EvidenceProf Blog

Editor: Colin Miller
Univ. of South Carolina School of Law

Tuesday, May 25, 2021

First Circuit Finds “Substantial Similarity” Test Applies to Demonstrative Recreation Evidence in Criminal Cases

At trial, parties are allowed to introduce demonstrative recreation evidence, i.e., a demonstration for the jury that recreates the conditions of an alleged crime or civil wrong, e.g., a crime scene reconstruction of a shooting or a car crash. So, what test should apply for the admission of such evidence in a criminal case? That was the question of first impression addressed by the First Circuit in its recent opinion in United States v. Stewart-Carrasquillo, 2021 WL 1961017 (1st Cir. 2021).

In Stewart-Carrasquillo

James Stewart-Carrasquillo (“Stewart”) and Harold Esquilin-Montañez (“Esquilin”) were caught dumping bales of contraband off the side of a turbocharged “fishing” boat loaded, on deck and in plain view, with more than $12 million worth of cocaine (at street value) packed in twenty-five bales with a total weight of more than 1,200 pounds. Not crediting their defense at trial that they were innocent bystanders on a fishing trip where traps were laid into the waters for later retrieval of lobsters, a jury convicted both defendants of various narcotics offenses.

After they were convicted, Stewart and Esquilin appealed, claiming, inter alia, "that the district court abused its discretion by excluding their homemade video 'reenactment.'" Specifically,

During both the fourth and fifth day of trial, defendants offered as evidence a homemade video depicting a reenactment of twenty-five bales being brought on board a vessel by “a normal housewife,” a woman of similar age to Carrasquillo. Defense counsel explained that “because the Government has questioned the ability of Juan Carrasquillo to bring those bales on board...instead of doing the reenactment with a man, we decided to use conditions that were more onerous, and did the reenactment with a woman of similar age, who was able to load the 25 bales.” Defense counsel urged that the video had “[Federal Rule of Evidence] 101 value” and it would be probative in that would help “the jury understand the testimony.”

The government opposed admission of the video, stating that the defendants had not “show[n] a similarity of conditions and circumstances” between the original loading of the cocaine and the purported reenactment. The government objected that there was “no indication as to how the bales that were seen floating were actually constructed or packaged”; there was “dissimilarity in terms of the sea conditions”; the boat appeared to be “just slightly off a pier instead of in the middle of the ocean”; “in the video, you can see someone actually captaining the vessel or near the steering console” (in contrast to Stewart's testimony that Carrasquillo, in the middle of the ocean, had left the steering wheel for “40, 45 minutes” in order to “load all of the packages on board,” during which time the boat just floated and “was being guided by the currents”); and the reenactment was done “in the daylight hours.”

The First Circuit affirmed the district court's decision to exclude the video, citing to its prior opinion in Fusco v. Gen. Motors Corp., 11 F.3d 259, 264 (1st Cir. 1993), where it held that, in a civil case, demonstrative recreation evidence is subjected to the “substantial similarity” test, which requires that the recreation be done in conditions that were substantially similar to the conditions that existed at the time of the alleged civil wrong.

The First Circuit then held that the “substantial similarity” test also applies in criminal cases and

note[d] that in holding that the “substantial similarity” test also applies to recreations in the criminal context, we join other circuits. See United States v. Jackson, 479 F.3d 485, 489 (7th Cir. 2007); United States v. Baldwin, 418 F.3d 575, 580 (6th Cir. 2005); United States v. Birch, 39 F.3d 1089, 1092-93 (10th Cir. 1994); United States v. Russell, 971 F.2d 1098, 1106 (4th Cir. 1992). We reiterate that “substantially similar” is a flexible concept; it is not synonymous with “identical.” When a demonstration is admitted, any dissimilarity is fair game for cross-examination. The application of the substantial similarity test is informed by the purpose for which the purported recreation is offered. However the proponent characterizes the reason for the introduction of the demonstrative aid, if that demonstration does not permit a fair comparison with the event at issue because it is “insufficiently comparable to the circumstances [of] the case,” Swajian, 916 F.2d at 36, then the district court is well within its wide berth as gatekeeper of the evidence in excluding it.

-CM

https://lawprofessors.typepad.com/evidenceprof/2021/05/at-trial-parties-are-allowed-to-introduce-demonstrative-recreation-evidence-united-states-v-stewart-carrasquillo-2021-wl.html

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