It is a common technique for trial lawyers to use objects as demonstrative evidence at trial, in order to illustrate how certain events took place. Objections may be raised by the opposing lawyer arguing that the use of such evidence is somehow misleading. How the courts deal with such issues is illustrated in an unreported opinion from Maryland’s intermediate appellate Court in two consolidated criminal cases styled as Marquis Alston v. State of Maryland.
The Court’s opinion indicates that defendant Clark, and his co-defendant Alston, were convicted of multiple counts of assault, attempted robbery and other crimes. The cases arose from an attempted robbery of two out of town victims who had come to Baltimore to attend a Ravens game. As they were heading back to their hotel around midnight, Clark and another unknown robber approached the victims with guns drawn and demanded their money.
As the Court described it, the robbery then turned into “very much of a botched effort.” As one of the victims refused to give his money and punched Clark, the other victim grabbed for his gun and got shot in the neck. The two robbers then ran, with Clark jumping into a van driven by Alston. Nearby police officers chased and apprehended both of them, but the guns used were never recovered.
At trial, the prosecutor over objection produced a small green rubber gun, and asked the victims to demonstrate how the gun was pointed at the victim and the melee that ensued. The appellate Court agreed that the trial judge properly exercised her discretion in allowing this demonstrative evidence to be used. The Court found no risk that the jury could be confused or misled because the real gun was not used. As Judge Moylan noted, there was “no remote chance of inflammatory prejudice. A little green rubber gun won’t do that trick.”
Given the complexity of the movements of the bodies during the robbery attempt, the Court found it just as appropriate to use a little rubber gun as it would have been “to use a little toy truck or the judge’s gavel for precisely that same demonstrative purpose.” Obviously a real gun had been used, since a victim got shot, and the Court upheld the convictions.
Thomas Patrick Ryan is a partner in the Rockville law firm of McCarthy Wilson, which specializes in civil litigation.