Demonstrative vs. Substantive Evidence

There are two main types of evidence presented in a trial: demonstrative and substantive (impeachment is a third, but that is discussed elsewhere). Demonstrative evidence usually explains other evidence or testimony. It is not directly relevant, rather it relies on other evidence that is material. It may be used in the courtroom for illustrative purposes, or it may become an exhibit.

Demonstrative evidence can be further divided into two categories: pedagogical and substitute. Substitution evidence is evidence that summarizes other material evidence. For example, a summary of a 10,000 page financial statement. There are certain requirements that summary evidence must meet and that is found under SCRE 1006. 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.

If it is determined that the evidence that is being introduced is real or substantive evidence, then it will need to pass all of the regular Rules of Evidence that are applicable. However, if the evidence is considered demonstrative, then there are likely two Rules of Evidence that will come into play (at least at first). If the demonstrative evidence is a summary of other material evidence, then look to SCRE 1006. If the demonstrative evidence is pedagogical, then start with SCRE 611. This rule gives the trial judge discretion to determine if the evidence is a fair and accurate representation of what it is trying to depict. To determine the fairness and accuracy, a trial judge should also look to the rules concerning authentication, relevance, and probative/prejudicial value.

In his book Navigating the Federal Trial,[1] United States Magistrate Judge Robert Larsen explains the process for 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.

There is a difference between demonstrative evidence and substantive evidence. It is important to distinguish which type of evidence is being sought to be introduced in order to make sure it complies with the correct Rule of Evidence. In this case, an expert testified for the defense on accident reconstruction. He created a video of the accident to go along with his testimony to explain that the defendant did not do what the State claimed that he did. The judge allowed the testimony but excluded the video from being admitted as evidence. The Supreme Court held that video re-creation of the accident was not demonstrative evidence, but rather it was substantive evidence. It was substantive evidence because the video was offered prove how the incident did not happen. “The results of experiments are substantive evidence.” Because it was substantive evidence, the trial judge should have used the proper Rules of Evidence to decide whether to admit the video and make a finding on the record of the rules that were used. · Hamrick v. State, 426 S.C. 638 (2019)

Demonstrative evidence usually explains other evidence or testimony. It is not directly relevant, rather it relies on other evidence that is material. Demonstrative evidence may be used in the courtroom for illustrative purposes, or it may become an exhibit. This case is from 2000, and the Supreme Court noted that computer-generated videos were “not an everyday occurrence.” The Court distinguishes between computer animations and computer simulations. They held that the computer-generated video in this case was an animation and thus it was demonstrative evidence. A simulation on the other hand is based on science and data entered into a computer that subsequently draws a conclusion. · Clark v. Cantrell, 339 S.C. 369 (2000)

“The trial court did not err in allowing the State to present still frames from the surveillance video to the jury during closing argument. See Clark v. Cantrell (‘Demonstrative evidence includes items such as a photograph, chart, diagram, or video animation that explains or summarizes other evidence and testimony.’); id. (‘Such evidence has secondary relevance to the issues at hand; it is not directly relevant, but must rely on other material testimony for relevance.’); id. (‘Demonstrative evidence is distinguishable from exhibits that compromise ‘real’ or substantive evidence, such as the actual murder weapon or a written document containing allegedly defamatory statements.’); id. (‘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.’). Here, the State used the still video frames to summarize the entire surveillance video, which had already been admitted into evidence. The trial court did not allow the still frames to go back with the jury, and Petitioner used the same video and paused it throughout his closing argument.” (cleaned up). · Brown v. State, No. 2017-002269, 2020 WL 5946149 (S.C. Ct. App. Oct. 7, 2020) (Unpublished Opinion)

SCRE 1006 allows for parties to introduce summaries of evidence when the underlying evidence is extremely voluminous. Before introduction, these requirements must be met: “The party seeking to admit a summary must demonstrate (1) the contents of the documents upon which the summary is based are so voluminous it would be inconvenient to examine them in court; (2) the underlying documents are admissible in evidence; (3) the summary is a faithful rendering of the underlying data, and any inferences it contains are supported by the contents and are neutral and non-argumentative; and (4) the originals or duplicates of the underlying documents have been made reasonably available to the other parties. Rule 1006 should be interpreted in light of its intended purpose as an exception to the best evidence rule of Rule 1002, SCRE. This does not mean a summary may not include anything not in the contents of the underlying documents; it may contain fair inferences and conclusions supported by the documents. 2 McCormick on Evidence § 241 (8th ed. 2020). But the more inferences a summary chart contains, the less likely it will be admissible under Rule 1006, the more likely it will draw an objection based on other grounds (including Rule 403, SCRE), and the more likely the trial court will decide not to admit the summary as an exhibit but restrict it to being a demonstrative aid.” · State v. Warner, 430 S.C. 76 (Ct. App. 2020) cert. granted (Jan. 22, 2021)

[1] “§ 15:67.” Navigating the Federal Trial, by Robert Larsen, Thomson Reuters, 2020.