§ 26.04 In-Court Exhibitions

• Jurisdiction: United States

§ 26.04 In-Court Exhibitions

Another type of "real" evidence involves an exhibition before the jury, often of a physical condition in a personal injury action. For example, a plaintiff might show scars or amputated limps to the jury on the issue of damages—in one case an artificial eye.⁴⁰

Control of such evidence rests with the trial judge under Rules 403 and 611(a).⁴¹For reasons of propriety, some exhibitions should be conducted out of court and then described to the jury through a witness.⁴² In a criminal case, the trial court may require the defendant to exhibit identifying physical characteristics or speak for identification. The privilege against self-incrimination extends only to "testimonial," and not physical, evidence.⁴³

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Notes:

^[40] E.g., Allen v. Seacoast Prod., Inc., 623 F.2d 355, 365 n. 23 (5th Cir. 1980) (demonstration of the removal and replacement of artificial eye in front of the jury; trial judge "did not abuse his discretion in determining that the demonstration's probative value (in showing the daily regimen which Allen must endure) outweighed its prejudicial effect"). See also Bowman v. State, 73 N.E.3d 731 (Ind. App. 2017) (permitting victim in an aggravated battery case to remove her prosthetic eye in the presence of the jury to demonstrate the severity of her injury not unfairly prejudicial).

^[41] See State v. Robinson, 146 S.W.3d 469, 491 (Tenn. 2004) ("After acknowledging that relevant evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, the trial court specifically concluded that the probative value of Dr. Deering's testimony and his use of the [the victim's cleaned and reconstructed] skull to explain his testimony [order of the gunshots] outweighed the danger of unfair prejudice.").

^[42] See State v. Minkner, 637 N.E.2d 973, 976 (Ohio App. 1994) (rape prosecution; "Under these circumstances, we conclude that his request to designate an impartial person to conduct a visual examination and testify concerning the findings of that examination [whether accused had a surgical scar or mark on his penis] was a reasonable request.").

^[43] See United States v. Wade, 388...