Using Demonstrative Exhibits with Expert Witnesses – Tips and Best Practices

Today’s jurors consume information differently than they have in the past. With the rise of the internet and the ubiquity of electronic devices, they increasingly learn through visual media like television, infographics, and animations. The attorney who intends to present his case without the use of modern visual aids runs the risk of a jury deliberating without ever fully understanding the argument that he has presented. To ensure that the facts and complexities of their case are communicated to the jury, attorneys should weave visual aids and pieces of demonstrative evidence throughout their case. These forms of visual communication are particularly important in helping the jury understand expert testimony; which otherwise may seem overly technical, dry, or confusing. But using demonstrative exhibits with experts at trial can add an unnecessary layer of complexity to your case if they are not deployed properly.

What Constitutes “Demonstrative Evidence”?

All demonstrative evidence can be separated into two different groups: illustrative demonstrative evidence, and substantive demonstrative evidence. Illustrative demonstrative evidence typically consists of visuals that have been created and developed solely for the purposes of helping the jury to better understand the evidence at trial. Consider using illustrative demonstrative evidence to help the jury better understand your expert’s testimony. Examples could include a timeline of the events or a medical illustration of the alleged injury. Substantive demonstrative evidence, on the other hand, may consist of actual objects or records that are directly related to the events or issues in the case.

Demonstrative evidence comes in many shapes and sizes, and since attorneys are always looking for better ways to communicate their side of a case to the jury, what can be deployed as demonstrative evidence continues to expand. Demonstrative evidence can be as simple as an expert utilizing a whiteboard to draw diagrams as she explains her testimony to the jury, or as complex as a high-tech computer animation or 3D printed reproduction. In the case of a whiteboard, attorneys may, for example, use this simple form of demonstrative evidence during cross-examination of an expert; writing key admissions the expert makes during questioning on a board to help the jury remember.

It is crucial to make sure the jury remains focused when using visual aids or demonstrative evidence. One way to do so is by using a presentation program like PowerPoint or Prezi. These programs allow the attorney or witness to speak directly to the jury about why certain pieces of visual evidence are crucial to the case. These presentations are typically displayed on some sort of monitor that allows the attorney to change and remove images from the screen at will. Most attorneys find that when an image is displayed in front of a jury, the jurors will focus on the image. Thus, it is important to remove any images from the jury’s view once the attorney wants their focus back on his statements. Other examples of demonstrative evidence include charts, photographs, videos, timelines, diagrams, maps, and demonstrations.

Techniques for Effective Use of Demonstrative Evidence

Remember, the purpose of using demonstrative evidence is to help the jury understand your case. Every piece of demonstrative evidence you create for trial should therefore be aimed at educating, clarifying, and helping jurors visualize key aspects of your case.

Try to keep the visuals informative but simple. When an image is too busy, or causes the viewer to digest too much information, many people will simply “zone out” rather than make the effort to process and analyze all of the information in front of them. Be sure to ask your experts for suggestions on visuals that would help better explain their testimony to the jury.

It is also important to test demonstrative evidence prior to trial. Consider holding a focus group where you show the visual to the participants and ask for feedback. While a visual you spent hours upon hours creating may make total sense to you, a focus group may help you see that the same visual is more confusing than helpful. This is the type of vital feedback that will help you develop the most effective visuals for trial.

Some attorneys also like the idea of conducting live in-court demonstrations or experiments. The objective is that if a jury sees the demonstration or experiment play out live, it will have a greater and more lasting impact on the jurors. While that may be true, these live presentations can also be risky. You might run into technical difficulties, unplanned for results, or even outright failure with the experiment. All live and right in front of the jury. If an experiment or demonstration is necessary to prove your case, make sure it is well-rehearsed prior to trial.

Procedural Rules for Demonstrative Evidence

No federal rule specifically addresses the use and admissibility of demonstrative evidence. The term is only mentioned in the comments to Federal Rule of Evidence (FRE) 601 regarding the court’s power to control the presentation of evidence.

During discovery, the majority of attorneys now request that their adversaries produce any and all exhibits expected to be used during trial, including demonstrative exhibits. However, if opposing counsel has not created any pieces of demonstrative evidence when the request to present them is made, then they are under no obligation to do so. In those circumstances, it’s recommended that attorneys agree their discovery responses will be supplemented if and when any such demonstrative exhibits are created.

Many trial courts also set deadlines to exchange exhibits within the court’s pre-trial order. Attorneys for both parties may be ordered to produce and exchange all trial exhibits sixty (60) days before trial or else lose any chance of using the exhibit at trial. If the court’s order is unclear on whether or not this includes illustrative demonstrative evidence; then counsel should clarify with opposing counsel and the court prior to the deadline.

There are a variety of objections that can be made when counsel wants to keep an opponent’s demonstrative evidence out of the courtroom. In order to determine which of these measures will be best, it is important to evaluate the evidence and see if it truly is relevant to the case and issues. Even demonstrative evidence must meet the basic hurdle of relevance. If the proposed piece of demonstrative evidence has little to do with the facts of the case, then a relevance objection can and should be made in order to prevent the opposing party’s expert from referring to the evidence.

Objections to an opponent’s demonstrative evidence may also include objections based on a lack of authenticity under FRE 901. If any party wants to introduce a piece of evidence at trial, that party bears the burden of proving the proposed piece of evidence is what the proponent claims it is. FRE 901 is no different when it comes to demonstrative evidence.

Another potential objection attorneys may have to their opponent’s proposed demonstrative evidence is that the evidence is more prejudicial than it is probative under Rule 403. This often-used objection is easily understood by trial court judges and attorneys. This objection is allowed. However, the proposed piece of evidence is simply so prejudicial that it will cause the jurors to make a decision or form opinions based on emotion rather than the facts of the case. Visual pieces of evidences such as photographs and live demonstrations tend to stir up such emotions far easier than a witness’s words. Therefore, FRE 403 objections are usually the most common and most effective grounds for objecting to demonstrative evidence.

Effective use of demonstrative evidence can be a powerful weapon at trial. Modern jurors need informative and simple visual aids throughout trial to both educate them on the issues with the case, and keep their focus on the evidence being presented. This evidence, coupled with strong testimony from expert witnesses, will greatly increase your chances for a successful outcome at trial.