Demonstrative exhibits that are not admitted into evidence pose quite different issues than the general rules for exhibits admitted into evidence. The general rule is that materials not admitted into evidence simply should not be sent to the jury for use in its deliberations.
In a product liability trial, a defense expert illustrated his testimony by using an exemplar of the product in question, a ladder that had collapsed 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.
Was it an abuse of discretion to send the object in question to the jury for use during its deliberations despite the object not being admitted into evidence?
The Court ruled that it was an abuse of discretion to send an exemplar of an alleged defective ladder, used by a defense expert to illustrate his testimony, to the jury over a consumer's objection when it was not admitted into evidence. The Court noted that the general rule was that materials not admitted into evidence were not sent to the jury for use in deliberations. In this case, the ladder was allowed to be used only as a "demonstrative" exhibit, as such, it could be displayed to help the jurors understand the substantive evidence but it could not be available during deliberations. The Court concluded that the error committed in the handling of the case was not harmless because the consumer had no opportunity to plan for, mitigate, or rebut the effects of the ladder's introduction into deliberations.