Dear Attorney Jane Doe and Attorney John Doe:
As a young lawyer, you are in a place that I left some time ago. However, I have watched you step into jury courtrooms with a level of anticipation and excitement that is refreshing. While a few of you mask it well, I know there is also some anxiety lurking in the background. Don’t worry, because that anxiety strikes even the most seasoned litigators. Now I sit on the bench, and I sometimes wish I could call a time out during the trial to share with you some simple tips that will put you more at ease as you proceed with your case.
Being a member of the judiciary is an honor that comes with extraordinary powers and responsibilities. These powers do not include a coach’s ability to call for substitution of players, so in this note I want to briefly address some basic practical pointers to improve your overall practice as well as touch upon the specific issue of presentation of evidence to a jury. I hope by doing so I give you peace of mind and contribute, in a small way, to your growth as a fine attorney.
How quickly you acclimate yourself to courtroom practice depends in large part on you, your learning style, and how many opportunities you have to appear before the court. In the beginning, you may feel overwhelmed by the number of items you must remember, track and recall at a moment’s notice. In your haste, you may overlook a few very basic points that can actually help you. Here’s a brief list:
• Be on time. Factor into your schedule delays caused by traffic jams, security checkpoints and elevator.
• Be prepared. That’s your job.
• Admit what you know and what you don’t know. Don’t try to fool the judge and jury.
• Keep all conversations about the case (including settlement discussions) between you and judge on the record.
• Make sure all the evidence you want to include in your closing argument has been admitted before presenting your closing argument.
• Confirm that you have issued trial subpoenas to all witnesses you may need to call to help lay a foundation for evidence you wish to admit.
• Be respectful of your opponent, court staff and the trial judge when communicating with them.
• Outline how you envision your case proceeding and then follow your outline.
• When things are not going your way keep an even keel and refer to your outline.
Now, I’m going to move onto the specific issue of presenting evidence at criminal and civil trials. From my years as a practicing attorney as well as on the bench, I have noticed that litigators are not always aware of how they present evidence to the jury. This is unfortunate because the manner in which you present evidence to them can greatly affect the outcome of your case. To better assist you, I will give you an overview of how to present evidence at both criminal and civil trials.
Criminal trial attorneys can enhance their trial practice by remembering a few points: take advantage of all available exhibits, consider the size of each piece of evidence in the context of a large courtroom and how it will appear to the jury. In general, items presented to the jury include bats, knives, guns, articles of clothing, blood, DNA, foot and/or finger prints, et cetera. Attorneys introduce this type of evidence to clarify facts for the judge and jury. Keep in mind that not all evidence may be categorized as demonstrative. Demonstrative evidence includes charts, graphs, enlarged copies of documents, x-rays, computer simulations, diagrams of scenes, videos, and models.
First, trial attorneys often do not take full advantage of the exhibits available to them. They hold up an exhibit and put it down too quickly. Before replacing any exhibit, such as a photograph, make sure that all of the jurors see it. If you are presenting a photograph, consider the impact you want to make. While a 5x7 photograph seems large in your hand imagine six to twelve sets of eyes straining to see it from the jury box. Instead, consider using blown-up photographs, especially of important exhibits, to emphasize a particular scene or event.
Also, consider the power of presenting an actual item into evidence, rather than a diagram or photograph of the item, if possible. For example consider jurors’ reactions when they view a photograph of the gun at issue versus their reaction to seeing you holding up the gun. Offering the exhibit itself, when it is available, will have an indelible impact on jurors.
Back to the 5x7 photograph—an attorney who shows the photograph to a witness on the stand and points “right there” conveys nothing to the jurors. Jurors are not comfortable speaking out in court and you want each juror to clearly see the exhibit, especially if the material is important to your case. To solve this problem, place your oversized photograph on an easel in the courtroom. Scout out possible locations to place the photograph prior to the start of the trial. You want to make certain the jurors and judge all have an unobstructed view of the image. Then, with the court’s permission, ask the witness to leave the stand and point out the necessary information. As an aside, if possible do not use black and white photographs. Often times, these photographs are grainy or out of focus, especially if you enhance a portion of it.
Don’t disregard the possibility of publishing photographs. I have found that many judges are amenable to this idea. Of course, you must publish it properly. To publish a photograph, you must first lay the foundation for each photograph and then obtain the judge’s permission to publish. Then you may distribute the photographs to the jury to pass around.
Similarly, to show evidence to a jury during trial, lay the foundation, ask the judge to strike the identification numbers of on each exhibit, and then ask for permission to put the exhibit into evidence. Lastly, ask to publish the exhibit and then publish it in the manner just described.
Finally, consider situations where you want a witness to describe specific actions they or someone else took. In these scenarios, it is very easy to confuse yourself, the witness and the jury. A simple solution is to have the witness step off the stand, with the judge’s permission of course, and have them demonstrate the action to the jury. This is very powerful and will capture any juror’s attention. Do not forget to describe the witness’s actions for the record.
Most importantly, make sure you lay the proper foundation for each item you intend to introduce into evidence. While discussed at length in evidence books, foundation requirements actually consist of several simple questions. Immediately below is a compilation of foundation questions for different types of evidence:
• Is the witness familiar with scene in photographs?
• Is the witness familiar with scene on that date?
• Does the photograph truly and accurately display the scene as it appeared on the relevant date?
• Who took the photograph?
• Does the witness recognize the exhibit?
• Does the witness know what the exhibit looked like on the relevant date?
• Does the exhibit appear in the same or substantially same condition as when the witness saw it on the relevant date?
• Is the witness familiar with the scene presented by the diagram?
• Is the diagram similar to the scene on the relevant date?
• Is the diagram helpful to a witness in explaining information to the jury?
• Is the diagram relevantly accurate?
Sound and video recordings:
• Did the witness see or hear what was recorded?
• After the recording was made did the witness hear/see the tape and verify it was accurately recorded? Confirm that no alterations or deletions were made to the sound or images after verification.
• Does the witness recognize sounds and images on the tapes?
• Does the probative value of the demonstration outweigh any prejudicial effect?
• Does the witness display a physical act to the jury?
While the subject matter, process and procedures vary from criminal to civil trials, the basic problems in presentation of evidence remains similar. Oftentimes, civil cases involve photographs of an accident site, photographs of a product or a model of an injured body part.
In fact graphs, charts and three dimensional models all help witnesses explain the extent of any bodily injury to jurors. Take for example a lawsuit where a party suffered a hip injury. In this case, bring in a model of the hip joint area. You, or your expert, can use it to show the exact area on the body that is injured or the extent of the injury. Similar to criminal cases make sure the judge and jury has a clear view of your graphs and demonstrations. Projectors and PowerPoint displays also serve as good demonstrative aids.
Here are some additional mistakes that, at one point or another, have tripped up some attorneys:
• Failure to mark the demonstrative evidence as an exhibit. All exhibits should be properly marked prior to trial.
• Failure to show your exhibits to opposing counsel in advance of trial may lead to its exclusion. Copies of all evidentiary exhibits should be tendered during discovery. If you cannot tender a copy of the exhibit to counsel, i.e. model to scale, then make other arrangements in advance of trial.
• Not providing a clear view of the exhibit. Whatever you choose to use, chart or PowerPoint, double check that your jurors and judge can clearly see it. Confirm that it is viewable from a variety of angles.
• Forgetting to lay the foundation before presenting a model. As shown above, you can easily lay the foundation for a model exhibit by asking the maker of the model a few simple questions. Only if the attorneys reach an agreement regarding the source of the model and how it was constructed may you bypass the foundation step.
• Not properly planning ahead and making the most of any models or diagrams. For example, if your model is not made to scale, such as a reconstructed body part, then take additional steps to ensure your jurors derive the full benefit of having the model present. Ask the court for permission to have the witness step down from the stand, bring the model in front of the jury box, and have the witness then manipulate the model to make his/her point. Conversely, if the model is extremely large, then make arrangements to have these items brought in ahead of time.
Regardless of whether you are handling a criminal or civil trial, do not be afraid to bring everyday technology into the courtroom. As younger attorneys, you grew up in a more digitalized world. Odds are you are already comfortable with different gadgets and programs. Use that knowledge to more easily and efficiently present evidence to jurors.
For example, use a computer or other visual aid to project photographs onto a large screen. Also, consider video conferencing. With new laws regarding videotaping of statements, the number of video cameras available in cities, and the general ease and access people have to video and phone cameras, teleconferencing or video conferencing is on the rise. In fact, some courts even provide the necessary equipment upon request. Whether you borrow it from the court or, as more often will be the case, you transport it to the court yourself, set it up and make sure everything works smoothly before the jurors even come in.
As always, regardless of what means you use to present the information, whether it is a projector or graph, verify that it can be viewed by both the jurors and judge. I cannot emphasize this point enough. In a similar vein, do not overlook the importance of audio and acoustics.
Many attorneys have encountered unforeseen problems because of a given courtroom’s acoustics. By the time a case proceeds to trial, you will have examined and reexamined your exhibits numerous times. Therefore, you can pinpoint an item in a 5x7 photograph and hear every nuance in someone’s voice in a videotaped conversation. However, the jurors see the same exhibits for the first time in less than ideal conditions, and they may easily miss an important statement, or worse mistake it for something else.
One solution to a tape with unclear audio is to print a transcript for jurors to follow as they view the video. Moreover, certain computer programs will run the dialogue along the bottom of the screen. In any event, keep in mind that the judge must instruct jurors that they need to rely on their own interpretation of the audio tape.
A word of caution, the purpose of utilizing technology is to create ease and efficiency in presenting evidence to jurors. If you are not comfortable with a piece of technology, then become comfortable with it before using it in front of a jury. Jurors do not want to watch you fumble or have problems with technology. I have seen trials be delayed for up to 20 minutes as the attorneys try to fix the problem or wait for assistance from their office. This tactic is especially problematic if you are a sole practitioner and such additional assistance is not available to you.
Finally, and I cannot emphasize this enough, use your exhibits strategically. Some attorneys cannot pare down their evidence. In their haste to persuade jurors, they fail to realize that one or two carefully selected photographs speak volumes. Having 100 photographs in your possession does not mean that each one will add value to your case. In fact, you may actually do yourself a disservice by presenting them all because, for example, you may district a juror from the important photos or details. It’s a simple point, but for many new attorneys it’s easy to overlook.
Well, that’s about it for now. I hope you have found these points helpful, and I am excited that I had this opportunity to contribute to your development as an attorney. I wish you much luck. ■
Very truly yours,
E. Kenneth Wright, Jr.
First Municipal District