Relevancy and reasons for excluding relevant evidence - Real...

Learning Outcomes

This article examines the admissibility of real, demonstrative, and experimental evidence under the Federal Rules of Evidence for MBE-style questions, including:

• Identifying and distinguishing real, demonstrative, experimental evidence, and jury views in fact patterns, and predicting how each is likely to be used at trial.
• Applying authentication requirements under FRE 901 and 902 to physical objects, photographs, videos, diagrams, animations, and summary charts, including when a chain of custody is necessary.
• Evaluating relevance and conditional relevance under FRE 401, 402, and 104(b), and articulating how those rules affect the admissibility of tangible and experimental proof on multiple-choice answer choices.
• Using FRE 403 to weigh probative value against unfair prejudice, confusion, misleading the jury, undue delay, or cumulative proof, especially for graphic photographs, dramatic reenactments, and elaborate demonstrative exhibits.
• Assessing whether proposed experiments, reconstructions, and computer simulations rest on substantially similar conditions, and recognizing when dissimilarities go to weight rather than admissibility.
• Analyzing requests for jury views of scenes or large objects, including the trial court’s discretion, logistical and fairness considerations, and how examiners may test these issues in subtle ways.

MBE Syllabus

For the MBE, you are required to understand the fundamental requirements for admitting physical evidence and demonstrations, with a focus on the following syllabus points:

• Distinguishing between real, demonstrative, and experimental evidence.
• Applying the rules of authentication (FRE 901, 902) to physical objects, recordings, and displays, including chain of custody.
• Analyzing relevance under FRE 401 and 402 and conditional relevance under FRE 104(b).
• Evaluating admissibility of photographs, diagrams, models, animations, and summaries (FRE 1006).
• Understanding the requirements for admitting experimental and reconstruction evidence (substantially similar conditions).
• Applying FRE 403 to exclude relevant evidence based on unfair prejudice, confusion, misleading the jury, or waste of time.
• Assessing requirements and limitations on jury views of locations or large physical objects.
• Recognizing when the Best Evidence Rule intersects with real and demonstrative evidence.

Test Your Knowledge

Attempt these questions before reading this article. If you find some difficult or cannot remember the answers, remember to look more closely at that area during your revision.

1. Real evidence is best described as:
   1. Evidence used solely to illustrate testimony.
   2. Evidence generated specifically for trial purposes.
   3. A tangible object that played an actual role in the events at issue.
   4. Testimony about a physical object.
2. To authenticate a photograph offered to show the condition of a car after an accident, the proponent generally must:
   1. Call the photographer to testify.
   2. Establish a complete chain of custody for the photograph.
   3. Introduce testimony from a witness with personal knowledge that the photograph fairly and accurately depicts the scene or object shown.
   4. Prove that the photograph was taken within 24 hours of the accident.
3. Which factor is LEAST likely to be considered by a judge under FRE 403 when deciding whether to exclude relevant demonstrative evidence?
   1. The danger of unfair prejudice.
   2. The potential for confusing the issues.
   3. Whether the evidence is hearsay.
   4. Considerations of undue delay or waste of time.
4. A party offers a video re‑enactment of a car crash using stunt drivers on a closed course. The opponent objects that the re‑enactment used different weather and traffic conditions than the actual crash. The objection most directly raises:
   1. The Best Evidence Rule.
   2. Substantial similarity of conditions for experimental evidence.
   3. The rule against character evidence.
   4. The parol evidence rule.
5. The prosecution offers a large, gruesome autopsy photograph in a murder case. The defense concedes the cause of death and objects that the photograph will inflame the jury. The court should analyze admissibility primarily under:
   1. FRE 401 (relevance).
   2. FRE 404 (character evidence).
   3. FRE 403 (unfair prejudice versus probative value).
   4. FRE 1002 (Best Evidence Rule).

Introduction

In addition to witness testimony, parties frequently seek to introduce physical items and visual aids to help the trier of fact understand what happened. These forms of proof are broadly categorized as real, demonstrative, and experimental evidence.

Under the Federal Rules of Evidence, admission of any item follows the same basic sequence:

1. The evidence must be relevant (FRE 401, 402).
2. It must be authenticated if its identity or origin is in issue (FRE 901, 902).
3. It must survive FRE 403 balancing (probative value versus the danger of unfair prejudice and other risks).
4. It must comply with any other applicable rules (hearsay, privileges, Best Evidence Rule, etc.).

Key Term: Relevance
Evidence is relevant if it has any tendency to make a fact of consequence in determining the action more or less probable than it would be without the evidence (FRE 401). Irrelevant evidence is inadmissible; relevant evidence is generally admissible unless excluded by another rule.

Tangible and demonstrative items can be very persuasive because they appeal directly to the senses. For the same reason, they often raise 403 concerns: a graphic photograph or dramatic animation may impress the jury more than its logical probative value warrants. On the MBE, questions often turn on whether the proponent has laid the proper evidentiary basis or whether the judge should exclude or limit the evidence under FRE 403.

The rest of this article focuses on:

• Real evidence: “the thing itself” involved in the events.
• Demonstrative evidence: items created to illustrate testimony or other evidence.
• Experimental evidence: tests or reenactments offered to show how an event did or did not occur.
• Jury views: the jury’s physical inspection of a place or large object.

Real Evidence

Real evidence is tangible evidence that played an actual role in the event in question. It is often referred to as “the thing itself.” Examples include the alleged murder weapon, the defective product in a products liability suit, the ladder that broke, or the contract document in a contract dispute.

Key Term: Real Evidence
A tangible item (such as a weapon, vehicle, document, or article of clothing) that was actually involved in the events at issue in the litigation and is presented to the trier of fact for inspection.

Real evidence is typically direct evidence of some proposition (for example, that the defendant possessed a gun) but it can also be circumstantial (for example, the condition of the gun suggests it had not been fired recently).

Requirements for Real Evidence

Admission of real evidence normally requires four showings:

• The item is what the proponent claims it is (authentication).
• The item is in a condition that is the same or substantially similar to its condition at the relevant time.
• The item is relevant to a fact of consequence.
• The item’s probative value is not substantially outweighed by FRE 403 dangers.

The judge decides whether there is a sufficient basis for a reasonable juror to find authenticity and substantial similarity (FRE 104(a)); the jury ultimately decides how much weight to give the item.

Key Term: Substantially Similar Conditions
A preliminary requirement that the condition of an object or the circumstances of an experiment be sufficiently alike to those at the time of the original event so that comparisons are logically fair and not misleading.

Authentication of Real Evidence

Before real evidence can be admitted, it must be authenticated. Authentication requires the proponent to produce evidence sufficient to support a finding that the item is what the proponent claims it is (FRE 901(a)). This is a low threshold: the judge is not deciding that the item is genuine, only that a reasonable juror could so find.

Key Term: Authentication
The process of presenting evidence sufficient for a reasonable factfinder to conclude that a tangible item, document, recording, or similar evidence is what its proponent claims it is (FRE 901).

Key Term: Chain of Custody
A method of authenticating evidence, particularly fungible items like drugs or blood samples, by accounting for the item’s possession from the time it was obtained until trial in order to show that it has not been altered or substituted.

Common authentication methods for real evidence include:

• Personal knowledge (recognition)
  A witness with firsthand knowledge testifies that they recognize the item. For instance, a victim testifies, “This is the knife the defendant held to my throat,” or a homeowner identifies her own jewelry.

• Distinctive features
  Some items have unique marks, serial numbers, or other distinctive characteristics that allow a witness to identify them reliably. For example, a gun can be authenticated by its make, model, and serial number.

• Chain of custody (for fungible items)
  For items that are easily substituted or altered (e.g., narcotics, blood vials), the proponent normally must show a chain of custody: who had the item, when, and under what conditions. The chain need not be perfect; the prosecution must show that it is reasonably likely that the item has not been altered. Minor gaps go to weight, not admissibility, absent affirmative evidence of tampering.

• Process or system
  For real evidence generated by a process (e.g., a printout of machine test results), the proponent can authenticate by showing that the process produces reliable output (FRE 901(b)(9)).

In practice, the MBE often tests whether the right method of authentication has been used. A knife with distinctive features can be authenticated by recognition testimony; cocaine powder cannot—it requires chain-of-custody evidence.

Condition of the Object

Real evidence should be in the same condition as at the time of the event, or the differences must be explained. If the change is substantial and unexplained, the court may exclude the object as misleading under FRE 403. If the change is minor or explained, the court may admit the item with limiting instructions.

For example, a ladder that broke may be admitted even if it has been cleaned, provided a witness explains the changes and the condition at the time of the accident is still fairly represented.

Relevance and FRE 403 Balancing

Like all evidence, authenticated real evidence must be relevant (FRE 401, 402). Real evidence is often highly probative because the jury can see and sometimes handle the actual object. That said, FRE 403 gives the judge discretion to exclude relevant evidence if its probative value is substantially outweighed by dangers such as:

• Unfair prejudice (especially emotional appeal, such as gruesome photos).
• Confusing the issues or misleading the jury.
• Undue delay, waste of time, or needless cumulative presentation.

Key Term: FRE 403 Balancing
The court’s discretionary power under FRE 403 to exclude relevant evidence if its probative value is substantially outweighed by dangers such as unfair prejudice, confusion of the issues, misleading the jury, undue delay, wasting time, or needless cumulative evidence.

Examples:

• A bloody shirt or graphic autopsy photos may be excluded if the government can prove cause of death with less inflammatory evidence.
• The actual, heavily damaged vehicle from a crash may be excluded where detailed photographs already show the relevant damage and bringing the vehicle into the courtroom would be cumulative and logistically burdensome.

If real evidence is admissible for one purpose but not another (for example, a weapon found in the defendant’s home may be admissible to prove identity but not bad character), the court should give a limiting instruction upon request (FRE 105).

Key Term: Best Evidence Rule
Also called the Original Document Rule (FRE 1002–1004). When a party seeks to prove the contents of a writing, recording, or photograph, the original (or an acceptable duplicate) is generally required; testimony describing those contents is ordinarily not permitted if the original could have been produced.

The Best Evidence Rule rarely applies to physical objects, but it may become relevant when the “real evidence” is a document or recording and the proponent is trying to prove its contents (e.g., what the contract says), rather than simply its existence or condition.

Worked Example 1.1

In a murder prosecution, the state offers a close‑up color photograph of the victim’s body on the autopsy table, showing extensive wounds. The defense has stipulated to the victim’s identity and cause of death and objects that the photograph is unfairly prejudicial.

Answer:
The photograph is relevant (it tends to show the extent and nature of the injuries), but the trial judge must conduct FRE 403 balancing. Because identity and cause of death are conceded, the photograph’s incremental probative value is low, while its potential for inflaming the jury is high. A court could reasonably exclude the photograph under FRE 403 as unfairly prejudicial, especially if less graphic photos or testimony adequately establish any remaining disputed facts.

Demonstrative Evidence

Demonstrative evidence is evidence created for trial to illustrate other evidence or a witness’s testimony. It did not play a role in the actual events but helps the jury visualize or understand them. Common examples include photographs, diagrams, maps, models, charts, timelines, animations, and summaries.

Key Term: Demonstrative Evidence
Evidence created for use in court—such as charts, diagrams, models, or animations—that illustrates testimony or other evidence but was not itself involved in the events in dispute.

Demonstrative evidence is powerful but potentially misleading if it appears more precise or authoritative than it really is (for example, a slick computer animation that subtly incorporates disputed assumptions).

Requirements for Demonstrative Evidence

Demonstrative evidence must satisfy the same basic requirements as other evidence:

• Authentication
  A sponsoring witness (usually the witness whose testimony it illustrates) testifies that the item is a fair and accurate representation of what it purports to depict.

• Relevance
  The evidence must help prove or explain a fact of consequence (FRE 401).

• FRE 403
  The judge must decide whether the demonstrative aid’s probative value is substantially outweighed by risks of unfair prejudice, confusion, or waste of time.

Courts also retain broad discretion under FRE 611 to control the mode and order of presenting evidence, including whether a demonstrative aid will be allowed, how it will be used, and whether the jury may take it into deliberations.

Photographs and Videos

Photographs and videos are among the most frequently tested demonstrative items.

Authentication can follow two main approaches:

• Pictorial testimony theory
  A witness with personal knowledge of the scene testifies that the photo or video is a fair and accurate depiction of what they saw at the relevant time. The photographer need not testify.

• Silent witness theory
  When there is no human witness with direct knowledge (e.g., a surveillance camera recording), the proponent can authenticate by showing that the equipment and procedures used produce an accurate recording (for example, the camera was properly installed, maintained, and in working order; the recording has an unbroken chain of custody).

For both methods, the Best Evidence Rule may apply if the proponent is trying to prove the contents of the photo or video; a duplicate is usually acceptable unless there is a genuine question about the original’s authenticity or the circumstances make it unfair to admit the duplicate.

Diagrams, Maps, Models, and Animations

Diagrams, sketches, and scale models are authenticated by testimony that they are a fair representation of the relevant location or object. They need not be perfectly to scale unless the scale itself is important to the disputed issue.

Computer animations that “re‑create” events straddle the line between demonstrative and experimental evidence. Courts often require:

• A witness (sometimes an expert) to explain the assumptions used in the animation.
• A showing that those assumptions are supported by evidence.
• FRE 403 balancing, because jurors may treat the animation as if it were an objective recording of the event.

Summaries and Charts

Voluminous writings, recordings, or photographs that cannot be conveniently examined in court may be presented in the form of a summary, chart, or calculation under FRE 1006.

• The source materials must be admissible (or at least fall within a hearsay exception).
• The originals or duplicates must be made available to the other parties for examination or copying.
• A sponsoring witness should testify that the summary fairly and accurately reflects the source materials.

These summaries are themselves evidence if properly admitted, unlike purely pedagogical charts that merely help the jury follow live testimony and are not formally admitted.

Worked Example 1.2

Plaintiff sues Defendant for injuries sustained in a car accident. Plaintiff’s attorney calls an eyewitness to testify about the accident scene. The attorney wishes to introduce a photograph showing the position of the cars immediately after the collision, taken by a passing motorist who is unavailable to testify. The eyewitness did not see the photo being taken but arrived moments after the crash. Can the eyewitness authenticate the photograph?

Answer:
Yes. The eyewitness can authenticate the photograph by testifying that she personally observed the scene shortly after the collision and that the photograph fairly and accurately depicts that scene. The photographer’s testimony and the exact time the photo was taken are not required, so long as the witness can vouch that the image accurately represents the relevant conditions.

Experimental Evidence

Experimental evidence involves performing an experiment, test, or reenactment—either in court or out of court—and offering the results as evidence. Common examples include brake‑stopping tests, product stress tests, skid‑mark analysis, ballistic tests, and staged crash reenactments.

Key Term: Experimental Evidence
Evidence derived from experiments, tests, or reenactments designed to replicate or simulate conditions of an event in order to show how the event may have occurred or how a device or system performs under certain conditions.

Experimental evidence is usually circumstantial: it suggests that because something happened in the experiment, it likely happened the same way in the actual event (or conversely, could not have happened that way).

Requirements for Experimental Evidence

The core admissibility requirement is that the experiment was conducted under conditions substantially similar to those of the actual event.

• Substantial similarity
  The proponent must show that key variables—such as speed, weight, surface, temperature, or product configuration—were sufficiently alike that the experiment fairly reflects the real‑world conditions.

• Dissimilarities
  Differences between the experiment and the event do not automatically bar admission. Significant dissimilarities usually go to weight, not admissibility, if they are explained to the jury. However, if the differences make the experiment misleading, the court may exclude it under FRE 403.

• Qualified explanation
  Typically, an expert or other qualified witness must explain the experiment’s design, the variables controlled, and how the results relate to the contested issues.

Because experiments can be time‑consuming and may risk confusing the issues, courts have wide discretion under FRE 403 and FRE 611 to limit or exclude them.

Key Term: Substantially Similar Conditions
For experimental or reconstruction evidence, the requirement that key conditions (such as speed, weight, configuration, or environmental factors) be closely similar to those at the time of the event so that the experiment will not mislead the jury.

Relationship to Other Rules

Experimental evidence often interacts with:

• FRE 104(b) – Conditional relevance
  The relevance of the experiment may depend on a preliminary fact (such as whether a certain road was wet or dry). The judge may admit the evidence “subject to connection,” leaving it to the jury to decide whether the preliminary fact is established.

• Scientific evidence standards
  Experiments that resemble scientific tests (e.g., reliability of breathalyzers) must also satisfy rules governing expert testimony (FRE 702 and the Daubert standard), though that level of detail is rarely tested on the MBE in experimental‑evidence questions.

• FRE 403
  Dramatic reenactments or simulations may be excluded if they are too theatrical, rest on contested assumptions, or require substantial trial time without commensurate probative value.

Worked Example 1.3

In a products liability case, Plaintiff claims a tire blew out because of a manufacturing defect. Defendant manufacturer seeks to introduce a video of an experiment where an identical model tire, subjected to similar road conditions and speed, did not blow out despite being intentionally damaged in a way Defendant claims Plaintiff damaged the tire. Is the experimental evidence likely admissible?

Answer:
Possibly yes, if the proper basis is established. Defendant must show through qualified testimony that key conditions—tire model, type and extent of damage, speed, road surface, air pressure, vehicle weight, and duration of the test—were substantially similar to those of Plaintiff’s accident. If substantial similarity is shown, the experiment is relevant to rebut the claim of a defect. The trial judge would then apply FRE 403 to decide whether any remaining differences between the test and real event risk misleading the jury or unduly consuming time.

Distinguishing Real and Demonstrative Evidence from Experiments

On the MBE, do not confuse these categories:

• A real item (the actual ladder that broke) can sometimes be used in a demonstration (the witness stands on it in court), which is a form of experimental evidence.
• A model or animation of a ladder that never existed is demonstrative, not real, even if used in a test.

Exam Warning

Real evidence was part of the event (the actual gun). Demonstrative evidence illustrates something about the event (a diagram of the crime scene). Experimental evidence recreates or tests conditions to suggest how the event occurred. All require authentication and are subject to FRE 403, but the required showing differs: chain of custody and identity for real evidence, fair representation for demonstrative evidence, and substantially similar conditions for experiments.

Jury Views

In some cases, the judge may allow the jury to leave the courtroom to view a location relevant to the case (such as the crime scene, accident site, or intersection) or a large piece of equipment that cannot easily be brought into the courtroom. This is called a jury view.

Key Term: Jury View
A procedure in which the jury, under court supervision, visits a location or inspects a large object outside the courtroom to better understand the evidence presented at trial.

Jury views are not explicitly governed by the Federal Rules of Evidence but are handled as a matter of trial management and discretion. Key points:

• Purpose
  A view is meant to help jurors understand and apply the evidence presented in court (e.g., distances, visibility, lighting), not to generate new independent evidence.

• Changed conditions
  The judge should consider whether the scene has changed since the event. Major changes (different buildings, altered lighting, altered roadway) can make a view misleading and may justify denial.

• Logistics and fairness
  Security concerns, cost, and the risk that jurors will overemphasize what they see during the view are all relevant. The judge can provide instructions to remind jurors to rely on the evidence presented in court.

A typical exam question will present a jury‑view request and ask about the standard: the judge has discretion, and the decision is reviewed only for abuse of discretion.

Key Point Checklist

This article has covered the following key knowledge points:

• Real evidence is a tangible object actually involved in the events at issue.
• Demonstrative evidence is created for trial to illustrate testimony or other evidence.
• Experimental evidence consists of tests or reenactments offered to show how events may have occurred.
• All three types must be relevant (FRE 401, 402) and authenticated (FRE 901, 902) before admission.
• Authentication methods for real evidence include personal recognition, distinctive features, process/system evidence, and chain of custody for fungible items.
• Demonstrative aids (photos, diagrams, models, animations) require testimony that they fairly and accurately represent what they depict.
• Experiments and reenactments require proof of substantially similar conditions; significant dissimilarities go to weight or may trigger exclusion under FRE 403.
• FRE 403 allows exclusion of real, demonstrative, or experimental evidence whose probative value is substantially outweighed by unfair prejudice, confusion, or waste of time.
• The Best Evidence Rule applies primarily when proving the contents of writings, recordings, or photographs, not merely their existence or condition.
• Jury views are discretionary tools to help jurors understand other evidence, not independent sources of evidence.

Key Terms and Concepts

• Relevance
• Real Evidence
• Authentication
• Chain of Custody
• Demonstrative Evidence
• Experimental Evidence
• Substantially Similar Conditions
• FRE 403 Balancing
• Best Evidence Rule
• Jury View