Southern District of Florida Distinguishes Demonstrative Aids From Demonstrative Exhibits

What’s the difference between a “demonstrative aid” and a “demonstrative exhibit”? That was the question addressed by the United States District Court for the Southern District of Florida in its recent opinion in Apple, Inc. v. Corellium, LLC, 2021 WL 2712131 (S.D. Fla. 2021).

In Corellium,

Corellium propose[d] using a demonstrative aid during the testimony of its Chief Technology Officer, Chris Wade. The demonstrative aid, which Corellium [wa]s not seeking to admit into evidence, [wa]s intended to show the jury that the modifications Corellium makes to Apple’s iOS computer code are not made to bypass any technological protection measures since iOS can allegedly be run without any changes or bypasses. Apple object[ed] to the demonstrative aid on several grounds including that it [wa]s inaccurate, misleading, w[ould] confuse the jury and waste the court’s time, and w[ould] create a mini-trial within the trial as to the accuracy of the demonstrative aid.

In denying Apple’s motion in limine, the court observed that,

although there is some confusion among various courts, a “demonstrative exhibit” is one that is admitted into evidence at trial while a “demonstrative aid” is only used to assist the witness’ testimony and is not admitted into evidence at trial. In this case we are dealing with the latter-a demonstrative aid to be used during the testimony of Mr. Wade, which demonstrative aid Corellium is not seeking to admit into evidence. Federal Rule of Evidence 611(a) controls when a demonstrative aid is at issue….Rule 611(a) provides, among other things, that a court may exercise “reasonable control over the mode of…presenting evidence” so as to make the procedures “effective for determining the truth” and to “avoid wasting time.” Fed. R. Evid. 611(a). For purposes of this ruling, it is important that we are dealing with a proposed demonstrative aid to be used during Mr. Wade’s live testimony in court, and which demonstrative aid Corellium is not seeking to introduce into evidence and send back to the jury.

-CM