Demonstratives Allowed in Jury Room During Deliberations

Date: September 24, 2013

Erek Barron was quoted in length in the American Bar Association article, "Demonstratives Allowed in Jury Room During Deliberations."

“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. 

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