Demonstrative evidence, like a chart, a map or a drawing are effective ways to clarify an issue to a finder of fact. While common in accident cases where the laws of physics need to be explained to a jury, demonstrative evidence is not especially common in Illinois divorce cases.
Demonstrative exhibits are a great idea when it comes financial issues like equitable distribution and maintenance (formerly known as alimony). For example, a pie chart showing the percentage of assets each party is allotted can help sway the judge as to what an equitable division of assets would be.
Furthermore, Illinois divorce attorneys rarely use spreadsheets in trial to illustrate a division of assets when we always use them in mediation and negotiation. Those spreadsheets could be submitted into evidence as demonstrative exhibits.
Additionally, the best interests of a child can be illustrated by photos of happy children and clean homes. While every photo is probably substantive evidence, it can also be brought in as demonstrative regarding previous testimony.
Most evidence is oral testimony so a visual representation of the oral testimony (demonstrative evidence) is often clearer and more understandable.
“It is said its great value [in demonstrative evidence] lies in the human factor of understanding better what is seen than what is heard.” Smith v. Ohio Oil Co., 10 Ill. App. 2d 67, 75 (Ill. App. Ct. 1956)
Demonstrative evidence is usually used in trial that have jurors. Jurors come from all walks of life and levels of education. Demonstrative exhibits can help a juror understand a concept better.
Divorces in Illinois are not decided by jurors, they are decided by judges. In an Illinois divorce case “[t]here shall be no trial by jury” 750 ILCS 5/103
Judges may be more sophisticated but judges also appreciate the clarity a demonstrative exhibit can provide. The trouble with demonstrative exhibits is that they can be overly one-sided. Imagine a father with every other weekend and Wednesday afternoons showing a pie chart indicating he only gets 17% of the week with the child. A judge could justifiably say that the exhibit is confusing and prejudicial, and, therefore, the judge won’t admit it into evidence and, therefore, will not consider the chart.
“The admission of demonstrative evidence that may confuse or mislead the [finder of fact], or prejudice a party, constitutes an abuse of the trial court’s discretion.” Lorenz v. Pledge, 12 N.E.3d 550, 556 (Ill. App. Ct. 2014)
When Is Demonstrative Evidence Admissible In An Illinois Divorce Trial
“The primary considerations in determining whether demonstrative evidence is admissible or may be used at trial are relevancy and fairness.” Sharbono v. Hilborn, Docket No. 3-12-0597, 10 (Ill. App. Ct. 2014)
Demonstrative evidence must pass the same relevancy test that all evidence must undergo. Evidence must be more probative than prejudicial to be admitted.
“”Relevant evidence” means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” Rule 401 – Definition of “Relevant Evidence”, Ill. R. Evid. 401
“All relevant evidence is admissible, except as otherwise provided by law. Evidence which is not relevant is not admissible.” Rule 402 – Relevent Evidence Generally Admissible; Irrelevant Evidence Inadmissible, Ill. R. Evid. 402
“Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.” Rule 403 – Exclusion of Relevant Evidence on Grounds of Prejudice, Confusion, or Waste of Time, Ill. R. Evid. 403
“Physical objects that are admitted into evidence or used at trial (physical evidence) fall into one of two categories, real evidence or demonstrative evidence. A physical object that has a direct part in the incident at issue such that it has probative value in and of itself is considered to be real evidence. On the other hand, a physical object that does not have a direct part in the incident at issue and is only being used to help explain or illustrate to the trier of fact the verbal testimony of a witness or other evidence is considered to be demonstrative evidence. Demonstrative evidence has no probative value in and of itself and is merely admitted or used as a visual aid to the trier of fact.” Sharbono v. Hilborn, Docket No. 3-12-0597, 10 (Ill. App. Ct. 2014) (citations omitted)
Demonstrative evidence is better conceived as what it is not: actual evidence. Demonstrative evidence only supplements actual evidence already admitted.
“The use of demonstrative evidence, therefore, is looked upon favorably by the courts because it allows the trier of fact to have the best possible understanding of the matters before it. However, the same human factor that makes demonstrative evidence valuable-that people learn and understand better what they see, rather than what they hear-also makes it possible for parties to abuse the use of demonstrative evidence by giving a dramatic effect or undue or misleading emphasis to some issue, at the expense of others. Thus, in ruling upon the admissibility of demonstrative evidence, the trial court must be ever watchful to prevent or eliminate that abuse.” Sharbono v. Hilborn, Docket No. 3-12-0597, 10 (Ill. App. Ct. 2014) (citations omitted)
How To Admit Demonstrative Evidence In An Illinois Divorce
“[B]efore demonstrative evidence may be presented or admitted at trial, a proper foundation for the use of the evidence must be established.” Yanello v. Park Family Dental, 2017 IL App (3d) 140926
“For a party to introduce demonstrative evidence, a foundation must be laid by a person having personal knowledge of the object that the object is an accurate portrayal of what it purports to show.” Preston v. Simmons, 321 Ill. App. 3d 789, 802 (Ill. App. Ct. 2001)
Spreadsheets must be introduced by the person who prepared the spreadsheet after explaining what data they used to make the spreadsheet. This background data must have its own foundation laid independently. Typically, the data will be attached to the spreadsheet.
For a spreadsheet to be admitted “[l]aying a proper foundation would require [a party] to “go point by point.” In re Marriage of Hamilton, 128 NE 3d 1237 – Ill: Appellate Court, 5th Dist. 2019
For photographic demonstrative evidence, “[a] proper foundation for the admission of a photograph is established when a witness identifies it as a correct representation of certain facts relevant to the issues in the case; and the witness need not be the taker of the photograph or know of the time or condition of the taking.” Lawson v. Belt Railway Co. of Chicago, 34 Ill. App. 3d 7, 26 (1st Dist. 1975)
Who Presents The Demonstrative Exhibit
Whoever made the demonstrative exhibit or is sufficiently familiar with the exhibit and the underlying facts should present the exhibit. Often, this is the lawyer themself.
This may provoke the opposing counsel to object saying that the lawyer is now testifying.
“A lawyer shall not act as advocate at a trial in which the lawyer is likely to be a necessary witness unless:
(1) the testimony relates to an uncontested issue;
(2) the testimony relates to the nature and value of legal services rendered in the case; or
(3) disqualification of the lawyer would work substantial hardship on the client.” Ill. Sup. Ct. R. 3.7(a)
To answer any objections about a lawyer testifying as to a demonstrative exhibit, explain that “necessary” means that only one person could testify to the demonstrative exhibit. Anyone could have prepared the exhibit, therefore anyone could testify.
Do You Have To Disclose Demonstrative Exhibits Before Your Divorce Hearing Or Trial?
No. You do not have to let the opposing side know in advance that you’ll be using a demonstrative exhibit…unless they ask.
Normally, you have to let the opposing side know what witnesses you’re going to call via interrogatory and what that witness is going to discuss.
“The information disclosed in answer to a Rule 213(f) interrogatory, or in a discovery deposition, limits the testimony that can be given by a witness on direct examination at trial. Information disclosed in a discovery deposition need not be later specifically identified in a Rule 213(f) answer, but, upon objection at trial, the burden is on the proponent of the witness to prove the information was provided in a Rule 213(f) answer or in the discovery deposition.” Rule 213 – Written Interrogatories to Parties, Ill. Sup. Ct. R. 213(g)
Failure to disclose the witness and their subject matter can bar presentment of that evidence.
Demonstrative exhibits are not substantive evidence.
If the opposing side asks for any demonstrative exhibits, you have to share them.
“Material prepared by or for a party in preparation for trial is subject to discovery only if it does not contain or disclose the theories, mental impressions, or litigation plans of the party’s attorney.” Rule 201 – General Discovery Provisions, Ill. Sup. Ct. R. 201
This is largely a moot point because most judges will require an exchange of exhibits in advance of trial.
“All dates set for the disclosure of witnesses, including rebuttal witnesses, and the completion of discovery shall be chosen to ensure that discovery will be completed not later than 60 days before the date on which the trial court reasonably anticipates that trial will commence, unless otherwise agreed by the parties.” Rule 218 – Pretrial Procedure, Ill. Sup. Ct. R. 218
Keeping Demonstrative Exhibits Out Of An Illinois Court
The only reason someone prepares a demonstrative exhibit is to make a good, clear point.
If your opponent has prepared a demonstrative exhibit, they are going to make a good clear, point and you want to keep them from making that point.
There are numerous objections you can make against a demonstrative exhibit.
- The proposed exhibit needs foundation and to be authenticated (they all do)
- The proposed exhibit is confusing.
- The proposed exhibit is prejudicial.
- The proposed exhibit is cumulative (if it’s not cumulative, then it’s not demonstrative)
- The proposed exhibit is inaccurate (and it’s impossible to tell if it’s accurate until the basis of the demonstrative exhibit is fully admitted)
- The proposed exhibit is full of hearsay.
- The proposed exhibit was not properly disclosed.
The best objection to a demonstrative exhibit is that demonstrative exhibits are really for juries. The judge can understand the evidence without the help of a summary. Furthermore, there already is a venue for summarizing admitted evidence…the closing argument. If a party doesn’t believe the judge will adequately understand the closing argument as a summary of the evidence, they can request to submit written closing statements to the court.
Demonstrative exhibits are powerful…but hard to get into evidence if you properly object. So, make sure you know how to object.
Putting on a good case in an Illinois is hard. Frustrating your opponent’s case is hard. Use the Illinois Rules of Evidence to do both. To learn more, contact my Chicago, Illinois family law firm to speak with an experienced Chicago divorce attorney.
