with Advisory Committee Note and Commentary
from Field & Murray, Maine Evidence (4th Ed. 1997)
(a) Subject to the provisions hereof, depictions and objects not admissible in evidence may be used to illustrate the testimony of witnesses or the arguments of counsel.
(b) The court in its discretion may condition, restrict or exclude the use of any illustrative aid to avoid the risk of unfair prejudice, surprise, confusion or waste of time.
(c) Illustrative aids prepared before use shall be disclosed to opposing counsel before use so as to permit reasonable opportunity for objection under Subsection (b).
(d) Illustrative aids shall not accompany the jury during deliberations unless by consent of all parties or order of court on good cause shown.
(e) Illustrative aids shall remain the property of the party proposing them providing that:
i. during the trial they may be used by any party; and
ii. upon request of any party they shall be preserved for the record of further proceedings or on appeal.
(Adopted effective February 15, 1993)
ADVISORY COMMITTEE NOTE
This rule is intended to authorize and regulate the use of "illustrative aids" during trial.
Objects, including papers, drawings, diagrams, the blackboard and the like which are used during the trial to provide information to the finder of fact can be classified in two categories. The first category, admissible exhibits, are those objects, papers, etc., which in themselves have probative force on the issues in the case and hence are relevant under Rule 401. Such objects are admissible in evidence upon laying the foundation necessary to establish authenticity and relevancy and to avoid the strictures of the hearsay rule and other evidentiary screens. Usually the jury is permitted to take these objects with them to the jury room, to study them and to draw inferences directly from them relating to the issues in the case.
The second class of objects are those objects which do not carry probative force in themselves, but are used to assist in the communication of facts by a lay or expert witness testifying or by counsel arguing. These may include blackboard drawings, pre-prepared drawings, video recreations, charts, graphs, computer simulations, etc. They are not admissible in evidence because they themselves have no relevance to the issues in the case. Their utility lies in their ability to convey relevant information which must be provided directly from some actual evidentiary source, whether that source be witness or exhibit which is admissible in evidence. The ultimate credibility and scope of the information conveyed is that of the source, not that of the illustrative media.
This latter group of objects can be referred to as "illustrative aids." Sometimes they have been referred to as "demonstrative exhibits" or even "chalks."
Frequently voluminous evidentiary data is summarized in tabular, or even graphic form, and is offered as a summary under Rule 1006. A summary which presents the data substantially in its original form would be admissible in evidence. A summary which presents the data in a tabular or graphic form to "argue" the case or support specific inferences would be an illustrative aid and would be governed by this rule.
While such aids do not have evidentiary force in themselves, they can be extremely helpful in assisting the trier of fact to visualize evidentiary material which is otherwise difficult to understand. For the same reason, illustrative aids can also be subject to abuse. Sometimes the form of the illustrative may be grossly or subtly distorted to "improve" upon the underlying testimony, to oversimplify, or to provide subliminal messages. The opportunity for inventiveness and creativity in illustrative aids may exaggerate the effect of disparities in financial resources between parties.
The proposed rule addresses some of the most common issues associated with the use of illustrative aids.
First of all, Rule 616(a) permits the use of illustrative aids for the purpose of illustrating the testimony of witnesses or the arguments of counsel. In the case of witness testimony, the foundation for the use of an illustrative aid would be testimony to the effect that the aid would assist the witness in illustrating her testimony. It is clear that the object need not be admissible in evidence to be useful as an illustrative aid. Thus there is no need to establish the authenticity of an illustrative aid or even its accuracy as long as it has no probative force beyond that of illustrating a witness's testimony.
Paragraph (b) of the proposed rule makes clear, however, that the court retains the discretion to condition, restrict or exclude the use of any illustrative aid in order to avoid the risk of unfair prejudice, surprise, confusion or waste of time. This is similar to the discretion exercised by the court under Rule 403 in dealing with objects which are admissible in evidence. Because of the multiplicity of potential problems which may be encountered, it is deemed wiser to allow the court a measure of discretion in applying general standards rather than to establish a legal test for utilization of these media.
Some of the problems associated with the use of illustrative aids can include the following:
1. Cases where the illustrative aid is so crafted as to have probative force of its own. Few people would attribute much probative force to a blackboard drawing which is used to illustrate a witness's testimony. However, with a precisely drawn chart, or even more a computer video display, the perceived quality of the media may impart to the information conveyed a degree of authority, accuracy and credibility much greater than the source from which the information originally came. If the court finds that the use of illustrative aids results in a "dressing up" of testimony to a level of perceived dignity, accuracy or quality greater than it deserves and this works an unfair prejudice, the aid could be limited or excluded under Rule 616(a).
2. Sometimes illustrative aids are used to take advantage of and heighten a disparity in economic resources. The entertainment quality of certain media may give an edge to a wealthy litigant which is entirely unjustified by the actual facts.
3. There is risk that the jury may draw inferences from the illustrative aids different from those for which the illustrative aid was created and offered. This is especially likely to be a risk if the jury takes the aids with them in the jury room to experiment with or scrutinize.
4. Use of illustrative aids often makes a more informative visual presentation which is difficult to capture on an oral record. Problems of ownership and control of the aids may make it impossible to document in the transcript a meaningful record on appeal.
5. Ordinary discovery procedures concentrate on the actual information possessed by the witnesses and known exhibits. Illustrative aids as such are not usually subject to discovery and often are not prepared far enough in advance of trial. Their sudden appearance at trial may not give sufficient opportunity for analysis, particularly if they are complex, and may cause unfair surprise.
Illustrative aids may themselves become issues in the case leading to waste of time quibbling over the fairness of the illustrative aid, or battles between opponents marking up each other's illustrative aid, and the like.
One of the primary means of safeguarding and regulating the use of the illustrative aids is to require advance disclosure. The rules proposes that illustrative aids prepared before use in court be disclosed prior to use so as to permit reasonable opportunity for objection. The rule applies to aids prepared before trial or during trial before actual use in the courtroom. Of course, this would not prevent counsel from using the blackboard or otherwise creating illustrative aids right in the courtroom.
"Reasonable opportunity" for objection means reasonable under the circumstances. In a case where the aid is simple and is generated shortly before or even during trial, disclosure immediately before use would allow reasonable opportunity for the opponent to check out the aid. On the other hand counsel proposing to use a computer simulation or other complex illustrative media should be expected to make the aid and any information necessary to check its accuracy available sufficiently far in advance of use so as to permit a realistic appraisal and understanding of the proposed aid. The idea is to permit opposing counsel the opportunity to raise any issues of fairness or prejudice with the court out of the presence of the jury and before the jury may have been tainted by the use of the illustrative aid. This requirement of prior disclosure should be applied to both prosecution and defense in criminal cases consistent with constitutional rights of criminal defendants. The rule also provides that illustrative aids are not to go to the jury room unless all parties agree or unless the court orders. In many cases, it is likely that the parties will agree that certain illustrative aids might go to the jury room to aid the jury in their understanding of the issues. In other cases, it is possible that, despite the protest of one party, the court may determine that the jury's consideration of the issues might be so aided by an illustrative aid used during the trial that it should go with the jury to the jury room. But in the absence of such agreement or specific order, the residual rule would be that illustrative aids may be used in the courtroom only.
A recurrent problem with the use of illustrative aids arises from the fact that these are often proprietary items prepared by a particular party to give that party an advantage in the courtroom presentation. However, when a witness has relied heavily on an illustrative aid in giving her testimony, it is often impossible to cross-examine that witness effectively without the use of the same illustrative aid. Similarly, if an illustrative aid has been important in the presentation of one side, the other side ought to have access to that illustrative aid in meeting the testimony illustrated. "Use" of an illustrative aid does not mean despoiling it. Mutual courtesy and respect, reinforced if necessary by court supervision and aided by mylar overlays and the like, should suffice to preserve each party's illustrative aids from detracting markings by opposing counsel or witnesses.
The authorization here provided for the use of non-admissible "illustrative aids" does not prevent a party from using an actual probative exhibit also as an illustrative aid. For instance, a witness might be asked to indicate by marking on a photograph the location of an object which was not present at the time the photograph was taken. The photograph, as an exhibit, would be probative in itself. The jury could draw inferences directly from it. But the marks added by the witnesses would be a visual form of witness testimony. The preservation of that particular testimony in visual form for later inspection by the jury during deliberations might give that testimony undue weight and durability under the circumstances. Thus the court would have the discretion under this rule to withhold from the jury room an exhibit to which illustrative markings had been added if the markings would give undue weight to a witness's testimony on a disputed issue or otherwise would have some unfairly prejudicial effect.
The court would also have the discretion under this rule to restrict or prohibit marking on an evidentiary exhibit if the effect would be to remove the exhibit from the jury room during deliberations. Thus, if a counsel wishes to mark or to enhance an admitted exhibit or add additional material as an illustrative aid, it probably should be done on another counterpart of the exhibit or with a mylar overlay or some other suitable removable means so that the exhibit could be considered in the jury room in its original state.
Comparison with Federal Rule
There is no Federal Rule 616.
§ 616.1 Illustrative Aids in General
Since time immemorial, in Maine as well as elsewhere, witnesses testifying in court have been permitted to "illustrate" their testimony by a variety of media which in themselves do not qualify for admission in evidence. Such illustrative aids have traditionally included drawings on blackboards, maps and diagrams of various kinds, physical demonstrations by the witness with or without props, and, more recently, more elaborate charts, models, films, and even computer simulations. Sometimes this illustrative media is created on the spot, as with a blackboard drawing or in court physical demonstration. Sometimes the aid is prepared in advance, as with colorful graphs, models, or computer simulations, and used by the witness, often an expert witness, to make visual some of the information conveyed by the testimony.
Court decisions discussing the use and admissibility of this kind of material have employed various concepts and theories to justify and control its utilization in the courtroom. Sometimes it is referred to as "demonstrative evidence" and is offered and admitted in evidence even though not subject to authentication and equally objectionable as hearsay.(1) More frequently in practice demonstrative aids are not formally offered or admitted. Witnesses are permitted to draw upon blackboards or use prepared drawings to "illustrate" their testimony. Although these aids may be preserved for the sake of clarity of the record in case of an appeal, usually they have not been permitted into the jury room. They are supposed to be considered at the time the jury is listening to and considering the testimony of the witness since they are for the purpose of illustrating that testimony.
Illustrative aids are also used by counsel in opening statements and, more frequently, in closing arguments to the jury. Again, their use is limited to illustration of the points made by counsel. They are not supposed to have any evidentiary significance whatsoever.
With the development of more sophisticated media, the persuasive power of illustrative and demonstrative aids prepared for use at trial has become greatly magnified. Overhead transparencies (of admitted exhibits and inadmissible illustrative aids), drawings and charts, elaborate models and computer simulations (some complete with sound effects) can profoundly impress and even bedazzle a jury to a disproportionate degree. If abused, such techniques can have the potential for causing tremendous confusion and ineradicable prejudice on the part of the finder of fact.
The increasing use and importance of illustrative media in trial presentations led the Maine Advisory Committee on Rules of Evidence and the Maine Supreme Judicial Court to adopt Rule 616. This rule has no federal counterpart. The purpose of the rule is to clarify and regulate the permissible use of illustrative aids in Maine court proceedings.
The new rule makes it abundantly clear that the court retains and should exercise the power to control the use of illustrative media in the interest of preserving the fairness of the proceeding. Thus when a party proposes to use a particular demonstrative aid, whether or not it is offered in evidence,(2) the inquiry becomes whether or not the probative value of the demonstrative aid is substantially outweighed by the danger of unfair prejudice, confusion, etc. In the past, from time to time trial courts have exercised the power to control non-evidentiary demonstrations.(3) This rule confirms that power and makes it express.
§ 616.2 Distinction Between Illustrative Aids and Admissible Exhibits
Sometimes the borderline between materials which will be admissible in evidence and items which should be used only as illustrative aids is not a clear one. Rule 1006, for example, authorizes admission of "summaries" of voluminous exhibits. Sometimes this rule is cited as the basis for an offer in evidence of colorful graphs or charts on the ground that they are prepared from voluminous, but potentially admissible data. As is discussed in greater detail in § 1006.2 below, such illustrative recastings go beyond the summaries contemplated by that rule and should be considered illustrative aids rather than exhibits in evidence.
The Law Court has had the occasion to consider whether an adding machine tape summing individual bills, payments, etc. should be admitted in evidence. If prepared solely for trial or litigation purposes, an adding machine tape would not satisfy the foundation requirements of any exception to the hearsay rule and should not be admitted as an exhibit to be used in the jury room. The totals, however, and even the tape itself, could be used as a demonstrative aid to show how the total was arrived at.(4)
As explained in the Advisory Committee Note the theoretical distinction between actual demonstrative evidence, which should be offered and admitted in evidence and considered during jury deliberations on the one hand and "demonstrative" or illustrative aids which should be confined to use in the courtroom, on the other, turns on whether the material is of such a quality that the jury should be permitted to draw unsupervised inferences from it in the privacy of the jury room. Thus, in considering whether a drawing, chart, model, or other demonstrative exhibit has been sufficiently authenticated to be admitted in evidence, the court should consider whether relevant inferences can be fairly drawn by the finder of fact directly from the exhibit itself. If there are such inferences, then the exhibit, if duly authenticated, should be admitted in evidence and accompany the jury during their deliberations. If, on the other hand, the exhibit itself merely records or illustrates the testimony of a witness, its credibility and force and the legitimate inferences which may be drawn from it should not go beyond the testimony of the witness. Admission of such material in evidence and consideration in the jury room during deliberations introduces the risk that the jury will utilize the material and draw inferences from it which go beyond the testimony of the sponsoring witness. Ordinarily such material should not be admitted in evidence. Its use should be restricted to the courtroom where it can be supervised and policed by the court.
§ 616.3 Disclosure of Illustrative Aids
One requirement of Rule 616 which can affect trial planning outside the courtroom is the requirement that illustrative aids be disclosed to the other side sufficiently in advance of use so as to permit opportunity for objection. This is not intended as a discovery rule, but is aimed at preserving the fairness of the evidentiary presentation at the trial itself.
Some aids, such as drawings on a tablet or blackboard, are disclosed as they are drawn. There is no requirement that the contents of such drawings be formally disclosed in advance. Usually the subject matter and context of the testimony will give ample notice of the possible contents of an illustrative aid that the witness might draw to illustrate that testimony. Prejudice encountered in the aid as drawn can be addressed by objection lodged on the spot.
Other, more elaborate illustrative aids should be disclosed further in advance of use, as it may take more time for counsel to understand how the aid was created and its potential implications in the trial presentation. Computer simulations, in particular, sometimes entail a high risk of unfair prejudice and should be disclosed well in advance of trial. Since these are usually prepared well in advance of trial, such advance disclosure should be no burden on the proponents of this kind of media. Upon failure to make such advance disclosure in a civil case, and in most circumstances in a criminal case as well, the trial judge can prohibit the use of the aid or take other action to reduce or eliminate any prejudice caused by the nondisclosure.
In the ordinary civil case, advance disclosure of illustrative media should pose no problem for either party. However in a criminal case, if the defendant proposes to illustrate his or her own testimony with some kind of aid, required advance disclosure of the illustrative aid might be thought to burden the defendant's constitutional right to testify, to remain silent or to frame a defense to the charges. Application of the standard of reasonableness in the rule should take these issues into account. By the same token, if, for good and sufficient reason disclosure of an illustrative aid is delayed, the trial court has the power to grant a continuance, a pause in the trial, or other appropriate relief to allow the opposing party to gain some understanding of the illustrative aid and to object.
§ 616.4 Views
Frequently in both civil and criminal cases, it is advantageous, and sometimes it is even necessary, for the fact finder to view premises which may have a bearing on the case. The scene of a crime or accident, the allegedly defective building, or the real estate taken by eminent domain, are all likely candidates for an on-site visit and inspection by the fact finder.
The purpose for such an inspection or "view" is to give the factfinders a context for the actual evidence which is offered at the trial. A view is not to serve as a substitute for evidence provided in the courtroom, but is to assist the fact finder to understand the evidence. The decision is supposed to be based on the evidence, not on the view.
As the Law Court stated in State v. Heald,(5) the purpose of a view is not to receive evidence but "to enable the jury to more intelligently apply and comprehend the testimony presented in court." The decision to grant or deny a view is within the court's discretion.(6) In exercising the discretion, the court ordinarily weighs the benefit of a view to the jury's understanding of the case and the evidence to be offered during the trial against the cost, expense, and delay of interrupting or postponing the trial to bring the jury to see what there is to be seen. In the absence of an abuse of discretion, the trial judge's call will be upheld on appeal.(7)
1. See, e.g., Gaynor v. McEachern, 437 A.2d 867 (Me. 1981)(plan may be admitted in evidence to illustrate witness's testimony). Although the plan would clearly be an out-of-court statement offered for the truth of its contents, the court did not discuss the potential hearsay objection.
2. Of course if the illustrative aid is offered in evidence, Rule 403 is applicable to insure that the probative value is not substantially outweighed by the danger of unfair prejudice, etc.
3. See, e.g., State v. Philbrick, 436 A.2d 844 (Me. 1981) (elaborate demonstration by state police officer involving reconstruction of a portion of an automobile should have been excluded).
4. Northeast Bank & Trust Co. v. Soley, 481 A.2d 1123 (Me. 1984) (admission of adding machine tape to show total interest calculation might have been erroneous, but any error was harmless).
5. State v. Heald, 333 A.2d 696, 700 (Me. 1975).
6. State v. Heald, 333 A.2d 696 (Me. 1975); State v. Weeks, 634 A.2d 1275 (Me. 1993).
7. E.g., State v. White, 285 A.2d 832 (Me. 1972); State v. Weeks, 634 A.2d 1275 (Me. 1993) (in light of jurors' familiarity with automobiles, it is unlikely that a view would have helped understanding the testimony in a drunk driving case).