Demonstratives Allowed in Jury Room During Deliberations

By Sean T. Carnathan, Litigation News Associate Editor – September 24, 2013

Showing demonstrative exhibits to the jury is a key part of any trial, but getting them back into the jury room is another matter altogether. In United States v. Natale, the U.S. District Court for the Northern District of Illinois allowed the jury, during deliberations, to review prosecution demonstrative exhibits, which its expert witness used to illustrate his trial testimony. The U.S. Court of Appeals for the Seventh Circuit affirmed the defendant’s conviction in a decision that highlights the tension between the benefit to the jury from access to demonstrative exhibits and the risk of overemphasizing one side’s spin on the facts.

The Underlying Conviction
Dr. John Natale appealed from his conviction for making false statements related to healthcare in violation of 18 U.S.C. § 1035. At trial, the prosecution presented expert testimony to the effect that Dr. Natale falsified his operating reports to justify the use of higher-paying billing codes than properly applied to the procedures. The prosecution expert used demonstrative exhibits to illustrate his testimony to the jury, and the trial court, after removing certain headings, allowed the jury to consider them during deliberations.

Trial Court Ruling Upheld
On appeal, the defendant argued that the demonstrative exhibits misled the jury and “transported” the government’s expert into the jury room. The Seventh Circuit affirmed the trial court’s discretionary ruling to permit the demonstrative exhibits used by the government’s expert witness to go to the jury room during deliberations. The appellate court ruled that the trial court was “evenhanded” in its treatment of the prosecution and defense, noting that the court afforded the defense the opportunity to send competing demonstrative exhibits to the jury, which it did.

The circuit court also found that because the prosecution removed labels from the demonstratives to differentiate the diagrams depicting the expert’s conclusions from those depicting the procedure in the defendant’s operating report, the jury had to use its collective memory to make that distinction. “Thus,” said the court, “the demonstratives did not have the effect of sending [the expert] himself into the jury room with the jurors.”

The Dangers of Allowing Demonstratives into the Jury Room
“Demonstrative exhibits can be really dangerous,” says Ian H. Fisher, Chicago, cochair of the ABA Section of Litigation’s Trial Evidence Committee. “They did not exist at the time of the underlying issues. They were created by one side or the other for the purpose of winning the case. They can prejudice the jury in subtle ways,” says Fisher.

More often than not, courts err on the side of caution and keep them out of the jury room. “Courts are all over the board on whether to let demonstratives into the jury room, but most shy away from it,” observes Fisher. “The court will not be reversed for refusing to let the exhibits go to the jury room.”

“The demonstratives were fair because the court allowed the defendant the opportunity to present his own demonstratives as well as challenge the accuracy of the diagrams and the diagrams did not contain the witness’s notes or labels which would have impermissibly brought the witness’s testimony into the deliberation room,” says Erek L. Barron, Bethesda, MD, cochair of the Section of Litigation’s Criminal Litigation Committee. “Giving each side the same opportunities will probably be enough for most courts of appeal, particularly given the wide latitude given trial judges,” notes Barron.

Ways to Keep Exhibits Out
A successful challenge to the court’s decision to allow demonstrative exhibits must connect the dots for the appellate court. “Litigants should focus on what judgments are being made by a diagram and connecting those judgments to an issue in the case,” says Barron. “Here, Dr. Natale didn’t connect the diagram to the issue he chose to challenge, which was that he didn’t have the requisite intent.”

Removing labels does not necessarily remove an expert’s opinion from a demonstrative exhibit. “An expert’s diagram can transport him into jury deliberations by promoting something as more important by making it bigger,” says Barron. Here, for example, despite the removal of the labels, the challenged diagrams may have implicitly reflected the prosecution expert’s opinions through the way the expert illustrated his points.

General Practice Pointers
“From a practice standpoint, one thing you should think about is other ways to put demonstrative-like exhibits into evidence,” recommends Fisher. “For example, a summary chart under Federal Rule 1006 is real evidence that can go back to the jury room. You have to comply with the qualifications of the rule, but that is not hard.”

“Also, if you think that demonstrative evidence may have a big impact, then you should consider a motion in limine to resolve the issue early on,” says Fisher. “If you are the proponent of the exhibit, and the court excludes it from the jury room, you have time to work on your plan B, such as a summary chart. If you are the opponent and the court rules that the exhibit will go to the jury, then you can get to work on your competing demonstrative.”

Keywords: demonstratives, jury deliberations, expert witnesses