United States District Court, D. Connecticut
RULING ON PLAINTIFF'S REQUEST TO USE VISUAL AIDS
(DOC. NO. 63)
M. Spector United States Magistrate Judge
plaintiff, Paul Brodeur, filed this motion requesting to use
a mannequin as a visual aid “to assist the jury in
understanding the testimony and other evidence in this
case.” (Doc. No. 63 at 1). The defendants oppose this
request on the following grounds: (1) the use of the
mannequin is misleading and lacks a foundation; (2) the use
of the mannequin is cumulative of other more representative
evidence that will be offered at trial, including videos of
the incident, and testimony from fourteen witnesses,
including the plaintiff; (3) the timing of the
plaintiff's notice of use of a mannequin is prejudicial;
and, (4) the mannequin should be excluded as any probative
value of the mannequin is substantially outweighed by the
potential for undue prejudice. (Doc. No. 67 at 1-8). The
Court agrees with the defendants.
decision to allow a demonstrative exhibit falls within the
discretion of the trial court, and such exhibit may be used
to illustrate and clarify other evidence, or as a visual aid
to the jury in comprehending the verbal testimony of a
witness. 2 Handbook of Fed. Evid. § 401:2 (8th ed.).
Demonstrative exhibits, and mannequins specifically, are
often used as visual aids to help illustrate expert witness
testimony. See, e.g., Jordan v. City
Chicago, No. 08 C 6902, 2012 WL 254243, at *10 (N.D.
Ill. Jan. 27, 2012) (holding that the expert offering
trajectory opinions “is free to use the mannequin and
the photographs of the mannequin in the report at trial for
demonstrative purposes.”); State v. Tollardo,
77 P.3d 1023, 1027 (N.M. 2003) (holding that expert witness
in crime scene reconstruction and computer assisted design
programs could use computer-generated simulation as a
demonstrative exhibit after concluding that the
computer-generated simulation was valid); Moss v.
State, 559 S.E.2d 433, 434-35 (Ga. 2002) (permitting the
use of “a mannequin head to help the jury understand
the testimony of the medical examiner”); People v.
Cummings, 850 P.2d 1, 38 (Cal. 1993), as modified on
denial of reh'g (June 23, 1993), abrogated on
other grounds by People v. Merritt, 392 P.3d 421 (Cal.
2017) (holding that the probative value of the use of a
mannequin to illustrate the paths of six bullets, as
explained by the prosecution's expert, and the use of
photographs of an “accurate reconstruction” of an
event, outweighed any prejudice to the defendant,
particularly given that the expert testimony was
“confusing at times.”); State v.
Paulsen, 265 N.W.2d 581, 589 (Iowa 1978) (holding that
the trial court did not err in permitting “[the expert
witness, a doctor, ] to use the medical mannequin to
demonstrate the injury to [the victim] and to amplify his
testimony.”). In such cases when demonstrative exhibits
are used, however, the exhibit must constitute “an
accurate and reasonable reproduction of the object
involved[.]” State v. Duncan, 894 So.2d 817,
829 (Fla. 2004) (citation and internal quotations omitted);
see Tollardo, 77 P.3d at 1027. Moreover, when
demonstrative models are proposed, “courts must . . .
carefully examine such materials to insure their reliability
and probative value.” Estate of Jaquez v.
Flores, No. 10 Civ. 2881(KBF), 2016 WL 1060841, at *10
(S.D.N.Y. Mar. 17, 2016).
mannequin in this case is not offered to explain expert
testimony. In fact, this case does not include expert
testimony, and, in light of the fact that the plaintiff did
not disclose his intent to use this mannequin until the final
pretrial conference, on August 5, 2019, no expert may address
the foundation or accuracy of the mannequin. Rather, there
are fourteen witnesses, including the plaintiff, who will
testify about the event at issue. The use of the
demonstrative evidence, therefore, will be cumulative.
the accuracy of this visual aid is in question. After
inspecting the mannequin, defense counsel conveys to the
Court that “it is not the size of Mr. Brodeur and
weighs a fraction of Mr. Brodeur's weight. Furthermore,
the legs and arms do not appear to bend or move in the full
manner in which the human body can move or bend.” (Doc.
No. 67 at 2). Given the potential issues identified by the
defendants as to the size and maneuverability of the
mannequin, the Court must weigh whether the probative value
substantially outweighs the prejudice to the defendants.
Estate of Jaquez, 2016 WL 1060841, at *10. Under
Rule 403, the “court may exclude relevant evidence if
its probative value is substantially outweighed by a danger
of one or more of the following: unfair prejudice, confusing
the issues, misleading the jury, undue delay, wasting time,
or needlessly presenting cumulative evidence.”
Fed.R.Evid. 403. There are videos of the incident that will
be shown at the trial, and to the extent that they are
difficult to see from various angles, there are more than a
dozen witnesses who will offer testimony explaining the
sequence of events.
risk of prejudice is magnified in a case such as this in
which the legal standard for an excessive force case brought
under the Eighth Amendment requires a determination of
“whether force was applied in a good faith effort to
maintain or restore discipline or maliciously and
sadistically for the very purpose of causing harm.”
Whitley v. Albers, 475 U.S. 312, 320-21 (1986)
(citation & internal quotations omitted). A reenactment
in the courtroom of the events at issue presents a risk of
confusion for the jury and, as the defendants argue
appropriately, “invites the jurors to base their
determination on 20/20 hindsight[, . . .] under conditions
that are not representative of those that faced the
defendants at the time of the incident.” (Doc. No. 67
at 4); see Twitty v. Ashcroft, No. 3:04 CV 410
(DFM), 2011 WL 59303, at *8 (D. Conn. Jan. 6, 2011)
(instructing the jury that, in determining whether the
defendants' actions constituted excessive force, the
jurors “must not base [their] decision upon the 20/20
vision of hindsight. [The jurors] must put [themselves] in
the place of the Defendant during the very moment when the
events were occurring and judge his actions as of that time
and under those circumstances.”), aff'd sub.
nom. Twitty v. Salius, 455 F. App'x.97 (2d Cir.
the Court concludes that the use of this mannequin is
cumulative and will serve to confuse the jury, and that the
probative value is substantially outweighed by the potential
of unfair prejudice to the defendants. Estate of
Jaquez, 2016 WL 1060841, at *10 (holding that
“[w]here a demonstrative aid threatens to mislead,
rather than assist, the jury, it is appropriate for the Court
to exclude it.”). The plaintiff's Request to Use
Visual Aids (Doc No. 63) is denied.
In addition to the foregoing, the
plaintiff states that he “will seek to use still images
from Plaintiff's Exhibit 1. Some of these images involve
zooming in on the video--while maintaining pixel
integrity--in order to make it easier for the jury to
see.” (Doc. No. 63 at 3). The defendants do not object
in their brief in opposition. ...