DEMONSTRATIVE EVIDENCE

Kevin Visser Mark Sherinian Simmons Perrine Moyer Bergman PLC Sherinian & Hasso Law Firm 115 Third Street SE, Suite 1200 3737 Woodland Suite 630 Cedar Rapids, IA 52401-1266 West Des Moines, Iowa

The purpose of our presentation is to convey how to compellingly use demonstrative

evidence and visual presentations to convince and persuade jurors in employment cases. The parameters for both are described in this outline so that counsel at trial will understand the limits and opportunities to use these communication tools.

Non-evidentiary tools. During opening statement, closing argument and witness examination, counsel have the opportunity to use charts, diagrams, pictures, calculations, etc. to create visual images of the evidence they wish to emphasize. “Generally, a trial court may in its discretion permit counsel, in addressing a jury, to display drawings, diagrams, maps or other visual aids, not put in evidence, for the purpose of illustrating or elucidating matters properly in evidence provided the jury understands that they are employed merely for such purposes and are not of themselves evidence in any sense.” State v. Blyth, 226 N.W.2d 250, 272, 1975 Iowa Sup.

LEXIS 928, *58, (Iowa 1975).

In the trial of an employment claim, counsel should use several visual tools to properly describe their case and the evidence during opening, trial testimony and closing. An organizational chart with key actors, a timeline with critical dates and a damages summary are essential. Many trial lawyers use a completed verdict form to directly explain their request for a verdict in their client’s favor. All of these can easily be incorporated into a power point presentation.

Demonstrative evidence. Demonstrative evidence is pictures, models, graphs, timelines, drawings, summaries and other documents or objects used to explain or illustrate facts to the jury or judge and which may be offered in evidence. The Iowa Supreme Court has liberally allowed

demonstrative evidence which is relevant to the controverted issues in a trial. The “[a]dmission

or exclusion of demonstrative evidence rests largely within the trial court's discretion; therefore,

the Iowa Supreme Court will not interfere unless the trial court has abused that discretion.

Demonstrative evidence is usually received if it affords a reasonable inference on a point in issue.” State v. Thornton, 498 N.W.2d 670, 671, 1993 Iowa Sup. LEXIS 100, *1 (Iowa 1993).

Whether demonstrative evidence is designed to illustrate or recreate an incident or event

determines the foundational requirements of the demonstrative exhibit. A witness who authenticates illustrative evidence need only know about the facts represented or the scene or objects photographed, and once this knowledge is shown he or she can say whether the exhibit correctly and adequately portrays these facts. State v. Sayles, 662 N.W.2d 1, 8, 2003 Iowa Sup.

LEXIS 94, *19-20 (Iowa 2003). A witness who authenticates a simulation or recreation, on the other hand, must provide evidence of the validity of the computer program's methodology and scientific principles as a condition precedent to its admission. Commonwealth v. Serge, 58 Pa.

D. & C.4th 52, 71, 2001 Pa. Dist. & Cnty. Dec. LEXIS 339, *26 (Pa. County Ct. 2001).

The Iowa appellate courts have approved the admission of a number of different types of demonstrative evidence, including the videotape of bus driver in an employment claim offered to acquaint the jury with safe practices, Vinson v. Linn-Mar Community School Dist., 360 N.W.2d

108, 121, 1984 Iowa Sup. LEXIS 1313, *33 (Iowa 1984), the re-enactment of a physical confrontation, State v Thorton, supra, animated slides showing shaken baby, State v Sayles, supra, digitized enhancement of surveillance videotape, State v. Piper, 2003 Iowa App. LEXIS

886, replica of the hazard light, Davis v. Walter, 259 Iowa 837, 842, 146 N.W.2d 247, 250, 1966

Iowa Sup. LEXIS 885, *8 (Iowa 1966), computer re-enactment of automobile accident, Strange

2 v. Glascock, 2005 Iowa App. LEXIS 62 (unpublished opinion), gun experiment, State v.

Henderson, 268 N.W.2d 173, 179, 1978 Iowa Sup. LEXIS 1068, *12 (Iowa 1978) citing 22A

C.J.S. Criminal Law § 708 at 945-946 ("It is proper, and indeed is common practice, in order to assist the jury in understanding the evidence, to permit the introduction in evidence of models, casts, reproductions of impressions in sand, blackboard demonstrations, or other objects, which are fairly representative of an original relevant object.").

In employment cases, the requirements of relevance and foundation apply to demonstrative evidence. In McPheeters v. Black & Veatch Corp. the 8th Circuit held that there was no abuse of discretion in the district court's pretrial ruling excluding an Excel spreadsheet, which listed other complaints of discrimination without the specification of the types of complaints or decision-makers. McPheeters v. Black & Veatch Corp., 427 F.3d 1095, 1101,

2005 U.S. App. LEXIS 23831, *10-11, 96 Fair Empl. Prac. Cas. (BNA) 1459, 87 Empl. Prac.

Dec. (CCH) P42,184, 68 Fed. R. Evid. Serv. (Callaghan) 894 (8th Cir. Mo. 2005). A videotape of a party taken after his termination was admissible as demonstrative evidence of his emotional state and not duplicative. United States EEOC v. AIC Sec. Investigations, 55 F.3d 1276, 1283,

1995 U.S. App. LEXIS 12139, *17, 66 Empl. Prac. Dec. (CCH) P43,555, 4 Am. Disabilities Cas.

(BNA) 693, 32 Fed. R. Serv. 3d (Callaghan) 61, 131 A.L.R. Fed. 665 (7th Cir. Ill. 1995).

Timelines are particularly helpful to demonstrate a series of events and identify documents which correspond to those events. However, they must meet the requirements for foundation. Pearson v. U.S. Bank Nat'l Ass'n, 2014 U.S. Dist. LEXIS 116533, *36, 2014 WL

4163020 (D. Minn. Aug. 21, 2014). (Timeline was inadmissible where based solely on

Plaintiff's attorney's personal analysis of document metadata). Rule 1006 F.R.E. permits a proponent to "use a summary, chart, or calculation to prove the content of voluminous writings,

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recordings, or photographs that cannot be conveniently examined in court." Fed R. Evid. 1006.

Such summaries are properly admissible when "(1) the charts fairly summarize voluminous trial

evidence; (2) they assist the jury in understanding the testimony already introduced; and (3) the

witness who prepared the charts is subject to cross-examination with all documents used to prepare the summary." United States v. Hawkins, 796 F.3d 843, 865, 2015 U.S. App. LEXIS

13169, *46-47, 98 Fed. R. Evid. Serv. (Callaghan) 1 (8th Cir. Mo. 2015). Self-generated timelines which are not admissible may nonetheless be used to refresh a witness’ recollection.

Lenius v. Deere & Co., 2015 U.S. Dist. LEXIS 18328, *40, 2015 WL 3505747 (N.D. Iowa Feb.

13, 2015).

Organizational charts which summarize evidence are admissible as long as they comply with Rule 1006. F.R.E. United States v. Spires, 628 F.3d 1049, 1053 (8th Cir. 2011).

"[S]ummaries may include assumptions and conclusions so long as they are based upon evidence in the record," United States v. Spires, 628 F.3d 1049, 1053 (8th Cir. 2011) (quotation omitted), but may be rejected if they are too conclusory or inaccurate, see United States v. Crockett, 49

F.3d 1357, 1361 (8th Cir. 1995).

The following is a non-exclusive list of demonstrative exhibits which counsel may choose to use in an employment trial:

Organizational chart

Timeline

Lost income summary

Day on the job video

Physical limitations video

Unemployment hearing audio tape

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United States v. Adejumo, 772 F.3d 513, 524, 2014 U.S. App. LEXIS 22312, *18, 95 Fed. R.

Evid. Serv. (Callaghan) 1487 (8th Cir. Minn. 2014).

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