Dropping Eggs in the Courtroom
I recently came across an article in the S.C Lawyer’s Weekly about a 2014 case involving Robert Goings and a couple of eggs. The facts of the case are straightforward: a couple was exiting off of the interstate when they were rear-ended by the defendant who was travelling at approximately 15 mph. There was hardly any property damage, however, both of Goings’ clients received substantial physical injury.
What jumped out to me though was the demonstration Goings used in his closing argument:
"In his closing argument, Goings put an egg inside a clear bucket, which he held up over the railing on the jury box. The egg represented his clients. The bucket was their vehicle.
'I said, What’s going to happen, ladies and gentlemen, if I drop this bucket? You know this egg’s going to break. But this man over here,' Goings said, pointing to Plexico, ‘he wants you to believe that the egg ain’t gonna break.'
Then he released his grip on the bucket.
'It made this huge loud banging sound,' Goings said. 'I picked it up and the bucket wasn’t damaged, but the egg was splattered all over the place.'"
This closing argument worked and awarded his clients $600,000.
This leads to several questions: how does an attorney introduce this type of evidence, how does the opposing attorney object, and how does a judge rule?
Demonstrative and Substantive
There are two main types of evidence in a trial: demonstrative and substantive.
In Clark v. Cantrell, our supreme court explained the difference:
Demonstrative evidence includes items such as a photograph, chart, diagram, or video animation that explains or summarizes other evidence and testimony. Such evidence has secondary relevance to the issues at hand; it is not directly relevant, but must rely on other material testimony for relevance. Demonstrative evidence is distinguishable from exhibits that comprise “real” or substantive evidence, such as the actual murder weapon or a written document containing allegedly defamatory statements.
These categories sometimes overlap. For example, a bank surveillance photograph of a robbery suspect may be classified as demonstrative evidence because it illustrates the crime scene; however, it also may be classified as substantive evidence of the identity of the perpetrator. See Mueller & Kirkpatrick, Evidence, §§ 9.31–9.36 (1999) (discussing various definitions and types of demonstrative evidence).
Demonstrative evidence often is admitted only for use in the courtroom to explain and illustrate a witness's testimony, but it also may be admissible as an exhibit for the jury to examine and consider during deliberations
Clark v. Cantrell, 339 S.C. 369, 383, 529 S.E.2d 528, 535 (2000).
Substitution evidence is evidence that summarizes other evidence. In essence, the exhibit “is substitute evidence admitted in lieu of actual evidence.” An example of this would be a summary of 1,000 pages of financial records.
Pedagogical evidence is a demonstration of evidence that is already entered into evidence. An example of this would be a witness saying that she jumped on one foot the night of the incident, and the attorney jumping on one foot to demonstrate what the witness said.
Which Rules to Use?
So we have substantive evidence and demonstrative evidence. How do the Rules of Evidence apply?
For demonstrative, let’s look at two rules first.
First, substitute/summary evidence. There is a specific rule for this: 1006. Rule 1006 explains how a party may substitute a summary of voluminous records in order for convenience. SCRE 1006. (The underlying evidence must still comply with any other applicable rules).
Second, pedagogical evidence. Use Rule 611. This rule states that “The court shall exercise reasonable control over the mode and order of interrogating witnesses and presenting evidence so as to (1) make the interrogation and presentation effective for the ascertainment of the truth.” SCRE 611.
This rule gives the trial judge discretion in determining whether or not the demonstration is accurate and a fair representation. How does a judge determine if it is fair and accurate? Easy, he or she will look to Rules 901 (is it authentic), Rule 401/402 (is it relevant), and Rule 403 (weigh probative vs. prejudicial).
The Cantrell case goes into depth about using a computer animation as demonstrative evidence:*
We hold that a computer-generated video animation is admissible as demonstrative evidence when the proponent shows that the animation is (1) authentic under Rule 901, SCRE; (2) relevant under Rules 401 and 402, SCRE; (3) a fair and accurate representation of the evidence to which it relates, and (4) its probative value substantially outweighs the danger of unfair prejudice, confusing the issues, or misleading the jury under Rule 403, SCRE.
Clark v. Cantrell, at 384, 529 S.E.2d at 536 (2000).
Here are some words of advice on using demonstrative evidence in a closing argument:
Yes. Pedagogical devices and other illustrative items that have not been admitted in evidence may be used during the closing argument. When intending to use such a device or item, alert opposing counsel and request permission from the trial judge before the arguments begin. In fact, it is probably a good idea to raise the subject in a motion in limine before the trial begins. Additionally, make sure the device or item accurately reflects the evidence at trial, or is not otherwise misleading in any respect. The judge's decision on whether or not to allow such devices or items is reviewed on appeal for abuse of discretion.
§ 14:67.May a lawyer during closing argument use pedagogical devices or other illustrative aids that have not been admitted in evidence?, Larsen, Navigating the Federal Trial § 14:67 (2018 ed.)
Here is a demonstrative exhibit that might help:
Demonstrative evidence can sway a jury, just make sure you know how to get it in front of them first.
*The court kindly reminds the reader that there is a difference between an animation and a simulation:
Courts and commentators distinguish a computer animation and a computer simulation. An animation is used to illustrate a witness's testimony by recreating a scene or process, and properly is viewed as demonstrative evidence. A simulation is based on scientific or physical principles and data entered into a computer, which is programmed to analyze the data and draw a conclusion from it. Courts require proof of the validity of the scientific principles and data before admitting a simulation as evidence.
Clark v. Cantrell, at 382, 529 S.E.2d at 535 (2000).