Effective Use of Demonstrative Evidence

By: IRA H. LEESFIELD
Leesfield & Partners
2350 South Dixie Highway
Miami, Florida 33133
(305) 854-4900

In the age of interactive technology, high-resolution televisions, digital video displays, virtual reality, and satellite dish receivers, our society has become accustomed to receiving information from visual stimuli. Our interest and ability to learn from visual stimulation, however, is not a new concept. Indeed, dating as far back as the Stone Age, when early humans used hieroglyphics to tell their stories, there is ample evidence to suggest that people learn and perceive more information through a combination of verbal communication and visual stimuli. In fact, studies have shown that humans, on average, retain only 15% of information that we receive from audible sources, however, retention climbs to 65% when the information is delivered visually.⁽¹⁾

With this in mind, you can imagine the advantage that the attorney who is well-versed in the use of demonstrative aids has over his competition. The courtroom by its very nature tends to be a bland and sterile environment. It doesn't take long for the average juror to grow restless and bored. Jurors suffer from shortened attention spans. They watch television often and they expect to be entertained when they are in the courtroom. More often than not, jurors lose focus and either forget, or simply tune-out portions of the testimony. However, what they do remember is how the witness described the accident scene re-produced on the blow-up or the expert's explanation of the plaintiff's injuries using a model of a human leg. They remember because humans are visual creatures. It is much easier for us to see a picture and retain that image than it is to try and create an image in our "mind's eye" and hold onto that image for the rest of the trial. In fact, studies confirm that jurors' recall of details is far greater if associated with a visual image.

While demonstrative evidence is not a new concept, the technology used to create and deliver the evidence is continually described as revolutionary. The overhead projector and blackboard are rapidly being replaced by computer animation and video depictions. In addition, many large law firms have developed visual aid departments that specialize in creating state-of-the-art exhibits for the courtroom. These techniques, however, should not be limited to large firm practitioners, as the effect they have on a jury is often invaluable. Furthermore, demonstrative evidence does not have to be an expensive venture. Demonstrative evidence can be produced and utilized even on a small firm budget and the results will amaze, entertain, and capture the attention of the jury.

A. Defining Demonstrative Evidence

Traditionally, courtroom evidence has been defined as either real, testimonial, or demonstrative. Real evidence is defined as "evidence furnished by things themselves, on view or inspection, as distinguished from a description of them by the mouth of a witness." In other words, real evidence is generally evidence that was actually involved in the incident. For instance, the murder weapon or the actual defective part would be considered real evidence.

Testimonial evidence is evidence spoken directly from a witness's mouth or read into evidence from a deposition. Testimonial evidence may be provided by live or recorded witness statements. This evidence is usually offered to prove or disprove a material fact. In other words, "it is usually offered substantively rather than demonstratively."⁽²⁾

Demonstrative evidence, on the other hand, is evidence that in-and-of itself has no probative value, but rather serves to illustrate and enhance oral testimony. As distinguished from real evidence, demonstrative evidence played no part in the actual incident, but merely serves to assist the jury in understanding the events of the case. Demonstrative evidence is often described as litigation-crafted "representative evidence" that aids in the comprehension of the facts. An example of demonstrative evidence is the model of an eye that is used to explain to the jury how the eye was damaged by the injury or a day-in-the-life video used to show how the injuries have effected the daily living conditions of the plaintiff. Demonstrative evidence will clarify the witness's testimony and will provide a visual image for the jury to become attached to. The jurors will associate the substance of the testimony with the demonstrative evidence presented to them and they will take that visual image into the deliberation with them.

The introduction of demonstrative evidence normally requires a proper evidentiary foundation. This generally means that counsel must provide "source identification and testimony to the effect that the object or thing, that is the demonstrative evidence, is in fact, a fair and accurate representation of what it is purported to be."⁽³⁾ In addition, the court has broad discretion in evaluating the "relevancy and value of the demonstrative evidence in assisting the jury's understanding of the case's pertinent issues."⁽⁴⁾ The only acceptable uses of demonstrative evidence is "to educate, to teach, to inform, and to simplify" the issues presented to the trier of fact.⁽⁵⁾ The demonstrative exhibit, to be admitted into evidence, must be relevant and must be authentic or accurate.

Pretrial conferences, motions in limine, and stipulations are the best ways by which to obtain pretrial rulings on the admissibility of demonstrative exhibits. The foundation for the admission of various demonstrative exhibits can be boring, time-consuming, and distracting to the jury so it is preferred to obtain advance rulings.⁽⁶⁾ Furthermore, if the admissibility of the demonstrative exhibit is determined before the trial begins, then the exhibit may be referred to in the opening statement and planned for and utilized during closing arguments.⁽⁷⁾

A. The Role of Demonstrative Evidence

1. Provides Information in an Interesting Manner.

2. Simplification and Clarification of Issues and Facts.

3. Improves Recollection and Retention of Evidence of Testimony.

B. Examples of Demonstrative Evidence

1. Photographs / X-Rays/ Slides: Photographs are among the most common types of demonstrative evidence. They can be powerful and influential in the jury's mind. Photographs are also generally easy to admit into evidence. X-rays serve a similar purpose as of photographs. However, x-rays require an expert to explain what the image represents and therefore, require more of an evidentiary foundation. Slides are excellent for presenting sequential events. They are admissible as pictorial representations.

• Accident Scene: For instance, aerial photographs are extremely helpful in depicting railroad crossings, intersections, and highway accidents. Photographs may also be used to show the conditions existing at the time of the accident.

• Photos of Injuries: The use of exhibits is crucial in providing visual depictions of your client's injuries and the subsequent changes in your client's life. Photos of your client's injuries, treatment of those injuries, and interoperative photos are powerful. Enlarged, blow-up pictures of actual injuries and medical illustrations of these injuries will aid the jury in identifying with your client's case. Exhibits are an effective and dramatic way to illustrate to the jury your client's injuries.

• SLIDES: Slides, presenting sequential events, can be used to show a day-in-the-life presentation of your client. They can be just as attractive as photographs. One disadvantage, however, of slides is the need for a dark courtroom and for the slide-projector.

• MRI's, CT Scans: X-Rays may be made into positives, which allows jurors to view them without the use of a shadow box. MRI's are generally accepted in the scientific community. Like X-rays, they require an expert to interpret them, though, to the jury.

2. Diagrams, Charts, Models, and Anatomical Exhibits

• Models, Diagrams, Anatomical Exhibits: In cases such as malpractice lawsuits, models, diagrams, charts, and anatomical exhibits are essential. They can be used to demonstrate a plaintiff's specific injury and to elucidate often difficult to perceive anatomical problems. They also clarify difficult areas of medicine. Diagrams, charts, and graphs can be inexpensive forms of demonstrative exhibits.

• CHARTS: Charts are incredibly versatile and can be used to summarize important points or arguments. During opening statements, summation, and testimony, charts can be utilized by counsel and the witness to point-out key facts and essential notes to the jury.

• MODELS: Models, although a bit more costly than charts, can be just as effective as diagrams and charts. They can be multidimensional exhibits that demonstrate more complex matters. For example, skeletal and other anatomical models of physical injuries will best illustrate to the jury the injuries suffered by your client.

• Medical Reports & Medical Records: Can be summarized and delivered in a time-line fashion or diagramed so as to make their content more user-friendly to the jury. Medical reports can chart the treatment time line and demonstrate to the jury the damages. These kinds of demonstrative evidence and exhibits have a powerful effect on jurors. Although somewhat technical, medical reports and medical records, accompanied by explanatory testimony from a medical witness, can lend an air of credibility to the claims of injury.

3. Video Projections: Videotapes and video projections are the most effective forms of demonstrative exhibits for our current television-watching generation of jurors. Because jurors are accustomed to watching many hours of television, they will identify greatly with the presentation of evidence in the form of a video. This video will tell a story to the jury, the story of your client, in an influential and high-impact manner.

• Day-in-the-life films: A Day-in-the-Life film of your client can provide an excellent documentary of your client's daily activities and trials and tribulations. This film can show any physical limitations your client suffers as a result of the injuries and can exhibit to the jury any difficulty your client has in conducting life now that life has changed. Some disadvantages to videotapes are the expense of documenting your client's life, and some admissibility problems.

• Video Depositions / Statements:Producing a video of a deposition or a sworn statement is far more effective than reading a transcript into the record. In addition, video depositions can be used to impeach a witness with remarkable effectiveness. To hear and see the same person contradict himself on tape rather than through a written transcript is very powerful. The lawyer should ensure, however, that the videotaped deposition is properly admitted into evidence.

• Video Presentation of a Product in Use: Ideal for product liability cases. For instance, the video may show just how easily an accident could occur and the dangers of a particular product. The jury will then be able to identify with the reasonableness of your client's expectation that the product will work properly safely in the manner in which it was intended to be used.

4. Computers and Computer Animation

• Computers have become essential tools in preparing demonstrative evidence. The computer may be used to create three-dimensional animation, to create slides, and to create many of the diagrams, charts, and graphs discussed infra.

• Computer Animation: Computer animation can be an expensive venture into the world of demonstrative evidence. Used as a demonstrative exhibit, the computer animation must be a fair and accurate depiction of what it purports to depict, in order to be admissible into evidence. The court in Pierce v. State, 671 So. 2d 186 (Fla. 4th DCA 1996), allowed computer animation as demonstrative evidence. The court also held that as a demonstrative exhibit used to illustrate a witness's testimony, computer animations are not subject to the Frye admissibility standard.

To be an effective advocate for the client, a trial attorney must convey the plaintiff's message to the jury. The manner by which your client's story is relayed can influence and sway a verdict. Demonstrative evidence, used as a tool to facilitate "connecting" with the jurors, allows the trial attorney to make a visual impact that will resonate in jurors' minds, long after its presentation during the course of the trial. The jury will return to the deliberation room and will remember those visual images placed into their minds through your effective use of powerful demonstrative evidence. By recognizing exactly how visually-oriented today's jurors are, a trial attorney will capitalize on this attribute of the jury and demonstrative evidence will help you win your case.

1. Michael E. Cobo, " A Strategic Approach to Demonstrative Exhibits and Effective Jury Presentations," 395 PLI/Lit 359 (1990).

2. Robert D. Brain & Daniel J. Broderick, "The Derivative Relevance of Demonstrative Evidence: Charting its Proper Evidentiary Status," 25 U.S. Davis L. Rev. 957, 978 (Summer, 1992).

3. Harvey Weitz, " Demonstrative Evidence," 290 PLI/Lit 267 (September 1, 1985).

4. Id.

5. Thomas A. Heffernan, " Effective Use of Demonstrative Evidence-'Seeing is Believing," 10 Am. J. Trial Advoc. 109 (1987).

6. Michael A. Kamen, " Demonstrative Evidence," Fla. Civil Trial Practice, 5^th Ed. (1998).

7. Id.