“Real” evidence includes tangible items having some role in the transaction at issue, such as the instrumentality of a crime, an allegedly defective product or a tape recording of an event. “Demonstrative” evidence includes items such as charts, maps and models which may or may not be admissible into evidence but are proper for use in the courtroom to serve as an aid to the jury in understanding the testimony.
It is within the discretion of the trial court to admit or exclude real or demonstrative evidence such as photographs,1 tape recordings,2 sketches3 and other items.4 The test of admissibility is (i) whether the physical evidence is relevant,5 and (ii) if relevant, whether the probative value of the evidence is substantially outweighed by the danger of unfair prejudice, confusion of the issues or misleading the jury or by consideration of undue delay, waste of time or needless presentation of cumulative evidence.6 The fact that the proffered evidence cannot be linked conclusively to a party, though relevant as to its weight, does not affect its admissibility.7
Use of visual aids, such as PowerPoint presentations, has become increasingly popular. The admissibility of such presentations depends on their content and applicability. They may not be used to put forward impermissible evidence or make improper arguments before the jury. In other words, a visual presentation may not be used to make an argument visually that could not be made orally.7.1
In criminal cases, “mug shots” of a defendant, as opposed to a photograph of the crime scene or other objective pictures, may be admitted only if (1) the prosecution demonstrates a need to introduce the photograph; (2) the photograph, if shown to the jury, does not imply that the defendant has a prior criminal record; and (3) the introduction at trial does not draw particular attention to the source or implication of the photograph.8
In criminal cases, the fact that a photograph of a crime victim or event may be gruesome or unpleasant does not render it inadmissible per se. The trial judge must determine if the probative and material evidentiary value of the photograph, with regard to establishing an element or elements of the alleged offense, is substantially outweighed by potentially unfair prejudice to the defendant. The fact that the contents of the photographs could have been presented by verbal testimony dies not affect this balance. If photographs are admissible, it is within the discretion of the trial judge whether or not to allow the photographs to be presented in the form of images projected onto a large screen.8.1
1. Lynch v. State, 588 A.2d 1138, 1141 (Del. 1991); Diaz v. State, 508 A.2d 861, 865 (Del. 1986); Deputy v. State, 500 A.2d 581, 592 (Del. 1985), cert. denied, 480 U.S. 940 (1987); Van Arsdall v. State, 486 A.2d 1, 8 (Del. 1984), vacated on other grounds, 475 U.S. 673 (1986); Bailey v. State, 490 A.2d 158, 167 (Del. 1983), cert. denied, 464 U.S. 867 (1983), and cert. denied, 474 U.S. 873 (1985); Cooper v. State, 453 A.2d 800, 801 (Del. 1982); Dickens v. State, 437 A.2d 159, 162 (Del. 1981); Whalen v. State, 434 A.2d 1346, 1356 (Del. 1980), cert. denied, 455 U.S. 910 (1982); Hunter v. State, 420 A.2d 119, 122 (Del. 1980), vacated on other grounds, 450 U.S. 991 (1981); Casalvera v. State, 410 A.2d 1369, 1372-73 (Del. 1980); Young v. State, 407 A.2d 517, 522 (Del. 1979), cert. denied, 446 U.S. 940 (1980); Boyd v. State, 389 A.2d 1282, 1289 (Del. 1978), cert. denied, 439 U.S. 969 (1978); Conyers v. State, 396 A.2d 157, 160 (Del. 1978); Delmarva Power & Light v. Stout, 380 A.2d 1365, 1369 (Del. 1977); Shantz v. State, 344 A.2d 245, 246 (Del. 1975); Lane v. State, 222 A.2d 263, 266 (Del. 1966); Tucker v. State, 187 A.2d 429, 431 (Del. 1963); Miller v. State, 137 A.2d 388, 391 (Del. 1958); Wisniewskj v. State, 138 A.2d 333, 337 (Del. 1957); Bantum v. State, 85 A.2d 741, 746 (Del. 1952).
2. Lynch v. State, 588 A.2d 1138, 1141 (Del. 1991); Gibbs v. State, 479 A.2d 266, 272 (Del. 1984); Lewis v. State, 416 A.2d 208, 210 (Del. 1980).
3. McCotter Transport Co. v. Hall, 148 A.2d 110, 114 (Del. 1959).
4. Van Arsdall v. State, 486 A.2d 1, 8 (Del. 1984), vacated on other grounds, 475 U.S. 673 (1986) (clothing); Dutton v. State, 452 A.2d 127, 138 (Del. 1982) (bones).
5. See D.R.E. 402. For a discussion of what is “relevant,” see § 13:4.
6. D.R.E. 403. See also Diaz v. State, 508 A.2d 861, 865 (Del. 1986); Dickens v. State, 437 A.2d 159, 162 (Del. 1981); Conyers v. State, 396 A.2d 157, 160 (Del. 1978).
7. Ward v. State, 575 4.2d 1156, 1160 (Del. 1990).
7.1. Spence v. State, 129 A.3d 212, 223 (Del. 2015).
8. McNair v. State, 990 A.2d 398, 402 (Del. 2010); Stephenson v. State, 606 A.2d 740, 741 (Del. 1992); Brookins v. State, 354 A.2d 422, 423 (Del. 1976).
8.1. Page v. State, 934 A.2d 891, 900 (Del. 2007); Ortiz v. State, 869 A.2d 285 295-97 (Del.), cert. denied, 546 U.S. 832 (2005); Keperling v. State, 699 A.2d 317, 319 (Del. 1997).
© 2016 David L. Finger