Trial lawyers often rely on demonstrative exhibits to illustrate their points to a judge or jury. These exhibits may take the form of computer simulations, charts, or PowerPoint presentations. Notably, though, there is no consensus on the definition of a demonstrative exhibit. Indeed, the Federal Rules of Evidence do not use the term “demonstrative” at all. That said, to the extent you intend to use a demonstrative exhibit at trial, you should keep a few things in mind.
First, your exhibit must still clear the relevancy and “unfair prejudice” hurdles of Rules 401 and 403. And, under Rule 611(a), which provides that a “court should exercise reasonable control over the mode and order of examining witnesses and presenting evidence,” trial courts have significant discretion when it comes to the admission or exclusion of demonstrative exhibits.
A recent opinion by Judge Matthewman demonstrates some of these rules at work. The case is APPLE INC., Plaintiff, v. CORELLIUM, LLC, Defendant., No. 19-81160-CV, 2021 WL 2333090, at *1 (S.D. Fla. June 8, 2021). After the deadline for filing motions in limine had expired, the Defendant told Apple that it planned to offer a demonstrative exhibit at trial. Apple asked the Court for leave to file a motion in limine to exclude the exhibit, noting that it had only recently learned about the Defendant’s plan to offer it.
Judge Matthewman granted Apple such leave. In so doing, Judge Matthewman emphasized that Rules 401 and 403 apply to demonstrative exhibits. Specifically, he wrote that the right to present a defense is “subject to the restrictions in Rule 401” and that a “demonstrative exhibit, like any evidence, should be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury.”
Second, if you spring your demonstrative exhibit on opposing counsel at the last minute—and after the deadline for motions in limine have passed—you run the risk of having the court exclude the exhibit. Judge Matthewman wrote: “It is the professional and ethical practice in this district for opposing counsel to cooperate and show their demonstrative aids to one another sufficiently prior to the start of trial to allow the Court to resolve any disputes in advance without wasting jury trial time.”
In sum, you should always consider how you can best convey complex matters to the factfinder. And you should make liberal use of demonstrative exhibits, which have the ability to bring your case to life. But, critically, (1) be prepared to defend your demonstrative exhibits as relevant and not unduly prejudicial and (2) make sure to give opposing counsel advance notice of your demonstrative exhibits.
