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by Kenneth C. Anthony, Jr. These days the kinds of demonstrative evidence and the methods
of presenting this evidence have become so numerous, there are almost too many,
and the lawyer could spend virtually all of his or her time deciding which kind
to use and preparing the demonstrative evidence for trial. The varieties
are literally endless in that new methods are developed every day. With
the pace of technology and the length of dockets these day, the method of
presentation which was contemplated when the case was taken can actually be out
of date by the time the case reaches trial. It was not long ago when the most sophisticated form of
exhibit preparation was the enlargement to poster size of letters, photographs
or other documents which could be placed on an easel and referred to
during trial. Videos and simple computer simulations followed. More
sophisticated presenters followed which allowed monitors to be set up all over
the courtroom - one for each counsel, one for the judge, one for the jury and
perhaps one for spectators and press - and each could view the same scene or
evidence at the same time. Videotape could be viewed in this way.
The technology was soon adapted so that photographs, documents or other evidence
which formerly might have been enlarged or displayed on an overhead projector
could also be viewed over this network of television monitors. X-rays or
CT scans could be presented. Nowadays, virtually all of these things can
be scanned or otherwise entered into a computer and the information distributed
to the monitors directly from the computer. The images can be enhanced,
enlarged or even altered. Photographs can now be taken directly on a
digital camera and never "developed" in the sense we have known, but
rather loaded directly into a computer. They can then be cropped, enlarged
or zoom can be used to present crucial evidence shown in the photograph.
There are complex medical malpractice and product liability cases where the use
of the latest form of technology is essential in presenting the intricate points
involved. The purpose of this article, however, is to review and to
suggest that the use of cutting edge demonstrative evidence in less complicated
cases is not always necessary and can even be counter-productive. If the
case does not demand computer simulations or require the use of separate
monitors driven by computer, eschew them. There are good reasons not to
use them.
One advantage the old poster boards had was that they were fairly easy to move
around. One could be placed in front of another on the easel, or one that
had already been displayed retrieved as easily as shuffling a deck of cards.
More importantly, several could be displayed at once. They could be placed
one beside the other and compared. A multi-page document could be spread
out with several of the poster boards set next to one another. They could
be lined up while cross-examining an opposing expert. Perhaps as important
as anything, they could always be inadvertently left lying around, and this
evidence could be placed in a location where the jury looked at it the entire
trial, whether it was being used at the moment or not. None of this is
possible with the modern presenters, where the object being displayed must be
removed before the next can be shown, and whose monitors must be turned off
after use. X-rays and CT scans can be presented very clearly using these
presenters and monitors. But every time anyone on the jury or one of their
relatives has been to a doctor or hospital, they have seen their doctor take
these films and jam them up into one of those viewboxes mounted on the wall
which magically come on when the film is inserted. Their doctors, whom
they trust, use these viewboxes. They do not use these computer monitors
and presenters. When I present my treating, or expert, physician, I want
the jury to identify this doctor with their trusted family doctor, not see him
as some out-of-town expert using computer gimmickry to make their poor hometown
doctor look shabby. If the computer is needed to prove an essential point,
use it. If a viewbox will work just as well, use it instead. The use of these separate monitors can even be a detriment.
On the few occasions when I have had to use monitors, I have never set one up
for my table. I want to go over and stand and watch the monitor with the
jury, so "we" can see it together. Anything that separates us is
bad. Whenever jurors are viewing something on a television monitor, the
screen has their entire attention. When I am using poster boards, I have
their attention. I am holding the poster. I am pointing to it.
I am underlining or highlighting portions of it. I am waving it around,
poking it in an expert's face. They are listening to me. They are
watching me, not looking at some small flickering image, distracted from me.
If the information can be enlarged and placed on a posterboard, do it.
The machines to make such enlargement are not terribly expensive and can be
purchased for your office. My experience, however, is that although I can
make the enlargements, I have never mastered the skill of being able to paste
the enlargement neatly onto a foam posterboard. Consequently, I recommend,
if you have one near you, having a professional company make the enlargement and
place it on a board. The result will be much better and dozens of
professional enlargements can be had for the cost of the presenter and monitor
setup. Still photographs are still a very effective way to present
evidence. Videos can be invaluable, but if there is a particular frame
which is important, it is going to be hard for the jury to see it as it goes by.
It is extremely difficult, particularly in the midst of a trial, to stop a
videotape at an exact point, even if the footage is marked. And even if it
is located, stopped, and the jury allowed a long look, once that look is over,
the tape moves on or the monitor is turned off. It will be hard for them
to find that particular frame in the jury room without your assistance or
commentary.
A still photograph can be enlarged, just like a document, glued to a
posterboard, placed on an easel and left until time for the jury to take it to
the jury room, where it can be studied even more stringently.
These days marvelous things can be done with photographs, even older
photographs or Polaroids. Laser copies can now produce a copy of a
photograph which is virtually as good as the original. The image can be
enlarged as it is copied and the enlargement can turn out better than if the
original negative had been used.
Go to a good camera shop and just talk with the employees about the
technology which is now available. If negatives of the photographs are
available, there are standalone machines now usually sitting in the floor which
you can play with and operate so as to select a particular frame, enlarge it,
crop it, adjust the lighting and color and come out with a spectacular
enlargement for use at trial. You can focus on one particular portion of
the photograph if there is some important piece of evidence there, and crop out
what is not essential.
With their modern computer equipment, the camera shop can now take photos
of which you do not have the negatives and do the same sorts of things.
Scanners are better than ever. In fact, computer technology in reproducing
photographs is almost too good. There are now digital cameras which store
images directly onto diskettes. While the quality of the photographs
produced is not quite yet as good as those produced on standard film, these can
now be edited by computer so as to actually alter the image, so the opportunity
for fraud exists. Naturally, you should not use the technology to this
extent, and fortunately, the camera shop can detect fraud if you suspect that
your opponent has somehow altered a photograph. While I have gone on at length about the new technology which
is available using photographs, the jury will see none of this. To them,
they will only observe photos, perhaps treasured family photos. They will
not necessarily know or care that the photo has been enlarged to ten times its
original size, or that it has been cropped or brightened. The substance is
all that matters.
Be sure that family photos are treated with the care and respect they
deserve. The family may have had these photos in an old shoe box under the
bed, but when you select those to use at trial and have them prepared, place
them in an album or in a frame before presenting them to the jury. In one
death case I handled for a young child from a poor family, they only had one
photograph of the child, a wallet-size school photograph. This we had
enlarged to 8 x 10. I then placed it in a nice large frame, such as would
sit on a dresser at home. This was put into evidence and sat on my table,
facing the jury during the entire trial.
All available photographs should be reviewed and the best selected.
These should then be placed in a good quality album, whether they were
originally so preserved or not. Jurors are used to seeing family albums;
there is probably one in their home. When the album is taken to the jury
room, you can be sure that time will be spent going through the album and
reminiscing, orally or not, on the jurors' personal experiences which may have
been like some of those presented in the album.
A still more effective technique which can be used where there are good
still photographs, or even good frames from a videotape, is to have these turned
into slides. Virtually all jurors have at one time or another sat and
watched slides of a vacation, an event or some other memorable and enjoyable
event. If the slides can be narrated by a good witness, the effect can be
powerful, as if the jury had been invited into the living room of the family to
reminisce about their close late mutual friend. A witness who can be
trusted completely can be given the control and allowed to advance through the
slides at his or her own pace. More often, the lawyer will want the
control, so as to control the pace and monitor any reactions of jurors.
Modern demonstrative evidence is wonderful and there are times when there
is no substitute for computer technology and the ability to present
crystal-clear images and life-like recreations. The risk is always run,
however, that the lawyer and his or her witnesses are going to come off to the
jury as just too slick, that they are having to resort to all of this technology
because they don't have a case, to prove something that doesn't exist. The
lawyer wants to identify with the jury, if possible. The jury knows how to
run a slide projector; they don't all know how to run a computer simulation.
Most jurors don't know how to run a computer, but they believe a computer can
make almost anything appear possible. Computers produce all the special
effects in movies these days that look real. Some still believe that the
entire moon landing was staged. If the information can be presented in a simpler way, do it.
It will almost certainly be cheaper, and it will be more effective. Don't
use any particular method of presentation because you've read about it, seen it
at a seminar, or because it makes you feel good. Use what will make the
jury feel good. Use it because it works. |
