§ 26.05 In-Court Demonstrations

• Jurisdiction: United States

§ 26.05 In-Court Demonstrations

In-court demonstrations, which go beyond mere physical exhibition, involve other considerations because "demonstrative exhibits tend to leave a particularly potent image in the jurors' minds."⁴⁴ For example, demonstrations of pain can be faked. This is a Rule 403 issue. In some cases, demonstrations are helpful. In one case, for example, the prosecution conducted a demonstration using nylon stockings as a mask over a person's head to illustrate the extent to which a stocking distorts facial features.⁴⁵ In contrast, in another case a demonstration relating to "shaken baby syndrome" should not have been permitted because the differences between the victim and the doll used in the demonstration were too great.⁴⁶

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Notes:

^[44] United States v. Gaskell, 985 F.2d 1056, 1061 n. 2 (11th Cir. 1993). See also United States v. Williams, 461 F.3d 441, 447 (4th Cir. 2006) ("[W]hen one party conducts a physical demonstration the other party is entitled to introduce evidence of his own that tends to show that the demonstration does not accurately portray what it purports to represent."); State v. Brown, 337 S.W.3d 12, 15 (Mo. 2011) ("[W]hen assessing the relevance of demonstrative evidence, a court must ensure that the evidence is a fair representation of what is being demonstrated and that it is not inflammatory, deceptive or misleading.").

^[45] State v. Jackson, 621 N.E.2d 710, 711 (Ohio App. 1993) ("the state did not claim that Exhibit A was the stocking used in the robbery").

^[46] See Andrews v. State, 811 A.2d 282, 296 (Md. 2002) ("The exchange between the prosecutor and Dr. Craig, on direct examination, specifically highlighted and noted the differences of the demonstration. During cross-examination, defense counsel did manage to highlight more specific differences between the doll and Kristin's proportional ratio of head to body, both in weight and circumference; however, the jury had already been fully apprised of the fundamental differences on direct examination."). See also State v. Brown, 337 S.W.3d 12...