Trial lawyers should be aware that new and revised Federal Rules of Evidence will take effect on December 1, 2024. Among them is new Federal Rule of Evidence 107 governing illustrative aids.
An illustrative aid is defined as a device that helps the jury to understand evidence or a party’s argument. There is a tight if not blurry distinction between an illustrative aid and demonstrative evidence. Sometimes the terms are used interchangeably. To the extent there is a distinction demonstrative evidence can be substantive i.e. admissible as evidence for the jury’s review. Photographs of other evidence may be admissible as demonstrative evidence. For example, a photograph of a small object that provides greater detail to the naked eye. Substantive demonstrative evidence is subject to evidentiary foundations requirements to be admissible.
In contrast, think of illustrative aids as transcending the evidence so as to tie it together, to explain it and to show the relationship between multiple items of evidence. Power Point slides or similar devices in closing argument are one example.
New Rule 107 makes an illustrative aid presumptively usable. It can be used to assist the jury’s comprehension unless the aide’s utility is substantially outweighed by the danger of unfair prejudice, confusing the issues, misleading the jury, undue delay or wasting time. They are not admissible in evidence under Rule 107 and not to be provided to the jury during deliberations unless all parties consent or the court, for good cause, orders otherwise.
Illustrative aids can be one of the most powerful tools in a trial lawyer’s arsenal. You should be brainstorming their use from the outset of a case. If you try cases in Federal Court new Rule 107 will provide support against any pushback for using them at trial.
