Delaware Trial Handbook § 20:11. VIEW OF A SCENE

In certain circumstances, a party may wish to have the jury or other trier of fact view the scene where the event or transaction at issue occurred. Whether or not to allow such a jury view is within the discretion of the trial court.133 The court may deny a request for a jury view if, in the court’s opinion, such a view would serve no useful purpose, for example, where photographs adequately inform the jury as to the scene.134 For a jury view to be purposeful, there must not have been a change in the surroundings.135

If the court permits a jury view, the trial judge, the parties and their lawyers accompany the jury. The jurors are instructed not to ask any questions of the lawyers or people who may be at the scene. The jurors are further instructed that they are not to consider what they see during the viewing as evidence in the case and that the purpose of the viewing is simply to assist the jurors in understanding and applying the testimony and exhibits introduced at trial.

In at least one non-jury case, the trial court accepted into evidence a videotape of the subject premises, thereby bringing the view to the court.136 A videotape of a view in a personal injury case may be rejected in the absence of any evidence that the scene, weather conditions and visibility are the same as the conditions on the date of the event.137

133. Thompson v. State, 399 A.2d 194, 198 (Del. 1979); Sheppard v. State, No. 234, 1990, slip op. at 7, Holland, J. (Del. Nov. 19, 1991) (ORDER), disposition reported at 604 A.2d 418 (Del. 1991) (TABLE). See also 10 Del. C. § 6108(d) (in condemnation cases, “[t]he Court, in its discretion, may determine whether or not the commissioners shall view the premises and if a view is ordered shall designate the time therefore”).

134. Thompson v. State, 399 A.2d 194 (Del. 1979). See also State v. Bilinski, Cr. A. No. 1N83-06-l725, slip op. at 6-9, Poppiti, J. (Del. Super. May 25, 1989), aff’d mem., 574 A.2d 262 (Del. 1990) (permitting view where trial court concluded that photographs and diagrams were inadequate).

135. See Seward v. Wilmington, 42 A. 451, 452 (Del. 1896). See also Seininski v. Wilmington Leather Co., 83 A. 20, 23 (Del. Super. 1911) (under former statute).

136. Fairwinds Shopping Center v. Five Star Video, Inc., C.A. No. 9lC-06-161, Del Pesco, J. (Del. Super. Apr. 2, 1993).

137.  Bougouneau v. Causey, C.A. No. 89C-JN-23, slip op. at 5, Graves, J. (Del. Super. June 13, 1991).

© 2010  David L. Finger