January 2010 Issue Kathleen Flynn Peterson Enhanced persuasion: Effective use of demonstrative evidence at trial [Ed. Note: The following material was al aids increased attention value 130 per­ demonstrative evidence into the record presented at CAALA’s Annual Convention, cent and retention value increased 235 as part of the witness’s testimony.7 September 2009] percent over black and white. Demonstrative evidence can be a It is a rare occasion to find a lawsuit powerful and convincing tool. On the Throughout your case you will be in which demonstrative evidence cannot other hand, its use can potentially create telling your client’s story. Look to who be used. Indeed, the use of demonstra­ a risk of misleading or confusing the jury your audience is. Alter your presentation tive evidence dates back to the eigh­ about the issues.8 In addition, certain to fit your audience. Whether your audi­ teenth century.2 The use of demonstrative demonstrative evidence, such as grue­ ence is the insurance company, the evidence at trial is limited only by the some photographs, may give rise to a defendant, defense counsel, the media­ lawyer’s ability to portray it. Federal danger of unfair prejudice.9 However, tor/arbitrator, judge or jury; how you Rules of Evidence encourage the use of such evidence is not automatically communicate your client’s case can take demonstrative evidence with its liberal excluded; rather its admissibility is deter­ various forms. Whether you do a face-to­ rules of admissibility. Virtually anything mined by employment of a balancing face meeting; send a letter, video or that appeals to the senses of the trier of test.10 other materials is a decision to be made fact may be offered into evidence. on a case-by-case basis. Only you can Relevancy decide how to best present your client’s Demonstrative evidence defined As with any other evidence, demon­ story. The term “demonstrative evidence” strative evidence is relevant and thus, Modern research studies show that is often used to describe all evidence admissible if its appearance or other individuals learn 75 percent of all they from which the trier of fact may derive a physical characteristics render a fact of know through the sense of sight. That relevant firsthand sense impression in consequence to the determination of the being the case, the most effective way for contrast to the traditional presentation of action more or less probable than it a lawyer to communicate information to oral testimony and the introduction of would be without the evidence.11 The a jury is through the use of demonstra­ documentary exhibits.3 requirement is met by demonstrative evi­ tive evidence. However, the majority of Demonstrative evidence should be dence which promotes understanding of trial attorneys rely heavily on verbal pres­ distinguished from “real” or Asubstantive other relevant evidence. The verbal testi­ entation when communicating with a fact evidence” which involves the production mony, which the demonstrative evidence finder, whether insurance adjustor, of an object which generally played a aids in understanding, must, of course, defense lawyer, judge or jury. The result direct or indirect part in the incident, itself be relevant to a fact of consequence oftentimes is that the recipient of the e.g., a murder weapon.4 The latter is in the litigation.12 Relevant evidence may information is bored or confused by the admitted into evidence and taken into be excluded, however, if its probative myriad of facts and dates involved in a the jury room while the former is not.5 value is substantially outweighed by the particular case. Demonstrative evidence includes such danger of unfair prejudice, confusion of Psychological studies suggest that things as a model, map, chart, photo­ the issues, or misleading the jury.13 after 72 hours, most people retain only graph, video, X-ray or demonstration. Types of demonstrative evidence about 20 percent of what they see and It is further distinguished from real evi­ 10 percent of what they hear. But their dence in that it has no probative value A witness’s use of visual aids to retention rate rises to 65 percent when itself, but serves merely as a visual aid to explain testimony, particularly in a med­ they simultaneously hear and see the the jury in comprehending the verbal tes­ ical malpractice case, is increasingly com­ facts depicted.1 These figures are espe­ timony of a witness or other evidence.6 mon in a courtroom. A word of caution, cially important when a trial is expected Thus, demonstrative evidence is used however: unless the illustration is essen­ to last several days. Visual presentations only for the purpose of illustration and tial to an undertaking of the testimony, it can communicate more information clarification. is largely cumulative in effect, and admis­ faster and the recipient will retain more Demonstrative evidence may be dis­ sion or exclusion rests theoretically within 14 data with greater accuracy for a longer played and referred to without being for­ the discretion of the trial judge. In period of time. A study by the Poynter mally admitted into evidence; however, it practice, however, the use of models, Institute showed that using color on visu­ is preferable to offer and introduce See Flynn Peterson, Next Page By Kathleen Flynn Peterson — continued from Previous Page January 2010 Issue drawings and charts is now almost uni­ • Pretrial disclosure screen than with any other medium. versally permitted. • Opening Statements (if admitted One’s attention is captured and held into evidence) longer with a television format than any Models, e.g., skeleton: the advantages other form of communication. are: Photographs Admissibility: Videotapes are admissible • flexible – most have moving parts The old adage, “a picture is worth a on the same basis as photographs and • the jury can touch and interact with thousand words,” has never held more are admitted for illustrative purposes it truth than in a medical malpractice set­ only. Under Rule 1001(2) of the Federal • the jury can use the model as a ting. Once properly authenticated, a photo Rules of Evidence, videotape is included teaching aid is admitted into evidence if it aids the trier within the definition of “photograph.” • Charts and Graphs – the primary of fact’s understanding of a fact of conse­ Foundation: The same foundation objectives of a chart or graph are educa­ quence in the litigation.15 However, rele­ required to authenticate a photograph – tion and persuasion. It must convey vant photographic evidence may be testimony that it fairly and accurately information which is understandable and excluded on the basis of unfair prejudice portrays its subject – is required for convincing. or the danger of misleading the jury. authenticating a videotape.17 The best way to communicate with Photos are admitted solely to illustrate the Relevance: In addition, a videotape must charts: testimony of a witness and not as substan­ be relevant. Relevance can be determined • sequence of events tive evidence. The following is a list of how by looking at the object depicted. If the • flow and organization photography may best be utilized: judge or jury could appropriately view it • bold, vivid colors • Documentation of a client’s injuries, in person during the course of trial, the if visually apparent. This should be tape is in all likelihood relevant. Blow-Ups/Enlargements done at various stages. Photographs Relevancy Rules of Exclusion: Although Medical Records depicting the client before the injuries relevant, a tape will be excluded if its Once medical records have been should be obtained for comparison. probative value is substantially out­ authenticated and admitted into evi­ • Photographs should be taken as early weighed by the risk of unfair prejudice dence, portions of the record can be read as possible since scars and abrasions or confusion or if it is cumulative or to the jury. In many instances vital seg­ tend to fade over time, especially in unduly time consuming.18 A tape is not ments of the records may be enlarged or children. necessarily prejudicial, however, merely shown by use of a visual presenter. These • Graphic injuries such as open because it tends to arouse the emo­ documents will have much more impact wounds, severed limbs and other grue­ tions.19 Nor is it impermissibly confusing and allow the jury to follow along with some injuries should be photographed simply because the depiction is not the reading of the medical record. both in color and in black and white identical in every respect to the events Enlargements displayed in front of a jury because color photographs may be or conditions at issue in the case.20 are effective because they exhibit infor­ overly prejudicial and, therefore, inad­ Moreover, a tape is not cumulative mation vital to the case’s support; and missible. merely because it portrays something the information exhibited is kept on dis­ • It may be well worth the investment that has been the subject of testimony, play during the testimony thus embed­ to have photographs professionally as opposed to other photographic evi­ ding itself in the minds of the jurors. taken to avoid inadmissibility due to dence.21 Specific portions of the medical record poor quality. Best Evidence Rule Inapplicable: Fed. can be highlighted by using acetate over­ • Photographs taken at a hospital facil­ Rules Evid. § 1001(3) “any print” of a lays and/or laminates which can be writ­ ity depicting a client’s pain and suffer­ videotape is an “original” and thus out­ ten on and erased several times. ing may aid early settlement of a case side the scope of the best evidence rule. Posters before judicial intervention, unless, of Discovery Rules Are Applicable: (i.e., Poster-size enlargements mounted course, the medical malpractice must be made available to opposing on foam boards can graphically depict occurred at the same facility.