DEMONSTRATIVE EVIDENCE

DEMONSTRATIVE EVIDENCE

Evidence other than testimony that is presented during the course of a civil or criminal trial. Demonstrative evidence includes actual evidence (e.g., a set of bloody gloves from a murder scene) and illustrative evidence (e.g., photographs and charts).

Many trial attorneys view the presentation of evidence to the jury as analogous to the presentation of information by a teacher to students. As in the classroom, the involvement of more than one of a juror’s senses in the courtroom increases the amount of information retained by that juror. For example, combining verbal testimony from witnesses with before and after X rays, or introducing a defective machine part that jurors can hold in their hands for inspection, makes for compelling courtroom activity. In a modern, “show-me” society, the ability of a trial lawyer to use demonstrative evidence effectively can make the difference between winning and losing a case.

One common and effective example of demonstrative evidence is the still photograph. Photographs of a plaintiff ’s bruises taken immediately after an accident can help a jury understand those injuries in a trial that occurs months or even years after the accident, when the injuries may have healed. Aerial photographs of the scene of a vehicular accident can show how a particular intersection is laid out, and can make more clear an ambiguous description of a blind intersection given by a witness.

X rays and medical models and illustrations
can be very helpful to a jury in physical injury
cases. These examples of demonstrative evidence
help the jury “see inside” the victim to
understand the nature and extent of the injuries.
X rays can show not only fractures but also permanent
metal pins and plates. Accurate models
of a plaintiff ’s head and neck can show the
interaction between the cervical area of the
spine and the surrounding muscle and tissues in
a soft-tissue injury case. Sometimes, partial or
full skeletons are brought into courtrooms to
demonstrate losses or restrictions of movement
due to injuries. Modern computer-generated
illustrations can show the exact injury to a specific
plaintiff, as opposed to the generic injury
represented in a stock medical illustration.
Graphs and charts are perhaps the most useful
forms of demonstrative evidence. These tools
can vividly illustrate a loss of earnings, a
decrease in life expectancy, and past and future
medical bills. Clear and concise charts can help
a jury to arrange a complex set of events in a
chronological fashion. These time lines can be
crucial in organizing evidence, whether in a
criminal trial or in a complex SECURITIES litigation.
Often, maps and other geographic charts
are used to show water flow, elevation, and other
physical characteristics of real property (land).
Graphs and charts can be presented to a jury
in a variety of ways. In addition to offering the
standard large prepared poster board on an
easel, some attorneys prefer to create charts as
they speak to the jury, using large blank pieces of
poster board and colored marker pens. Other
attorneys like the dramatic effect of dimming
the courtroom lights and using an overhead
projector or computer screen to focus visual
attention on their illuminated charts and
graphs.Whatever the style of presentation, wellconstructed
charts and graphs that make good
use of color and are clear and easy to understand
are appreciated by jurors and can have a big
effect during deliberations.
Articles and objects are also forms of
demonstrative evidence. In addition to actual
evidence that is introduced at trial (like the knife
from a murder scene), other physical articles
and objects can be used to help the jury understand
the testimony. For example, in a PRODUCT
LIABILITY action based on a defective artificial
hip, giving the jury models of ball-and-socket
joints to manipulate and examine with their
own hands can clarify testimony regarding the
replacement joint that is still inside the plaintiff.
Three-dimensional models and mock-ups of
roadways, accident sites, or proposed buildings
can simulate the outside world inside the courtroom
to give proportion and scale to a witness’s
testimony.
With the permission of the judge, attorneys
may be allowed to take the jurors to the scene of
the crime or accident. Here, all a juror’s senses
are at work, and testimony presented in court
can be compared to and contrasted with the
physical scene. A list prepared by both attorneys
of items to “notice” may be read by the bailiff at
the scene. Many juries appreciate not only the
chance to get outside the courtroom but also the
opportunity to see for themselves the place
where it all happened.
With the advent of low-cost videocassette
players and recorders, it has become more and
more common to see videotape in the courtroom.
A “day in the life of . . .” video can graphically
demonstrate the activities of a plaintiff
living with debilitating injuries. For example, a
plaintiff witness may say, “I can’t pick up my
children,” whereas a video can actually show the
plaintiff ’s young children milling about with the
plaintiff able only to sit by and watch them.
Videotapes can also show the traffic volume at a
busy intersection or provide a driver’s-eye view
of a road sign obstructed by brush and leaves. If
a jury is unable to leave the courtroom to visit
the scene of a fire, a video camera can provide a
tour through the burned-out remains of the
family’s residence. Some attorneys have actually
begun hiring stuntpersons to re-create vehicular
accidents, driving comparable vehicles at the speeds they were going when the accidents
occurred, and filming the results. Unlike a controlled
dramatic re-creation, this kind of actual
re-creation, with its inherent danger yet accurate
representation of accident conditions, can be an
effective tool at trial.
Though waning in popularity owing to the
greater availability and lower cost of computers,
slide projectors and human-created animation
are still used by some attorneys. By taking
two slide projectors, superimposing their projections,
and connecting them with a sophisticated
mechanical device, an attorney can make
a before picture fade into an after picture with
dramatic results. As with a presentation using
an overhead projector, the dark courtroom and
brightly-lit screen of a slide presentation focus
the jury’s visual attention. Animated cartoon
shorts, hand inked by artists, are eye-catching
and can portray exactly what the attorney
wants to emphasize to the jury: for example, a
cutaway “operating” engine might show how a
defective part can cause the engine to break
down.
Computers and computer-generated displays
are at the cutting edge of demonstrative
evidence. Computer-enhanced graphics can
demonstrate anything from the speed of a vehicle
to the loss of range of motion on an injured
portion of the body. Computers also provide
high storage capacity. One CD-ROM disc can
store thousands of still photos, graphs, charts,
digitized video clips, and even three-dimensional
computer animations. An attorney who uses a
computer to coordinate a presentation can combine
many different forms of demonstrative evidence
into a cohesive and dramatic whole. Still
photos of an injury might be followed by a digitized
video showing limited physical abilities
after the injury. X-ray images can fade into
graphs showing a loss of earning capacity. All
these exhibits can be stored in a laptop computer
and presented with minimal setup and
distraction to the jurors. And the attorney making
the presentation can instantly return to a
particular demonstrative exhibit when making a
point during closing arguments.
Another significant development in courtroom
technology is the use of bar codes. This
technology is helpful in organizing evidence in
cases with numerous exhibits. Bar codes function
in court much as they do in the department
or grocery store. Exhibits, be they photographs
or documents, are stored on CD-ROM according
to bar code. By entering or scanning the
number, the item is immediately retrieved and
can be displayed on the computer screen.
Many newer courtrooms are now equipped
with individual computer terminals, so that jurors
may view computer displays by attorneys on individual
screens in the jury box. A future development
may be the use of virtual reality—where
individuals see and hear computer-generated
images and sounds, and through body sensors
“see” their hands and body within the simulation.
No matter the technology, demonstrative
evidence must still conform to standard evidentiary
rules. The trial court may disallow any item
of demonstrative evidence that is inaccurate or
incomplete. Courts can also strike evidence if it
is unnecessarily cumulative: for example, 30
photographs of one bruise that can be seen
clearly in one or two photographs constitute evidence
that is unnecessarily cumulative.
An attorney must keep in mind that demonstrative
evidence is not real evidence: it merely
illustrates the points being argued to the jury
and court. Computer-generated animation may
only portray evidence that has been properly
presented to the jury through testimony or as
physical evidence. A chart or graph may only
present numbers and amounts that have been
properly calculated and proved. No matter how
exciting the “show,” the attorney must remember
that items of demonstrative evidence are
merely props, and that the witnesses and their
testimony are still the primary method of presenting
evidence to a jury.

FURTHER READINGS
Brain, Robert D., and Daniel J. Broderick. 1992. “The Derivative
Relevance of Demonstrative Evidence: Charting Its Proper Evidentiary Status.”University of California at
Davis Law Review 25.
Branson, Frank L. 1989. “Innovative Techniques in Demonstrative
Evidence.” American Law Institute-American
Bar Association C396 (January 19).
Heffernan, Thomas A. 1987. “Effective Use of Demonstrative
Evidence—‘Seeing Is Believing.’” American Jury Trial
Advocate 10.
Lilly, Graham C. 1996. An Introduction to the Law of Evidence.
3d ed. St. Paul,Minn.:West.
Mauet, Thomas A., and Warren D.Wolfson. 2001. Trial Evidence.
2d ed. Gaithersburg,Md.: Aspen Law & Business.
O’Callaghan, Richard M. 1988. “Introduction and Use of
Demonstrative Evidence.” Practising Law Institute/
Litigation 360 (October 1).
Reuben, Richard. 1995. “Stuntpersons Add Drama to Cases.”
American Bar Association Journal (November).
Taub, Theodore C.“Demonstrative Evidence.”American Law
Institute-American Bar Association C432 (August 14).