723.1Demonstrative Evidence

Generally

In contrast to real evidence (discussed above at 721.1, Real Evidence: Non-fungible; and 722.1, Real Evidence; Fungible), demonstrative evidence consists of objects that have not played an actual, direct role in the incident giving rise to the trial. 2 Kenneth S. Broun, et al., Brandis & Broun on North Carolina Evidence, § 252, at 1009 n.145 (8th ed. 2018). No codified rule of evidence specifically deals with demonstrative evidence. Id. Its admissibility will ordinarily be governed by general principles of relevance and authentication. Id. The authentication of particular types of evidence is addressed in succeeding sections: 724.1, Digital Evidence; 725.1, Photos and Videos; 726.1, Audio Recordings; 727.1, Maps and Diagrams.

Illustrative or Substantive

Demonstrative evidence is usually introduced to illustrate the testimony of a witness. 2 Broun, Brandis & Broun, § 252, at 1009 n.145. Indeed, “[a]ny party may introduce evidence for the purpose of illustrating the testimony of a witness.” State v. Chandler, 324 N.C. 172, 189 (1989). In general, illustrative evidence may be authenticated by a witness testifying that the exhibit represents an accurate depiction of his or her testimony. See, e.g., State v. McSwain, 277 N.C. App. 522, 530 (2021) (photocopy); State v. Baker, 65 N.C. App. 430, 439 (1983) (photo). In most cases the jury need not be instructed that it may consider the evidence only for illustrative purposes. See State v. Kuplen, 316 N.C. 387, 418 (1986) (no error absent request).

Until relatively recently, the North Carolina rule was that demonstrative exhibits were admissible only to illustrate the testimony of a witness and not as substantive evidence. See e.g., State v. Handsome, 300 N.C. 313, 319 (1980); State v. Russ, 2 N.C. App. 377, 380 (1968). There was an exception for official maps. See Lackey v. Tripp, 63 N.C. App. 765, 768 (1983). By statute, photographic exhibits are now generally admissible as substantive evidence. G.S. 8-97; cf. State v. Kuplen, 316 N.C. 387, 417 (1986) (noting effect of statute).  Hence, any party may introduce a photograph, video tape, motion picture, X-ray or other photographic representation as substantive evidence upon laying a proper foundation and meeting other applicable evidentiary requirements.” G.S. 8-97. This statute does not prohibit the admission of photographic evidence as illustrative evidence.  Id.; cf. State v. Rogers, 323 N.C. 658, 665 (1989) (illustrative or substantive); State v. Cabey, 307 N.C. 496, 501 (1983) (same).