EVIDENTIARY FOUNDATIONS FOR DEMONSTRATIVE EVIDENCE

By Timothy W. Monsees

tmonsees@monseesmayer.com

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I. Introduction

This article is designed to be a general overview of the current state of the use of demonstrative evidence in Missouri civil cases with an emphasis on the most recently rendered opinions. There will also be, where appropriate, discussion of and reference to pertinent Kansas decisions. Demonstrative evidence can best be defined as “evidence addressed directly to the senses of the court and jury … a physical illustration of a fact presented, rather than a verbal description.” Thomas A. Heffernan, Effective Use of Demonstrative Evidence ‘Seeing is Believing’ 10 Am. J. Trial Advoc. 109 (1987). Such evidence has a powerful effect on the jury and, therefore, has traditionally required a more stringent foundation to qualify exhibits for use at trial. The use of demonstrative evidence has become even more crucial as courtrooms turn high-tech. In an era when television has replaced the newspaper as the primary information source for most Americans, jurors have increasingly “developed a ‘show me’ attitude.” Richard M. O’Callaghan, Introduction and Use of Demonstrative Evidence, 360 Practicing Law Institute 117(1988). This trend has been coupled with Courts’ willingness to more often recognize demonstrative evidence as essential to modern trials. Therefore, it is crucial that today’s litigators have a command of the proper use of demonstrative evidence.

II. General Rules of Admissibility

The general rule for admissibility of demonstrative evidence in Missouri is that “objects offered as exhibits constituting direct proof of a fact in issue may be admitted upon foundation proof that provides reasonable assurance that the object is the object in controversy and that it has not been altered or substituted.” Scheble v. Missouri Clean Water Commission, 734 S.W.2d 541 (Mo.App. 1987). Kansas allows demonstrative evidence which is found to be authentic, relevant, and determined by the trial judge to aid the trier of fact in achieving a better understanding of the offered evidence. Howard v. Stroughton, 433 P.2d 567 (Kan. 1967). Demonstrative evidence consists of two types of evidence. The first type is evidence which is actual physical evidence surrounding the case, or “real” evidence. Examples of admissible evidence of this type include clothing of the victim, medical treatment devices, machinery, or any other object identified and shown to be connected with the cause of an accident or with the injuries alleged to have resulted from an accident. Photographs and videotapes also generally fall into this category if they depict physical evidence. Photographs, videotapes and other constructed evidence which accurately depict physical evidence at issue is admissible to the extent that it “aids the fact finder in understanding other proof in the case.” Wood River Pipeline Co. v. Sommer, 757 S.W.2d 265, 269 (Mo.App. E.D. 1988).

The second type of demonstrative evidence includes items created by the attorneys which may be helpful in clarifying or illustrating information to the jury; usually referred to as true demonstrative evidence. This type of evidence includes diagrams, charts, and other related materials. In Vasseghi v. McNutt, 811 S.W.2d 453 (Mo.App. 1991), the Court seemingly granted wide discretion to trial courts to admit diagrams, charts, and related matter calculated ” to aid the jury to understand the testimony, unless deemed so inaccurate as to engender confusion.” Id. at 456. The Court seems less concerned with accuracy of the exhibit than evidence that is ” so inaccurate” as to mislead or confuse. Inferentially, a degree of inaccuracy will be permitted if the exhibit will otherwise assist the fact finder in its mission.

Several factors are considered by the Court in making its decision of whether either type of demonstrative evidence will be admitted. Demonstrative evidence will be permitted if: 1) It will help the trier of fact understand the evidence: 2) It will not prejudice, confuse, or mislead the trier of fact. 3) It is relevant and material to the issues in the case: 4) It is not barred by an exclusionary rule of evidence, and 5) it is a fair and accurate representation of what it purports to represent. O’Callaghan, supra; for general principles of what constitutes relevancy or avoidance of evidence that is unduly inflammatory, see for example, Faught v. Washam, 329 S.W.2d 588 (Mo. 1959).

III. Admission of real evidence

There is little question that physical evidence from the scene of the action is admissible. For example, clothing worn by the plaintiff at the time of the harm is generally held to be admissible. Boyer v. Empiregas, Inc. of Chillicothe, 734 S.W.2d 828, 836-87 (Mo.App. 1987). In addition, medical treatment devices shown to have been used by an injured party have long been admissible and can be effective in creating for the jury a picture of the ordeal of the plaintiff’s medical treatment or the extent of the plaintiff’s injuries. Hampton v. Rautenstrauch 5 338 S.W.2d 135, 141 (Mo. 1960).

In Smelko v. Brinton, 740 P.2d 591 (Kan. 1987), a medical malpractice action, the Court permitted the admission and display of a heating pad, including an enlargement of the warning accompanying the pad, which had severely burned a three month old child at the defendant’s medical center. The defendants had admitted liability and objected that introduction and display of the heating pad would inflame the jury in a cause where there was no dispute as to liability. The Court rejected the defendants’ arguments and reasoned that the plaintiffs should be allowed to introduce reasonable evidence to show how the injury was sustained, which would bear on the issue of the nature and extent of the child’s injuries, since many jurors may “not realize that such an innocuous and commonplace device could cause such severe injuries.” Id. at 595. There is little debate that such items are admissible. Curiously , however, more controversy arises when counsel attempt to admit photographs or videotapes.

A. Photographs

Photographs and videotapes can present powerful evidence to the jury. Such evidence is generally admissible provided they are properly verified or authenticated and shown to be faithful representations of the subjects as of the time in question. Wood River Pipeline Co.v. Sommer, supra. This appears to be the rule in virtually every jurisdiction. In determining whether demonstrative photographs should be admitted, a trial judge must determine whether they are relevant and whether a proper foundation has been laid. Trial Courts are granted wide discretion to admit or deny the admission of demonstrative evidence, particularly photographs, and the ruling of the Trial Court will not be disturbed absent an abuse of discretion. Biller by Summers v. Big John Tree Transplanter Mfg and Truck Sales, Inc., 795 S.W.2d 630 (Mo.App. 1990). Furthermore, photographs that are merely calculated to arouse the sympathies or prejudices of the jury are not admissible. Id.

In a recently decided case, the Court of Appeals, in Bass v. National Super Markets, Inc., 1995 WL 95000 (Mo.App.E.D.) upheld a Trial Court admission of a photograph of the decedent in a wrongful death case, dressed in a Santa Claus suit, holding his one year old son. After stating the general rule of relevancy and espousing the discretion of the trial judge, the Court reasoned that, as a result of decedent’s death, his children were deprived of the opportunity to be raised by their father and to experience his companionship. Therefore, photographs illustrating the relationship between the father and the children were relevant to the impact on the children. *Note, this case may be subject to a motion for rehearing or transfer, and therefore, may be modified.

Additionally, the courts have held that if photographs are admissible for a proper purpose, they are not inadmissible simply because they bring vividly to the jury the gruesome or shocking details of an accident. This is true even though admission of the photographs may arouse emotions and prejudice. Elliot v. Kesler, 799 S.W.2d 97, 104 (Mo.App. 1990). For example, a color photograph of the plaintiff s mangled arm, taken by his surgeon before surgery, was properly received to show the extent of the injury and as demonstrative of the plaintiff’s pain and suffering, so long as the photograph did not distort or exaggerate the injury. Higley v. Missouri Pacific R.R., 685 S.W.2d 572 (Mo.App. 1985). The question is not whether the admission of the photograph is prejudicial, but rather its admission is unduly prejudicial. In short, all evidence harmful to the opponent’s case is prejudicial.

B. Videotapes

Videotapes may also be admissible as demonstrative evidence. Like photographs, videotapes must be “fair and accurate” representations of what they purport to depict. Wood River Pipeline Co. v. Sommer, supra. Generally, “the issue in admitting or rejecting a video tape is whether it is practical, instructive, and calculated to assist the jury in understanding the case.” Bailey v. Valtec Hydraulics, Inc., 748 S.W.2d 805 (Mo.App. 1988). However, day-in-the-life videotapes of personal injury plaintiffs, where the plaintiff was present in the courtroom for observation by the jury, were properly excluded. Helm v. Wismar, 820 S.W.2d 495 (Mo. banc 1991). Such evidence was also excluded when the plaintiff was able to testify and demonstrate her daily activities through “conventional testimony.” Repple v. Barnes Hosp., 778 S.W. 2d 819, 823 (Mo.App. 1989). Nonetheless, such day-in-the-life presentations, can be “highly probative” where the plaintiff is unavailable for trial and the tape is played without sound. Lawton v. Jewish Hospital of St. Louis, 679 S.W.2d 370 (Mo.App. 1984). Although the unavailability of the plaintiff does not seem to be an absolute prerequisite to the use of such videotape demonstrations, the self-serving production of such a tape will be closely scrutinized when the is an objection to its offer.

C. Courtroom demonstrations

Trial courts have traditionally been granted broad discretion to determine the admissibility of courtroom demonstrations. Demonstrations of the plaintiff s injuries are generally allowed. However, they must be conducted in a dignified manner and cannot be designed for the sole purpose of gaining sympathy from the jury. Fravel v. Burlington Northern Railroad, 671 S.W.2d 339 (Mo.App. 1984). In Fravel, the court held that the plaintiff, whose legs were smashed by a railroad car, could demonstrate his injury, since such an exhibition was highly relevant. The court qualified its decision by holding that “certain exhibitions of plaintiff’s injuries to the jury are deemed improper when designed merely to arouse antipathy against the defendant and sympathy for the plaintiff. . .” Id. at 343. The Court reasoned, “since the defendant is charged with having caused the injury, the jury should be able to see, in a dignified manner, what the defendant has done to the plaintiff.” Id. In addition, the court restated the general rule that during such a demonstration a plaintiff cannot utter pitiful cries of pain, or make attempts at movement or removal of an ocular prosthesis, since such activities would merely dramatize the plaintiff s injuries in an attempt to inflame the jury.

This rule was recently restated in Lester v. Sayles, 850 S.W.2d 858 (Mo.banc 1993), where the court allowed a mother to demonstrate the physical therapy that she performs on her daughter as a result of being struck by the defendant’s truck. The court held that the demonstration was highly relevant since the defendant was alleged to have caused the plaintiff’s injuries and the demonstration was not conducted purely to gain sympathy for the plaintiff. The court reemphasized that such presentations are within the sound discretion of the court, and while the limitations of Fravel, supra, were in order, the demonstration was relevant to the issue of the mother’sdamages for loss of services, society and companionship of her daughter.

IV. True demonstrative evidence

The second type of demonstrative evidence is that which is created to illustrate a particular point to the jury; usually referred to as truedemonstrative evidence. Examples of this type of evidence include charts, graphs, maps, models and computer simulations. The general rule for admissibility is that diagrams, charts, and related matter are admissible to aid the jury to understand the testimony, unless deemed so inaccurate as to engender confusion. Vasseghi v. McNutt, 811 S.W.2d 453 (Mo.App. 1991).

A. Diagrams/Maps

In Vasseghi, a case involving a motor vehicle collision, the Court held that it was not necessary that the diagram of the accident scene “be drawn to scale or absolutely accurate” as long as it did not confuse or mislead the jury. The defendant in the case was allowed to diagram the scene of the accident despite the fact that his testimony repeatedly disclosed that he did not know whether a skid mark shown was made by the plaintiff’s car. Similarly, in Ellis v. City of Kansas City , 589 P.2d 552 (Kan. 1978), the court concluded that, only when maps are distorted, inaccurate, or otherwise unfair, are they objectionable. Hence, there is latitude for something short of absolute accuracy.

Maps were the subject of appeal in Scheble v. Clean Water Commission, 734 S.W.2d 541 (Mo.App. 1987) where the court held that “maps” of a newly developed subdivision, hand-drawn by engineers, were admissible as “perceptual aids,” where the maps were drawn to scale and a foundation was laid that the use of the maps would permit the oral testimony “to be more easily understood.” Id.

Both Vasseghi and Scheble reiterate the general rule with all demonstrative evidence that the trial court has broad discretion on the admissibility of such evidence. See also, City of Wichita v. Jennings, 433 P.2d 255 (Kan. 1967). Furthermore, in Kansas, attorneys must show that the evidence depicts a certain place, scene, or object, that the witness is familiar with the place scene, or object, and that the item is an accurate representation or depiction of the place, scene, or object. Ellis, supra.

B. Charts

Similar rules apply to the use of charts. In re Marriage of Stuart, 805 S.W.2d 309 (Mo.App. 1991), held that it was not prejudicial error, in a dissolution proceeding, to admit an exhibit, prepared by counsel, summarizing information derived from the adverse party’s bank account records, where such evidence was received “subject to explanation, cross-examination, and review” by the trial judge.

In a curious ruling, which seemingly condemns emphasis of a witness’ oral testimony with illustrations, the Court in State ex rel. Missouri Highway and Transportation Commission v.Meramec Valley Elevator, Inc., 764 S.W.2d 507 (Mo.App. 1989), addressed the issue of whether an attorney could use a marking board to record damage figures as testified to by a witness. The court held that such evidence was not really demonstrative evidence, but rather amounted only to the assertion of the witness about things. While the court maintained that visual aids are permissible, the extent to which they can be used is at the sound discretion of the trial court. Seemingly, efforts to summarize the testimony of a witness or record a fact testified to by the witness by use of a chart will run the risk of exclusion.

C. Models

Like other forms of demonstrative evidence, models shown to be a fair representation of the object depicted may be admitted to aid the fact finder in understanding other evidence. A wide variety of models have been ruled upon by Missouri courts. Two recent cases illustrate the creativity which courts may allow. In Welsh v. Burlington Northern Railroad Co., 719 S.W.2d 793 (Mo. A.P.. 1986), when an employee had suffered a back injury while lifting a propane gas tank onto a business car operated by the railroad, plaintiff s counsel recreated a model of the loading cart plus some safety additions which the employees had previously proposed. The court held that a cart which the plaintiff s expert constructed for use in loading propane tanks onto one of the railroad’s business cars and which not only incorporated the design feature of a previous cart used by the railroad for its employees, but also incorporated design features requested by the employees at previous safety meetings, was admissible as relevant as to whether the railroad failed to provide a reasonably safe work environment for the employee. In McElhiney v. Mossman, 850 S.W.2d 369 (Mo.App. 1993), a personal injury case arising from an automobile accident, the court held that it was within the trial court’s discretion to admit an exemplar vehicle as a model of the plaintiff s car. The plaintiff testified that, although the vehicle was the same model as her automobile, certain differences existed between the exemplar and her vehicle, such as the tilt steering wheel, head rest and glove box. Expert testimony for the plaintiff was elicited showing that the differences were of no importance in determining the movement of the occupant’s bodies during a fatal collision. Again, absolute accuracy between the demonstrative aid and the real evidence was unnecessary, where any potential differences between the two were addressed openly and discounted through expert testimony. In the end, the Court concluded the model vehicle would help the jury reach a factual determination, and went so far as to support the Trial Court’s further action in permitting the jurors to sit in the exemplar vehicle.

D. Computer Simulations

It is apparent that as courtroom technology increases, new forms of demonstrative evidence will arise. Missouri has already seen examples of new high-tech demonstrative evidence. In Richardson v. State Highway & Transportation Commission, 863 S.W.2d 876 (Mo. 1993), the plaintiff alleged that the State was responsible for the injuries she suffered in a two-car accident, with one Bailey, during a rainstorm. The Commission wished to use a computer simulation called Simulation Model of Automobile Collision (SAC) to show that the Bailey vehicle could not have hydroplaned as the Richardson alleged. After a hearing, the trial court denied admission of the SAC. The Supreme Court then held that such experimental evidence is admissible only if the experiment is made under substantially similar conditions to those at the time of the accident, although the conditions need not be identical. The Court upheld the Trial Court’s refusal of the simulation based on the wide discretion afforded trial court’s ruling on demonstrative evidence. The Court particularly noted that many of the basic facts of accident were unknown and constituted variables. Hence, substantial questions existed as to whether the simulation was “substantially similar” to the conditions of the collision. Moreover, the Court noted that opposing parties had not been given notice of the simulation results until the last business day before trial, which impaired cross-examination. In this case, the evidence was properly excluded. The Court cited liberally from other jurisdictions that had addressed the admissibility of computer simulations.

E. Providing Demonstrative Aids to the Jury During Deliberations

Aids such as charts, graphs, models or damage summaries, marked and used during trial or argument, but not admitted into evidence, may not be provided to the jury during deliberations. In Lester v. Sayles, supra, the plaintiff’s attorney had used during closing argument a chart detailing the elements of damages suffered by the plaintiff with values assigned to each element. The jury later requested the chart which had neither been marked nor admitted as evidence. The jury was provided the chart, and shortly thereafter, returned a verdict for the full amount displayed on the plaintiff’s attorney’s chart. The Court emphasized that only exhibits admitted into evidence may be taken into deliberations. The chart, which contained nothing more than the opinions of plaintiff’s counsel, was likely to carry undue weight with the jury and carried the implication of authoritative evidence.

By contrast, in Morgan v. Abay, supra, a Kansas decision, an anatomical chart marked and admitted into evidence by the plaintiff as illustrative of the defendant doctor’s breach of the standard of care, was denied to the jury during deliberations. The Court noted that Kansas courts ordinarily give the exhibits to the jury, but that such matters are within the discretion of the trial court. Although the Court concluded the denial was error, the plaintiff had not demonstrated due to inadequacies in the record, any prejudice.

V. Conclusion

It is essential for today’s civil litigators to have a clear grasp of demonstrative evidence. As courtrooms become more high-tech, it is certain that the importance of demonstrative evidence will grow. Currently, demonstrative evidence has similar rules for admissibility as other evidence. Such evidence must be relevant and have proper foundation. There are two types of demonstrative evidence which have been admitted by courts: that which is “real” evidence relating to the action, and that which is created purely by the attorneys in order to clarify a point for the jury. Each type of demonstrative evidence may be used skillfully in order to bring the case to life before the jury.

(The author of this writing wishes to gratefully acknowledge the assistance of Bradley Down, a second-year law student at the University of Missouri at Kansas City, in the preparation of these materials)