In the
United States Court of Appeals
For the Seventh Circuit
No. 12‐2019
JOHN BAUGH, by and through his
Wife and Next Friend, SHARON
BAUGH,
Plaintiff‐Appellant,
v.
CUPRUM S.A. DE C.V.,
Defendant‐Appellee.
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 08 C 04204 — Rebecca R. Pallmeyer, Judge.
ARGUED DECEMBER 3, 2012 — DECIDED SEPTEMBER 13, 2013
Before WOOD and HAMILTON, Circuit Judges, and DARROW,
District Judge.*
HAMILTON, Circuit Judge. This appeal requires us to clarify
what is meant when an exhibit is labeled “demonstrative” and
*
The Honorable Sara Darrow of the Central District of Illinois, sitting by
designation.
2 No. 12‐2019
is not actually admitted into evidence. In this product liability
trial, a defense expert illustrated his testimony by using an
exemplar of the product in question, a ladder that had col‐
lapsed while the plaintiff was using it. Although plaintiff had
objected to use of the exemplar ladder as substantive evidence,
the court allowed its use for solely demonstrative purposes.
During jury deliberations, the jury asked to see, touch, and step
on the ladder. Over plaintiff’s objections, the district court sent
this object, which was never admitted into evidence, to the jury
for use during its deliberations. We hold that it was an abuse
of discretion to send this object to the jury over a party’s
objection when it was not admitted into evidence during trial.
We also hold that the error was not harmless, so we reverse the
district court’s judgment and remand for a new trial.
I. Facts
Plaintiff John Baugh suffered a severe brain injury when the
Cuprum ladder he was using to clean his gutters buckled and
collapsed. Baugh’s wife Sharon brought this suit on his behalf
against Cuprum S.A. de C.V. alleging defective design and
negligence. There were no eyewitnesses to the incident. As a
result of the injury, Mr. Baugh could not testify about what
happened.
On December 21, 2010, about three months before trial,
Cuprum informed plaintiff’s counsel that it intended to use an
exemplar of the actual ladder at trial. The exemplar ladder was
new but had been built to the exact specifications of the ladder
Mr. Baugh had been using. In a pretrial conference on
February 1, 2011, the exemplar ladder was marked as an
exhibit “for Demonstrative Purposes.” Plaintiff objected to any
No. 12‐2019 3
use of the new exemplar ladder. Discovery had closed two
years earlier, and the ladder had not been included in Cu‐
prum’s expert disclosures.
In response to the objection, Cuprum explained, “it’s
simply demonstrative exhibits that we’ll use during the direct
examination of [Cuprum’s expert]. … And these exhibits are
demonstrative. They are not substantive evidence. They are not
to be admitted for substantive evidence. It’s just simply to
demonstrate and help the jury understand his testimony.” R.
300‐3 at 67–68. The district judge determined that since the
ladder was being offered only as a demonstrative exhibit,
plaintiff’s objections to untimely disclosure were irrelevant:
“[T]he fact that it wasn’t disclosed in connection with the
experts’ reports isn’t by itself problematic to me if what we are
talking about is demonstrative.” R. 300‐3 at 68. The court thus
permitted the ladder to be displayed and used in the court‐
room during trial testimony by Cuprum’s expert.
Cuprum used the exemplar ladder during trial to argue
that, contrary to the design defect theory offered by plaintiff’s
expert, the ladder would not collapse under a normal load
with all four legs on the ground. Cuprum’s expert presented
testimony and video in which he tested the strength and
stability of the ladder. The video also showed him performing
other tests that included jumping on the ladder as if it were a
pogo stick and tipping the ladder in different positions.
The jury began its first day of deliberations around noon.
As a demonstrative exhibit, of course, the ladder was not sent
to the jury for use in deliberations. After about two hours,
though, the jury sent a note to the judge asking to see the
4 No. 12‐2019
exemplar ladder. Tr. 1301. The judge asked if there were any
objections to the jury’s request. Plaintiff’s counsel objected on
the basis that the ladder “was introduced for—or brought into
the courtroom for demonstrative purposes. … It was not
offered into evidence by either side, and no witness did
anything other than refer to it. And I respectfully say that it
would be highly improper to have that demonstrative piece of
equipment go to the jury.” Tr. 1301–02. The judge initially
agreed with plaintiff, noting that the ladder had been offered
and used only as a demonstrative exhibit and that “demon‐
strative evidence is normally not sent back to the jurors.” Tr.
1302.
The judge then asked plaintiff’s counsel to explain how
plaintiff would suffer any prejudice if the ladder were allowed
in the jury room during deliberations. Plaintiff’s counsel
argued that the prejudice resulted from the fact that the ladder
had been originally labeled as a demonstrative exhibit and that
both parties agreed that it would not be admitted as substan‐
tive evidence. Counsel said he had relied on this assurance,
provided by the court in the pretrial conference where his
objection had been overruled precisely because the ladder
would be used only as a demonstrative exhibit. Counsel also
said he had developed his trial strategy on the assumption that
the ladder was not substantive evidence that might be avail‐
able to the jury during its deliberations. Plaintiff’s counsel
framed his objection on that basis: “It’s a piece of demonstra‐
tive evidence, and I think the rules are pretty clear—or at least
the practice in this courthouse, as far as I have known, has
never been that they go back [to the jury].” Tr. 1302. Plaintiff’s
counsel explained that if he had known the ladder might go
No. 12‐2019 5
back to the jury room, he would have had his own experts test
the ladder. Tr. 1301–03.
The district judge then overruled plaintiff’s objection and
allowed the jurors to view the exemplar ladder in the court‐
room. The judge sent the following note to the jury: “Dear
Jurors: The exemplar ladder is a demonstrative exhibit. It was
not admitted in evidence. You may, if you wish, step into the
courtroom to look at the exemplar ladder, but we will not be
sending it into the jury room during your deliberations.” Tr.
1312–13. After receiving the note, however, the jury seemed to
have lost interest in the ladder and did not actually look at it
that day.
The second day, though, the jury renewed its request. Tr.
1316. Plaintiff’s counsel renewed his objection: “There was
never any representation that ladders were going to be not
only used in the courtroom but the jurors would have access to
them … .” Tr. 1319. Once again, the judge asked plaintiff’s
counsel to identify the prejudice that would result from
allowing the jury to see and touch the ladder. The judge again
rejected counsel’s argument that the prejudice came from the
fact that plaintiff did not have any warning that the exemplar
ladder would go to the jury: “Again, apart from the fact that
this is not what you were expecting or planned for, I want to
know what the prejudice is. How is your client prejudiced?”
Tr. 1320–22. Plaintiff’s counsel tried again: “[I]f I knew exem‐
plars were going to be there, my experts would have advised
me—if I knew the individuals were going to be playing with
exemplar ladders and so forth in the courtroom, I would have
spoken to my experts. I don’t know what they would have told
me. But that’s one of the reasons that we have cutoffs on
6 No. 12‐2019
discovery.” Tr. 1324. The court overruled plaintiff’s objections
and permitted the jury to enter the courtroom by themselves
and to look at the ladder. Tr. 1333.
Approximately twenty minutes later, the jury sent a note
asking if they could step on the ladder. Plaintiff’s counsel again
objected and raised additional objections regarding potential
juror reconstruction of the accident. Tr. 1334–38. “And as your
Honor said, taking demonstrative evidence into a jury room is
something which is—I don’t think it’s ever done.” Tr. 1334. He
concluded his argument: “I know my client and I have the
right to assume that there was not going to be demonstrative
evidence played with in the jury room.” Tr. 1338. The district
court reserved ruling until the following day, at which point
plaintiff’s counsel explained: “[T]he point is that I was examin‐
ing the exemplars that they were going to be using in testing,
not the exemplars that are going to be taken, played with by
the jury and taken into the jury room.” Tr. 1360.
Ultimately, on the third day of deliberation, the court
allowed the ladder to go into the jury room itself with a note:
“Pursuant to your request, I am allowing the exemplar ladder
to be taken into the jury room. You may fully examine the
ladder. Under no circumstances are you to endeavor to
reconstruct the occurrence.” Tr. 1363. The letter and exemplar
ladder were delivered to the jury room at approximately
10:09 a.m. Tr. 1365. At 1:48 p.m., the jury returned a verdict in
favor of Cuprum. Tr. 1367. The district court entered judgment
on the verdict, and this appeal followed.
No. 12‐2019 7
II. Analysis
“Generally, it is within the trial court’s discretion to
determine which exhibits are provided to the jury during
deliberations; we review this decision only for a clear abuse of
discretion.” Deicher v. City of Evansville, 545 F.3d 537, 542 (7th
Cir. 2008). We defer to the district court’s handling of exhibits
admitted into evidence but must ensure that “the district court
has exercised its discretion in a reasonable manner.” Id. If a
party argues that properly admitted exhibits had some sort of
improper influence on the jury, reversal also requires a
showing of prejudice. Id. at 543. Those are the general rules for
exhibits admitted into evidence.
Demonstrative exhibits that are not admitted into evidence
pose quite different issues. The general rule is that materials
not admitted into evidence simply should not be sent to the
jury for use in its deliberations. Bankcard America, Inc. v.
Universal Bancard Systems, Inc., 203 F.3d 477, 483 (7th Cir. 2000)
(sending three unadmitted documents to jury was “sloppy”
and an error, but harmless); Artis v. Hitachi Zosen Clearing, Inc.,
967 F.2d 1132, 1142–43 (7th Cir. 1992) (error to send unadmit‐
ted damages summary to jury room for deliberations, but also
harmless); see also United States v. Holton, 116 F.3d 1536, 1542
(D.C. Cir. 1997) (“To protect jury deliberations from improper
influence, we ordinarily restrict the jury’s access only to
exhibits that have been accepted into evidence … .”). The
district court failed to adhere to this limit when, despite
plaintiff’s objection, the court deliberately submitted the
unadmitted ladder to the jury during deliberations as if it were
admitted, substantive evidence. We conclude that the court’s
action was an abuse of discretion and was not harmless.
8 No. 12‐2019
A. The Ambiguity of the Term “Demonstrative”
The term “demonstrative” has been used in different ways
that can be confusing and may have contributed to the error in
the district court. In its broadest and least helpful use, the term
“demonstrative” is used to describe any physical evidence. See,
e.g., Finley v. Marathon Oil Co., 75 F.3d 1225, 1231 (7th Cir. 1996)
(using “demonstrative evidence” as synonym for physical
exhibits). When the term is used in this way, demonstrative
exhibits may range from Shakespeare’s version of Marc
Antony’s funeral oration displaying the bloody toga in Julius
Caesar, as noted in Finley, to the knife in Twelve Angry Men. As
jurors have become more visually oriented, counsel in modern
trials seek to persuade them with an ever‐expanding array of
objects, maps, charts, displays, summaries, video reconstruc‐
tions, computer simulations, and so on. See United States v.
Burt, 495 F.3d 733, 740 (7th Cir. 2007).
As Professors Wright and Miller lament, the term, “demon‐
strative” has grown “to engulf all the prior categories used to
cover the use of objects as evidence. … As a result, courts
sometimes get hopelessly confused in their analysis.”
22 Charles Alan Wright & Arthur R. Miller, Federal Practice
and Procedure § 5172 (2d ed.); see also 5 Christopher B.
Mueller & Laird C. Kirkpatrick, Federal Evidence § 9:22 (3d
ed.) (identifying at least three different uses and definitions of
the term “demonstrative” evidence, ranging from all types of
evidence, to evidence that leaves firsthand sensory impres‐
sions, to illustrative charts and summaries used to explain or
interpret substantive evidence). The treatises struggle to put
together a consistent definition from the multiple uses in court
opinions and elsewhere. See 2 McCormick on Evidence § 212
No. 12‐2019 9
n.3 (Kenneth S. Broun ed., 7th ed.) (recognizing critique of its
own use of “single term ‘demonstrative evidence,’” noting that
this approach “joins together types of evidence offered and
admitted on distinctly different theories of relevance”).
Our decision today does not seek to reconcile all of those
uses of the term, but we do seek to clarify what a jury may and
may not consider in deliberations. Without the consent of all
parties, a deliberating jury may not consider exhibits not
actually admitted into evidence. In this case, the court allowed
the exemplar ladder to be used in trial only as a “demonstra‐
tive” exhibit, only for demonstrative purposes. The court and
counsel understood this ruling to mean that the exemplar
ladder was not actually admitted into evidence and would not
be available to the jury during deliberations. That was the basis
of the court’s pretrial decision to overrule plaintiff’s objection
to all use of the exemplar ladder. The term “demonstrative”
thus was used to refer to an object or document that could be
displayed to the jurors to help them understand the substan‐
tive evidence (testimony or other objects or documents) by
interpreting, summarizing, or explaining it, but that would not
be available during deliberations.
B. “Demonstrative Exhibits,” Narrowly Defined
As the term was used in the district court and is used in this
opinion, labeling an exhibit “demonstrative” signifies that the
exhibit is not itself evidence—the exhibit is instead a persua‐
sive, pedagogical tool created and used by a party as part of
the adversarial process to persuade the jury. Robert D. Brain &
Daniel J. Broderick, The Derivative Relevance of Demonstrative
Evidence: Charting Its Proper Evidentiary Status, 25 U.C. Davis L.
10 No. 12‐2019
Rev. 957, 961 (1992) (“Demonstrative proof has only a second‐
ary or derivative function at trial: it serves only to explain or
clarify other previously introduced, relevant substantive
evidence.”). These pedagogical devices are used to aid the jury
in its understanding of the evidence that has already been
admitted. “[P]edagogical charts or summaries may include
witnesses’ conclusions or opinions, or they may reveal infer‐
ences drawn in a way that would assist the jury. But … in the
end they are not admitted as evidence.” United States v. Janati,
374 F.3d 263, 273 (4th Cir. 2004), citing 6 Jack B. Weinstein and
Margaret A. Berger, Weinstein’s Federal Evidence, § 1006.04[2]
(Joseph M. McLaughlin ed., 2d ed. 2003); see also Gomez v.
Great Lakes Steel Div. Nat’l Steel Corp., 803 F.2d 250, 257–58 (6th
Cir. 1986) (same).
When the term is used this way, demonstrative exhibits are
meant to “illustrate or clarify a party’s position,” and they are
by definition “less neutral in [their] presentation” and thus are
not properly considered evidence. United States v. Milkiewicz,
470 F.3d 390, 396–98 (1st Cir. 2006) (internal citations omitted).1
They instead aim to clarify, color, or “organize or aid the jury’s
examination of testimony or documents which are themselves
admitted into evidence” to persuade the jury to see the
evidence in a certain light favorable to the advocate’s client.
United States v. Bray, 139 F.3d 1104, 1111–12 (6th Cir. 1998),
quoting Gomez, 803 F.2d at 257–58. Thus “[w]hen considering
1
The term “demonstrative” does not appear in the text of the Federal Rules
of Evidence, nor does it appear in a single state evidence code. Brain &
Broderick, supra, at 1013. This absence makes sense. When the term is used
as it was used in this case by the court and counsel, demonstrative exhibits
are not evidence at all.
No. 12‐2019 11
the admissibility of exhibits of this nature, it is critical to
distinguish between charts or summaries as evidence and charts
or summaries as pedagogical devices.” United States v. Wood,
943 F.2d 1048, 1053 (9th Cir. 1991) (internal citations and
quotations omitted).2
When the term is applied correctly, it allows parties and the
court to avoid protracted disputes regarding the admissibility
of demonstrative exhibits that might arise if such an exhibit
were being offered as substantive evidence. By labeling an
exhibit “demonstrative,” the party using it may also gain
something—some leeway to use the exhibit as an advocacy
tool that the party might not enjoy if trying to admit the exhibit
as substantive evidence. With this understanding of the term,
the common phrase “demonstrative evidence” becomes a bit
of an oxymoron. We will not try to police the use of the phrase,
but there is value to using the term more narrowly and
carefully, as it was used in the district court in this case, so that
it does not apply to an exhibit that is properly admitted as
substantive evidence through the Federal Rules of Evidence.3
2
Nothing in this opinion should be understood to call into question our
cases permitting juries to consider transcripts of recorded conversations
during deliberation. See, e.g., United States v. Breland, 356 F.3d 787, 794–95
(7th Cir. 2004).
3
The term “demonstrative” does appear once in the 1972 advisory
committee’s note to Federal Rule of Evidence 611(a), which gives trial
judges the power to control the “mode” of testimony and “has been
construed to allow the court to permit or prevent the use of ‘demonstrative
evidence.’” Wright & Miller, supra, § 5172. The relevant part of the advisory
committee’s note said: “Item (1) restates in broad terms the power and
obligation of the judge as developed under common law principles. It
(continued...)
12 No. 12‐2019
Offering and admitting charts, summaries, models, maps,
replicas, and so on as substantive evidence rather than as
“demonstrative” exhibits sends an important signal. It alerts
parties to the fact that the exhibit will become part of the actual
evidence and therefore may well be available to the jury
during deliberation. When an exhibit is offered as substantive
evidence, parties know they must make any objections they
might have to the evidence at that point. Conversely, when an
exhibit is allowed to be used for only demonstrative purposes,
the judge and the parties understand that the exhibit is
argumentative and persuasive in nature. “[S]uch pedagogical
devices should be used only as a testimonial aid, and should
not be admitted into evidence or otherwise be used by the jury
during deliberations.” Wood, 943 F.2d at 1053.
Demonstrative exhibits that are not admitted into evidence
should not go to the jury during deliberation, at least not
without consent of all parties. We would not allow a lawyer to
accompany the jury into the deliberation room to help the
jurors best view and understand the evidence in the light most
favorable to her client. The same goes for objects or documents
used only as demonstrative exhibits during trial.
3
(...continued)
covers such concerns as … the use of demonstrative evidence … and the
many other questions arising during the course of a trial which can be
solved only by the judge’s common sense and fairness in view of the
particular circumstances.” Fed. R. Evid. 611(a) advisory committee’s note.
The advisory committee’s note used the term “demonstrative” in the broad
sense of the term to refer to items actually admitted into evidence, which
may present a variety of issues for trial management. Those issues are of
course left to the trial judge’s discretion.
No. 12‐2019 13
In sum,“demonstrative exhibits,” when the term is used in
the narrow sense, are not admitted as substantive evidence
under the Federal Rules of Evidence. Therefore, this indicates
to all parties that, absent their consent, those exhibits will not
go to the jury during deliberations. If the “demonstrative” label
is not applied consistently during the trial and jury delibera‐
tions, it may lull the opposing party into a false sense of
complacency, leading him to waive valid objections to the
admissibility of the demonstrative exhibit as substantive
evidence.
If we were to affirm the district court’s action here, allowing
a demonstrative exhibit that was never admitted into evidence
to be given to the jury for deliberations because the party
opposing the action could not identify clear prejudice that
might result, parties could not count on the classification of the
exhibit as demonstrative during trial. Under that approach, a
“demonstrative” exhibit could be transformed into substantive
evidence during jury deliberations, after the close of evidence
and without an opportunity to respond, rebut, or cross‐
examine. Going forward, parties would have to treat their
opponents’ “demonstrative” exhibits as potential substantive
evidence and would have every incentive to raise objections as
if the exhibits were substantive evidence. (In this case, of
course, plaintiff did object before trial based on the late
disclosure of the “demonstrative” ladder. The court acted
reasonably in overruling the objection, but only because the
ladder would be only a demonstrative exhibit.) The result, we fear,
would be to undermine the ability to use truly demonstrative
exhibits properly during trial when they would be helpful to
juries.
14 No. 12‐2019
C. The Treatment of the Exemplar Ladder as Evidence
In this case, the exemplar ladder was used during trial by
the defense expert witness to illustrate his oral testimony. That
is a classic and proper use of a demonstrative exhibit, and such
use is properly left to the sound discretion of the judge
presiding over the trial. See generally Fed. R. Evid. 611(a). The
district court repeatedly recognized the distinction between
demonstrative exhibits and substantive evidence during trial
and after deliberations began. Yet the court eventually decided
to cross this boundary by permitting the demonstrative exhibit
to be treated as if it were substantive evidence and allowing
the jury to see, touch, and manipulate it during deliberations.
As noted above, the general rule is that materials not
admitted into evidence simply should not be sent to the jury
for use in its deliberations. Bankcard America, 203 F.3d at 483;
Artis, 967 F.2d at 1142–43. Nevertheless, the district court
believed it had discretion to send the demonstrative exhibit, in
the narrow meaning that both the district court and we have
used here, to the jury for deliberations.
That belief may have been based on prior opinions that
used the broader meaning of the term “demonstrative” to
apply to all sorts of physical evidence that has been admitted
into evidence, rather than the narrower, more precise meaning
used by the district court and in this opinion. We said recently
that we “review the district court’s decision to send
demonstratives to the jury room for abuse of discretion,” and
that this discretion is properly exercised when decisions to
send the “demonstratives” are applied evenhandedly to both
parties. United States v. Natale, 719 F.3d 719, 743–44 (7th Cir.
No. 12‐2019 15
2013), citing United States v. Salerno, 108 F.3d 730, 742 (7th Cir.
1997). In both Natale and Salerno, however, the term “demon‐
strative” was being used in the broader sense. In both cases we
were referring to exhibits that had actually been admitted into
evidence. Neither case approved sending the jury exhibits that
were not in evidence.
In Natale, for example, the “demonstrative” exhibit at issue
was a diagram used by an expert witness to identify the
different types of grafts used for two different heart proce‐
dures. The defendant was accused of Medicare fraud by billing
for the more expensive procedure when he had performed the
cheaper one. Natale, 719 F.3d at 724–25. During the trial, the
expert witnesses had added labels to the diagrams to show the
differences between the procedures. Id. at 743–44. When the
diagrams were sent to the jury room, however, the labels were
removed and the jury was left with only factual depictions of
the grafts themselves and nothing more. Id.
For present purposes, the important point is that our
opinion in Natale indicates that the “demonstratives” in
question had in fact been admitted into evidence and that
defendant Natale was not contesting that admission. Id. at 744.
Similarly, the exhibit at issue in Salerno involved a scale model
of the crime scene that the jury was allowed to examine during
its deliberations. 108 F.3d at 742. And again, the key point for
present purposes is that the model was in fact admitted into
evidence. Id. It was “demonstrative” in the broad sense of the
term, but because it was actually admitted into evidence, it
could properly be made available to the jury during delibera‐
tions.
16 No. 12‐2019
In both Natale and Salerno, we found no abuse of discretion
where the district courts had been evenhanded in allowing
admitted evidence into the jury room. This case, however,
presents the different issue of sending the jury an exhibit that
was never admitted into evidence. Neither case suggested that
exhibits not admitted into evidence could be provided to the
jury at the discretion of the trial court, which would have run
contrary to the long‐standing practice reflected in Bankcard
America, 203 F.3d at 483, and Artis, 967 F.2d at 1142–43.
We acknowledge that the Tenth Circuit authorized a similar
departure from the usual practice in United States v. Downen,
496 F.2d 314 (10th Cir. 1974), when it affirmed convictions in a
fairly complex interstate vehicle theft case in which a govern‐
ment chart that organized the different stolen vehicles, dates,
and counts of the indictment was allowed to go to the jury
during deliberations. The chart itself had never been offered or
admitted into evidence. The trial court gave detailed instruc‐
tions to the effect that the chart was not evidence but contained
only the government’s theory of the case. Although the use of
the chart might have been justified on quite narrow grounds,
or perhaps found harmless, the Tenth Circuit explained its
decision to affirm in sweeping language:
[W]e hold that the submission of papers, docu‐
ments or articles, whether or not admitted in
evidence, to the jury for view during trial or jury
deliberations, accompanied by careful cautionary
instructions as to their use and limited signifi‐
cance, is within the discretion accorded the Trial
Court in order that it may guide and assist the
No. 12‐2019 17
jury in understanding and judging the factual
controversy.
496 F.2d at 321. The only federal authority that Downen cited
for that broad statement was Shane v. Warner Mfg. Corp.,
229 F.2d 207 (3d Cir. 1956), cert. dismissed, 351 U.S. 959 (1956),
a quite different case in which the Third Circuit had affirmed
a verdict reached after the trial judge submitted both sides’
damage calculations to the jury without admitting them into
evidence but with careful instructions on their proper use. The
Fifth Circuit followed Downen in Big John, B.V. v. Indian Head
Grain Co., 718 F.2d 143, 148–49 (5th Cir. 1983), when it affirmed
a verdict reached after the jury was allowed to use a damages
chart that had not been admitted into evidence.
We view both Downen and Big John as cases that departed
from longstanding practice in this and other circuits and the
learned treatises cited above, and as having done so with only
the most tenuous support. In any event, we are aware of no
case authorizing what happened here, where the district court
overruled objections to an exhibit on the ground that it would
be used only for demonstrative purposes and then, during jury
deliberations, reversed course and treated the exhibit as if it
had been admitted into evidence.4
4
Since Big John, the Fifth Circuit appears to have followed the majority
practice that we adhere to in this case. See United States v. Harms, 442 F.3d
367, 375 (5th Cir. 2006) (stating that demonstrative exhibits not admitted
into evidence “should not go to the jury room absent consent of the
parties”), quoting United States v. Taylor, 210 F.3d 311, 315 (5th Cir. 2000);
Pierce v. Ramsey Winch Co., 753 F.2d 416, 431 (5th Cir. 1985) (acknowledging
lack of clarity in Fifth Circuit’s case law on this point and explaining that
(continued...)
18 No. 12‐2019
The district court repeatedly made clear to both parties that
the exemplar ladder was being offered and used only as a
demonstrative exhibit. Even if the defendant might have been
able to have the ladder admitted as substantive evidence (a
question we do not decide), both parties were entitled to notice
of that possibility and the opportunity to raise objections. The
decision to allow the ladder to go to the jury room during
deliberations after it had been treated during trial as a demon‐
strative exhibit, and not as evidence, was therefore an abuse of
discretion.
D. Error Not Harmless
Finally, we consider whether the error might have been
harmless. In cases where unadmitted materials were sent to
juries during their deliberations, we have asked whether the
error was harmless. See Fed. R. Civ. P. 61; Bankcard America,
203 F.3d at 483 (finding error harmless where three unadmitted
documents sent to jury room duplicated extensive trial
testimony and opposing party had thoroughly presented its
side of the issue); Artis, 967 F.2d at 1142–43 (finding error
harmless where chart summarizing plaintiff’s damages
inadvertently went to jury for deliberations; most damages
were stipulated, and chart only repeated what jury had already
heard). In both Bankcard America and Artis, we framed the issue
4
(...continued)
charts and summaries not admitted into evidence should not be sent to jury
room), citing 5 Jack B. Weinstein & Margaret A. Berger, Weinstein’s Federal
Evidence, § 1006[07] (1983).
No. 12‐2019 19
as whether there was a reasonable possibility that the unadmit‐
ted materials altered the jury’s verdict.5
We conclude that the error was not harmless and that a
new trial is required. We have reached this decision without
considering the post‐trial juror affidavit submitted by plaintiff
that was the focus of much of the briefing. See Artis, 967 F.2d
at 1142; Fed. R. Evid. 606(b). The external indications alone
persuade us that the district court’s error was not harmless.
First, in effect, plaintiff’s counsel was lulled unintentionally
into what turned out to be a false complacency that the ladder
was not being offered as evidence, yet during jury delibera‐
tions, it was converted into a substantive piece of evidence that
the jury could see, touch, handle, step on, and otherwise
manipulate. Plaintiff never had an opportunity to plan for,
mitigate, or rebut the effects of the ladder’s introduction into
jury deliberations and was prejudiced by his inability to
respond to the ladder as substantive evidence.
Second, both sides had substantial evidence supporting
their positions. The jury deliberations spanned three days, and
the jury reached a verdict shortly after it had the opportunity
to examine, step on, and manipulate the exemplar ladder,
going well beyond the exposure they had to the ladder when
it was used as a demonstrative exhibit during the trial. The
5
In Artis, where the district court recognized the inadvertent error and
found it harmless, we reviewed that determination for abuse of discretion.
967 F.2d at 1143. In Bankcard America and in this case, the district courts did
not recognize the error and therefore did not evaluate its effect. See 203 F.3d
at 483. As in Bankcard America, therefore, we consider the possibility of
harmless error ourselves.
20 No. 12‐2019
error may well have been decisive; we cannot say it was
harmless.
We therefore agree with plaintiff. The district court permit‐
ted display of the ladder during trial exclusively for demon‐
strative purposes, which means that it should not have gone to
the jury during deliberations. To change that decision after the
jury began deliberating was an abuse of discretion that was not
harmless to plaintiff. We therefore REVERSE the judgment and
REMAND the case to the district court for a new trial.