Fifth Circuits had taken positions contrary to its own, reversed a trial court's judgment to send to the jury room a physical demonstrative exhibit (a ladder) that had not been admitted into evidence, noting: "the general rule is that [demonstrative exhibits] not admitted into evidence simply should not be sent to the jury for use in its deliberations" absent consent of all parties.16 The court dismissed the contrary cases as departures "from longstanding practice in this and other circuits. . . with only the most tenuous support."17
At bottom, whether demonstratives are treated as admissible evidence and whether they're sent back to the jury room for deliberations (even if not admissible) differs by jurisdiction and even by individual judge.18 Courts have wide discretion in deciding whether to send demonstrative aids back with the jury, with or without consent of the parties, and courts have not taken a uniform approach in deciding the issue.19
As discussed in Chapter 2, whether the jury can examine your demonstratives in the jury room matters. Do what you can to find out, as early as possible, how your judge treats demonstratives. These considerations might influence your design and substantive choices, and even which display medium you use for a particular visual, so the earlier you know, the better.
Notice
There are no federal rules governing when or whether we must exchange demonstratives with our opponents, though there are such local rules in some jurisdictions.20 At least four federal jurisdictions have applied the pretrial disclosure requirements of Federal Rule of Civil Procedure 26 to demonstratives used with expert witnesses, with varying outcomes.21
In Roy v. St. Lukes Medical Center, the defendant first disclosed two computer animations depicting a medical procedure on the fifth day of an eight-day trial, which was after the plaintiff's expert had testified.22 The trial court allowed the defendant to use the animations, stating "[i]t certainly would have been better if this could have been provided earlier, but it's closer to just having a witness draw something in court or come in with a diagram to help illustrate testimony. And in that sense, I'm going to allow it."23 The appellate court found no prejudice or undue surprise due to the late disclosure, emphasizing the plaintiff's lack of action upon learning of the animations.24 In particular, the plaintiff did not request a continuance, present testimony in rebuttal, or indicate how the previous witness testimony would have been altered by an earlier disclosure of the animations.25
Often, courts are willing to defer to the parties' agreement on the timing of any demonstrative exhibit exchange. When that's the case, I try to think through the practical realities. When will I likely finish my demonstratives for any particular stage of the case? When do I really need to see the other side's visuals? How late can I delay giving my opponent my slides, especially if they'll provide a road map to my witness examination or arguments?
I've found that exchanging slides for opening statements and closing arguments the night before provides plenty of time to review them. In several cases, I've done the exchange only hours before argument. I actually prefer the latter, but it's sometimes proven difficult to get my opponent and the judge to agree to such a late disclosure. In contrast, I usually treat witness demonstratives the way I treat any exhibits I expect to use with witnesses. If the court requires the...
