Substantive Evidence and Demonstratives: Basics of Visual ImpactOctober 2, 2017 – Articles New Jersey Law Journal
Because we learn approximately 80 percent from what we see and merely 15 percent from what we hear, the most powerful proof you can provide at trial is visual. Using great graphics and imagery is a key to good advocacy. Using them as early as possible in the case is even better. Best of all, use visual evidence and substantive evidence (testimony, deposition transcripts, interrogatory answers, etc.) and other proofs in combination: you will capture the jury’s interest, present a more powerful and persuasive case, and keep the jury engaged because you are appealing to the jury’s senses.
Not all that is visual is demonstrative. “Demonstrative evidence” is a bad catch-all name for anything other than witness testimony and documents. Not all visual evidence is demonstrative. Although we colloquially use the phrase “demonstrative evidence” to refer to visual information, many exhibits such as maps, photographs, document enlargements are substantive evidence. True demonstrative evidence, such as a computer simulation or artist’s rendering, are not direct evidence, but are created for trial in order to explain a concept to the trier of fact. By contrast, a photograph of the site, an enlargement of a document, or a chart showing increasing or decreasing sales are substantive evidence, not demonstrative. So long as the exhibit fairly and accurately represents reality, substantive evidence can and should be admitted for the truth of the matter asserted (assuming it is otherwise not objectionable and a proper foundation has been laid). Because it is easy to confuse the concepts of visual substantive evidence with demonstrative evidence, avoid where possible the phrase “demonstrative evidence.” (Using the phrase demonstrative evidence essentially admits that the proffered evidence may be inadmissible.)
To put a further point on the issue, the trial court may admit true demonstrative exhibits (created for demonstrative purposes) and may even permit the jury to take demonstrative “evidence”—such as anatomical models—into the jury room for deliberations. (The more common practice is that demonstrative evidence will be marked for identification but not permitted into the jury room.) How demonstrative exhibits are handled is largely up to the trial court’s discretion. If the trial court perceives that the visual evidence is biased, misleading or incomplete and may mislead or prejudice the jury, the court may in its discretion exclude that exhibit from being presented to the jury. Lay a foundation if you really want the jury to consider that demonstrative. (Alternatively, if you want to keep that demonstrative away from the jury, attack the foundation in the hope of making the trial court pause.)
Laying a solid foundation for an illustrative exhibit or visual evidence is essential, because that foundation is what will guide the court in determining whether that information should be considered by the jury. Lay the foundation for each part of your illustrative exhibit to make sure that you minimize objections and maximize the possibility that the trial court will admit the demonstrative into evidence over objection. To lay the foundation for these types of exhibits, the attorney must show:
- the witness has personal knowledge both of the relevant fact and of the illustrative exhibit;
- the illustrative exhibit will be helpful to explain the witness’ testimony to the jury;
- the witness is familiar with the illustrative exhibit; and
- the illustrative exhibit fairly and accurately portrays the matter (or that aspect of the witness’ testimony)
For example, with a “day in the life” video, the foundation would be that:
- the witness has personal knowledge of the video;
- the video fairly represents the plaintiff’s everyday routine;
- the plaintiff is aware of being videotaped for purposes of litigation; and
- the video will assist the trier of fact in considering the facts.
Be creative and engage the trier of fact. Demonstrative evidence should be consistent with the theme of your entire case and should be memorable. It takes time to create a pithy image that conveys your narrative, is catchy and will be understood by jurors of different backgrounds. Memorable does not necessarily mean expensive or overly complicated. It does not have to be expensive, although there are excellent private services (which are costly) and they can do wonders putting together demonstrative evidence for you. Storyboards, PowerPoint, chronologies, timelines, videotapes (e.g., a day-in-the-life video), models and artists’ renderings are all forms of demonstrative evidence. In the right case you may want to incorporate smell, sound or whatever is needed to persuade the jury of the facts as you believe they occurred.
For simple exhibits such as anatomical models, reproductions of arms, feet, teeth, etc., you can get some excellent exhibits on Amazon (see image above).
Great demonstratives are scrupulously honest.If the demonstrative evidence is misleading, then the court should bar it from even being in the courtroom. (Take note, the jurors have wandering eyes and look at everything in the courtroom. If it is in the courtroom, you must assume they are going to look at that exhibit from across the room.) Using misleading evidence is not good lawyering because, if you have even a modicum of respect for your adversary, assume your adversary will note the failure of your evidence to accurately reflect the facts—and then they will pound on the weaknesses of your case for the remainder of the trial. When your adversary is attacking your demonstrative or visual exhibit as dishonest, the jury’s focus is now on your credibility. This is not where you want the jury focused—you want the jury listening to your narrative about the merits of your client’s case. Maintain the integrity of the facts. A graphic can be simple, merely explaining the relationship between Code Sections.
Think simply. Do not overdo it. To create a good demonstrative, you need to be able to step back from the fray of litigation and consider the storyline proffered by you and by your adversary. What disputed facts would undermine the opposing party’s explanation of the facts? What are the greatest strengths and weaknesses of your own case? Once you identify these facts and consider how they might be viewed by the jury, focus on creating visual exhibits (both substantive evidence and illustrative) that will help the jury understand why your presentation of the facts is right, and the opposing parties’ is wrong. For example, OJ Simpson—if the glove doesn’t fit, you must acquit. That is visual evidence at its strongest because no juror believed that glove could fit on OJ Simpson. (Query, was OJ trying on a dried up leather glove a fair representation of the facts? We likely will never know. What we do know is that the image of OJ’s big hand not fitting into the killer’s glove was fatal to the prosecution.)
Do not wait until trial to start using demonstratives. Consider what graphics may be persuasive early on, and use them throughout the case. Include good graphics in your complaint, answer, discovery responses and motion papers. If you want to persuade, use visual evidence in drafting a complaint or answer, responses to discovery, briefs and, critically, at trial. Using excellent graphics in your pleadings and motion papers will make your papers stand out, get your message across to the reader quickly, and will hopefully “poison the well” with an indelible image.
For example, in preparing for depositions, I routinely assemble the core documents in chronological order with a simple timeline as the cover page and use this velobound set at deposition. This accomplishes several goals: (a) it keeps me organized because the documents are in order; (b) the exhibits—including the index/chronology—are marked as an exhibit so now the chronology is ready to be admitted into evidence; and (c) it avoids surprise to the opposing witness or adversary—they’ve had the chronology since deposition, so they can’t object at trial. Do not wait until the week or two before trial to consider creating demonstrative evidence. You are going to be buried with activity in the last two weeks (witness preparation, in limine motions, trial logistics, etc.), so consider demonstratives that make your point from the beginning of the trial to the end early.
Run your trial demonstrative and visual exhibits by your adversary and see if they will consent to their use. If not, then you should run your demonstrative by the court and see if the court will permit their use. Again, this takes time so you must plan ahead. Ideally, you want to use demonstrative and visual exhibits during your opening statement because a picture is worth a thousand words. Whether you are allowed to use demonstratives during opening is again an area where you should confer with your adversary and with the court.
Practice, practice, practice. After obtaining permission from the judge, visit the courtroom well in advance and think through where you are going to set up the audio-visual equipment, how you will affix exhibits to the wall, and where you are going to store these items during the course of trial. It is mortifying to be in front of the jury and find you are incompetent to run the equipment. Make sure that you know how to operate the equipment you intend to use for your demonstrative. Make sure your graphics will work in the courtroom and can be seen across the courtroom by (a) the jury, (b) the judge, (c) the witness, and (d) your adversary.
Always keep appeal in mind. Although true demonstratives are normally not admitted into evidence, they should nonetheless be part of the record on appeal. Make sure they are marked for identification, and discuss with the court and with your adversary who is going to take possession of the demonstratives. For example, if a witness is writing on a chalkboard or on large paper, bring a Polaroid, digital camera or smart phone and take a picture of the presentation before it is gone.
In conclusion, seeing is believing. If you want to persuade the trier of fact, think visually and make sure that the images you use are powerful, accurate and persuasive. But be aware that making a demonstrative that is noteworthy and consistent with your story line at trial takes a great deal of effort.
Reprinted with permission from the October 2 issue of the New Jersey Law Journal. (c) 2017 ALM Media Properties, LLC. Further duplication without permission is prohibited. All rights reserved.