No ideas but in things: a practitioner's look at demonstrative evidence.

AuthorGonzalez, Ervin A.

The power of visual stimulation in forming a persuasive argument cannot be understated. Poet Williams Carlos Williams famously wrote, "no ideas but in things...." (2) In writing that line, it can be argued that Dr. Williams was simplifying a universal truth that carries over to modern-day courtrooms: The art of conveying ideas is most effectively done by showing, rather than telling, your audience what it should know. In Williams' specific context, he appealed to readers with imagery that conveyed certain feelings or truths.

Similarly, for today's litigators, the best arguments can be displayed through the use of demonstrative evidence and exhibits. Indeed, studies have shown that visual aids used in conjunction with oral presentations may increase understanding and retention levels by as much as 65 percent. (3) It is well known that such "evidence is generally more effective than a description given by a witness, for it enables the jury, or the court, to see and thereby better understand the question or issue involved." (4)

In today's technologically savvy society, the influence of visual imagery by use of demonstrative evidence is as powerful and prevalent as ever. The use of this power, however, presents certain obstacles for practitioners. Courts must carefully evaluate issues of admissibility to determine whether demonstrative aids are relevant, are not misleading or confusing, and "constitute an accurate and reasonable reproduction of the object involved.." (5)

Significantly, trial court judges are afforded broad discretion as to whether demonstrative exhibits should be presented to a jury and admitted into evidence. (6) As always, a well-prepared strategy and supported argument for or against the admissibility of such evidence will go far in tipping the court's discretion toward a favorable result. The trial court's discretion carries great weight, even on appeal, as the trial judge's ruling will not be disturbed absent a clear abuse of that discretion. (7)

First, it is essential to decide whether the use of demonstrative evidence is warranted with regard to satisfying an element of proof, reinforcement, explanation, or illustration of an issue. Next, counsel should decide the medium for presenting the evidence (e.g., videotape or photograph, diagram or drawing, chart or time line, blowup poster, or original-size exhibit). The chosen medium will prompt the appropriate admissibility and foundation analyses. There are also circumstances when the thoroughness and timing of a foundation can play an important role in jury persuasion.

All too often, the creation of demonstrative evidence becomes a last-minute decision before trial. Fortunately, companies that specialize in trial graphics can usually accommodate an attorney's request within hours. However, the presentation of properly developed and effective demonstrative evidence requires meticulous preparation. This practitioner's guide is intended to assist Florida litigators in some of the trickier aspects of presenting and introducing demonstrative evidence before and during trial, as well as precluding the introduction of such evidence through appropriate objections.

The Basics

First, real evidence should be distinguished from demonstrative evidence. Demonstrative evidence is generally referred to as crafted "representative" evidence that serves to assist in the comprehension of certain facts and details. "In other words, demonstrative evidence is a medium for presenting testimony, documentary, or real evidence." (8)

Real evidence is typically referred to as an object that has played a direct role in the incident giving rise to the litigation. For real evidence to be admitted, the object must be authenticated, relevant, and cannot be hearsay unless it falls under an exception. (9) With the widespread use of technology in the courtroom, such as digital, video, and computer-generated evidence, demarcations among these categories of evidence tend to blur.

Nevertheless, courts must distinguish demonstrative evidence from mere illustrative aids. Categorizing evidence should be a serious consideration for litigators, as the distinction between aids and evidence is crucial. Failure to make such a distinction can lead to reversible error as, unlike substantive evidence, demonstrative aids are not allowed in the jury room during deliberations. (10) Usually, the more accurate the demonstrative exhibit's depiction of the facts of the case, the more likely it is to be admitted into evidence.

Maps, charts, or drawings may be useful as aids, but might not be admissible evidence. Despite not being admitted as evidence, demonstrative aids may still be used to demonstrate a pertinent point with the trier of fact. Examples of demonstrative evidence include, but are not limited to, the following: models, maps, videotapes, DVD, film, audiotapes, recordings, photographs, replicas, computer animations, x-rays, handwriting exemplars, time lines, demonstrations, experiments, scientific tests, and original objects (e.g., weapons and defective products).

Second, in the interest of avoiding potentially case-shattering surprises, pretrial stipulations should be made and motions in limine should be filed and set for hearing well in advance of trial. Obtaining pretrial rulings on admissibility can also save money, considering multidimensional models tend to be quite persuasive, but often include a hefty price tag. Pretrial efforts to determine whether a model can be introduced as evidence or as a demonstrative aid will preemptively confirm whether a party should spend the time and expenses preparing it.

Pretrial practice regarding admissibility is not without its pitfalls. Attorneys should be wary of motions in limine that are tantamount to improper summary judgment motions or motions to dismiss that seek to exclude mention of a dispositive issue and effectively render one party without a case. (11) An improper ruling on a motion for summary judgment masquerading as a motion in limine could result in reversible error. (12) It is also important to note that, even if a litigator obtains a favorable pretrial order on a motion in limine, the attorney is not yet out of the woods. Some courts view pretrial rulings as entirely tentative, (13) meaning that "[a]fter evidence is actually adduced at the trial, the judge may suffer a change of mind and decide--contrary to a pretrial ruling--that evidence may have to be admitted or excluded." (14)

One hurdle in establishing the admissibility of demonstrative evidence is relevancy. (15) Plainly stated, Fed. R. Evid. 401 defines relevant evidence as evidence that "has any tendency to make a fact more or less probable than it would be without the evidence," and "the fact is of consequence in determining the action." (16) Its state counterpart, F.S. [section]90.401, offers even less in the way of specifics or guidance, stating: "Relevant evidence is evidence tending to prove or disprove a material fact." (17) This broad, plain language makes for a seemingly simple standard to satisfy, and courts acknowledge having wide discretion in determining this phase of the admissibility process. (18)

However, complications arise when the statutory reasons to exclude relevant evidence are evaluated. With slight variations, Fed. R. Civ. P. 403 and F.S. [section]90.403 deem relevant evidence inadmissible if its probative value is substantially outweighed by the danger of "unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence." (19) Certain exhibits or aids may be only peripherally relevant to some aspect of the case, but are so emotionally charged that introducing them to the jury would be unfairly prejudicial to the objecting party and would only inflame juror's sentiments without proving or disproving any dispositive details of the case. (20)

In Jackson v. State, 107 So. 3d 328 (Fla. 2012), the Florida Supreme Court reversed a conviction and remanded upon finding that the trial court abused its discretion when it admitted a videotape recording of an interrogation of the suspect. (21) During the interrogation, detectives repeated personal beliefs and attacked the character of the suspect. (22) The interrogation did not result in a confession, and was obviously used by the prosecution to elicit sympathy for the victim and create a strong inference of guilt. (23) The interrogation video was effectively serving as a mechanism to paint the state's picture of the villainous defendant and the heroic victim without providing anything relevant to the issues of the case.

In other criminal cases, if authenticated images offer guidance as to the cause, location, or mechanism of death or injury, or the intent of the defendant, the images typically constitute admissible evidence. (24) Conversely, gruesome video footage, photographs, or drawings depicting shocking images of a crime or a victim should not be admitted if those images fail to speak directly to a critical fact at issue and, instead, only infuriate the trier of fact. (25) If the images unequivocally address a disputed issue in the case, the balancing test would likely shift in favor of the party seeking admissibility unless there is a less inflammatory, but equally effective, method of proving the material fact. (26) That is, unless the probative value of the image is substantially outweighed by its prejudicial effect, the image would be deemed relevant and admitted into evidence.

Photographic images are the most accessible type of demonstrative evidence in personal injury cases. For example, it is no surprise that photographs of a plaintiff's or a victim's unsightly wounds tend to resonate with a jury. The photographs may be admissible if the nature and extent of the plaintiff's damages are in dispute. Similarly, in cases involving real property, aerial photographs and plats are useful when overviews of locations and...

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