Dangers Of "Transporting The Expert Witness" Into The Jury Room

What issues may arise when a jury has access during its deliberations to demonstrative exhibits (which were offered "to help the jury visualize" an expert's "opinions and testimony")? Circuit concludes the exhibits did not "transport" the expert into the jury room, placing undue emphasis on the expert's opinion; the demonstrative use was fair, not misleading and relevant to the jury's understanding of the evidence, in United States v. Natale, 719 F.3d 719 (7th Cir. June 11, 2013) (No. 12-3231)

Federal Courts have long drawn a distinction between exhibits admitted and used by the jury as a summary of evidence received under FRE 1006 and exhibits used merely as demonstrative or illustrative aids to the jury, but not as substantive evidence. The Seventh Circuit considered a case last week that focused on the use of exhibits as demonstrative or illustrative aids and assessed when such an exhibit could be problematic for trial.

Defendant Natale was a vascular surgeon who specialized in treating aortic aneurysms, "a condition involving weakened vascular walls in the aorta, the main artery exiting the heart." The doctor was charged with medicare fraud and with making false statements when discrepancies arose between the expensive procedure the defendant claimed he used to repair patients' aneurysms and clinical results that were reflected in CT scans, which indicated he could not have performed the procedure claimed in his medical and billing records. Specifically the prosecution charged that the defendant routinely used a less expensive and complicated procedure medical procedure for patients, but charged medicare the cost of the more-expensive procedure. The defendant's theory of the case was that because no medicare billing code specifically covered the type of procedure he had to perform on many of his patients, he used the code of the procedure that he felt most closely reflected the operation he had performed on patients. The differences between the procedures he had described in the patients records and what actually he had done was due to "innocent mistakes" as the "busiest cardiovascular thoracic surgeon" in the region.

One of the principle witnesses for the prosecution was Dr. Anton, a surgeon from a different medical facility who testified as an expert. He assessed the defendant's medicare billings and the relation, if any, to operative reports the defendant had filed and which memorialized the procedures he used. Expert witness Anton believed that the defendant had a procedure which "would not justify the billing codes Natale had submitted" to medicare. In presenting this evidence, the witness "used demonstrative exhibits to help the jury visualize his opinions and testimony." The basis of the defendant's appeal on an evidentiary basis was that the trial the judge:
over Natale's objection, permitted the jury to take Anton's demonstratives into the jury room during deliberations. Importantly, the government “stripped down” the demonstratives that the jury used during deliberations. Unlike the two diagrams presented in Figures 3 and 4, the demonstratives used during deliberations did not contain the headings “Operative Report” and “Actual Operation.” Instead, it just contained the pictures that Anton used when testifying.
Natale, __ F.3d at __.

The circuit disagreed with the defendant's contention that permitting "the district court's decision to permit the jury to bring Anton's demonstratives into the jury room during deliberations." Natale, __ F.3d at __. The circuit noted a few requirements for admitting demonstrative exhibits to the jury assistance. The major requirements included:

  • Fairness:That the court is “evenhanded” in allowing such demonstrative exhibits from both sides: Here the circuit noted that in allowing the exhibits of the government's expert witness, the court also offered the defense the same "the opportunity to send demonstrative exhibits to the jury room (which he ultimately accepted)."
  • Not Misleading: That the exhibits were not misleading, by "strongly suggesting" impermissible inferences: Here, the defendant argued that the expert's exhibits were misleading by "strongly suggest[ing] to the jury" that differences between the two medical procedures portrayed which had "gross difference in shape, size and general appearance" had implications for the propriety of the procedure for certain patients. The circuit found that the defendant provided "no suggestion that they [the exhibits] mislead the jury.... He admits the operative reports contained inaccuracies but offers no evidence showing the demonstratives inaccurately depict the statements in his operative reports."
  • Relevance: Here, the defendant argued that that the exhibit should have been excluded as it was "immaterial" to the prosecution's case against him since they had never alleged that the defendant had "billed Medicare for such grafts" that were necessary to the medical procedure. Indeed, "[t]he important question is not whether the demonstratives [exhibits] accurately reflected what [defendant] billed to Medicare but whether the demonstratives accurately reflected what they purported to show: Natale's descriptions of the procedures in the operative reports as compared to the procedures depicted in the CT scans" did not match, suggesting that he did not do as his operative reports stated.
Natale, __ F.3d at __.

A fourth factor that arose in the circuit's analysis of the admission on the "demonstrative" exhibits was whether the record indicated that:

... the demonstratives ha[d] the impermissible effect of “transporting” [government expert witness] Anton into the jury room during deliberations. The demonstratives used during Anton's testimony contained various labels identifying which diagram depicted Anton's conclusions and which diagram depicted the procedure described in Natale's operative notes. The government removed these labels from the exhibits sent to the jury room, however, requiring jurors to identify the content of the demonstratives from their recollection of Anton's testimony. Thus, the demonstratives did not have the effect of sending Anton himself into the jury room with the jurors.
Natale, __ F.3d at __ (emphasis added).

The Seventh Circuit's reference to the danger of an expert's demonstrative exhibit "transporting" the witness into the jury room points to a significant challenge for trial courts. Part of the task of the trial court is to provide no unfair emphasis on particular evidence. Demonstrative exhibits may serve to undermine this goal. Demonstrative exhibits are merely illustrative and are not considered evidence themselves. They are a testimonial aid and the general rule is that they not be admitted into evidence nor allowed into the jury room nor used by the jury in deliberations. See, e.g., United States v. Wood, 943 F.2d 1048, 1053-54 (9th Cir. 1991). In Natale the Seventh Circuit seemed to depart from this standard, identifying a set of considerations that might serve in the future to inform a court's decision on the materials that go in with the jury when they deliberate.

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