by Ryan H. Flax
(Former) Managing Director, Litigation Consulting
It has just been reported that prosecution counsel in the criminal trial against George Zimmerman is objecting to the defense’s use of a computer animation depicting the scene of the fatal confrontation between Zimmerman and Trayvon Martin. It appears the defense wants to give the jurors some perspective on the scene and, perhaps, show why Zimmerman was justified in doing what he did.
Prosecutors object that the animation does not show the weapon Zimmerman used to kill Martin and “only approximates” the two men’s positions based on witness accounts. All things being equal, the prosecution bears some burden to keep this demonstrative evidence out. It will depend on how the defense actually intends to use the aid.
In Florida, it is within the discretion of the court to allow or disallow demonstrative aids in the courtroom. Chamberlain v. State, 881 So 2d 1087, 1102 (Fla. 2004). The Chamberlain court laid out the following considerations for the propriety of allowing demonstrative evidence: (1) potential to mislead or confuse the jury; (2) whether the demonstrative aid is to be admitted into evidence; (3) whether the proponent of the demonstrative aid will assert that it represents fact evidence; and (4) whether the witness advancing the demonstrative aid will be cross-examined on it. Taking these issues into consideration, the Florida Supreme Court ruled that it was OK to allow a demonstrative aid that “was similar” to an actual murder weapon, although larger and different in other ways, even though the actual murder weapon was also admitted as actual evidence.
However, the Chamberlain court also stated,
Demonstrative evidence is admissible only when it is relevant to the issues in the case. . . . [I]t is essential, in every case where demonstrative evidence is offered, that the object or thing offered for the jury to see be first shown to be the object in issue and that it is in substantially the same condition as at the pertinent time, or that it is such a reasonably exact reproduction or replica of the object involved that when viewed by the jury it causes them to see substantially the same object as the original.
So, the Zimmerman court has a choice to make. If the defense animation is not misleading, won’t be admitted into the record, is not asserted to show actual evidence, and will be advanced by a witness subject to cross-examination, it seems right to allow it. On the other hand, if the animation is not a close enough reproduction of the actual scene of the confrontation and killing, the Court has all the reason it needs to disallow it.
This situation is a good opportunity for a reflective moment for all litigators seeking to make and use demonstrative evidence. Demonstrative evidence, like any evidence, must be relevant and the proponent of demonstrative evidence can try to have the evidence admitted into the record or can choose to use the evidence as merely a prop.
If the evidence is marked as a full exhibit the jury may refer to the evidence during deliberations and in most jurisdictions the jury may examine the evidence during deliberations. If the evidence is not marked as a full exhibit, the jury cannot do these things. Whether or not a demonstrative exhibit is to be admitted on the record, there are some rules you should know when considering using any demonstrative exhibit (we’ll look at the federal rules for the sake of simplicity, but each state has its own).
Fed. R. Evid. 611(a) allows demonstrative exhibits, generally. Fed. R. Evid. 403 is the gatekeeper rule for trial evidence. Do not make demonstrative exhibits prejudicial or confusing, but tailor them to be truthful and persuasive. Fed. R. Evid. 901(a) requires that you back up your demonstrative exhibits with actual evidence; they cannot merely be your fantasy of best-case-scenario evidence.
Courts have traditionally allowed summaries of extensive evidence, e.g., a chart or table reviewing a bunch of expert opinions, but now according to Fed. R. Evid. 1006 demonstrative evidence is treated similarly and is typically admissible as evidence with testimony.
Let’s stay tuned and see how it goes in the Zimmerman trial.
Related articles you may find valuable about computer animation, demonstrative evidence or the George Zimmerman trial:
- Free Download: Using Litigation Graphics & Animation at Trial to Persuade
- Trial technology failures at the George Zimmerman trial are instructive
- A2L Consulting's nationwide computer/courtroom 3D animation services
- 4 Types of Animation Used at Trial
- Misuse of Humor at the George Zimmerman Trial
- Articles and examples of A2L's animation work for trial
- 6 steps for getting computer animation admitted at trial