Learning Outcomes
This article examines the rules governing the admissibility of real, demonstrative, and experimental evidence under the Federal Rules of Evidence. After reading this article, you will understand the fundamental requirements for introducing these types of evidence, including authentication, relevance, and balancing probative value against prejudice under FRE 403. You will be able to apply these principles to distinguish these evidence types and analyze their admissibility in MBE scenarios.
MBE Syllabus
For the MBE, you are required to understand the fundamental requirements for admitting physical evidence and demonstrations. This includes:
- Distinguishing between real, demonstrative, and experimental evidence.
- Applying the rules of authentication (FRE 901, 902) to physical objects, including chain of custody.
- Analyzing the relevance of such evidence under FRE 401 and 402.
- Evaluating the admissibility of photographs, diagrams, models, summaries, and other demonstrative aids.
- Understanding the requirements for admitting results of experiments.
- Applying FRE 403 to exclude relevant evidence based on prejudice, confusion, or waste of time.
- Assessing requirements for jury views of scenes or evidence.
Test Your Knowledge
Attempt these questions before reading this article. If you find some difficult or cannot remember the answers, remember to look more closely at that area during your revision.
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Real evidence is best described as:
- Evidence used solely to illustrate testimony.
- Evidence generated specifically for trial purposes.
- A tangible object that played an actual role in the events at issue.
- Testimony about a physical object.
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To authenticate a photograph offered to show the condition of a car after an accident, the proponent generally must:
- Call the photographer to testify.
- Establish a complete chain of custody for the photograph.
- Introduce testimony from a witness with personal knowledge that the photograph fairly and accurately depicts the scene or object shown.
- Prove that the photograph was taken within 24 hours of the accident.
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Which factor is LEAST likely to be considered by a judge under FRE 403 when deciding whether to exclude relevant demonstrative evidence?
- The danger of unfair prejudice.
- The potential for confusing the issues.
- Whether the evidence is hearsay.
- Considerations of undue delay or waste of time.
Introduction
In addition to witness testimony, parties often seek to introduce physical items and demonstrative aids to help the trier of fact understand the case. These forms of proof, broadly categorized as real, demonstrative, and experimental evidence, are subject to specific basic requirements concerning authentication and relevance. While relevant evidence is generally admissible (FRE 402), these types of evidence can present unique issues under FRE 403, requiring the trial judge to balance their probative value against potential risks like unfair prejudice, confusion, or waste of time. Understanding these rules is critical for analyzing evidence questions on the MBE.
Real Evidence
Real evidence is tangible evidence that played an actual role in the event in question. It is often referred to as "the thing itself." Examples include the alleged murder weapon, the defective product in a products liability suit, or the contract in a breach of contract case.
Key Term: Real Evidence A tangible item (like a weapon, document, or article of clothing) that was actually involved in the events at issue in the litigation.
Authentication of Real Evidence
Before real evidence can be admitted, it must be authenticated. Authentication requires the proponent to produce evidence sufficient to support a finding that the item is what the proponent claims it is (FRE 901(a)). This standard is relatively low; the judge determines only whether there is sufficient evidence for a reasonable juror to conclude the item is genuine.
Authentication can be achieved through several methods:
- Personal Knowledge: A witness testifies that they recognize the object based on their perception at the relevant time. For example, a witness identifies a knife as the one they saw the defendant holding. If the item has unique or distinctive characteristics, recognition testimony is often sufficient.
- Chain of Custody: If the item is fungible (not easily identifiable, like drugs or blood samples), the proponent must establish a chain of custody. This involves accounting for the item's whereabouts from the moment it was seized until it is presented in court, ensuring it hasn't been tampered with or substituted. The proponent must show that the chain was substantially unbroken. Minor breaks in the chain typically go to the weight of the evidence, not its admissibility, unless there's evidence of tampering.
Key Term: Authentication The process of proving that an item of evidence is genuine – that it is what the proponent claims it to be. Required under FRE 901 before evidence can be admitted.
Key Term: Chain of Custody A method of authentication used for evidence that lacks unique identifying features (e.g., drugs, blood samples). It requires accounting for the evidence's location and handling from the time it was obtained until its presentation in court to ensure its integrity.
Relevance and FRE 403 Balancing
Like all evidence, authenticated real evidence must be relevant (FRE 401, 402). Furthermore, its probative value must not be substantially outweighed by the danger of unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence (FRE 403). For example, gruesome items might be excluded under FRE 403 if their inflammatory potential outweighs their probative value.
Demonstrative Evidence
Demonstrative evidence is evidence created for trial to illustrate concepts or facts for the jury. It did not play a role in the actual event but helps the jury understand testimony or other evidence. Examples include photographs, diagrams, models, maps, charts, and summaries.
Key Term: Demonstrative Evidence Evidence created for court (e.g., charts, diagrams, models) that illustrates testimony or other evidence but did not play a role in the actual events.
Requirements for Demonstrative Evidence
Demonstrative evidence also requires a basis before admission. The proponent must show:
- Authentication: Typically authenticated through witness testimony (often the witness whose testimony the aid illustrates) that the evidence is a fair and accurate representation of what it purports to depict.
- Relevance: The evidence must be relevant under FRE 401.
- FRE 403: Its probative value must not be substantially outweighed by the risks outlined in FRE 403.
Specific types of demonstrative evidence have particular considerations:
- Photographs and Videos: Authenticated by a witness with personal knowledge testifying that the photo or video fairly and accurately depicts the relevant scene or event. The photographer is not required. If taken by an unattended camera (e.g., surveillance video), authentication requires showing the process used produces an accurate result (e.g., camera was working properly, chain of custody for the recording).
- Diagrams, Maps, Models: Authenticated by witness testimony that they are fair representations of what they purport to show. They do not usually need to be perfectly to scale unless scale is critical.
- Summaries: Voluminous writings, recordings, or photographs may be presented as summaries, charts, or calculations if the originals are made available for examination or copying by other parties (FRE 1006).
Worked Example 1.1
Plaintiff sues Defendant for injuries sustained in a car accident. Plaintiff's attorney calls an eyewitness to testify about the accident scene. The attorney wishes to introduce a photograph showing the position of the cars immediately after the collision, taken by a passing motorist who is unavailable to testify. The eyewitness did not see the photo being taken but arrived moments after the crash. Can the eyewitness authenticate the photograph?
Answer: Yes, likely. The eyewitness can authenticate the photograph if she testifies that she has personal knowledge of the scene depicted (the position of the cars after the crash) and that the photograph is a fair and accurate representation of that scene as she observed it. It is not necessary to call the photographer or establish when the photo was taken, provided the eyewitness's testimony confirms its accuracy regarding the relevant time (immediately post-collision).
Experimental Evidence
Experimental evidence involves performing an experiment, either in court or out of court, and offering the results as evidence. The purpose is often to show how an event might have occurred or to test a particular claim.
Requirements for Experimental Evidence
Admissibility of experimental evidence depends on showing that the experiment was conducted under conditions substantially similar to those attending the original event. Dissimilarities typically go to the weight of the evidence, but if the conditions are too different, the evidence may be excluded as irrelevant or misleading under FRE 403.
The proponent must also provide testimony from a qualified individual explaining the experiment and its results accurately. The court has significant discretion in admitting experimental evidence, balancing its probative value against the risks of confusion, time consumption, and potential for misleading the jury.
Worked Example 1.2
In a products liability case, Plaintiff claims a tire blew out because of a manufacturing defect. Defendant manufacturer seeks to introduce a video of an experiment where an identical model tire, subjected to similar road conditions and speed, did not blow out despite being intentionally damaged in a way Defendant claims Plaintiff damaged the tire. Is the experimental evidence likely admissible?
Answer: Potentially yes, but it depends on the basis established. Defendant must demonstrate through expert testimony that the conditions of the experiment (tire model, road surface, speed, type and extent of induced damage, air pressure, vehicle weight, etc.) were substantially similar to the conditions surrounding the actual accident. If substantial similarity is shown, the evidence is relevant to rebut Plaintiff's claim. The court would then balance its probative value against FRE 403 concerns (e.g., Does the experiment accurately replicate conditions? Will it confuse the jury?).
Exam Warning
Do not confuse real evidence with demonstrative evidence. Real evidence was part of the event (the actual gun). Demonstrative evidence illustrates something about the event (a diagram of the crime scene). Both require authentication, but the methods often differ (chain of custody for real evidence vs. fair representation for demonstrative).
Jury Views
In some cases, the judge may permit the jury to view a location relevant to the case (e.g., the crime scene, the accident location) or a piece of evidence that cannot practically be brought into the courtroom (e.g., a large machine). This is called a "jury view." It is permitted at the trial judge's discretion and is subject to considerations of necessity, relevance, changes in the scene/object, and logistical feasibility. A jury view is intended to help the jury understand the evidence presented in court, not to constitute independent evidence itself.
Key Point Checklist
This article has covered the following key knowledge points:
- Real evidence is a tangible object involved in the event.
- Demonstrative evidence illustrates testimony or facts for trial.
- Experimental evidence involves recreating events or conditions.
- All types require authentication (FRE 901/902) and relevance (FRE 401/402).
- Authentication methods include personal knowledge/recognition and chain of custody.
- Demonstrative aids (photos, diagrams) require testimony of fair and accurate representation.
- Experiments require proof of substantially similar conditions.
- All are subject to FRE 403 balancing (probative value vs. prejudice, confusion, waste of time).
- Jury views are discretionary and aid understanding, not independent evidence.
Key Terms and Concepts
- Real Evidence
- Authentication
- Chain of Custody
- Demonstrative Evidence
