Demonstrative exhibits - do they go into the jury room?

September 2006
By Judge John Wittmayer, Multnomah County Circuit Court

On July 12, the Oregon Court of Appeals issued its opinion in Christensen v. Cober, ___ Or App ___ (2006), which clearly answers the question about whether demonstrative exhibits go into the jury room.

In Christensen, a medical negligence case, plaintiff's expert witness "described a device called a synovial scraper that he testified is used to scrape off the bursa so a surgeon can adequately see the [surgical site]." The doctor then said that we have a "nice picture of what it looks like, which is better than anything I can show." The witness described the exhibit as a picture of "what you will see when you clear off that ligament." The picture was received "for demonstrative purposes." Over plaintiff's objection, the exhibit did not go into the jury room because it was received "for demonstrative purposes" only.

The Court of Appeals opinion tells us that "[r]egardless of whether an exhibit that is admitted in evidence is designated as demonstrative or not, though, there is no rule of evidence or trial procedure that authorizes the exclusion of such an exhibit from the jury's use and consideration during deliberations." ORCP 59C(1) requires that all exhibits (except for depositions) go into the jury room during deliberations.

Practice tip: Avoid misunderstandings with adverse counsel and the court by making sure you all have a common understanding of what exhibits go into the jury room.