Section 9.18 Physical Evidence and Demonstrative Aids

• Library: Civil Trial Practice 2015 Supp

3. (§9.18) Physical Evidence and Demonstrative Aids

Before trial, counsel should have determined whether there are photographs, records, and objects that counsel believes will give the jury a better understanding of some of the issues in the case. In the preparation of the trial notebook, counsel should have determined which witness will be used to bring this evidence before the jury. Trial counsel must decide whether to attempt to admit the object into evidence or merely use it as a demonstrative aid. Obviously, if an object is going to be admitted into evidence, a proper foundation will have to be laid. On the other hand, if an object is just going to be used as a demonstrative aid, trial counsel only needs to establish that the exhibit or thing will assist the jury in following and understanding the testimony of the witness.

Maps, drawings, and diagrams providing illustrations of scenes and depicting the relative location of objects are admissible if they can be shown to be reasonably accurate and correct so as to permit a fact-finder to more clearly understand the facts. Blackburn v. Richardson, 849 S.W.2d 281 (Mo. App. S.D. 1993). It is unnecessary that a diagram of a scene be completely accurate or drawn to scale, but the diagram must not be so inaccurate as to confuse or mislead the jury. Vasseghi v. McNutt, 811 S.W.2d 453, 456 (Mo. App. W.D. 1991).

Photographic evidence must be practical, instructive, and calculated to help both the jury and the court in understanding the case. Jordan v. Abernathy, 845 S.W.2d 86 (Mo. App. E.D. 1993). Photographic evidence must be an accurate representation of the thing it purports to depict. In some cases, the admissibility of photographs is challenged because the photograph has been “staged,” Wood River Pipeline Co. v. Sommer, 757 S.W.2d 265, 269–70 (Mo. App. E.D. 1988), or too graphic, Faught v. Washam, 329 S.W.2d 588 (Mo. 1959). Such cases consistently hold that the trial judge has wide discretion on these issues. It has been held that videotapes that depict a “day in the life” of a plaintiff may be relevant and admissible under certain circumstances. Lawton v. Jewish Hosp. of St. Louis, 679 S.W.2d 370, 372 (Mo. App. E.D. 1984). But a video depicting a “day in the life” of an injured motorist was properly excluded where the motorist was present in court for the jury’s observation. Helm v. Wismar, 820 S.W.2d 495, 497 (Mo. banc 1991).

The mechanics of offering an exhibit into evidence are elementary. The proposed...