In prosecution for conspiring to make and making a pipe bomb, demonstrative video showing three tests, played at three different speeds, was probative to show the devices were “destructive devices” and were not unfairly prejudicial based on the “bare allegation” that the bombs in the video were significantly different than the charged devices, in United States v. Spoerke, 568 F.3d 1236 (11th Cir. May 22, 2009) (No. 08-12910)
The use of demonstrative evidence at trial is normally controlled by the court through FRE 611(a). See FRE 611(a) ACN (noting the rule “covers such concerns as … the use of demonstrative evidence”). However, the admissibility of demonstrative exhibits remains subject to being relevant under FRE 401, challenges of unfair prejudice under FRE 403, and authentication under FRE 901. A recent Eleventh Circuit case highlighted the application of FRE 403 to a demonstrative video in a pipe bomb case.
In the case, a car was stopped for littering. Defendant Spoerke was a passenger in the front seat and defendant Kramer was the driver, along with other passengers. During the stop, the officer observed what appeared to be “improvised explosive devices” in the vehicle. The occupants also appeared to possess suspected burglary tools. When the officer removed the devices and placed them on the vehicle roof, he asked what they were. The defendant responded that “they were ‘pipe bombs’ that they liked to ‘throw . . . in canals and watch . . . explode.’” Upon the discovery of other tools and materials for making a pipe bomb, the occupants were detained for possessing bombs. A bomb squad arrived and deactivated the devices. The driver acknowledged that the bombs were made at his residence. After further consent to search of the vehicle and two residences, defendants Spoerke and Kramer were charged with conspiring to make destructive devices and making one or more destructive devices.
The cases were severed and defendant Spoerke proceeded to trial. An explosives expert explained how the devices functioned and tests he made. The jury viewed a video of three identical bombs which were detonated: “one bomb was detonated standing alone; another was strapped to a watermelon and detonated; and the third bomb was placed inside a locked, plastic tool box and detonated. The watermelon was destroyed, and the fragments of the tool box were propelled a distance of about 200 feet. The jury viewed videotape recordings of the explosions at three speeds: (1) real-time speed; (2) a speed 10 times slower than normal; and (3) a speed 20 times slower than normal.” Spoerke, 568 F.3d at 1243. The jury convicted the defendant, who was sentenced to 44 months’ imprisonment. On appeal, he challenged the admission of the demonstrative evidence since “the devices in the video did not accurately reflect the devices attributed to” Spoerke, “the demonstration did not go to an essential element of the crime,” and the video was unfairly prejudicial under FRE 403.
The Eleventh Circuit affirmed the admission of the video. The defendant failed to support his claim that the video did not accurately depict the seized devices. The expert testified that the devices were constructed in an identical manner. The “bare allegation” that the devices were different was insufficient in light of the agent’s testimony that they were “virtually identical.” The circuit explained:
“The parties did not stipulate to certain facts or issues, and the government had the burden to prove every element of Spoerke’s crime at trial, including that the devices were ‘destructive devices’ under the Firearms Act, 26 U.S.C. § 5845(a)(8), and that they were designed to be weapons, id. § 5845(f). The video demonstration was relevant to prove the nature of the devices Spoerke constructed and the characteristics of those devices, which supported the charge that the devices were designed as weapons.”Spoerke, 568 F.3d at 1250. Finally, the defendant failed to show the demonstrative evidence was unfairly prejudicial.
The Spoerke case demonstrates the obligations of the parties in using demonstrative evidence. The proponent should establish that the demonstrative evidence is virtually identical to the evidence in question. The opponent must raise more than a “bare” allegation to challenge the demonstrative evidence. Relevant demonstrative evidence may be admitted under FRE 611(a) to aid the jury in understanding the evidence.