Effective Use of Demonstrative Evidence in Commercial Litigation

By: Charles B. Jimerson, Esq. & Caitlin Russell

How is it possible to determine the most effective way to present your case, while at the same time maximizing information the trier of fact is able to retain? It is well-known fact that individuals learn in many different ways. Accordingly, this makes it increasingly difficult for litigators to deduce what strategies to employ in order to help individuals best understand and retain information.

As technology continues to evolve, so must the tactics utilized to best advocate for your client.Extensive research indicates that there are many benefits to be yielded from the effective use of visual aids. Haig Kouyoumdjian, Learning Through Visuals; Visual Imagery in the Classroom, Psychology Today (July 20, 2012). These include, but are not limited to:

• decreased learning time;
• improved comprehension;
• enhanced retrieval; and
• increased retention.

Furthermore, research identifies that after a twelve-hour period, an individual only remembers approximately “ten percent of information received aurally.” The Case for Disc-Based Litigation: Technology and the Cyber Courtroom, 8 Harv. J. L. & Tech. 471, 476 (1995). However, “if that same information is accompanied by a visual image, retention rates rise up to sixty-five to eighty-five percent.” Bennett, Liebman & Fetter, Seeing is Believing; Or Is It? An Empirical Study of Computer Simulations as Evidence, 34 Wake Forest L. Rev. 257, 285 (1999).

Demonstrative evidence is visually-stimulating evidence created specifically for litigation purposes. The goal of such evidence is to increase an individual’s comprehension of presented facts, as well as to place emphasis on important aspects of a case. Though powerful if properly used, it is important to remember that demonstrative evidence merely “serves as a medium for presenting testimony, documentary, or real evidence,” and lacks independent probative value. Lipson, Instant Evidence: how to assess admissibility when every second counts, Trial (Nov. 1, 1996).

Prior to presenting demonstrative evidence in court, a litigator should thoroughly assess whether a demonstrative is necessary. The following questions will help to identify whether the benefits of doing so outweigh the danger of possible confusion or complications during trial.

I. Does the Exhibit You Seek to Admit Constitute Demonstrative Evidence?

Real evidence, demonstrative evidence, and demonstrative aids constitute three different types of evidence that require varying foundational standards to be met. As categorizing evidence is vital to each case, it is also integral to the merits of your case to determine if the evidence you intend to present is in fact what you purport it to be.

Real Evidence simply refers to an object that is directly related or has a direct part in the incident at issue. Real evidence is admissible if the object can be authenticated, is relevant, and does not constitute hearsay. It also carries independent probative value.

Demonstrative evidence, as earlier stated, is specifically created to assist in the understanding of facts and details of a case. Though there is some debate as to admissibility, demonstrative evidence may be found to be admissible if it is relevant and “constitute[s] an accurate and reasonable reproduction of the object involved.” Taylor v. State, 640 So.2d 1127, 1134 (Fla. 1st DCA 1994).

Demonstrative aids constitute illustrative materials that do not meet admissibility standards. Accordingly, such illustrative aids are not allowed into evidence. However, they can still be utilized to demonstrate a pertinent point to the trier of fact during trial. In United States v. Buck, the court held the use of a diagram to be proper when shown to the jury to assist in understanding documents and testimony during trial, however, that the diagram did not meet foundational requirements and should not have been admitted into evidence or accessible in the jury room. United States v. Buck, 324 F. 3d 786, 791 (5th Cir. 2003).

II. What Must Be Established to Render a Demonstrative Admissible?

To lay the proper foundation, demonstrative evidence must prove to be both relevant, and “an accurate and reasonable reproduction of the object involved.” Taylor, 640 So.2d at 1134. The probative value of the demonstrative evidence should also outweigh any possible prejudicial effect that might result from its presentation.

Both the Federal Rules of Evidence and Florida Statutes define how to assess an item’s relevance. Rule 401, Federal Rules of Evidence, identifies relevant information as “evidence that has any tendency to make a fact more or less probable than it would be without the evidence.” Fed. R. Evid. 401. However, its Florida state-specific counterpart, Rule 90.401, more broadly identifies relevant evidence as “evidence tending to prove or disprove a material fact.” Fla. Stat. § 90.401 (2015). Accordingly, Florida law seemingly presents a more simplified standard to be met for the admission of relevant information, giving the trial court wide discretion in determining admissibility. § 90.401.

The proper use of demonstrative evidence in trial requires a litigator to establish that the demonstrative is also a reasonable reproduction of the object it purports to be. The “more accurate the exhibit, the more likely it is to be admitted into evidence.” Ervin A. Gonzelez, Demonstrative Evidence, 14 The Florida Bar 1 (2014).

Additionally, stringent adherence to the substantial similarity doctrine is required when a litigator intends to introduce demonstrative evidence in regards to prior occurrences or non-occurrences. This doctrine serves to protect parties against admission of unfairly prejudicial evidence, and demonstratives are only deemed admissible if the incident at issue pertains to the use of the same type of object, under substantially similar conditions.

Though evidence may be deemed inadmissible where the conditions presented in the alleged occurrence and the demonstrative are not shown to be similar, the court retains the discretion to rule the demonstrative admissible. In Rindfleisch v. Carnival Cruise Lines, Inc., the appellate court upheld the admissibility of demonstrative evidence, though it failed to meet the stringent requirements of the substantial similarity doctrine. Rindfleisch v. Carnival Cruise Lines, Inc., 498 So.2d 488, 492 (Fla. 3rd DCA 1986). The court reasoned that “if enough of the obviously important factors are duplicated in the experiment, the court may conclude that the experiment is sufficiently enlightening that it should come into evidence.” Id. Further, the appellate court found the evidence of dissimilarities present to go to the weight of the evidence, rather than the “relevancy or materiality.” Id.

Pursuant to Rule 403, evidence will be deemed inadmissible (even if relevant) if its probative value is substantially outweighed by “the danger of unfair prejudice, confusing the issue[], misleading the jury, undue delay, wasting time,” or the unnecessary presentation of cumulative evidence. Fed. R. Evid. 403; see alsoFla. Stat. § 90.403 (2015).

It is also important to note that additional requirements must be met to lay the foundation for demonstratives used with expert witnesses. Though they may differ jurisdictionally, the Daubert standard is readily relied upon for identifying these requirements. Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993).

III. What Objections Should I Be Prepared to Argue?

A litigator should be prepared to argue against common objections to the admissibility of demonstrative evidence. One of the most commonly-argued objections is Rule 403. Fed. R. Evid. 403. The argument that a demonstrative is more prejudicial than probative is very easily tailored to the use of different types of demonstratives, and provides opposing counsel with multiple arguments to dissuade a judge from admitting a demonstrative into evidence. The demonstrative could be argued to be substantially dissimilar from what it purports to be, misleading, or even confusing to the jury. The best rebuttal for this argument is achieved by drawing attention to the rather low evidentiary standard for a demonstrative’s admissibility. A demonstrative is not required to be perfect or flawless, just substantially similar to what it purports to be. Ervin A. Gonzalez & Kyle B. Teal, No Ideas But in Things: A Practitioner’s Look at Demonstrative Evidence, 89 The Florida Bar Journal 17 (2015) (discussing the reality of judicial discretion as to demonstrative evidence).

IV. Is There Any Other Advice That Would Be Helpful in Determining Whether the Use of a Demonstrate is Necessary?

• Preparation is Key

The desire to advocate fiercely for a client should never lead a litigator to add last minute demonstratives to trial. Though the creation of certain types of demonstratives can be quickly achieved, it is important to remember that preparation is key. Often the admissibility of a demonstrative relies on strong analogous case law and well-prepared arguments.

The admissibility of demonstrative evidence is something that is highly-debated within the judicial system. Many litigators believe that demonstrative evidence should not be admissible in any scenario. Thus, any use of demonstrative evidence should be carefully planned, and have the backing of meticulously prepared arguments.

As the use of demonstrative evidence is a matter strictly within the trial courts discretion, it is suggested that demonstrative evidence be addressed prior to trial. This eliminates the risk of exerting unnecessary time and preparation for a demonstrative that will not serve to be as helpful as intended.The failure to address demonstrative evidence pre-trial can result in significant detriment.

For example, a judge may decide to compromise and admit a piece of demonstrative evidence, but in doing so, provide a limiting instruction to the jury. Ervin A. Gonzalez & Kyle B. Teal, No Ideas But in Things: A Practitioner’s Look at Demonstrative Evidence, 89 The Florida Bar Journal 17 (2015) (discussing the reality of judicial discretion as to demonstrative evidence). Unfortunately, the admission of such evidence can be more harmful than helpful in some cases. Limiting instructions run the risk of highlighting (what the court viewed as) the controversial nature of the admitted evidence. Id.

• Avoid Dilution

A litigator should aim to use enough demonstrative evidence to be effective. The goal is to emphasize certain aspects of a case, as well as clarify information to the trier of fact. The use of cumulative demonstrative evidence should be avidly avoided, as it will only serve to dilute the intended impact of each demonstrative.

• What if the Admission of Demonstrative Evidence is Denied?

Don’t Panic! You may have lost the battle, but you have not lost the war. It is important to remember that regardless of whether or not a demonstrative is found to be admissible, it still can be utilized for it’s intended demonstrative purpose during trial. Though it will not accompany the trier of fact behind closed doors during their deliberation, if used effectively, the demonstrative will still serve to increase the understanding and retention of any information presented in correlation with the exhibit.

V. Conclusion

As society continues to evolve, so will the practices prevalent within the legal community. Though demonstrative evidence should be carefully chosen and extensively prepared, its use in the practice of commercial litigation provides countless benefits to both clients and the trier of fact.