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Demonstrative Evidence and Demonstrative Aids: Is There Really a Distinction?

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written by NITA guest bloggers Anastasia Pallagrosi and Michael J. Dale

Many lawyers and law students are familiar with Nita Liquor Commission v. Cut Rate Liquor and Jones, one of the most famous National Institute of Trial Advocacy fact patterns. In Nita Liquor Commission, the owner of a liquor store is charged with a civil violation of Nita Liquor Commission Regulations for knowingly selling alcoholic beverages to an intoxicated person, the famous disheveled Walter Watkins.

During discovery, the Commission provides the investigative report of Liquor Commission Investigator James Bier, who was present during the night of the alleged violation. In his report, Investigator Bier describes the event while seated in his car, which was set up for surveillance across the street south of the liquor store. Now, suppose Investigator Bier takes the stand, and the Commission lawyer asks him to give a full description of the scene, specifically the intersection. Also suppose that the lawyer, while questioning Investigator Bier, uses a diagram of the intersection to help jurors fully understand the investigator’s location and that of the liquor store. Is this diagram admissible demonstrative evidence, or is it a demonstrative aid?

To state the obvious, the party who bears the burden of proof must present relevant evidence of material facts. The means of proof can take various forms: live and recorded testimony and exhibits that can be real, documentary, illustrative, and demonstrative. But all have a common purpose: to prove or disprove, either independently or together with other evidence, any issue of material fact that is relevant to the case. Such means of establishing issues play an essential role at trial; they are commonly referred to as substantive evidence[1].

This blog post focuses on demonstrative evidence. Unfortunately, it is not easy to define the term demonstrative evidence. Indeed, no evidence code nor the Federal Rules of Evidence provide any specific definition, the sole reference being in the Advisory Committee’s Note to Federal Rule 611[2]. Additionally, the Advisory Committee’s Note to Rule 401 states that so-called background evidence—such as charts or photographs—must be universally admitted at trial as an aid that can provide a better understanding of facts[3]. One of the crucial questions, then, is this: What is the difference, if any, between demonstrative evidence and demonstrative aids?

Terms such demonstrative evidence and demonstrative aids are often confusing because of the absence of a clear definition of demonstrative evidence in the Federal Rules, where these terms are often loosely used. Courts refer to demonstrative evidence as any means used to display or explain other testimonial, documentary, real proof, or a judicially noticed fact[4]. Demonstrative evidence is, in short, any visual aid and object used to help the witnesses to demonstrate oral testimony[5]. It can assume various forms, such as models, charts, photographs, videos, or diagrams[6]. This kind of descriptive evidence can be depicted visually in an illustrative exhibit[7], which can be pre-made, prepared by counsel, or made by a witness during testimony[8].

Demonstrative aids, sometimes referred to as visual aids or illustrative aids, are tangible pieces of information that would seem to be exactly the same as demonstrative evidence. Notwithstanding the use of different terms, which contributes to confusion as to terminology, demonstrative aids serve the same purpose as demonstrative evidence[9]. They help the witness to better demonstrate oral testimony, and at the same time provide jurors with a better understanding of facts[10]. For example, a skeletal model referred to by an expert witness to describe the plaintiff’s bone damages in a tort action is demonstrative evidence—once, of course, the lawyer has requested that the model be marked as an exhibit[11]. On the other hand, not all the aids used to help the witness in her testimony are necessarily demonstrative evidence[12]. So, for example, the oral testimony of a witness is evidence, but a notepad containing bullet points from the same oral testimony is a demonstrative aid[13].

However, demonstrative evidence and demonstrative aids differ in one significant way: the former can be admitted into the jury room for the deliberation, whereas the latter cannot, the reason being that demonstrative aids simply implement or substitute for what the lawyer would be able to show with his own words[14]. That being said, the lawyer who wants an aid to be available to jurors must offer a demonstrative exhibit[15]. Of course, this does not mean that the exhibit will be automatically admitted into evidence. Indeed, in the event the exhibit is excluded by the judge, it may still assist the witness during testimony[16]. The issue then becomes how demonstrative evidence can be admitted at trial.

When speaking about admissibility of demonstrative evidence, one should keep in mind that the only limitation, other than relevance, is the judge’s discretion[17]. Federal Rule of Evidence 611(a) sets out the standards for the use of evidence, stating that the court shall exercise reasonable control over the mode and order of interrogating witnesses and presenting evidence so as to make the interrogation and presentation effective for the ascertainment of the truth, avoid needless consumption of time, and protect witnesses from harassment or undue embarrassment. The judge may admit or exclude demonstrative evidence, and her other ruling will be usually sustained unless it is shown that there was an abuse of discretion[18]. Moreover, to have the demonstrative aid admitted into evidence, the lawyer must be able to satisfy the test for admissibility, which includes a competent witness with personal knowledge except experts, relevant information, and a proper foundation for the exhibit’s admissibility. Despite the fact that an aid may be relevant, to have it admitted into evidence requires an additional showing that the evidence should not be excluded due to unfair prejudice, delay, because it misleads the jurors, or consumption of time which outweighs its probative value[19]. Thus, a judge must balance the potential prejudice that may derive by admission of demonstrative aids, whose value may be more substantially prejudicial than probative under Federal Rule 403[20].

So what if the aid is a diagram depicting the scene, as in the Nita Liquor Commission case? It might be helpful to briefly explain how this would work pragmatically at trial. First, Investigator Bier would have to make the scene relevant, the area depicted in the diagram. Then the diagram would have to be recognized by the witness, meaning that the witness—here, Investigator Bier—would have to testify that the diagram depicts a certain area which with he is familiar. He would also have to give an explanation as to why he is familiar with the area. He would then testify that the scene depicted in the diagram is a fair and accurate representation of the area on the date in question. After laying foundation for the diagram, the lawyer may offer the illustrative exhibit “for identification” into evidence. However, the diagram might not to be to scale. It need be fair, accurate, and of assistance to the witness. In this situation, opposing counsel may ask for a limiting instruction to the jurors. And the final word, of course, rests with the judge.

In conclusion, then, the key distinction between a demonstrative aid and demonstrative evidence appears to be that the latter comes into evidence and can be reviewed by the jurors during deliberations.

Anastasia Pallagrosi is a graduate of Roma Tre University, Rome, Italy, and a dual degree student at Nova Southeastern University College of Law, where she is a research assistant to Professor Michael J. Dale. She can be reached at anapallagrosi@gmail.com.

Michael J. Dale has been a member of the faculty at Nova Southeastern University Shepard Broad College of Law since 1985, teaching courses in family and juvenile law, and in the family and juvenile clinic. Professor Dale teaches at NITA programs in both public and in-house settings. In 2009, he received the Robert Oliphant Award from NITA for his service to the organization. An active litigator, he has been a consultant to federal and state agencies on civil rights issues and to law firms on litigation matters. He can be reached at dalem@nova.edu.

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[1]Robert D. Brain & Daniel J. Broderick, “The Derivative Relevance of Demonstrative Evidence: Charting Its Proper Value,” 25 U.C. Davis L. Rev. 957, 972 (1992).
[2]Fed. R. Evid. 611.
[3]Fed. R. Evid. 401.
[4] Brain & Broderick, supra note 1, at 968–69.
[5] Edward J. Imwinkelried, Evidentiary Foundations 130 (Lexis Nexis, 7th ed. 2008).
[6] Brain & Broderick, supra note 1, at 968–69.
[7] Courts will usually allow the use of exhibits if they can help jurors better understand the facts of a case. However, terminology is loose as to whether such exhibits should be identified as “illustrative” or “demonstrative.” Indeed, exhibits are used both for demonstrative and illustrative purposes. See Scott D. Lane & Fred Lane, Lane Goldstein Trial Technique § 12:29 (3d 2016).
[8] Brain & Broderick, supra note 1, at 969.
[9] Mary Quinn Cooper, “The Use of Demonstrative Exhibits at Trial,” 34 Tulsa L. J. 567, 567 (1999).
[10] Id. at 568.
[11] Imwinkelried, supra note 5, at 132.
[12] Cooper, supra note 9, at 570.
[13] John F. Rooney, “The Importance of Demonstrative Evidence,” Melick & Porter Blog (Aug. 27, 2016), http://www.melicklaw.com/?t=40&an=9758.
[14] Id.
[15] Imwinkelried, supra note 5, at 132.
[16] Cooper, supra note 9, at 570.
[17] Imwinkelried, supra note 5, at 131.
[18] Michael Sudman, “The Jury Trial: History, Jury Selection, and the Use of Demonstrative Evidence,” 1 J. Legal Advoc. & Prac. 172, 183 (1999).
[19] Fed. R. Evid. 403.
[20] Id.

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