Experiments and Demonstrations
Experiments and demonstrations in the courtroom: In general
• Experiments and demonstrations may be permitted during the trial if they will aid the court and jury.
See Camm v. State, 908 N.E.2d 215, 236 (Ind. 2009), reh’g denied(quoting Benner v. State, 580 N.E.2d 210, 213 (Ind. 1991))(alteration in the original)(“This is in part because ‘[d]emonstrations are permitted to be conducted during a trial if they will aid the court and the jury.’”)
• But our Supreme Court has recognized experiments and demonstrations in the courtroom can “pose peril to the fairness of a trial.”
Experiments and demonstrations in the courtroom: Deciding whether to permit an experiment or demonstration
• In deciding whether to permit a demonstration, a court should consider such factors as the ability to make a faithful record of the drama for appeal purposes, the degree of accuracy in the recreation of the actual prior conditions, the complexity and duration of the procedures, other available means for proving the same facts, and the risk the conduct of such a procedure may pose to the fairness of the trial.
See Yamobi v. State, 672 N.E.2d 1344, 1348 (Ind. 1996)(citing Lambert v. State, 643 N.E.2d 349, 353 (Ind. 1994), aff’d in relevant part on reh’g, 675 N.E.2d 1060 (Ind. 1996))(“In Lambert, we noted that several factors should be considered in assessing whether a demonstration was an abuse of discretion. Specifically, we look at any difficulty in preserving the demonstration for challenge on appeal; the degree of accuracy of the recreation; the complexity and duration of the procedure; other available means of proving the same facts; and risk of unfairness to the defendant.”)
Experiments and demonstrations in the courtroom: Discretion of the trial court
• The decision to permit or refuse to permit a courtroom demonstration is a matter of trial court discretion which this court will not disturb on appeal unless there is a clear abuse of discretion.
See White v. State, 229 N.E.2d 652, 654 (Ind. 1967), reh’g denied(citing Green v. State, 63 N.E.2d 292, 293 (Ind. 1945))(“We consider that it was within the sound discretion of the Trial Court to either permit such experiment or to refuse to permit it, and this Court will not review such decision on appeal unless there is a clear abuse of discretion shown.”)
See also Andrews v. State, 532 N.E.2d 1159, 1165 (Ind. 1989), reh’g denied(citing Van Orden v. State, 469 N.E.2d 1153, 1158 (Ind. 1984), reh’g denied, cert. denied, 471 U.S. 1104 (1985))(“Courtroom demonstrations are admissible subject to the trial court's discretion and, on appeal, the trial court's discretion with respect to the admissibility of demonstrations is subject to review only for an abuse of discretion.”)
See also Camm v. State, 908 N.E.2d 215, 236 (Ind. 2009), reh’g denied(citing Lambert v. State, 643 N.E.2d 349, 353 (Ind. 1994), aff’d in relevant part on reh’g, 675 N.E.2d 1060 (Ind. 1996))(“[A] trial court's decision to allow courtroom demonstrations will only be reversed for an abuse of discretion.”)
Experiments by the jury: In general
• An experiment by the jury is improper where it amounts to additional evidence supplementary to that introduced during the trial.
Patterson v. State, 742 N.E.2d 4, 15 (Ind. Ct. App. 2000), aff’d on reh’g, 744 N.E.2d 945 (Ind. Ct. App. 2001), cert. denied, 534 U.S. 961 (2001)(quoting Bradford v. State, 675 N.E.2d 296, 304 (Ind. 1996), reh’g denied)(alteration in the original)
Experiments by the jury: Examples from case law
• [T]he jurors returned to the courtroom during their deliberations to experiment with the [weightlifting] machine. A female juror lay on the weight bench and tried to get out from under the weight bar. Next, the same juror tried to get out from under the weights while another juror sat on her and held her wrists. . . . [T]he jurors in this case acted in keeping with the testimony presented at trial. Furthermore, in the current case[,] the jurors were examining a properly admitted exhibit. We conclude that the jury's actions were not improper.
• [T]he jurors in this case only considered the evidence admitted at trial. [Detective] Biggs testified that he surveyed the property and observed shoeprints on the inside and outside of the property. [Detective Biggs] testified that he took photographs, made a plaster cast of one of the impressions, and took custody of a pair of [the defendant’s] shoes. All these items were admitted into evidence. The jury's measurement and comparison of the shoes with the photographs was not an improper experiment.
• The State introduced two shirts found in a dumpster in Ohio. In contesting any link between himself and the shirts, [the defendant’s] counsel argued that neither shirt would even fit [the defendant]. Two jurors, who apparently claimed to be of similar height and build to [the defendant], tried on the clothing and reported to the other jurors that the shirts fit them. . . . Here, the jurors merely examined the evidence in question. In addition to touching and otherwise handling the shirt, two jurors put the shirt on their bodies. This trying on of the shirt did not constitute any extra-judicial experiment requiring reversal.