Advanced Trial Handbook

Demonstrative Evidence

Since the days of "show & tell", demonstrative evidence has been a very important teaching tool. Learning through seeing and hearing things is much easier and more fun. Most jury psychologists, including Amy Singer, believe that people learn much more through seeing and hearing rather than from hearing alone. Accordingly, demonstrative evidence should be used at trial to give the jury a better understanding of your case. The use of demonstrative evidence usually grabs the jury's attention and often has them sitting at the edge of their seats when things like models and objects are being shown.

Demonstrative evidence consists of trial exhibits that are admitted in evidence or visual aids that will not be entered in evidence, but are simply used by a witness or by the lawyer to explain matters that are relevant to the trial. Demonstrative evidence includes models, medical devices, diagrams, photographs, sketches, and objects at issue, as well as a variety of other items.

Before a demonstrative exhibit may be used at trial, a witness should establish that the exhibit resembles and is substantially the same as the object or area in question. If using a model, make sure that it fairly and accurately represents the original and that it has been built to scale. You will need to establish this at trial before the use of the exhibit is allowed. This predicate must often be established through expert testimony. A witness intending on using an exhibit as an aid should first explain that the use of the exhibit will facilitate the presentation of the testimony to the jury. Pursuant to Florida Rule of Evidence, §90.901, "authentication or identification of evidence is required as a condition precedent to its admissibility. The requirements of this section are satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims." Thus, demonstrative exhibits must constitute an accurate and reasonable reproduction of the objects or matters involved in the actual case. Brown v. State of Florida, 557 So.2d 527 (Fla. 1st DCA 1989).

Before a demonstrative exhibit will be allowed to be shown to the jury, it must first be established by a witness that the model is 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 or scene as the original in question. Alston v. Shiver, 105 So.2d 785, 791 (Fla. 1958).

If a witness is not able to state that the demonstrative exhibit is in substantially the same condition and appears substantially the same as the object in trial, then such a deficiency will be fatal to the admissibility of the demonstrative exhibit and the court will generally not allow the exhibit to be used during trial. Gencorp, Inc. v. Wolfe, 481 So.2d 109, 111 (Fla. 1st DCA 1983).

If a trial attorney is attempting to keep an exhibit from being entered into evidence, the argument that should be made is that the exhibit does not truly and accurately portray what it purports to portray. Additionally, a trial attorney may argue that the exhibit is not necessary to assist the witness in explaining his/her testimony to the jury. Finally, if the model is of the type that may mislead the jury or cause confusion or undue prejudice, then a motion pursuant to Florida Rule of Evidence, §90.403, may be made that the probative effect of the model is greatly outweighed by its prejudice.

The determination as to whether an exhibit accurately represents the object or area in the case, is a matter decided by the trial court. Whether to allow the use of a demonstrative exhibit is a matter strictly within the trial court's discretion. Brown v. State of Florida. 557 So.2d 527 (Fla. 1st DCA 1989); Federal Savings & Loan v. Wylie, 46 So.2d 396 (Fla. 1950).

A trial attorney who does not use demonstrative exhibits during trial is at a great disadvantage because chances are the other side will effectively use them. Demonstrative exhibits help to bring the case alive and keeps the jury interested and focused on what is being presented. Demonstrative exhibits should be used anytime the opportunity arises.

Photographs

A trial attorney holding a photograph in his hand and approaching a witness with it will undoubtedly catch the attention of the jury, opposing counsel, and the judge. All present will tend to lean forward as the lawyer shows the photograph to the witness. Photographs tend to be extremely powerful pieces of evidence. After all, "one photograph is worth a thousand words." Before a photograph may be used at trial, it must first be admitted in evidence.

Photographs are admissible in civil trials if they are relevant. For a photograph to be deemed relevant, a trial attorney must argue that the photograph tends to prove or disprove a material fact in the case. See, Fla.R.Civ.Pro. Rule 90.401 and Fla.R.Evid. §90.401. Nevertheless, before a photograph is admitted into evidence, it must first be authenticated; thus, the proper foundation must be established.

Contrary to the belief of many practicing attorneys, the photographer does not need to be called as a witness before a photograph may be allowed into evidence. All that is necessary, is that a witness with knowledge, testify that the photograph fairly and accurately represents the condition, product, person or scene that it depicts. City of Miami v. McKorkle, 199 So.2d 575 (Fla. 1940). Once the witness authenticating the photograph establishes that the photograph correctly and accurately depicts what the witness has previously seen, then the photograph is admissible. If more than one photograph is shown to the witness for purposes of authentication, the lawyer must ask the witness to identify and authenticate each photograph before showing the photographs to the jury.

If the photograph was taken long after the incident in question, this does not mean that the photograph is inadmissible; however, the witness must establish that the conditions depicted in the photograph did not change from how they appeared at the time at issue. If the conditions in the photograph depict something different than what appeared at the time in question, then the photograph may be declared inadmissible if it lacks probative value as a result of the changes, or if the probative value is out-weighed by prejudice to the jury. Pensacola Inn, Ltd. v. Tuthill, 404 So.2d 1173 (Fla. 1st DCA 1981).Questions regarding who took the photograph, how it was taken, from what angle it was shot, what the lighting was like, the film quality and other matters do not go towards the admissibility of the photograph. Those matters are directed towards the weight and credibility of the evidence offered. Those types of questions are proper subjects for cross-examination. Channewacker v. City of Jacksonville Beach, et al., 419 So.2d 308 (Fla. 1982).

Gruesome photographs showing grotesque scenes, severely injured and bloody people, and other potentially offensive depictions are generally admissible on the same grounds as photographs depicting other matters if they are relevant. See Wilson v. State, 436 So.2d 908 (Fla. 1983). Gruesome photographs are admissible if they truly and accurately depict a material fact in question at the trial. Id. For example, the cause of death, the type of injury, the location of injury, the extent of injury, and the intent of the defendant among other related things. See Lewis v. State, 566 So.2d 270 (Fla. 2d DCA 1990).

Nevertheless, pursuant to Fla.R.Civ.Pro. Rule 90.403 and Fla.R.Evid. 403, a defendant may move to exclude a gruesome photograph on the basis that its probative value is greatly out- weighed by prejudice to the defendant. If it appears that the only reason the photograph is being used is to inflame, shock, or excite the jury, then the photograph should be excluded as more prejudicial than probative. Lewis, 566 So.2d at 272; Also See, Gore v. State, 475 So.2d 1205 (Fla. 1985).

Evidentiary photographs are extremely effective tools that will greatly assist the trial attorney in presenting his case. In order to ensure the admission of the desired photographs in evidence, the lawyer should decide early in the legal proceedings what photographs he intends to use during the trial, what order he intends on introducing them, and what witnesses will authenticate the photographs. The trial practitioner should also review all photographs that may be introduced at trial against him and, if possible, prepare a written motion in limine on the basis of prejudice to prevent the damaging photographs from being introduced at trial.

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