I. SEPARATING REAL EVIDENCE FROM DEMONSTRATIVE EVIDENCE.
A. Real evidence is evidence in a form permitting the trier of fact to apply its own sense impressions, and draw its own conclusions from them, on an issue in the case.
1. Real evidence is thus distinguishable from testimonial evidence, as to which the trier of fact must decide whether to rely upon a witness’s sense impressions.
2. Real evidence is an article or object which has an historical connection with the transaction giving rise to the suit.
3. Examples of real evidence include:
a. The plaintiff showing a scar on his arm to the jury.
b. A will the decedent signed before death.
c. The pistol used by the defendant during an assault.
B. Demonstrative evidence is an object or article used to help a witness demonstrate or illustrate oral testimony.
1. The purpose of demonstrative evidence is to aid the fact finder by clarifying and explaining testimony.
2. Among the most frequently utilized types of demonstrative evidence are maps, sketches, diagrams, and models.
3. Examples include:
a. A pistol like the pistol allegedly used in an assault, when the original pistol is not available.
b. A chart or drawing or diagram helping describe the scene of an accident or a crime.
c. A skeleton used by someone providing medical testimony to clarify his/her testimony.
II. ADMISSIBILITY OF REAL EVIDENCE.
A. Evidence is generally admitted if it is relevant. Courts have an even more relaxed standard for the admissibility of real evidence. Although real evidence sometimes can have very high probative force – as, for example, when it is used as direct proof of an ultimate issue – it also may serve only to illustrate testimony directed to the background or setting of the litigated transaction. In this latter circumstance, the probative force of the real evidence is marginal at best, but courts nonetheless admit the evidence unless it has a potential for causing confusion or delay. Perhaps it may be generalized that courts consider real evidence “relevant” if it either increases the probability of a consequential proposition or assists the trier in understanding the case. Lilly, An Introduction to the Law of Evidence, sec. 13.2, p. 513.
B. Real evidence, like all other evidence, is subject to the objection that its probative value is substantially outweighed by prejudice, distraction, confusion or undue delay. See Wis. Stat. § 904.03. With real evidence, this balancing test most often is required when the proffered item likely will inspire a sharp emotional response such as pity or repugnance. Nonetheless, when the evidence displays a condition that is an issue, the courts almost always will admit it. Because the trial judge has considerable discretion in balancing the worth of real evidence against its negative aspects, reversals of trial court rulings are relatively rare. Lilly at 513-14.
C. Wisconsin Cases.
1. The Wisconsin Supreme Court has approved exposing physical injuries to the jury. In Bellart v. Martell, 28 Wis. 2d 686, 694, 137 N.W.2d 729 (1965), the accident which was the subject of the lawsuit caused the plaintiff to suffer amputation of the right hand two inches above the wrist and amputation of his left leg well above the knee. In testimony relative to the issue of damages, he described the prosthetic devices he used on each limb. He demonstrated how the various prosthesis that he wore worked, and removed them from his limbs and exposed the stumps to the jury. Motion for mistrial by defense counsel was denied.
a. The standard of review was abuse of discretion.
b. The Supreme Court held “upon this record, the learned Circuit Judge may reasonably have concluded that a brief view of the stumps would make [plaintiff’s] testimony concerning the use and difficulties of the prosthetic devices more meaningful. Moreover, it seems to us improbable that these exhibitions affected any of the findings on liability issues.” Id. at 694. No abuse of discretion was found.
2. In an action for injuries occasioned by a defective plank sidewalk, it was not error to allow a witness to exhibit pieces of the plank to the jury. Viellesse v. City of Green Bay, 110 Wis. 160, 85 N.W.665 (1901).
3. Pieces of a bridge admitted into evidence to show the condition of the bridge at the time it broke down and caused an accident were properly received in evidence. Walker v. Village of Ontario, 118 Wis. 564, 95 N.W. 1086 (1903).
4. Permitting a victim of a dog bite to exhibit the injured portion of his body to the jury in an action against the owner of the dog for damages was within the trial court’s discretion. Tatreau v. Buecher, 256 Wis. 252, 40 N.W.2d 509 (1950).
5. Allowing a plaintiff’s foot and ankle to be exhibited to a jury was not an abuse of discretion because it enabled a doctor to show how the injured foot differed from the other foot. Jansen v. Herkert, 249 Wis. 124, 23 N.W.2d 503 (1946).
6. It was error to permit a plaintiff to introduce into evidence pieces of a broken train rail picked up after they had been exposed to the weather for six months after the accident and to permit the jurors to draw a conclusion as to the soundness or unsoundness of the rail. Stewart v. Everts, 76 Wis. 85, 44 N.W. 1092 (1890).
7. The trial court erred in refusing to admit into evidence an automobile which had been preserved in the state it was in after the accident, though it was not physically in the courtroom, but the error was not prejudicial because there were at least eight photographs of the automobile in evidence. Keplin v. Hardware Mutual Casualty Co., 24 Wis. 2d 319, 129 N.W.2d 321 (1964).
8. In an action for assault and battery, it was within the trial court’s discretion to overrule an objection to the admission of the dress worn by the plaintiff at the time of the attack. Kink v. Kombs, 28 Wis. 2d 65, 135 N.W.2d 789 (1965).
9. The Supreme Court of Wisconsin has also allowed plaintiff to demonstrate a noise which results in his shoulder when his arm was moved up and down. Hiller v. Johnson, 162 Wis. 19, 154 N.W. 845 (1916). The trial court allowed the plaintiff to raise his arm up and down before injured or imperfect joint. Plaintiff’s counsel asked jurors if they could hear it and asked them to put their ear to his arm and the jurors then could hear the noise.
a. The court said “we see no reason why jurors may not use their ears as well as their eyes in ascertaining the extent or nature of alleged injuries where, as here, no expert knowledge is necessary to do so. Id. at 23.
b. Trial courts must be given a wide discretion in determining just how far experiments before a jury may be carried. Where they do not border upon the unseemly or are not palpably misleading or otherwise improper, this court will not criticize them, much less pronounce them prejudicially erroneous. Id.
c. Justice will be promoted rather than thwarted by a little loosening of the straight jacket in which trial courts have found themselves in the past. That they will meet the added freedom with commensurate care and wisdom may be confidently expected. Id.
III. ADMISSIBILITY OF DEMONSTRATIVE EVIDENCE
A. In general, a witness is permitted to refer to tangible objects as an aid in giving oral testimony. The only appropriate limitation is that such references should be helpful rather than confusing.
B. The only limits on demonstrative evidence are the trial judge’s discretion and the trial attorney’s imagination.
C. Wisconsin cases.
a. The Supreme Court has allowed the use of a blackboard as an aid to illustrate or demonstrate in the course of proper argumentation by counsel. Affett v. Milw. & S.T. Corp., 11 Wis. 2d. 604, 106 N.W.2d 274, (1960). The court said “what the ear may hear, the eye may see.” Id. at 614. The court, however, said that the taking of a photograph of the blackboard in the presence of the jury should not have been permitted. The court reasoned that photographing the blackboard could not fail to unduly impress the jury with the importance of the figures and argument of the plaintiff’s counsel. Id.
b. In State v. Schenk, 53 Wis. 2d 327, 336, 193 N.W.2d 26 (1972), a blackboard containing a diagram prepared of the tavern which was the scene of a shooting was present in court and used by both counsel. The use of the blackboard was upheld because both counsel had used it without objection at trial.
2. Measurements in Court.
a. Also in the Schenk case, a police officer made marks on the courtroom wall at a height to represent the height of the defendant, and the represent the height of the bullet hole. On appeal, the defendant objected to the measurements. The Supreme Court noted that the measurements were based on evidence which was already in the record, that they were not made in the presence of the jury nor were they photographed nor were they offered into evidence and therefore the trial court’s allowance of such measurements to be made was upheld. Id. at 338.
a. The distinction between real evidence and aids to testimony is strained by the problem of classifying photographs of events or injuries at issue in the case. Traditionally, photographs were allowed into evidence only as aids to testimony, but many times they are also treated as real evidence.
b. When photographs are reconstructions of events, rather than actual photographs of real evidence such as an accident scene, they may be used as aids to testimony as long as the parties agree that the scene occurred essentially in the manner portrayed. If there is substantial disagreement, the tendency is to exclude the photographs on the ground that any photograph may too readily be taken as embodying objective fact.
c. When a trial court admitted photographs of the plaintiff showing his physical condition soon after an accident, including the plaintiff’s teeth with a wire jaw, the Supreme Court upheld the ruling, saying: “It would have been better if the trial court had not included the photographs, especially the ones showing the plaintiff’s teeth with the wired jaw, as such photographs might tend to inflame the jury. However, the admission of photographs is largely a question which is left to the discretion of the trial judge, and in view of the fact that the condition and the manner in which the fracture was treated were adequately described by the medical testimony, we find no abuse of discretion on the part of the trial court in admitting the photographs.” Walker v. Baker, 13 Wis. 2d 637, 651, 109 N.W.2d 499 (1960).
d. A tool taken from a defendant’s car was photographed and the photograph admitted. Anderson v. State, 66 Wis. 2d 233, 247, 223 N.W.2d 879 (1974). The Supreme Court said that the photograph was useful to the jurors to give them a clear idea of the kind of tool involved.
4. Maps and Diagrams.
a. A detailed diagram of an accident scene, including where the vehicles were at various points during the accident, was allowed into evidence by a trial court and upheld by the Supreme Court in Rude v. Algiers, 4 Wis. 2d 615, 621, 91 N.W.2d 198 (1958). The Supreme Court said: “Where a map or diagram is used for the purpose of illustration and argument as to what might have happened, or as here, what could not have happened, and not as accurate representations of what did happen, we do not think that the same strict adherence to fact supported by testimony is necessary as in the case of hypothetical questions asked of expert witnesses. In making marks on a diagram as it is kept clear that there is no attempt to represent what actually happened. The trial court has wide discretion with respect to such matters. Where there appears to be any likelihood that the jury may be confused or misled by reception of such an exhibit in evidence, the trial court would do well to give an appropriate cautionary instruction. Id.
5. Chart of Muscles and Skeletons.
a. When the plaintiff offered as exhibits a chart of the muscles of the body and a model skeleton of a spinal column made out of plastic, and a medical witness
testified that the use of the two exhibits would be helpful in clarifying and explaining his testimony, the trial court’s refusal to permit the use of such visual aids was error, but not prejudicial. Hernke v. Northern Ins.Co., 20 Wis. 2d 352, 359, 122 N.W.2d 435 (1963). The Supreme Court said: “Almost all courts have recognized that whether demonstrative evidence is to be received rests largely in the discretion of the trial judge. It has been observed that many people learn and understand better with their eyes then they do with their ears. It would seem that the alignment of bones and muscles is sufficiently obscure to the average juror so as to make a visual demonstration helpful. We are of the opinion that it would have been preferable for the trial court to have permitted the use of the chart and skeleton in the instant case. It’s refusal to do so, however, was not prejudicial.” Id.
6. Summarization Charts Prepared By Counsel.
a. In a case involving the sanity phase of a defendant’s trial, the defendant’s counsel prepared four charts containing items which were designed to help a lay jury understand psychiatric terms. The defendant sought to use the charts during opening statement to show the various classifications of mental disorders. The trial court did not permit the use of the charts in opening statements, but said he saw no problem in using them during closing arguments. On review, the Supreme Court said that the charts were summarizations of the conclusions of various psychiatrists, and thus the defendant sought to emphasize conclusions reached in mental examinations conducted prior to trial. The refusal to permit the use of these charts in counsel’s opening statement was not an abuse of discretion by the trial court. Beavers v. State, 63 Wis. 2d. 597, 610, 217 N.W.2d 307 (1974). See also Wis. Stat. § 910.06.
7. Duplicate Objects
a. During trial, the prosecution produced a torque wrench which was like the wrench found in the backseat of the defendant’s car. It was never moved or admitted into evidence, but rather was simply shown to the jury. The defense objected and the Supreme Court said “the wrench was demonstrative evidence and, as such, was not improperly utilized. Demonstrative evidence, whether a model, a chart, a photograph, a view, or, as here, a duplicate, is used simply to lend clarity and interest to oral testimony. As noted above with respect to photographs, the duplicate is merely incorporated by reference into a witness’s testimony. Anderson v. State, 66 Wis. 2d 233, 248, 223 N.W.2d 879 (1974).
8. Video Animations.
a. In Roy v. St. Luke’s Medical Center, 2007 WI App 218, 305 Wis. 2d 658, 741 N.W.2d 256, a medical malpractice case, the court upheld the admission of a video animation depicting an angiogram procedure. The court held that the video animation was a “graphic illustration” of the doctor’s testimony and was no different than a doctor drawing a picture during his testimony.