Diagrams, charts, maps and drawings have long been recognized as extremely useful, if not necessary, in jury trials. Matters presented visually are more readily understood than those presented in verbal form, and graphics generally tend to have a far more convincing effect on a jury than mere testimonial evidence.

Although graphics may be introduced to serve a variety of different functions, each governed by different rules of admissibility, this memorandum will focus on graphics used as "demonstrative evidence," a "generic label applied to exhibits that share the common characteristic of visualizing for the fact finder data that have been, or can be, admitted in evidence." ¹ Used in conjunction with a witness' testimony, these graphics can visually orient jurors with the objects and scenes of an action or the relationships of people in a case. They can also help explain complex concepts such as how an invention works, accounting schemes, or medical processes. Summary graphics such as charts and tables can also be used, oftentimes by counsel in closing arguments to the jury, to focus the attention of the jury upon the most important pieces of evidence in a case where voluminous records have been admitted into evidence. ²

Demonstrative evidence may consist of trial exhibits that are admitted into evidence and used by the jury during deliberations, or as demonstrative aids that are not admitted into evidence, but simply used by the witness or lawyer to explain matters that are relevant to the trial. ³ This memorandum discusses the use and admissibility of both types of demonstrative evidence, as well as common objections that may arise.

I. GRAPHICS ADMITTED INTO EVIDENCE

A. GENERAL RULES OF ADMISSIBILITY

Demonstrative evidence, or evidence that is admitted as a testimonial aid rather than as substantive evidence, ⁴ may include maps, plats, charts, drawings and diagrams - none of which are real evidence themselves but, rather, are depictions or illustrations by which means witnesses may more clearly describe factual situations and the trier of facts may more clearly understand their descriptions. If graphics are introduced solely for the purpose of illustrating the testimony of a witness, that purpose should be made clear on the record and the court should instruct the jury that the graphics are not to be considered as evidence, but merely as an aid in evaluating evidence. ⁵

Although almost universally present in contemporary jury trials, there is no uniform treatment concerning the admissibility of demonstrative evidence. Historically, common law regulation of evidence permitted the use by a witness of demonstrative evidence, which was governed by judges' "common sense and fairness in view of the particular circumstances." ⁶ This view has been carried into the modern era of code-based regulation, with demonstrative evidence generally used at trial subject only to the sound discretion of the trial judge. ⁷

Graphics that are introduced as demonstrative evidence may be made by the witness while testifying, either by his own hand, by directions of counsel, or made prior to trial either by counsel or another. Such demonstrative evidence will generally be admitted into evidence despite a hearsay objection so long as it is properly verified and shown to be reasonably accurate, correct, relevant and able to assist the jury in understanding the testimony. Although there is little authority as to when a judge will exercise his discretion to rule a graphic inadmissible, Federal Rules of Evidence 401 through 403 (and corresponding state rules) do allow the trial court to preclude individual exhibits that are not properly authenticated or relevant, or are deemed to be unfairly prejudicial, inaccurate or incomplete.

i. Authentication
The touchstone for admissibility is proper authentication. So long as a qualified witness (i.e. a witness shown to have personal knowledge of the facts) is able to testify that the graphics are an accurate, reliable, complete and fair representation, it is irrelevant that they did not prepare them personally. ⁸

The question of whether the graphics have been properly authenticated seldom arises when the drawing is made by a witness while testifying, since the act of making the drawing under oath is a sufficient deposition that it is a true representation to their knowledge. If, however, the witness is making the drawing at the request of counsel, he should be shown to have the requisite knowledge. Similarly, if a graphic is offered in evidence on the testimony of a witness who did not prepare it himself, his personal knowledge of the represented facts must be adequately shown.

ii. Accuracy
In general, demonstrative evidence such as diagrams and charts may be entered into evidence provided they fairly and accurately represent that which they purport to depict. ⁹ The finding of correctness for admissibility is again within the sound discretion of the trial judge, though graphics that are used merely to illustrate the testimony of a witness will not be subject to as strict a proof of accuracy as those offered as independent evidence. Admissibility will generally rely on whether there is enough evidence of its correctness to entitle it to be used, rather than whether it is entirely correct, and a judge's decision to admit a graphic is in no way binding upon the parties or the jury on the issue of correctness. ¹⁰

The possibility that a graphic such as a map incorporates inaccuracies will therefore generally not prevent its authentication or admissibility, but rather pose a question of what weight the jury will afford it. ¹¹ The opposing party may discredit the graphics by showing the interest of the witness, or by introducing evidence of defects in it, either in cross-examination or by rebutting evidence. In Bassett v. Pennsylvania R. Co., ¹² the court overruled an objection to the admissibility of an engineer's plan on the grounds of being based on vague, indefinite and insufficient data, stating that "the accuracy of the data and of the plans, like the credibility of the witness who made it, was for the jury. It was the result of the engineer's work, showing what he had testified to on the stand, and was […] clearly competent."

iii. Completeness
As a general rule, the admission of a graphic does not depend on its being complete. It is not necessary that it represent the entire object or area that may be material to the issue. When counsel does introduce a graphic, however, that is not totally complete or accurate, it would be prudent to advise the jury that the exhibit is being used simply as a visual aid. For example, in the case of Commonwealth v. Trudell, ¹³ the use of an incomplete flow chart was deemed admissible where the trial court carefully instructed the jury regarding the accuracy and shortcomings of the chart.

iv. Unfairly Prejudicial
In general, objections made to a drawing on the general ground that its design or character is unfairly prejudicial are usually overruled, and there are few decisions in this class. In Commonwealth v. Crawley¸ ¹⁴ the trial court was held to have properly admitted body charts prepared by a detective showing the location of wounds in a prosecution for murder, robbery, and rape, finding the sketches and charts were neutral, dispassionate, and in no way inflammatory. In a New York prosecution for arson, a map of buildings in the block with the one alleged to have been set on fire by the defendant was also held admissible. ¹⁵

One situation where the courts have agreed in finding graphics inadmissible on grounds of creating an erroneous impression in the minds of the jury is when different scales or disproportionate representations are used. In Litts v. Wayne Paving Co., Inc. ¹⁶ the court was found to have not abused its discretion in refusing to permit into evidence two exhibits concerning the topography of a road on which an accident occurred, which were drawn to different scales. Courts do, however, tend to admit individual graphics that are not drawn to scale if it is specified that they are only being used for demonstrative purposes and the witness who is using it can testify to the correctness of the graphic in the respect for which it is being used. ¹⁷

Similarly, courts may render an otherwise valid exhibit inadmissible if it contains prejudicial or conclusory terminology, oftentimes considered highly prejudicial by the courts. ¹⁸ Examples include the term "overstated" written on a chart that referred to the expenses claimed by defendant on a tax return, ¹⁹ and other similar terms relating to tax matters, such as "unreported net income," and "overestimation of expenses."

v. Irrelevant or Unnecessary
Rule 402 of the Federal Rules of Evidence states that "[e]vidence which is not relevant is not admissible." Counsel may challenge the admissibility of a graphic on the ground that it is not relevant to the proposition for which it is offered - thereby challenging the conclusion expressed in the exhibit rather than its accuracy. The success of such a challenge will usually fall on the ability of opposing counsel to show that the prejudicial effect of admitting the graphics greatly outweighs any evidentiary value.

Rule 403 also notes that, even if relevant, evidence may be excluded "by considerations of undue delay, waste of time, or needless presentation of cumulative evidence." Courts that are bound by this Rule may exclude graphics if found to be unnecessary and of no added assistance to the jury, ²⁰ but will typically allow them so long as they are found to be of reasonably adequate assistance to the jury and not unduly prejudice it. In State v. Ray, ²¹ the court held that so long as the anatomy charts sought to be introduced will aid the jury in following a doctor's testimony, sound discretion would allow their use.

vi. Based on Inadmissible Evidence
Summary charts that are based on purely testimonial evidence ²² are generally allowed under Rule 611(a), under which a court is required to exercise reasonable control over the mode and order of interrogating witnesses and presenting evidence so as to make the interrogation and presentation effective for the ascertainment of the truth and avoid needless consumption of time. The trial judge again has the discretion to admit summary charts pursuant to this Rule so long as they are found to enable the jury to better understand the claims and significance of the facts or figures it might find correct from the evidence. ²³ Aside from the grounds for objection noted above, however, summary charts may also be objected to and ruled inadmissible if they are not based on underlying admissible evidence. ²⁴ A failure to connect the underlying information with the calculations on the chart may also jeopardize the chart's admissibility into evidence. ²⁵

I. GRAPHICS ADMITTED INTO EVIDENCE

B. A NOTE ON PROCEDURE

The immediate effect of the jury viewing a graphic is virtually the same as if it were admitted into evidence, which may inject prejudicial error into the trial if the graphic is later denied admission. To avoid any potential problems, counsel should advise the court and opposing counsel of the intention to use a visual aid, either at a pre-trial conference or during trial outside the presence of the jury. If a surprise at trial is desired, the graphic should be kept away from the jury until a foundation for it is established and the judge either admits the graphic into evidence or grants leave to display it to the jury. ²⁶

I. GRAPHICS ADMITTED INTO EVIDENCE

C. REVIEW OF GRAPHICS ADMISSIBILITY

There is no uniform rule regarding review of judicial discretion in the trial court; some courts consider it non-reviewable, ²⁷ while others permit an action to be reviewed de novo on appeal. In general, however, courts that have reviewed the admissibility of graphics at trial have found that despite the admission of evidence having constituted error, it will not warrant reversal of the judgment or overturning the verdict of the jury so long as it did not constitute prejudicial error. ²⁸ When the probative value of the evidence is slight, however, and the potential for prejudice great, the admission of such evidence may constitute an abuse of discretion and will be grounds for reversal. ²⁹

It should be noted that an objection to the admissibility of graphics may not be raised for the first time on appeal. ³⁰ Counsel who objects to the admissibility of maps, diagrams or charts should make a good record at trial so that if they are admitted by the trial judge, opposing counsel will be able to establish on appeal that any error made by the trial judge in admitting the exhibits was prejudicial to his case.

II. GRAPHICS NOT ADMITTED INTO EVIDENCE

Under a prevailing practice, subject to possible objections such as those discussed above, counsel may make or produce and show a graphic to a witness, and, upon testimony that it fairly represents the subject matter, interrogate him by referring to it for illustration or explanation of the testimony, all without formally offering it into evidence. ³¹ In U.S. v. Reyes, the district court was found not to have abused its discretion by allowing the prosecution to use a blow-up map of New York State, which had not been admitted into evidence, during its summation to show distances traveled. ³²

The use of these visual aids is generally permissible so long as the jury understands that the graphics are merely for purposes of illustration and are not evidence in any sense. Unlike graphics that are introduced into evidence, however, the jury may not take such evidence with them upon retiring for deliberations. ³³

CONCLUSION

It is undisputed that a well-designed strategy at trial includes presenting graphics to jurors at trial. It is important when developing graphics to understand the law and ethics that govern the admissibility of these graphics. Without this understanding, the graphics will not be admitted into evidence or, worse, might be grounds for mistrial or appeal. In the end, when developing graphics, remember that they are designed to persuade and not to deceive.

Ron Kurzman, Esq., is a Partner and Litigation Cosultant at Magna Legal Services, LLC. He is an expert in assisting counsel in developing trial strategy for large, complex matters, based on behavioral research and jury analysis. As a litigation and trial consultant his activities include the development of trial strategy and tactics, jury selection and voir dire, implementing shadow juries, witness communication training, ordering of evidence, opening /closing statements, development of themes and arguments, demonstrative evidence preparation, and teaching persuasion techniques. He works with members of the trial team to develop themes and case strategies that will be persuasive to juries, judges and arbitration panels.

Ron Kurzman, Esq.,
Partner / Litigation Consultant
Magna Legal Services
Direct 646-448-9990
Cell 917-855-1277
rkurzman@magnals.com

www.MagnaLS.com
www.JuryConfirm.com
www.GraphicsForTrial.com

FOOTNOTES

1. Comment to section 15, Civil Trial Practice Standards, American Bar Association, Feb. 1998.

2. This memorandum focuses only on summary charts used for demonstrative purposes. Summary charts might also be introduced in lieu of voluminous documents, as governed by Rule 1006 of the Federal Rules of Evidence (many states have adopted similar rules by statute or practice), which permits the chart to become the evidence that the jury will consider rather than the underlying documents. Admission under this rule rests with the sound discretion of the trial court, but will generally be admitted so long as (i) the underlying materials are sufficiently voluminous; (ii) the proponent of the chart can show that the underlying materials were made reasonably available to the opposing parties; (iii) the underlying materials are themselves admissible; (iv) the summary accurately reflects the materials it purports to summarize; and (v) the chart is accurately authenticated before it is admitted. The burden of establishing such a foundation for admission rests on the party offering the summary in evidence, rather than on the opponent to show that a foundation is lacking.

3. The ability of the jury to use graphics received into evidence during deliberations nevertheless rests within the discretion of the court. In Livergood v. S.J. Groves & Sons Co., 361 F2d 269 (1966, CA3 Pa), there was no abuse of discretion found in refusing to allow a diagram that had been admitted into evidence to go to the jury. In NY criminal cases, the court will use its discretion after according the parties an opportunity to be heard (CPL §310.20(1)); In NY civil cases it is unnecessary to obtain the consent of the parties (See Levy v. Corn, 191 AD 56, 180 NYS 794 (1st Dept. 1920)).

4. Examples of substantive evidence might include a diagram used by a criminal in planning a crime or the drawing of plans for a building in an architect's suit for the value of his services. See 3 Am. Jur. Trials 307. See also Footnote 2 for a discussion of graphics introduced into evidence under FRE 1006.

5. See U.S. v. Harms, 442 F.3d 367 (5th Cir. 2006), cert. denied, 127 S. Ct. 2875 (U.S. 2007). Courts differ as to whether the failure of a judge to give limiting instructions is grounds for reversal. See Landrum v. State, 79 Fla 189 (1920); Bisnovich v. British America Assur. Co., 100 Conn 240 (1924).

6. Fed. R. Evid. 611 (a)(1) Advisory Committee's Note.

7. See Federal Rules of Evidence 401-403 and corresponding state Rules of Evidence. See also Weiss v. Johnson, 206 F2d 350 (1956, CA2 NY), cert. den. 346 US 924; Klombers v. Lefkowitz, 131 AD2d 815, 517 NYS2d 179 (2nd Dept 1987), appeal denied 524 NYS2d 676, 70 NY2d 614, 514 NE2d 622 (1988).

8. See Cohen v. Kindlon, 366 F2d 762 (1966, CA2 NY), holding that a sketch of the position of cars at the time of an accident was properly used to illustrate the testimony of a witness who was familiar with the area and could testify as to its accuracy, despite the fact that the artist was not identified. See also Driscoll v. New York City Transit Auth., 53 AD2d 391, 385 NYS2d 540 (1st Dept 1976), finding that a person who has prepared a diagram based solely upon hearsay accounts of the scene or occurrence is not qualified to authorize it.

9. See Commonwealth v. Serge, 586 Pa. 671, 896 A.2d 1170 (2006), cert. denied, 127 S. Ct. 275 (U.S. 2006).

10. See Stickle v. Vreeland, 99 NJL 468, 123 A 753 (1924), holding that the fact that the location of a monument on a surveyor’s plat is in dispute is not an objection to the admission of the plat itself, as it is supported by the surveyor’s testimony that it is correct.

11. See In re Complaint of Nautilus Motor Tanker Co. (1994, DC NJ) 862 F.Supp. 1251, 1995 AMC 1608, summary judgment granted (DC NJ), 990 F Supp 697.

12. 201 Pa 226, 50 A 772 (1902).

13. 371 Pa Super 353, 538 A2D 53, app. den. 519 Pa 665, 548 A2d 255 (1988).

14. 514 Pa. 539, 526 A2d 334 (1987).

15. See People v. Cassidy, 133 NY 612, 30 NE 1003 (1892).

16. 261 Ad2d 906, 689 NYS2d 840 (4th Dept. 1999). See also White v. Wilmington City Ry. Co., 22 Del. 105, 6 Penne. 105, 63 A. 931 (Super. Ct. 1906), where an objection was sustained to the admission of a plat made up of different views drawn to different scales of the same subject.

17. See United States v. D’Antonio, (1963, CA3 NJ), 324 F2d 667, cert. den. 376 US 990, finding that a drawing was admissible even though it was not drawn to scale, when there was no assertion at any time that it was indeed drawn to scale.

18. See 1-5 Federal Evidence Practice Guide §5.06.

19. See Watkins v. United States, 287 F2d 932 (1961, CA1 NH).

20. See Commonwealth v. Hopkins, 1 Mass. App. Ct. 858, 303 N.E. 2d 739 (1973); Swenson v. La Shell, 118 Colo 333, 195 P2d 385(1948); Gillette v. Schroeder, 133 Conn 682, 54 A2d 498 (1947).

21. 43 NJ 19, 202 A2d 425 (1964).

22. See Footnote 2 for summary charts that are admissible as substantive evidence in lieu of the underlying evidence pursuant to Federal Rule of Evidence 1006.

23. See Weiss v. Johnson, 206 F.2d 350 (2nd cir. 1953).

24. See U.S. v. Baccollo, 725 F.2d 170 (2nd cir. 1983)

25. See U.S. v. Citron, 783 F.2d 307 (2nd cir.1986)

26. See 3-34 Federal Litigation Guide §34.10.

27. See McMichael v. Eastern Hydraulic Press Brick Co., 80 NJL 398, 78 A. 144 (NJ Ct Err. & App. 1910), finding the admission of a surveyor’s plat discretionary and not reviewable upon error.

28. See Ruppert v. West Side Belt R. Co., 25 Pa Super 613 (1904); Stafford v. New York Cent. R. Co., 80 Pa Super 408 (1923).

29. See Mercatante v. Hyster Co., 159 AD2d 492, 552 NYS2d 364 (2nd dept.1990); People v. Morgan, 24 AD3d 950, 806 NYS2d 742 (3rd Dept 2005).

30. See State v. Estrella, 257 Iowa 462, 133 NW2d 97 (1965).

31. See Hagan v. Carr, 198 Pa 606, 48 A 688 (1901), ruling that a drawing that has been offered and excluded nevertheless does not lose its standing as a medium of communication and a recorded expression of the witness’ testimony.

32. 157 F.3d 949 (2nd Cir. 1998).

33. See Long v. Payne, 198 AD 667, 190 NYS 803 (4th Dept 1921).