Andrew J. Rossetti, Esquire

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Cherry Hill, NJ 08034

856-354-0900
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What is demonstrative evidence?  Black’s Law Dictionary defines demonstrative evidence as “that evidence addressed directly to the senses without intervention of testimony.”  Black’s Law Dictionary, 389 (6^th e.d. 1990).  Demonstrative evidence that appeals to the senses directly without the intervention of witness testimony.  This evidence has also been referred to as real evidence, physical evidence, and tangible evidence and evidence by inspection.  Some treatises distinguish real evidence from demonstrative evidence, defining real evidence as an object which has a fierce part in the incident (e.g. an injured body part), and demonstrative evidence as litigation as –crafted “representative” evidence that has no probative value in itself but serves merely to aid in the comprehension of facts (e.g., maps or charts).  One commentator maintains that demonstrative evidence defies concrete definition, stating that “[p]erhaps the difficulty in defining demonstrative evidence results from the fact that it is a derivative form of the other three types.  In other words, demonstrative evidence is a medium for presenting testimony, documentary, or real evidence.”  Lipson, Instant Evidence, How to Assess Admissibility When Every Second Counts, Trial Magazine at 72 (Nov. 1996).  With the more wide spread use of technology, including video tape recorders and computer-generated evidence, the distinctions among the general categories of evidence have a greater tendency to overlap.  Counsel should be aware of this with regard to admissibility and proper foundations.

Weiss-McGrath 1992 Report Study:

• Found a “one-hundred percent increase in juror retention of visual over oral presentations and a six-hundred percent increase in juror retention of combined visual and oral presentations over oral presentations alone.”
• The study compared retention of information presented in three different formats: (1) orally only; (2) visually only; and (3) visually and orally
  • After 72 hours the group presented information solely by oral means retained only 10% of the total presentation
  • The group receiving information solely by visual means retained twice the information, or 20% of the total information presented
  • Those who received information both orally and visually retained 65% of the total presentation

Poynter Institute Study:

• Using color on visual aids increased attention value 130% and retention value increased 235% over black and white

It is clear that the Courts have distinguished demonstrative “evidence” from demonstrative or illustrative “aids.”  As in other broadly defined categories of evidence that tend to overlap and become blurred, the demarcation between “evidence” and “aid” is not always apparent.  Generally, however, the more accurate the exhibit, the more likely it is to be admitted in evidence.  Rough handwritten notes or drawings may be useful as aids but may not be admissible evidence.  Although the categorizing of certain evidence as, for example, demonstrative or documentary may be more of a concern to an academician than to a trial lawyer, the distinction between demonstrative evidence and demonstrative aids is practical and critical.  Aids, unlike evidence, are not allowed in the jury room during deliberations.  Therefore, failure to properly distinguish between the two can lead to reversible error.  Florida Civil Trial Practice, Chapter 14, Demonstrative Evidence, Michal A. Kamen (1998).

In Cross v. Robert E. Lamb, Inc., 60 N.J. Super. 53, 74-75 (App. Div. 1960) the Court found the use of the black board for purposes of listing and computations of damages was permissible because it is essentially “exhortatory and not explanatory…-anything which counsel has the right to argue as a legitimate interpretation of or inference from the evidence he is free, within the discretionary control of the trial court to write upon the black board.”  Conversely what counsel may not argue, he may not write on the board.  Id.  Moreover, the Court noted that in order to minimize the possibility of prejudice the jury should be given to understand by the Court as well as counsel that the figures written on the board are not evidence.  Since such aids are non-evidential they should be under view by the jury only during the argument in which counsel is discussing same.  Id., at p.76.

1. USE OF DEMONSTRATIVE EVIDENCE

Our contemporary society is visually oriented.  Television and computers are dominant transmitters of information.  Both judges and juries will remember more of what they see than what they hear.  They also will understand more of what they hear when it is linked by visual images.

The purpose of demonstrative evidence is to augment, illustrate, or provide a visual aid to the jury in understanding the verbal testimony.  The lawyer should specify if the demonstrative evidence is not the actual evidence in the case but instead has been prepared to demonstrate certain points, principles, or information.  The actual evidence, by comparison, is a physical, tangible item that has a direct bearing on and plays an active role in the presentation of the case.  It is the product, or the person, or the test report that must stand the test of relevancy and materiality.  See, 72 AM JUR, Trials, 309.

Demonstrative evidence should be admitted in advance by:

1. Specific ruling made at the pretrial conference or before trial;
2. Stipulation or agreement of counsel before the opening statement; or
3. Motion in limine to allow the use of demonstrative evidence specifying how its use will assist the jury and serve the ends of justice.

The fundamental preconditions for admitting a demonstrative exhibit into evidence is that it must be relevant and it must be authentic (if real) or accurate (if representative).  It must not appear misleading.  See, Tirell v. Navis Star Intern., Inc., 248 N.J. Super. 390, 407-498 (App. Div.), certif.. den.  126 N.J. 390 (1991); Schiavo v. Owens-Corning Fiberglas, 282 N.J. Super. 362, 368-369 (App. Div. 1995); Ocasio v. Amtrak, 299 N.J. Super. 139, 154-155 (App. Div. 1997).

The trial court has wide discretion in determining the admissibility of demonstrative exhibits.  This determination focuses on New Jersey and Federal Rules of Evidence, 403, which states: “relevant evidence is inadmissible if it’s probative value is substantially outweighed probative value is substantially outweighed by the danger of unfair prejudice, confusion of issues, misleading the jury, or needless presentation of cumulative evidence.”  Appellate courts generally acknowledge that the trial court has a superior vantage point in ruling on the admissibility of demonstrative exhibits.  Therefore, the trial court’s finding will not be disturbed absent a clear abuse of discretion.  See, State v. Boratto, 80 N.J. 506, 524-525 (1979); Hill v. Newman, 126 N.J. Super 557, 563 (App. Div. 1973); Thomas v. Toys ‘R’ Us, Inc., 282 N.J. Super. 569 582-583 (App. Div.) certif. den.  142 N.J. 574 (1995).

The following are examples of demonstrative evidence, some of which are discussed in greater detail below:

1. Charts
2. Computer Simulations
3. Models
4. Maps
5. Video Tapes
6. Video Animation
7. Photographs
8. Replicas
9. Blowups of deposition transcripts
10. x-rays
11. Handwriting exemplars
12. Timelines
13. Demonstrations and Experiments
14. Scientific tests.

Photographs are the most readily available and common types of demonstrative evidence.  The primary focus of the court in admitting photographs is relevancy.  This is so even if the photograph is gory or gruesome.  See, Arenas v. Gari, 309 N.J. Super. 1, 22 (App. Div. 1998); State v. Rose, 112 N.J. 454, 535-36 (1988), Tirrell, supra., at 407-08.

Photographs generally are easy to admit into evidence.  The basic foundation is that the photograph “fairly and accurately” depicts the item shown.  The witness need not be the photographer.  The witness simply must be able to testify that he or she is familiar with what is depicted and has a basis for the familiarity, and that the photograph fairly and accurately represents the item as it existed at the relevant time.  If, however, the photograph is being offered to prove that something occurred at a particular time rather than how it looked, it will be necessary to produce the photographer.  Photographs can be attacked at exaggerating or reducing distances, altering apparent height or other measurement, and showing more or less of a scene that is necessary to prevent a partial view from being misleading.  If any of these objections are encountered, the attorney should emphasize that the objections are directed at the weight and credibility of the photograph but not its admissibility.  Annotation, “Admissibility in Evidence of Color Photographs”, 53 A. L. R. 2d 1102; Overlook Terrace Corp. v. Excel Properties Corp., 210 N.J. Super. 420, 425 (App.Div. 1986).

In the past; videotape depositions were usually reserved for out-of-town experts whose fees, travel costs, or scheduling problems justified their use.  Today, however, the use of video tape recordings has become increasingly pervasive in the courtroom as the availability and ease of operation continues to increase while the costs continue to decrease.  Some attorneys routinely videotape all depositions; some use their own staff and equipment in conjunction with the court reporter and in compliance with N.J. Court R. 4:14-9.

Like photographs, videotape may be authenticated by any witness who is familiar with the scene portrayed.  However, it may become necessary to call the operator as a witness if special features were used, if the data of filming is an issue, or in cases of remote taping when a foundation would need to include information on operating procedures as well as the condition of equipment.  The attorney should be prepared to counter the argument that evidence presented by videotape would have an unfairly disproportionate impact on the jury compared to live testimony.  See, Kornblum & Short The Use of Videotape In Civil Trial Preparation and Discovery, 23 A.M. JUR. TRIALS 95 (Lawyers Co-op Pub. Co. 1976, 1997 Supp.).

The typical Rule 403 test of balancing probativeness versus prejudice will often be used, especially with “day-in-the-life” recordings that have a tendency to over-focus on injuries or otherwise inflame the jury.  The lawyer should also be prepared to ensure that a videotaped deposition that is played during trail is admitted properly into evidence.  Also, be aware that ordinarily the failure to seek a pretrial ruling on a video depositions issue will be deemed to constitute waiver of any objection.  See, Mellwig v. Kebalo, 264 N.J. Super. 168 (App. Div.), certif.. den. 134 N.J. 478 (1993).

As to videoconferencing discovery depositions, See Haynes v. Ethicon, 315 N.J. Super. 338 (Law Div. 1998), confirming the court’s power to so order in the interest of convenience and economy if appropriate technical facilities are available.

A computer simulation-which can be thought of as a cross between a reconstruction and a two-D or three-D animation- is used primarily to reconstruct past events and demonstrate their occurrence graphically in the courtroom.  Thus, a simulation “is a type of evidence” that employs computer modeling of simulated or experimental events in order to predict what will or has happened in a real case.  Computer simulation involves a form of experimental evidence, but they have become particularly demonstrative when the output of the simulation is converted to a graphic animation that can be displayed.  Kohlman and Lathrop, Computer Technology in Civil Litigation, 80 (Bancroft-Whitney, 1990).

As with reconstructions generally, computer simulations can be easily excluded from evidence if they are perceived as prejudicial, unfair, unfounded, or distracting to the jury.  The practitioner should make sure that he or she has considered potential objections to the evidence and can demonstrate a detailed foundation for every piece of information used to generate the simulation, both in terms of the underlying scientific theory and the particular application of the theory in the simulation.  A great deal has been written about the admission of simulations as well as the manner, form, and timing of their presentation, and this material should be carefully considered before committing to the creation of a simulation which, even though less costly than in the past, can still absorb significant time, focus, and money.  Joseph Modern Visual Evidence § 8.03[2] (Law Journal Seminars-Press, 1994).

Studies show that jurors learn fact patterns and details best from a TV monitor.  Display monitors are an effective way for the attorney to break down the key factors, then reveal them one at a time so that each factor builds on the preceding one.  When using a visualizer, a video camera that is used to display documents and objects on a video monitor, this is performed by zooming in on the elements and revealing them in sequence.  If time and flexibility permit, the most effective way of presenting this type of information is with presentation software, such as PowerPoint or Harvard Graphics which is designed to utilize slides which are displayed on a TV screen.  The slides are created to build upon the preceding one, creating a smooth presentation.  It is critical that the monitor be large enough to allow the jury to clearly see the text on the screen.  Counsel should remember that a great deal of information can be put on one slide; however, it generally must be read and understood in less than two seconds.

Nearly every prospective juror understands and expects technology to be used in the courtroom, as it is in all other aspects of our daily life.  The optimal mix of high-tech demonstrative evidence varies with the client, case, demographics of the jury, opposing counsel and judge.  Most importantly, it is important to gear the evidence and presentation method to the primary audience, the jury.  Demonstrative evidence, like the trial wardrobe should be chosen to fit with the jury and encourage the jurors to identify with the attorney, and ultimately the position she advocates.  In rural areas, for example there may be a distrust of gadgetry and its use will automatically label the user an outsider, something the trial lawyer wants to avoid when trying to find commonality with the jury.

In addition to demographics, the age of the jury pool is a primary consideration when determining the amount of technology to use.  To younger jurors in their twenties and thirties, video monitors are the primary means of reviewing information from television and the Internet.  To keep the attention of the juror, it is important that the entire presentation be organized and edited to provide the key elements quickly and with rapidly changing visual images.  For all jurors, dividing the presentation of evidence into bite size pieces will provide a better understanding and retention of the evidence.

In short, while today’s technology makes exhibits cheaper and easier to create, the talent of the creator is more important than the technology needed to create it.  Just as a computer and word processor program do not create a winning legal brief, the success of demonstrative evidence lies with a thoughtful and talented designer.  72 AM JUR TRIALS 309; McElhaney, Gizmos In the Courtroom A.B.A. J., November 7, 1997, at 75.