first-year law review

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Real, Documentary, and Demonstrative Evidence

Let’s deal with real evidence first. Real evidence is physical evidence (such as clothing or a knife wound) that itself plays a direct part in the incident in question. There are two types of real evidence: one which presents the thing itself, and one which presents an independent fact from which an inference can be made. The admissibility of real evidence turns on showing that the evidence is what it purports to be. The proponent has to establish that the item you’re offering is what you say it is. You have to give enough evidence for the jury to conclude that the item is authentic.


A subset of real evidence, sometimes considered it’s own set, is documentary evidence. Documentary evidence is any document having some bearing on the case is real evidence and documentary proof. It too has to be authenticated, but there are issues that have to be overcome such as the best-evidence rule and hearsay.


Demonstrative evidence is evidence that illustrates or demonstrates a real thing. In USS v. Town of Oyster Bay, the plaintiff was hit by a street sign that fell when hit the pole to which it was attached. At trial, defense counsel used a model of the pole which differed from the actual pole in several respects. On appeal, the plaintiff argued that the in-court demonstration should not have been allowed. The court held that it was within the trial court’s discretion to allow the demonstration. The dissenting opinion, however, said that the substantial similarity test should have been used. The substantial similarity test says that the demonstrative evidence must be substantially similar to the actual evidence. The test doesn’t require identity, but only the degree of similarity that will insure that the results are probative.


September 6, 2007 Posted by | Evidence | Leave a comment