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Evidence 101: 7th Cir. Clarifies 'Demonstrative' Evidence

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By Gabriella Khorasanee, JD on September 30, 2013 12:42 PM

Some things are just not done. For example, demonstrative exhibits not admitted into evidence are just not sent into the jury room to assist the jury with deliberations. Yet somehow, that's precisely what happened here.

The Seventh Circuit reversed a judgment and remanded for a new trial because of a district court's error. Here's the latest case that had us scratching our head and thinking, "Did that really just happen?"

The Trial

John Baugh fell off a ladder and suffered severe brain injuries that prevented him from testifying at trial, where he and his wife sued Cuprum, the maker of the ladder.

After discovery closed, Cuprum let Baugh's attorney know that they intended to use an exemplar ladder built to the specs of the ladder Baugh had used. Plaintiff's counsel objected, but the district judge allowed Cuprum to use the ladder as only a demonstrative exhibit, not as substantive evidence.

However, things changed once the jury started deliberating. Initially, the ladder was not sent to the jury to assist in deliberations. But after several requests from the jury to see, touch and feel the ladder, the district court judge allowed the ladder to be sent to the deliberation room with a note cautioning the jury not to "reconstruct the occurrence."

Demonstrative Evidence

The Seventh Circuit noted: "The general rule is that materials not admitted into evidence simply should not be sent to the jury for use in its deliberations." In addition to strong precedent, the court noted that allowing non-evidence into jury rooms would compromise an attorney's ability to properly prepare and would fail to afford him an "opportunity to respond, rebut, or cross-examine."

This case shows that circuit courts don't always issue ground-breaking opinions. Sometimes they have to repeat elementary lessons of evidence. While the court noted that some other circuits allowed "demonstrative" evidence into jury deliberations, the court noted the other cases "departed from longstanding practice in this and other circuits and the learned treatises cited above, and as having done so with only the most tenuous support."

Sometimes a court needs to draw a really deep, long line in the sand. Let's hope the district court gets it right in the retrial.

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