Reversible Error In Providing Jury Access To Demonstrative Evidence

Can a jury be allowed "to see, touch, and manipulate" a demonstrative in the jury room during deliberations? "What is meant when an exhibit is labeled 'demonstrative' and is not actually admitted into evidence?" In vacating a jury verdict after a demonstrative exhibit (a ladder) was given to the jury during deliberations, the Seventh Circuit attempted to clear away much of the confusion surrounding the concept of "demonstrative" evidence and its relation to "substantive" evidence. Adopting the "majority" position of the circuits, the Seventh clarified how the term should be "used in the narrow sense" that would bar use of the evidence by "the jury during deliberations," in Baugh v. Cuprum S.A. De C.V., __ F.3d __ (7th Cir. Sept. 13, 2013) (No. 12–2019)

As the Seventh Circuit recently noted, the term "demonstrative," which is not used in the Federal Rules of Evidence and referred to only once in its Advisory Committee Notes, has sowed confusion in the trial courts. Baugh, __ F.3d at __ (footnote 1 and 3). This confusion, as is clear from the circuit's analysis, can result in a use of "demonstrative evidence" in ways that frustrate the FRE's goal of "fairness in administration, elimination of unjustifiable expense and delay, and promotion ... of the law of evidence to the end that the truth may be ascertained." FRE 102.

Trial Court Proceedings: Use Of The Demonstrative: Exemplar Of The Ladder

In the case, plaintiff Baugh brought a product liability action against Cuprum, who made the ladder used by the plaintiff. After this ladder collapsed on the plaintiff, causing severe brain injury, the plaintiff brought an action alleging that the collapse was a result of the defendant's defective design and negligence. During the pretrial process, the defendant sought to use at trial, over the plaintiff's objections, "an exemplar of the actual ladder" on which the accident had occurred. In response to the plaintiff's objections to use of the exemplar ladder, the defendant contended that the ladder "was new but built to the exact specifications of the ladder" the plaintiff had used. The defendant offered the ladder "simply [as a] "demonstrative exhibit[ ] ... during the direct examination" of the defendant's expert witness. "[T]hese exhibits are demonstrative," argued the defendant and "[t]hey are not substantive evidence. They are not to be admitted for substantive evidence. It's just simply to demonstrate and help the jury understand [the defense expert's] testimony." Baugh, __ F.3d at __.

The trial judge admitted the ladder for demonstrative purposes only. As explained by the circuit, the trial judge's decision to allow use of the exemplar reflected the "general rule ... that materials not admitted into evidence simply should not be sent to the jury for use in its deliberations." There was no problem with the use of the ladder demonstratively -- where the trial judge erred was that it "failed to adhere to this limit when, despite plaintiff's objection, the court deliberately submitted the unadmitted ladder to the jury during deliberations as if it were admitted, substantive evidence." Baugh, __ F.3d at __ (citing Bankcard America, Inc. v. Universal Bancard Systems, Inc., 203 F.3d 477, 483 (7th Cir. 2000) (sending three unadmitted documents to jury was “sloppy” and an error, but harmless); Artis v. Hitachi Zosen Clearing, Inc., 967 F.2d 1132, 1142–43 (7th Cir. 1992) (error to send unadmitted damages summary to jury room for deliberations, but also harmless); United States v. Holton, 116 F.3d 1536, 1542 (D.C. Cir. 1997) (“To protect jury deliberations from improper influence, we ordinarily restrict the jury's access only to exhibits that have been accepted into evidence....”)).

At trial, the defendant "used the exemplar ladder during trial to argue that, contrary to the design defect theory offered by plaintiff's expert, the ladder would not collapse under a normal load with all four legs on the ground. Cuprum's expert presented testimony and video in which he tested the strength and stability of the ladder. The video also showed him performing other tests that included jumping on the ladder as if it were a pogo stick and tipping the ladder in different positions." Baugh, __ F.3d at __.

Jury Deliberations

The jury's deliberations stretched over the course of three days. Each day the jury made requests to see the exemplar ladder again. At first the court resisted. But with the repeated requests, the court slowly backed down to permitting jurors to inspect the ladder in the courtroom (which no juror took up) and finally allowing the ladder, over plaintiff's objections, to go into the jury room. Each time, the court instructed the jury about the proper use of the ladder, including cautions such as:

  • "The exemplar ladder is a demonstrative exhibit."
  • "It was not admitted in evidence."
  • "You may fully examine the ladder. Under no circumstances are you to endeavor to reconstruct the occurrence.”
Baugh, __ F.3d at __. The jury returned a verdict for the defendant and against the plaintiff. The plaintiff appealed, citing as an error the judge sending the exemplar ladder into the jury room.

Seventh Circuit Review

The Seventh Circuit reversed the jury's judgment and remanded for a new trial. The circuit explained that this result was compelled by the confusion over precisely what demonstrative evidence is. While the courts may mean a variety of things by the term "demonstrative", the circuit noted that:

...we do seek to clarify what a jury may and may not consider in deliberations. Without the consent of all parties, a deliberating jury may not consider exhibits not actually admitted into evidence. In this case, the court allowed the exemplar ladder to be used in trial only as a “demonstrative” exhibit, only for demonstrative purposes. The court and counsel understood this ruling to mean that the exemplar ladder was not actually admitted into evidence and would not be available to the jury during deliberations. That was the basis of the court's pretrial decision to overrule plaintiff's objection to all use of the exemplar ladder. The term “demonstrative” thus was used to refer to an object or document that could be displayed to the jurors to help them understand the substantive evidence (testimony or other objects or documents) by interpreting, summarizing, or explaining it, but that would not be available during deliberations.
Baugh, __ F.3d at __.

The circuit indicated that despite the various ways in which the courts consider "demonstrative" evidence, in the Seventh Circuit a "narrow" understanding of the term should be used. Using this formulation the circuit noted the "narrow" understanding of he term applies to:

... exhibits ... meant to “illustrate or clarify a party's position,” and they are by definition “less neutral in [their] presentation” and thus are not properly considered evidence. They instead aim to clarify, color, or “organize or aid the jury's examination of testimony or documents which are themselves admitted into evidence” to persuade the jury to see the evidence in a certain light favorable to the advocate's client. Thus “[w]hen considering the admissibility of exhibits of this nature, it is critical to distinguish between charts or summaries as evidence and charts or summaries as pedagogical devices.”
* * *

When the term is applied correctly, it allows parties and the court to avoid protracted disputes regarding the admissibility of demonstrative exhibits that might arise if such an exhibit were being offered as substantive evidence. By labeling an exhibit “demonstrative,” the party using it may also gain something—some leeway to use the exhibit as an advocacy tool that the party might not enjoy if trying to admit the exhibit as substantive evidence. With this understanding of the term, the common phrase “demonstrative evidence” becomes a bit of an oxymoron. We will not try to police the use of the phrase, but there is value to using the term more narrowly and carefully, as it was used in the district court in this case, so that it does not apply to an exhibit that is properly admitted as substantive evidence through the Federal Rules of Evidence.
Baugh, __ F.3d at __ (citing United States v. Milkiewicz, 470 F .3d 390,396–98 (1st Cir. 2006), United States v. Bray, 139 F.3d 1104, 1111–12 (6th Cir. 1998), United States v. Wood, 943 F.2d 1048, 1053 (9th Cir. 1991)).

Misunderstanding Use Of Term "Demonstrative"

The circuit concluded that the trial court had started off correctly. It clearly distinguished "between demonstrative exhibits and substantive evidence during trial and after deliberations began. Yet the court eventually decided to cross this boundary by permitting the demonstrative exhibit to be treated as if it were substantive evidence and allowing the jury to see, touch, and manipulate it during deliberations." This violated the federal rules of evidence and caused damage to the plaintiff's case. While the circuit acknowledged that the plaintiff had cited a number of cases in which courts had admitted so-called "demonstrative" evidence into the jury room, this invariably involved a court taking evidence that already had been admitted as substantive evidence and allowed it into the jury room, noting that this evidence served a demonstrative purpose as well. Baugh, __ F.3d at __.

This was different from the plaintiff Baugh's case as were the evidence had not first been admitted as substantive evidence, but later made its way into the jury room. This result had two important impacts. First, it constituted a violation of court processes. Under the rules "both parties were entitled to notice of" of what would go before the jury and be available in the jury room. The also had the right to object to this use -- which is what the plaintiff did here. The second impact was that the error was not a harmless one. In particular, the circuit noted that "both sides had substantial evidence supporting their positions. The jury deliberations spanned three days, and the jury reached a verdict shortly after it had the opportunity to examine, step on, and manipulate the exemplar ladder, going well beyond the exposure they had to the ladder when it was used as a demonstrative exhibit during the trial. The error may well have been decisive; we cannot say it was harmless."


There are few cases that review the distinction between demonstrative and substantive evidence like the Baugh case. One other implication in the case is that the trial judge's limiting instructions to the jury on the use of the ladder were insufficient. While not explicit in its reasoning, the circuit seems to recognize that even though the normal presumption is the jurors obey their jury instructions, they were not acknowledged to be able to do so here. As with a Bruton error in which presentation of a co-defendant's hearsay testimony could not be undone with a limiting jury instruction, so it seems jury instructions will not be sufficient to guide the jurors proper use of evidence for substantive purposes.


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