Using Demonstrative Aids or Exhibits at Trial
It is common to use demonstrative aids or exhibits at trial. These are exhibits (e.g., models, diagrams, charts, photographs, etc.) that are used to help explain or illustrate testimony or other evidence. The operative word is “help” because these exhibits need to help explain the testimony and help the trier of fact in understanding the testimony. These exhibits, however, are for demonstrative purposes only and do not constitute substantive evidence. No different than evidentiary exhibits, the probative value of a demonstrative exhibit must outweigh any prejudice to the adverse party.
Regarding the use of demonstrative evidence, the Florida Supreme Court stated:
“Demonstrative evidence is admissible only when it is relevant to the issues in the case. 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. For this reason it is essential, in every case where demonstrative evidence is offered, that the object or thing offered for the jury to see be first shown to be the object in issue and that it is in substantially the same condition as at the pertinent time, or that it is such a reasonably exact reproduction or replica of the object involved that when viewed by the jury it causes them to see substantially the same object as the original.”
Harris v. State, 843 So.2d 856, 863 (Fla. 2003) (quotation and citation omitted) (plastic replica of gun helped jury to better understand the weaopon).
A party’s use of a demonstrative exhibit is within the trial judge’s discretion. See Chamberlain v. State, 881 So.2d 1087, 1102 (Fla. 2003). This means its admissibility is subject to an abuse of discretion standard of review.
Florida has a standard jury instruction regarding demonstrative aids in civil cases: .
301.4 INSTRUCTION REGARDING VISUAL OR DEMONSTRATIVE AIDS
a. Generally (should be given when witness first uses exhibit):
This witness will be using (identify demonstrative or visual aid(s)) to assist in explaining or illustrating [his] [her] testimony. The testimony of the witness is evidence; however, [this] [these] (identify demonstrative or visual aid(s)) [is] [are] not to be considered as evidence in the case unless received in evidence, and should not be used as a substitute for evidence. Only items received in evidence will be available to you for consideration during your deliberations.
b. Specially created visual or demonstrative aids based on disputed assumptions (should be used when witness intends to use exhibit based on disputed assumptions):
This witness will be using (identify demonstrative aid(s)) to assist in explaining or illustrating [his] [her] testimony. [This] [These] item[s] [has] [have] been prepared to assist this witness in explaining [his] [her] testimony. [It] [They] may be based on assumptions which you are free to accept or reject. The testimony of the witness is evidence; however, [this] [these] (identify demonstrative or visual aid(s)) [is] [are] not to be considered as evidence in the case unless received in evidence, and should not be used as a substitute for evidence. Only items received in evidence will be available to you for consideration during your deliberations.
Below are some preliminary questions to ask the witness that may be important (based on the exhibit) to begin to lay the foundation for the demonstrative exhibit, although it is important to note that different witnesses, demonstrative exhibits, and courts may require different questions or a more stringent foundation:
Q: Is there something I can show you (or a way) for you to help explain your testimony?
A: Yes, it would help if I can use the exhibits I prepared to more effectively explain my testimony.
Q: I am handing you exhibit ____. Do you recognize this exhibit?
A: Yes. These are the exhibits I prepared to help explain my testimony?
Q: Is this exhibit a fair and accurate representative of what it purports to represent?
A: Yes.
Q: Would this exhibit aid the jury in understanding your testimony?
A: Yes.
* * *
Q: Would this exhibit (shown to the witness) help you in explaining your testimony to the jury?
A: Yes.
Q: Would this exhibit aid the jury in understanding your testimony?
A: Yes.
Q: Is this exhibit a fair and accurate representation of what it purports to represent?
A: Yes.
Demonstrative exhibits are an important part of trial and witness preparation. Besides using demonstrative exhibits to aid in the testimony of a witness, such exhibits can also persuasively be used during opening and closing argument. (Opening and closing arguments will be specifically discussed in subsequent articles.)
Please contact David Adelstein at [email protected] or (954) 361-4720 if you have questions or would like more information regarding this article. You can follow David Adelstein on Twitter @DavidAdelstein1.
