Can You Give Demonstratives To The Jury?
At trial, an exhibit is something that might be shown to a witness or the jury – an email, a picture, a video recording, or anything else. But anyone who tries cases quickly learns the difference between exhibits that are treated as “evidence” and exhibits that are merely “demonstratives.”
There’s an entire set of rules about evidence. In most places, they’re called the “Rules of Evidence.” And those rules set out the hoops that you must jump through to have an exhibit “admitted into evidence.” To do that, you’ve got to prove that the exhibit is authentic, based on a reliable source of information, relevant to the case, and not improperly prejudicial to one side or the other. Evidence is a lot of work. Evidence is hard.
But demonstratives? Demonstratives are easy. A demonstrative is any visual aid made by a lawyer to help the jury understand the facts of a case. Demonstratives include charts, graphs, pictures, summaries of testimony, or scale models of the scene of an accident. In some cases, demonstratives look an awful lot like evidence – for example in a business case you may take just the relevant portion of an agreement or just the key lines in an email and blow them up on a big poster so that the jury can see the key words. There are no “Rules of Demonstratives” – you can potentially display anything so long as the judge doesn’t think that you’re being intentionally misleading or wasting the court’s time with irrelevant issues.
So why bother with evidence at all? The textbook reason is that only exhibits received into evidence can be considered by the jury in their deliberations. [1] To avoid unnecessary distractions, “[t]he general rule is that materials not admitted into evidence simply should not be sent to the jury for use in its deliberations.” [2] So while demonstratives may make a great show in the courtroom, they’re intentionally kept away from the jury while it’s making up its mind.
But is that always true? Can you give demonstratives to the jury for use in deliberations? As it turns out, sometimes!
For example, demonstratives used to illustrate expert testimony are sometimes given to the jury. In United States. v. Natale, [3] a doctor was tried for health care fraud. The defendant was accused of falsifying medical records to make it appear as though he had performed more complicated heart surgeries than he had actually done. At trial, the government’s expert prepared demonstrative pictures to illustrate the fraud. The pictures were side by side comparisons showing an image of the “real” surgery on one side and the “fake” surgery on the other. Over the defendant’s objection, the trial judge permitted the jury to take the demonstratives into deliberations. He was convicted.
On review, the Seventh Circuit noted that so “long as the court is evenhanded” it “has wide discretion in determining whether to allow the jury to take an exhibit to the jury room.” [4] In evaluating that decision, the Circuit held that the “important question” was “whether the demonstratives accurately reflected what they purported to show: Natale's descriptions of the procedures in the operative reports as compared to the procedures depicted in the CT scans.” [5] Finding that they did, and that Natale himself had a chance to give any competing demonstratives to the jury, the Seventh Circuit upheld the decision.
What about a damages chart? In Big John, B.V. v. Indian Head Grain Co., [6] the Fifth Circuit upheld giving the jury a damages demonstrative in a contract case arising from a fire in a sunflower grain storage tank. Noting that the jury had been warned that the chart was not itself evidence, the court held that “[t]he submission of materials whether or not admitted in evidence, to the jury during deliberations, accompanied by careful cautionary instructions as to their use and limited significance, is within the discretion accorded the district court in order that it may guide and assist the jury in understanding the factual controversy.” [7] A similar result was reached by the Third Circuit in Shane v. Warner Mfg. Corp., which also noted that “As early as 1886 the Supreme Court of New Jersey decided that a paper containing a detailed computation of a party's claim, though not in evidence, might properly be taken to the jury room with appropriate explanatory instructions as to its use and significance.” [8]
Some courts go even further. In United States. v. Downen, [9] the Tenth Circuit reviewed a criminal conviction involving a pickup truck theft ring. It upheld giving the jury a “blackboard chart” that “contained in summary form the Government's ‘case’ as to each count in the indictment, including a brief description of each vehicle involved, the vehicle VINS, with dates noted when the respective vehicles were stolen and later recovered.” [10] While reaffirming that whether a demonstrative may be given to the jury is “a matter within the sound discretion of the Trial Court,” the Tenth Circuit emphasized the “careful and detailed cautionary instructions given by the Trial Court that [the chart] was not evidence and contained information relating only, in part, to the Government's theory of the case which must be proved beyond a reasonable doubt in order to have evidentiary value.” [11]
And in United States. v. Johnson, [12] a district court gave the jury a demonstrative that could be useful in any case – a chart showing the names and photographs of testifying witnesses. Johnson was a death penalty case where the trial was expected to last three months. Acknowledging that the jury was likely to have trouble retaining information over so long a trial, the court found “that showing the jurors photographs of witnesses at the end of a trial that is likely to last three months or more and likely to involve well over one hundred witnesses would be an effective way to refresh the jurors' memories as to the testimony of particular witnesses.” [13]
So, what can we take away from this? First, you should ask permission to give demonstratives to the jury whenever it would help your case. The judge has “broad discretion” to allow the jury to have demonstrative exhibits during deliberations and you lose nothing by asking.
Second, you should plan your demonstratives with deliberations in mind. That means labeling things in a clear and consistent way that makes the demonstrative understandable without attorney explanation. It also potentially means fashioning at least some of your demonstratives in a manner that the judge does not view as unduly partisan or argumentative.
Third, because the “general rule” is that demonstratives do not go to the jury, you should have caselaw ready to support your argument that your demonstrative is different. Demonstratives that fit into established categories like damages charts are likely to be an easier sell than more bespoke visual aids.
[1] United States v. Holton, 116 F.3d 1536, 1542 (D.C. Cir. 1997) (“To protect jury deliberations from improper influence, we ordinarily restrict the jury's access only to exhibits that have been accepted into evidence and consideration by the jury of documents not in evidence is error.”).
[2] Baugh ex rel. Baugh v. Cuprum S.A. de C.V., 730 F.3d 701, 705 (7th Cir. 2013).
[3] 719 F.3d 719 (7th Cir. 2013).
[4] Id. at 743.
[5] Id. at 744.
[6] 718 F.2d 143 (5th Cir. 1983)
[7] Id. at 148.
[8] 229 F.2d 207, 210 (3d Cir. 1956).
[9] 496 F.2d 314 (10th Cir. 1974).
[10] Id. at 319.
[11] Id. at 320.
[12] United States v. Johnson, 362 F. Supp. 2d 1043 (N.D. Iowa 2005).
[13] Id. at 1060.
