Evidence Legal Topics Litigation Strategy Trial Strategy

Demonstrative Evidence: When You Want to Show and Tell

82770181An episode of This American Life described the failed effort to get a Tic-tac-toe-playing chicken into evidence in the death penalty case of a mentally ill man with a very low IQ. Defense counsel was trying to rebut a psychiatrist’s testimony that the defendant was aware he was going to be executed based on his beating her in a game of Tic-tac-toe. We’ll never know who would have won the game; the court refused to admit the chicken because it “would degrade the dignity of the court.” Although the chicken didn’t work out, demonstrative evidence can be a very powerful courtroom tool.

Demonstrative evidence such as enlargements of “smoking gun” documents or physical demonstrations can be very helpful at trial. People remember what they see longer than what they hear. And when the two senses are combined, learning and retention improve even more.

Think creatively about which audio and visual aids will help the jury be more interested and better understand and remember your case. You can use demonstrations, such as Robin Thicke playing piano during his testimony to show that his song didn’t infringe on an earlier Marvin Gaye tune, or bring real life into the courtroom (maybe except chickens).

Photographs, videos, diagrams, maps, models, clothing, documents, and charts are common forms of demonstrative evidence. Computer-generated graphics and animations are also becoming more common.

Going the computer-generated route has many advantages: During witness examinations, the exhibit can be simultaneously presented to the witness and the jury, facilitating the jurors’ understanding of the witness’ testimony; in argument, you can outline your major points while you creatively weave various important pieces of the evidence into a presentation that is persuasive and holds the jurors’ attention.

But don’t get tripped up by your fancy presentation: Work out logistical problems in advance by

  • having familiarity with the program to operate it effectively;
  • making sure the courtroom has the power outlets necessary for your computer and projector;
  • deciding where to set up the equipment and screen in the courtroom;
  • assessing whether a technician is needed to set up the equipment;
  • making sure the equipment gets to the courtroom; and
  • creating a fallback plan if there’s an equipment/operator glitch or failure.

Learn about the foundation necessary for admitting demonstrative evidence in civil cases in CEB’s Effective Introduction of Evidence in California, chap 39 and California Trial Practice: Civil Procedure During Trial, chap 13. On presenting a criminal case using demonstrative evidence, turn to CEB’s California Criminal Law Procedure and Practice, chap 30.

Other CEBblog™ posts on using evidence at trial:

© The Regents of the University of California, 2015. Unauthorized use and/or duplication of this material without express and written permission from this blog’s author and/or owner is strictly prohibited.

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