Real and Demonstrative Evidence, Experiments and Views

Evidence relevant to establish a fact of consequence in the litigation may take one of several forms. The most common form is the testimony of a competent witness, based upon personal knowledge. Properly authenticated documentary exhibits are, of course, also admissible. In addition, real evidence and demonstrative evidence relevant to establish a fact of consequence in the litigation may be received in evidence. Finally, under prescribed circumstances, the result of an experiment may be admitted, or the trier of fact may be taken from the courtroom to conduct a view of property or of an object that took part in the incident forming the subject of the litigation. The term "demonstrative" evidence is often used to describe all evidence from which the trier of fact may derive a relevant firsthand sense impression in contradistinction to the conventional presentation of oral testimony and the introduction of documentary exhibits. However the foregoing definition is so broad as to be of little assistance; analysis is fostered by treating separately its component parts, real and demonstrative evidence as well as experiments and views. Real evidence involves the production of an object which usually but not always (e.g., a bullet used as an exemplar for comparison purposes) had a direct or indirect part in the incident, such as a murder weapon, piece of exploding bottle, or article of clothing. It also includes the exhibition of injured parts of the body. Real evidence provides the trier of fact with an opportunity to draw a relevant first hand sense impression. Such evidence may be either direct, such as an exploding bottle, or circumstantial, such as an article of clothing worn at the time of arrest by the defendant in a robbery prosecution exhibited to the jury to show conformity with eyewitness description. Demonstrative evidence, including such items as a model, map, drawing, chart, photograph, computer animation, tangible item, or demonstration is distinguished from real evidence in that it has no probative value itself, but serves merely as a visual aid to the jury in comprehending the verbal testimony of a witness or other evidence. Thus demonstrative evidence illustrates and clarifies. It is sometimes referred to as illustrative evidence or as evidence employed solely for illustrative purposes as distinguished from substantive evidence. While it is a common practice for demonstrative evidence to be displayed and referred to without formally being admitted into evidence, the formal offering and introduction of demonstrative evidence into the record as part of the witness' testimony is preferred. The relevancy aspects of demonstrative and real evidence are no different from other evidence: if its appearance or other physical characteristics render a fact of consequence more or less probable, the demonstrative or real evidence is relevant. The requirement is met by demonstrative evidence which promotes understanding of other relevant evidence. The verbal testimony, which the demonstrative evidence aids in understanding, must of course itself be relevant to a fact of consequence in the litigation. Real evidence may be direct as when the condition of the object itself is in issue, or it may be circumstantial affording inferences as to facts of consequence. The showing required of direct real evidence is that it is genuinely what it purports to be and, if essential to probative value, that its condition is unchanged. Circumstantial real evidence and demonstrative evidence share the problems of circumstantial evidence generally. Employment of real or demonstrative evidence creates a potential that the jury will overvalue such evidence, a risk which is characterized in the terms of Fed.R.Evid. 403 as a danger of misleading the jury or creating confusion of the issues. In addition certain real and demonstrative evidence, such as gruesome photographs and the exhibition of hideous injuries, raise the danger of unfair prejudice. There is no flat rule that the presence of such dangers require exclusion of the evidence; application of the balancing provisions of Fed.R.Evid. 403 to the admissibility of such evidence is required. In practice, exclusion is clearly the exception rather than the rule.