@Attfolio llngimage

Thelmportdnce of of a tour of the sceneof the crime);physical objects (e.g., Visual a replica of a defectiveproduct); computer animation Presentationat (e.g.,an illustration of how an incident occurred);or diagrams,charts, or graphs (e.g.,presenting data, con- cepts,summary of ,infographics or other illus- trations).Even smells can be brought into the courtroom for demonstrativepurposes.. large body of scientific support exists for the The tips discussedbelow are focusedon the dia- proposition that visual displayscommunicate grams,charts, graphs, and other visualaids that information powerfully.'Peoplewant to be shown can preparerelatively easily to presentkey factsor con- pictures when someoneis trying to teachthem something ceptsin a case.These types of visual aids - typically new - Of the threeprimary learning styles visual,audi- presentedon computermonitors, screen projections, or - tory, and kinesthetic most peopleare primarily visual as large format printouts mounted on foam-core learners.' juror One studyof memory retentionfound that boards - are the ones most commonly used bv trial retention increased650 percent when oral communica- lawyers.They are the easiesttype of demonstrativeevi- tion is combinedwith visual communication., dence to produce and, when done well, present the While the legalprofession is steepedin traditions of greatestopportunities for lawyersto add compelling oral and written advocacy,it has little tradition of visual visual elementsto their trial presentation. advocacy. It is not taught in schoolsand is not learned These tips are a for developing and in practice. Lawyershave neglectedthe most influential using demonstrative evidence.Some of them were form of communicationthey can usewith juries. developedin civil casesbecause those cases sometimes - Demonstrativeevidence diagrams,charts, visual involve greater financial support and more complex summaries, - and exemplarsof physicalobjects should issues.But criminal defenselawyers can learn to ivn- be a regular part of a defenseattorney's presentation at thesizeand implement theseideas and makethem their trial. Skillful visual presentation of key evidence and own in order to savelives. themeswill engagejurors, improve their understandingof the material,and increasetheir ability to recallthe content Do Not WaitUntil Trial of the defendant'scase during deliberations. To UseDemonstratives Composingdemonstratives helps defense Techn counselto iquesfor Developing think about the coreissues in the case.'Beforethe And Using Demonstrativei can depict parts of her casevisually, she must reduceand Demonstrative aids can take many forms: video simplifr the caseto its essentialelements. That exercise recordings of persons,places or things (e.g.,a recording - determining from a sea of facts which ones really

BY JASON M. LYNCI{ AND IRIS EYTAN L4 www.NAcDL.oRG TIIE CI.IAMPION matter - is the trial lawyer's most ple.Understanding can be hard demonstrative and its presentation important function. enough without the excessive enhancethe exhibit'scredibility.' Lawyersshould not wait until trial and the nonessentialbombard- to usedemonstratives. For the samerea- ment by our visuals that are DigitalPresentation son that they are effective at trial, supposedto be playing a sup- VersusBoards demonstrative exhibits are effective at portive role. Most courtrooms can accommo- motions hearings,conferences with dis- date video and computer displays.If the trict attorneys,expert preparation, and When editingthe demonstratives,it courtroom doesnot havevideo displays anlvrhere elsethe defenselawyer needs is important to remove every element alreadyinstalled, lawyers can bring their to persuasivelypresent her positions. that takes away from the defensemes- own or can setup projectionscreens. sage.For example,counsel should avoid Is a screen the best choice? Adopt BestPractices using three dimensional pie charts or Sometimesdemonstrative exhibits work In VisualDesign bar charts; the extra dimension adds well on screen,but more often than not, Tirfte, work when printed One doesnot haveto be a graphic nothing to the message.Edward a demonstratives best -{ designer to envision and prepare YaleUniversity professorwho has writ- in large format and mounted on large demonstrative aids. If possible, the ten extensivelyabout analytical design, foam-coreboards. ri1 actual designwork can be left to pro- coined the term "chart junk" for the Despitethe ubiquity of video and fessionals,preferably ones with whom unnecessary,cluttering design elements computer displaysin daily life, they have the defense team develops a regular that often infect slidesand visualaids.u a distancing effect on the viewer. The = working relationship. It is helpful, Color.The useof color addsvisual imagedisplayed seems as if it is "some- ! funda- interest in a demonstrativeand also where else."It is digital code that is o however,to keep in mind some v mental designprinciples when prepar- can be a tool to communicateinfor- transmitted to the viewer through a { ing demonstratives.These principles mation, suchas by using color to label device and a screen,and it only exists will keep counsel focused on what is parties (e.g.,all entriesabout the insideof video or computerequipment. z most important - clearly communi- defendant are blue) or to indicate Boards,by contrast,are real objects o catingthe defensemessage. qualities associatedwith an element in the courtroom and they have pres- tn Can they read it? Make sure that (e.g.,the points in a chronologywhere ence.They takeup space,have mass, and o the demonstrativeis big enough that alleged misconduct took place are can be maneuveredaround the room. -il the judgeand jury can easilyread it. In shadedin red). But when using color, Witnessesand counselcan touch them practice, that means the visual aid be restrained.Do not use very strong and write on them.Boards can even have : as when a cover must be easyto seefrom about 20 to colors over large areasor adjacentto an audiblecomponent, Yt 30 feet away.That requirement trans- eachother. The clashof strong colors pieceattached by Velcro is pulled off the c latesinto boards that usually measure, can be confusing and unpleasant. board with a satisf ing "rriiiippp." The at a minimum, 3 feetby 4 feeI.The size Large areasor backgroundsshould be physicalpresence of hard copy demon- |- of the demonstrativesmay need to be treated with muted, grayish or neutral strativeboards makes them superiorin E adjusteddepending upon the size of hues, which permit brighter areasto many casesto projectingdemonstrative v the courtroom and limitations the stand out vividly againstthem.' exhibitson screen. ln lawyer faceson where in the room she Provide documentation.The credi- lrtl will be permitted to place an easelor bility of evidencepresentations depends Typesof Demonstratives tn screen.When the defenselawyer has a significantlyon the quality and integrity Below are examplesof someof the z working set of demonstratives,she of the authors and their data sources.' most commonly used demonstratives { should run full-size proofs in order to Lawyers have to earn credibility with with suggestionsfor how to maximize confirm that the content will be read- jurors, who know that the job of the their impact. f ablein court. lawyeris to advocatefor the client'sposi- o Signal versusnoise ratio. The sig- tion. A lawyershould adopt presentation Document Enlargement z nal-to-noiseratio (SNR)of any display tactics that persuadejurors they can And Annotations is the ratio of relevant information or trust what the lawyer is saying. Perhapsthe most basic demonstra- { irrelevant information or important technique to tive is the enlargedimage of an important elementsto One { elements depicted in the display. enhancethe credibility of demonstrative document.Although it is a common and Lawyersshould maximize the strength exhibits is to provide documentation for simple technique, lawyers should not = of the signal a demonstrativeis send- the information being presented- e.8., underestimatehow powerful it can be. irg to the jury by eliminating the cite to the exhibits or the Used selectively,a document enlarged l- noise. Garr Reynoldsexplained in his demonstrative is based on, provide a and mounted on a foam-coreboard can engagingbook, PresentationZen: detailed title, or show measurement takeon a life it would not otherwisehave. scales.One way to do this is to placetrial The goal is to have the highest exhibit numbers in small text under the Timelines signal-to-noiseratio possiblein visual elements they support so that Timelines are one of the most useful your slides.People have a hard counsel can extemporaneouslyrefer to types of demonstrative exhibits. Their time coping with excessivecog- the underlying evidencewhen explain- most obvious use is to illustrate the nitive strain. There is simply a ing the demonstrative.For example,in chronological narrative of a story. When limit to a person's ability to describing an entry on a chronology, preparing timelines, counsel must try to 'As processnew information effi- counsel might say, we know from keep the elements from becoming too ciently and effectively.Aiming Exhibit 4, which is his email, Mr. crowded.When factsare jammed together, for a higher SNR is an attempt Smithersordered the shipment on April it is hard for jurors to processthem in to make things easierfor peo- 12." Elements of documentation in a order. Pick a time scale that will allow www.NAcDr.oRG JANUARY/FEBRUARY 2OL6 15 eventsto be listed on the timeline with adequatespacing. There may be a need for more than one timeline.For example,if the events First z (*!: at issue in the case span many years, ".:hy Sd # *:k *?3 " /P ::#: I l_._ counselmay need to use two boards to r **!!-.3- t::* *'l: *:< 4 -!: .ry *- &: *I#k:il: cover the full span of time in a Iarge enough scalethat alsoprovides enough ft< 4"r:!-de:!:-l:t: !:ik*:-S ** t-y/* room for presenting the events that rg*X #:: r_(st ?*thk* !-^& !:*'! *_I:J-_ occurred during the period. Thesecan h-3:_E*, f?** I ans Jr;ri k____ be mounted as one graphicon a hinged board,or two boardscan be placedside- *-*-ry-r:-*::i3!*r* ik-!iy:A'-r by-sideon adjoiningeasels. *;d;.*see this house uhere thd I * # to^ tle s*S(__**:ry_ Additional timelinescan alsobe help- -l d tn"__l_fqHZg* ful when defensecounsel wants to focuson X one sectionof a generaltimeline. Imagine 1 [ {hd*i ;;u; t- ;t d't*. Vftr ,"v .'r, z c, "- -VET9rT*;,e that an overarchingtimeline for the case F ,^ntl"a )o-n to t!e' ho)s. * )" spans15 years. Counsel can usethat time- "t*tJ td { line to walk the jurors through the main F (h-.*-rd -;*e-ehqz !* sa$i *t:e*!he ? 4e?, ^Qx+--t-g.t eventsof the caseand orient them to the itdo lhe tr'ndoo,t of the house I eoa/d b/q gee e.a,u;e )t historical arc of the story. Counsel may z also want to focus their attention on one o ,."t d*( t JA|T;-Z -as /*k;rg ar-r;Zry;rg l. /ld- particularly activesix-month period that is not representedin detail on the main F st)rrtA"- a// 4 i Joai", -in X t-ns *J;ry lt;rys it timeline.The attorneycan preparea sepa- F ;;2i; r-.--/i"S u^'il r-;Arrr, fr"/t ry rate timeline for that period, and when z ;;; e i/ .r ; ;;dd", ;t ;"s; WA*t"d showing it to the members of the jury, ul -:m'p explain that a smali portion of the main (/l ;;, timeline is being magnified to show them ttt rg,;"*/yr-g:riiJi, r4Ii; _ e. the activity that occurred during an A important stretchof time. 4H I'psd te s-N.t-h.d- q4*n* -l J."s3*fgH-&r & it Processlllustrations And Flowcharts f Much modern litigation often : C'mon! involvescomplex processes that can be Who really hard for a laypersonto conceptualize.A jury t! authoredthis might need to understand what o stepsa company took to conduct due ? diligenceor how an online fraud was tll (J committed. Demonstrativescan illus- z trate processesthat might otherwise remain foggy in the minds of jurors F over the course of a trial. Flowcharts e, and similar demonstratives are an o acceptedmethod for laying out a step- c. by-stepprocess.'o

= Things the Jury Cannot ur EasilySee or lmagine = One purely pedagogicaluse of F demonstrativeaids is to show the jury something that exists in the world but which they cannot easilysee or imagine themselves.Medical illustrations, for example,are commonly used in personal injury casesto show how an injury man- ifests inside the body. It can be just as important in other types of casesto give the jury a visual context.

Witness Boards When witnessessay something help- ful to the defendant'scase, the lawyer may want to show it to the jury during

L6 www.NAcDr.oRG TI{E CI{AMPION lening statement.If the 'sstate- in the case."Evidence summaries can be guishedfrom real evidencein that it has ment is recordedon audio or video,the especiallyuseful in complex or docu- no probative value in itself, but serves lawyer can play the clip. But after the ment-heavycases because it canbe diffi- merelyas a visualaid to the jury in com- lawyerplays the clip, it is gone.One way cult for a jury to track and assimilatethe prehending the verbal testimony of a to preservea key part of witnesstestimo- evidenceas it is introduced. witness."''The admissionof demonstra- ny and to give it a continuing presencein tive evidenceis committedto the discre- the courtroom is to preparea demon- Deciding Which tion of the trial court.rsAppellate courts strative exhibit that combines a picture Demonstrativeto Use give trial courts great deferencewhen of the witness and the quote. Counsel If defenseteam members started reviewing evidentiary rulings and will can talk about the testimony while it making demonstrativeexhibits to use not disturb a trial court's evidentiary remainsnext to counselon an easel. during the pretrial phase of the case, ruling "unless it is manifestly arbitrary, Another technique,when a witness they may find themselvesjust prior to unreasonable,or unfair."'u "To gave contradictory testimony on a key trial with more exhibits than they can be admissible,demonstrative or I point, is to make a "talking out of both use. The defensemust go through an illustrativeevidence must be shown to t sides of the mouth" demonstrative editing processbefore trial to decide be reasonablyaccurate and correct."rTIt { exhibit. This type of exhibit is easy to which demonstrativeexhibits are impor- also must satisfiithe usual requirements r lTl construct.Place the picture of the wit- tant to the presentationof the case. for relevancyunder Fed.R. Evid.401 and nessin the centerof the boardwith a talk Exhibits that addressperipheral issues Fed. R. Evid. 402 and have probative bubble branching out to the left with shouldbe discarded. valuethat, under Fed.R. Evid 403,is not = one statementand another talk bubble substantiallyoutweighed by the danger E branchingout to the right with the con- The Reveal of unfair prejudice.'8When thereis a dis- o v tradictorystatement. When defense counsel reveals a pute over the correctnessof what is { demonstrativeexhibit to the members of depicted,as when two witnessesdisagree Summariesof Evidence the jury, they will be focusedon the board over what an object or scenelooked like, z It hasbecome increasingly common and not on defensecounsel. To ensurethat "it is for the jury ultimately to determine o for courts to admit into evidencea Dar- counselis ableto orally deliverhis message the weightto be accordedthe exhibit."'' ri1 ticulartype of demonstrativesummary: without the demonstrativebeing a distrac- chartsthat summarizethe evidencethat tion, he shoulduse a bracketingtechnique Admissibilityfor o has been previously(or will be) intro- called "Explain, Show Explain." Before SubstantivePurposes TI duced in the case.Courts have relied revealing the demonstrative, the lawyer Demonstratives in the form of : upon Rule611(a) as the basisfor admit- should explainthe point he plansto make. charts.summaries. or calculationsthat (n ting summariesas substantiveevidence Only after the explanation does he show presentthe contentsof voluminouswrit- c the demonstrativeto the jury. After it is ings,recordings, or photographsmay be revealed,he should pause- give them a admissibleas substantiveevidence. Such moment to take it in. He should allow for demonstratives"are distinguishablefrom E a few beatsof silencewhile everyonereads pedagogicalaids, which are merely to v the board.The silencerespects the jurors' assistthe jury in understandingthe evi- ri1 need to read the board, and then it draws denceand should be accompaniedby an (n everyone'sattention back lawyer limiting For rTl to the as appropriate instruction."'n z they wait for what he will do next. Finally, example,a chart, summary, or calcula- -{ he should explain the point again and tion preparedpursuant to ColoradoRule point out the featuresof the demonstrative of Evidence1006 (and its counterpartin that support the point. Explain, Show, the federal rules) "is itself evidenceand Explain. no instructionis needed."''Before a Rule o 1006 demonstrativemay be admitted, z The Law of the offering party must establishthat the Demonstrative Evidence underlying information would be inde- -{ Trial courts, of course, have wide pendently admissible and that the -{ latitude to control the presentationof sourcesof information were made avail- evidenceat trial.'' Visualaids that help to ablefor examinationby otherparties at a = illustratethe testimony of witnessesor reasonabletime and place." to present a party's version of events l- havelong beenrecognized to be valuable Useof Demonstratives and appropriate tools in the court- DuringOpening Statement room.'' As discussedearlier, the growing Demonstrativesmay be usedduring scientificunderstanding of how people openingstatement, subject to the discre- processinformation and makedecisions tion of the trial judge.Their usein open- underscoresthe necessityof usingvisual ing "extendsboth ( I ) to exhibits that aidsduring trial. counselintends later to introduce and (2) to thosethat will not be usedsubse- Admissibilityfor quentlyin the trial but areeither extem- lllustrativePurposes porized (as [on] a blackboardor pre- Generally,demonstrative evidence pared in advanceof trial to summarizea has no independent probative value. claim."ttThe prudent courseis for coun- "Demonstrativeevidence is distin- selto reviewthe demonstrativeshe plans www.NAcDr.oRG JANUARY/FEBRUARY 2oL6 LT to usein openingwith opposingcounsel QunrurrrRrrvglruronunrrox 107-21 (1983). absentabuse working to the clearprej\ and the court beforeopening statement 7.For an instructivediscussion of the diceof the defendant,to permitthe display 1 or, if requiredunder localrules, during a use of color in visualdisplays, with many of demonstrativeor illustrativeexhibits "

pretrial conference.This will avoid dis- vivid examples,see Chapter 5, Colorand admitted into evidenceboth in the court- .f::ii ruptiveobjections during the opening. lnformation, in EowRRoR. Turte, EnvrsroNrrrrc room duringtrial and in the jury roomdur- .;iir lruponnltRrrox81-95 (1990). ing deliberations.");Rossell v. Volkswagen of Jury'sUse of Demonstratives 8.Eownno R.Turrr. BrRurrrul Evrorrucr 132 Am.,709P.2d 517,529-3Q (Ari2.1985) (hold- DuringDeliberations (2006). ing no abuseof discretionto permit into Like other evidenceadmitted during 9. ld. at 132-33. jury room charts prepared to illustrate the courseof a trial, diagrams,charts, and 10. See e.9.,United States v. Mohney, expert's testimony and admitted with graphs that trre admitted into evidence 949 F.2d1397 (6th C'r.1991)(affirming trial properlimiting instruction). maybe furnishedto thejurors for their use court'sadmission of flowchartas visualaid 26.ABA CivilTrialPractice Standard 5.b during deliberations."Demonstrative evi- in explaininghow defendant'sprofits were (2007)("lf an exhibit that has been admit- dence that has only been admitted for skimmedin prosecutionarising from filing ted for any limited purposeis providedfor illustrative purposes generallydoes not of falsetax returns). juror use during deliberations,the court I enter the jury room, although the court 11. United States v. Johnson, 54 F.3d shouldconsider re-instructing the jury asto e, may permit the jury to view illustrative 1150, 1 162 (4th Cir.1995). the limited purpose of which the exhibit F aidsif accompaniedby cautionaryinstruc- 12. See,e.9., Fro. R. Evto.61 1(a) ("The was admitted."). tions as to their use and limited signifi- court shallexercise reasonable control over 27. ABA Criminal Justice Section F cance." The ABA Civil Trial Practice the mode and order of interrogatingwit- Standard1 5-5.1 (2013) ("The court should Standards,however, embrace the use by nessesand presentingevidence so asto (1) permit a jury to take exhibitsand writings z jurors of demonstrativeaids during delib- make the interrogationand presentation that havebeen receivedin evidence."). o erationswhen accompaniedby appropri- effectivefor the ascertainmentof truth, (2) ate limiting instructions.'oThe ABA avoid needlessconsumption of time,and F About the Authors Criminal Iustice Section Standardsare (3) protect witnessesfrom harassmentor plaintiffs F silent on demonstrativeexhibits. and state undue embarrassment."). JasonM. Lynch represents and z that only exhibitsthat havebeen received 13. See,e.9., Commonwealth v. Morgon, defendants in a Er into evidencecan be providedto the jury 295A.2d 77,78 (Pa.1972)(diagram of mur- broadarrayof civil lit- vt upon retiring for deliberation.2T der scenewas "an aid to betterunderstand- igation, including |.tJ e, @ 2016, lason M. Lynch. All rights ing of the occurrenceinvolved"); Martin v. commercial and businesslitigation, A reserved. Sloan,377 S.W.2d252,262-63 (Mo. 1964) (drawingof locationof vehiclesalong high- disputesarising from -l Notes way to show crime scene"would tend to private investments andthe saleof com- 1. See,e.9., Leo M. CnRrupn& JoHr.r5. give the )ury a better understandingof the f panies, regulatory rtl WERNER,Tur Vrsunr NeuRoscrerucrs(2004); testimony of the witness");McGovern v. Bd. SrrpgeruE. PRruER,Vrsrorrr Screruce: PHorons ro of Comm'rsof Adams County,173 P.2d880, investigations, and secu rities litigation. PHrnourruolocv(1 999); V.5. RnuncHnruonnru & 881 (Colo.1946) (affirming use of map to t! SRttoRRBLRxrsLet, PuRrurous rN THEBRRttt: illustratetestimony about removalof sand JasonM. Lynch o PnoarNcrHr MvsrrRrESoF rHr HuvrRrrtMrr.ro from areasof property). DavisGraham & StubbsLLP (1999).For an introductionto this science, 14. DrrurursD. PnntrR,ET AL., Evrorrucr: THr 155017th Street, Suite 500 tfr (3d (quoting Denver,CO80202 U see DnNRonm,Tur Bncr or tHr NRprrru:Solrrrrc OarecrroNMrrHoo 355 ed.2007) z PRoaLrN4sRruo Sellttrrc loeRs WtrH Prcrunrs Smithv.Ohio OilCo.,134 N.E.2d 526 (lll. App. 303-892-7406 (2008),Appendix A, The Scienceof Visual ct.1es6)). trusl [email protected] F Thinking. 15.Martinez v.W.R. Grace Co.,782 P.2d c, 2. KennethJ. Lopez, Attorney Commu- 827,830(Colo. App. 1989). o nicationStyle Study 6-8 (Jan.2,2007), avail- 16. Peoplev. Cauley,32 P.3d 602, 606 lrisEytan, a criminaldefense trial attor- c!- able at http://www.ceuworks.com/cme/ (Colo.App.2001). ney for 21 years, Ani matorsatLawStudy.pdf. 17. Marti nez,7 82 P.2dat 830 (adm itti ng representsindivid- = 3. ld. at 10 (citing HnRoloWerss & J.B. scalemodel of speedbump allegedto have uals accused of Er McGnnrH,Jn., TrcHrurcRLLvSpeRrrruc: Onnl causedaccident). committing crimes Ir CoivrruururcRroNsFoRETGTNrERS, Scterurrsts Rrrro 18.Cauley,32 P.3d at 607. in municipal,state, F TrcHrurcRr-Prnsoxrurl (1963)). 19. Marti n ez, 7 82 P.zdat 830. and federal courts. 4.See,e.9., Rust v.Guinn,429 N.E.2d 299, 20. United States v. Williams, 264 F.3d She also lectures 305-06(lnd. Ct. App. 1981) (upholding trial 561,57 5 (5thCir. 2001 ). nationallyon vari- court'sadmission of jar of chickenmanure, 21.\d. ous aspects of which waspassed around for jurorsto smell 22. ld. See, €.g., United States v. criminaldefense trial strategyand the to demonstratethe effect of the smell of a Milkiewicz,470 F.3d 390, 395-398 (1st Cir. criminalizationof the mentally ill. chickenfarm upon peoplein adjacentresi- 2006). dence). 23. GneconyP. JosrpH, MoorRru VrsuRl lris Eytan 5. For a practicaland insightfulintro- Evrorruce5 9.02[3]tal (2010) (collecting EytanNielsen LLC duction to how creating visual aids pro- cases)(internal citations omitted). 3200Cherry Creek South Drive, Suite 720 duces better thinking, see Dnn RoRwr,THr 24.ld.at 5 9.02[3J(citing cases). Denver,CO80209 Bncr or rHr NRprtru:Solvntc PnoglrMsRNo 25. United Stotes v. Riebold, 557 F.2d 720-4/.0-8155 Srruruclorns WrrH Prctunrs (2008). 697,706(1Oth Cir.1977) ("We have held that IilEll [email protected] 6. EownnoR. Turre, THr Vrsunl DrsplRy or it is within the discretionof the trial court.

18 WWW.NACDL.ORG TIIE CI{AMPION A bibi I DollarPhotoClub.com

Incorpora and visualstimuli. Moreover, research at the intersection ting Memorable of socialpsychology and the law suggeststhat the pres- Demonstrativeslnto entation of visual stimuli during opening statements improvesan attorney'sability to communicatewith and OpeninSStaternents persuadethe jury. Thus,the extentto which visualaids are effectivelyincorporated into the opening statement can greatlyimpact the caseas a whole - as that is the first and sometimesonly opportunity for the lawyer to convincecertain jurors that sheis credibleand can com- municate clearly,and that the prosecutorsmay not have ttention spansare getting shorter. Although scien- what it takesto obtain a conviction. tists debatethe reasons,as well as the short and long-term impact on society,there can be no TheOpening Statement questionthat it is more difficult than everto hold people's attention.Whether it is the person feverishlythumbing Why do first impressionsmatter? The opening state- through messageson a smartphoneand not listeningas ment is the defenseattorneyt most critical opportunity to someonetries to explainsomething, or thejuror that can- shapethe jury's view of the client and the case.This first not make eye contact becausehe has startedto think impressionthe jury takesaway from the openingstatement about emails he needsto check at the lunch break, the has the power to lay the foundation for the remainderof evidenceof this phenomenonis ubiquitous.In addition the trial - crafting a lens through which jurors will view to the diminished ability to listen, the way people learn subsequentinformation presentedby both sides.While has changeddramatically over the last 20 years.The this concepthas been ingrained in lawyers'mindssince law adventof the Internet and the insinuation of visualmedia school,many areunaware of the sciencebehind the reason into every facet of life via mobile deviceshave trans- first impressionsare so critical in the contextof a trial. formed the way peoplereceive and processinformation. The power of first impressionsis backedby extensive The foregoingtrends haveserious implications for literature.Upon the discoveryof a phenomenonknown as trial lawyers.If a lawyeris not complementingher orato- the "primacy effect"by Solomon Asch,' socialpsycholo- ry with demonstrativeaids, she is not speakingto jurors gistsbegan to explorethe reasonsfirst impressionsare so in the most recognizableor compellingmanner. While powerful. Researchershave found that once peopleform learningthrough picturesis not a new concept,a grow- an opinion or developa theory,even one basedon incom- ing body of researchin variousfields of psychologysug- plete or inaccurateinformation, they are far lesslikely to geststhat peopleabsorb information more comprehen- changetheir minds when laterconfronted with contradic- sivelythrough a combinationof verbalcommunication tory information. At the beginning of a trial, jurors are

BY JOSt{UA DUBtN,ESq. 54 WWW.NACDL.ORG TIIE CI{AMPION ,rore attentive, engaged,curious, and Neal Feigenson)that compared opening sageshe hopesto send to the jury. For open-minded;as the trial continuesand arguments delivered with and without instance,in a murder case,it is often jurors are bombarded with tremendous simple PowerPoint visuals found that necessaryto establishthat the defen- amountsof information,their minds nat- mock jurors were persuadedmore often dant had no motive or opportunity to urally grow more tired, overwhelmed, when an attorney usedvisuals. The use of commit the crime. In an insider trad- and disinterested.Consequently, they visual aids correlated not only with the irg case, convincing jurors that the begin to processand rememberthis sec- levelofjuror persuasion,but alsowith rec- defendanthad no accessto confidential ondary information to a lesserdegree. ollection of evidenceand perceptionsof information and showing them that Additionally, psychologists have the advocates.'For example, the study whatever information he did possess found that a phenomenon known as found that the percentageof jurors who was in the public domain are typically "confirmationbias" corroborates the idea found the defendant guilty was highest critical. When a caseinvolves wiretaps, that information is more influential when when the prosecution employed visual it is often important to convey from it appearsearlier rather than later.Studies aids but the defendantdid not. When the the outset that words spokenby a gov- of confirmation biashave shown that after defendant used visuals and the prosecu- ernment informant can be interpreted individuals form an impression,they tend tion did not, the percentageof jurors who in severaldifferent ways.When various to discount or reject any additional facts found the defendantguiltydropped signif- eyewitnessaccounts of a crime will be that challengetheir establishedviedtheo- icantly. The study also found that the presented,emphasizing the inconsis- ry. Therefore,jurors are likely to process implementation of demonstrativespro- tencies in their various renditions is informationlearned later in the trial in the duced heightened acsrracy and memory typically very effective.Regardless of contextof the opinion they alreadyformed when jurors were askedto recall specific the case,the defenseattorney should basedon information they learnedduring statisticalevidence relating to the defen- always craft his opening demonstra- opening statements.Jurors do change dant. Finally, the research showed that tivesin terms of the two or threethings their minds. The research, however, when the defenseattorney used visual aids, he wants the jury to remember. underscoresthe importanceof the defense jurors perceivedthe attorneyas better pre- It is alsoimportant to keepin mind I attorney leveragingall availableresources pared,more competent,and more most credi- that one of the common areasin lTl to ensurethat his first impressionis as ble. As exemplified by Park and which jurors struggleis temporalassoci- laihyun = persuasiveas possible. Neal Feigenson'sstudy, an attorney'suse of ations, i.e., chronology. Results from visual aids at any point in a legalpresenta- jurors' post-trial interviews and mock o tion can provide a clearadvantage, making trial jurors z A Picturels Worth a exercisessuggest that often vr ThousandWords the incorporation of such visuals during struggle with how a party's argument -l the opening statement'scritical window of fits into the timeline of events. Given v Some attorneys resist using a importanceparticularly key. the many dates involved in a case,the demonstrativeaid during their opening dual narratives (i.e., the prosecution's + statementsbecause they do not want to IncorporatingMemorable version of events versus the defen- appear"slick" or "fancy,"or becausethey Demonstratives dant's), and the differing views on ri1 want the jury to "focus on me and what which datesare most significant, many rit I have to say,not a picture or a chart." When deciding what demonstra- jurors find themselvestemporally adrift x Their reactionsare basedon a funda- tives to create for an opening state- in the evidence.Practitioners often take mental misunderstanding of modern ment, the defense attorney should this for granted because,by the time times, juror decision-making, and determinethe two or three main mes- trial begins, they have internalized the ; human psychology.The importance of -{ implementing demonstrative aids can- (n not be overstated.Studies have shown PayrollCompanyrsrat vs.rr. CPA that the differencebetween auditory and visual processingis, in fact, quite drastic. This constitutesa potentially dangerous finding when applied to casesinvolving long ,a foreignconcept, or compli- catedinformation. In a study conductedby Michael E. Cobo, scientistsfound that on aver- age,humans retain only 15 percentof r\l Processingclient's Auditwork information received from audible payrolleach payroll period S$5l sources.Interestingly, they found that retention climbs to 65 percent when Preparing,signing, and filing all ' the information is deliveredvisually.' I federal,s-iate-, an-d local tax deposits Similarly, a secondstudy by Robert F. andtax returns Seltzerfound that the averageperson retains87 percentof information pre- Paymentof federaland state taxes Taxreturns and bookkeeplng work sentedvisually, but only 10 percentof information presentedorally.' Extensive controlled experiments support the notion that visual technology hasa strong effecton juror decision-mak- Demonstrativeexhibits should not be complicated.Thissimple chart juxtaposes the work of ing. A recent study (by )aihlun Park and a certifiedpublic accountant and the work of a payrollcompany. WWW.NACDL.ORG AUGUST 2o15 55 key dates to the point that the dates one hour prior to the concert.In the next Saponecreated a timeline that focu. seem like second nature. Therefore,a seriesof slides,Mr. Lefcourt created a on the defendant'scareer as an account- timeline is one of the most commonly flow chart that illustrated how Ja Rule's ant, with his investment in the payroll usedand effectivevisual aids in opening road managerwould takethe cashon the company being but one entry on the statements.Lawyers should alwayscon- night of the concert(along with proceeds timeline.He also createda simplechart siderhow to incorporatea timeline into generatedfrom the saleof merchandise that juxtaposedthe work of a certified their opening statements,as research such as concert t-shirts) back to the public accountantagainst that of a pay- has shown that it will make their mes- officesof Murder Inc. Records.It was in roll company. The case resulted in a sagemore interestingand will decrease the conference room that the money hung jury. After the trial, the judge the likelihoodthat jurors misskey argu- would be counted, and subsequently grantedMr. Sapone'spost-trial Rule 29 ments due to confusionabout the tim- given to a bookkeeperthe next day,after motion seekinga directedacquittal of all ing of the eventsat issue. which it would be deposited into the charges.The double jeopardy clause record label'saccount at Citibank. barreda retrial. Examplesof Effective Thejury acquittedthe defendantsof United Statesv. SamuelLevis. This i OpeningDemonstratives all charges.Of course, Mr. Lefcourt case was tried by Roy Black in the could have simply explainedthe reason SouthernDistrict of NewYork.Mr. Levis i The following areexamples of effec- for the cash to jurors through rhetoric. was an executiveat Doral Bank, which t tive demonstrative aids used during But doing so arguably would not have purchasedand then sold pools of resi- I openingstatements: carried the same persuasiveimpact. dential mortgagesto investmentbanks. I United Statesv. lrving Lorenzo and When interviewedafter the trial, roughly Prosecutorsaccused Mr. Levisof securi- ChristopherLorenzo. Gerald Lefcourt half of the jurors (5 out of 12) cited Mr. tiesfraud in connectionwith statements I and Jerry Shargeltried the Lorenzo case Lefcourt's demonstrative as one of the he made to analysts regarding certain in the SouthernDistrict of New York in primary reasonsthey began to doubt the protections Doral Bank receivedin its 2005. The government alleged that government'scase from the outset.Four contractual arrangementswith banks l- defendants,owners of hip hop label out of thesefive jurors felt that the gov- from which it purchasedpools of loans. Murder Inc. Records,laundered money ernment lost a degree of credibility Like many casesin which the subject l: for a reputed drug dealer.One of the becausethey never addressedthe chart matterwill be foreignto mostjurors, Mr. biggestchallenges was that multiple gov- during their closingargument. This is a Black thought it critical to ensure that l; ernment informants would testifr that good exampleof takinga simpleconcept jurors understoodthe reasonbanks pur- they witnessedthe defendantscounting and making it standout in the minds of chaseloans from other banks, and how large amounts of cash in a conference jurors from the very beginning. Mr. that processcreates liquidity on the mar- t: room at the officesof their record label. Lefcourt was able to provide an alterna- ketplace.Part of the objectivewas to nor- t: On some occasions.the defendants tive - and completelylogical - expla- malize this processby depicting Fannie lr counted the cash in the hours or days nation for the presenceof stacks of Mae and Freddie Mac as synonymous after the allegeddrug dealervisited the money on his client'sconference room with the investmentbanks that purchased IJ defendants'offices. table.What could be more important in packagesof mortgagesfrom Doral. The Perhapsthe most important mes- a money launderingcase? demonstrativeillustrated how a bank's tn sagethat Mr. Lefcourt wanted to send United States v. Mark Holzwanger lending reserves eventually become lo to jurors during his opening statement and Andrew Muhlstock.Edward Sapone depletedas they continuallyextend mort- I: was that there was a completelylogical, tried this casein the U.S.District Court gagesto homeowners.The reserveonly tlJ lawful explanationfor largeamounts of for the District of New Jersey.The defen- becomesreplenished when packagesof o cash being present at the offices of dants facedthree counts of wire fraud. loans are sold - therebyenabling banks Murder Inc. Records.Specifically, one The government allegedthat the defen- like Doral to continue extending mort- of the record label'stop artists,Ja Rule, dants,who werepartners in an account- gagesto new homeowners. was on a concert tour during the time ing firm, engagedin a schemeto defraud period at issuein the indictment. It was clientsof anotherpayroll companythey PracticePoints standardin the music businessfor per- owned. In essence,the government formers like Ja Rule to require concert claimed that Mr. Muhlstock must have Neither the Federal Rules of promoters to pay a portion of their known that the payroll company was Evidencenor the vast majority of state booking fee in cashon the night of the diverting funds that were owed to the court evidentiary rules directly address performance. This practice protected Internal RevenueService because ( 1) he the use of demonstrativesduring open- the performer from fly-by-night pro- was part owner of the payroll company ing statements.As a practical matter, moters who would sometimesbounce and (2) it sharedoffice spacewith his most judges in both state and federal checksif ticket salesdid not pan out to accountingfirm. courts allow the use of at least some their satisfaction. The key messagein Mr. Sapone's demonstrativesduring opening state- To explain how the processworked, opening statement was that Mr. ments. However, the extent to which Mr. Lefcourt createda demonstrativeaid Muhlstock'sfocus was, and for his entire defensecounsel is permitted to employ that he displayedin PowerPointduring professionallife had alwaysbeen, per- the use of visual aids is an areaof wide his opening statement.First, he estab- forming accounting work. Although he judicial discretion.Some judges make a lishedthe relationshipbetween a concert was part owner of the payroll company, distinction between documentary evi- promoter andlaRule, and then showeda he functioned more like an investor.In dencethat the partiesreasonably expect contractthat would ultimately be admit- addition. the fact that he was an will be admittedinto evidencethrough- ted during trial. Notably, the accountantdid not mean he knew any- out the courseof the trial as opposedto contained a provision that required the thing about the intricaciesof the payroll charts, graphs, and other analytical promoter to pay Ja Rule $7,500in cash, business.To stressthese points, Mr. demonstrativesaids - allowingthe lat-

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ter, while prohibiting the use of what tive tool for inquiring about how a par- held that a prosecutor'suse of otherwise they considerdocumentary "evidence." ticular judge has handled the issue of admissiblecrime scenephotographs and Other judgesallow both, with the caveat demonstrativesduring opening state- a taped confessionduring the prosecu- I that showing the jury during opening mentsin the past.Further, defense coun- tion'sopening statement was permissible rir statementwhat counselexpects the doc- sel should alwayscheck the judge'sindi- as a meansof "prepar[ing]the minds of = umentary evidenceto be during trial vidual rulesof practice.Most judgeswill the jury to follow the evidenceand to o carries with it some inherent risk. require defense counsel to exchange more readily discern its materialitf" z Considerthe following sentimentsfrom demonstrativeaids with the prosecution Courts in Arizona and Hawaii havemore (n JudgeCastel in the SouthernDistrict of prior to the opening statement.Thus, recentlyupheld the use of multimedia -{ New York during a complex insurance defensecounsel must ask the court PowerPointpresentations that contained v casewhen instructingthe partiesabout whether the judge requiresan exchange later admitted photographic evidence their use of demonstrativeaids during of demonstrativeaids and the deadline with superimposedtext headings.' l openingstatements: for any such exchange.For exampie, Accordingly, defense counsel some judges require an exchangeto should always articulate to the court lTl Now, if somebody is going to occur at least24 hours prior to opening all of the reasonsthe proposeddemon- lir show a document Iduring statements.Most judgesdo not require strative enhancesjurors' comprehen- x openingl ... to which an objec- defensecounsel to provide the prosecu- sion of the evidence. Or, counsel J. tion hasbeen raised . .. it doesn't tion with the defense'sdemonstratives in precludeits useduring opening the preciseorder that counselwill show (Continuedon page63) ; unlessI concludethere is only a them to the jury. Therefore,it is advis- -{ highly remote possibilitythat it able for defenselawyers to "shuffle the About the Author (n would get into evidenceand deck"to avoidtelegraphing the sequence that therewould be greatpreju- of their arguments. JoshuaDubin is the founder of Dubin dice from its use. But I'm not Finally, becausethe rules of evi- Research & Con- going to be ruling on admissi- dencedo not specificallyaddress the use sulting,which pro- bility of exhibits. The jury is of demonstrativesduring openingstate- vides servicesfor going to be chargedthat open- ments, counsel may be asked by the trial lawyersinclud- ing argumentsare not evidence. court to providethe legalbasis for being ing jury selection, ... And I assumeyou'll havea ableto usethem. The following sources messaging, focus field day fduring your summa- are instructive: Charts or calculations groups, demon- tionl if they try to usea docu- that summarize otherwise admissible strative aids, and ment or do usea document.and datashould be admissiblepursuant Rule transcript analysis. it doesn't come into evidence. 1006of the FederalRules of Evidence.In He is a co-author of The Law of Juries Youll havefun with it.' addition, the Federal Iudicial Center's (8th edition). Manual for ComplexLitigation encour- |udge Castel'scomments stress the agesthe useof technologyin the court- Joshua Dubin importance of lawyers researchingthe room, and in particularit urgesthe use DubinResearch & Consulting rules and practicesof the judge before of demonstrativesduring openings if 580Broadway, Suite 906 which they are trying their cases. such demonstrativeswould "aid jury NewYork,NY10012 Becausethe use of demonstrativesdur- comprehension."uMoreover, some state 212-219-1469 ing opening statementsis a matter of courts allow the use of demonstrative Fax212-219-1897 judicial discretion, the practices of aidsduring openingstatements for sim- IEEil [email protected] g@ judges vary widely from courtroom to ilar reasons.For example, in Peoplev. www.dubinconsulting.com courtroom. NACDLs listservis an effec- Wash,the SupremeCourt of California

WWW.NACDL.ORG AUGUST 2or5 ST SayIt, ShowIt, SellIt: UsingDemonstrative Evidence

NACDL Midwinter Meeting and Seminar New Orleans,LA February 10 - 13r2005

By: L. SongRichardson SchroeterGoldmark & Bender 8103rd Avenue,Suite 500 Seattle,WA 98104 (206)622-8000 e-mail: [email protected] "Since 'seeing is believing,'and demonstrativeevidence appeals directly to the sensesof the trier of fact, it is today universallyfelt that this kind of evidencepossesses an immediacyand reality which endow it with particularlypersuasive effect.,' Mccormick on Evidencesection zlz (8. cleary 2d ed.lggl).

You standup to deliveryour openingstatement. The prosecutor has just told thejury that your clientis a lying,stealing, raping, violent, guilty man. Thejury can'teven make eye contact you with becausethey're so disgustedwith your clientand with you becauseyou havethe nerve

to representhim. They'rethinking of everythingelse but whatyou haveto say.

If you'reto haveany chance of gettingan acquittalfor your client,you mustgrab the

attentionof thesestrangers right awaybecause they're going to decidewithin the first few

minuteswhether or not to tuneyou out. How do you makethe first few minutesof youropening

statementexciting, attention grabbing, and persuasive? Use demonstrative evidence.

We all know to startour openingstatements with whatmy colleagueand friend Jeff

Robinsonhas termed "the Overture." That is, a I to 2 minuteintroduction that contains your

themeand a shortdescription of yourtheory. Your overtureshould also use a demonstrativeaid.

With yourtheme, a capsuleof your theory,and a demonstrativeaid, you haveall the ingredients

of a movietrailer. It will be exciting,attention grabbing, and will makethe jury wantto listento

you. Why? Becausemost of ourjurors are accustomed to receivinginformation this way -- we

are,after all, the television generation.

Manyof usdon't use demonstrative evidence as often or ascreatively as we should.

Manyof usdon't eventhink aboutit until theeve of trial. I wantto encourageeveryone to start

thinkingabout demonstrative evidence when you're thinking about your theory and your themes.

You shoulduse demonstrative evidence early and often. Here'swhv:

l- DEMONSTRATIVE EVIDENCE : EFFECTIVE COMMUNICATIoN

Demonstrative evidencehas very little to do with evidenceand has a lot to do with

effectivecommunication. To be effective,communication must be interpretedcorrectly, it must be remembered, and it must be persuasive.Demonstrative evidence ensures effective

communication.

Demonstrative evidenceaids effective communication. That's why I prefer the term

demonstrativeaid as opposed to demonstrativeevidence. That term also helps me rememberthat

demonstrativeaids don't haveto be admissible,don't necessarilyhave to be disclosedto the

otherside, and don't haveto be offeredas evidence.The term demonstrativeevidence shouldn,t

be a synonymfor exhibit.

As lawyers' we are taught to usewords to communicate. We've learnedhow to make our

words memorable through the use of trilogies, looping, and painting word pictures. Someof you

are brilliant wordsmiths. However, words alone limit our abilify to communicateeffectively.

Words alone are subjectto misinterpretation.Words alone are not as memorable,persuasive, or

convincingas words combinedwith demonstrativeaids.

D"*onrt.utin" uidr p."n"nt *irint..p."t"tion

We all know that words are subjectto misinterpretation.Some of us have learnedthis

-- difficult lessonfrom relationships especiallythose that endedbadly. Words can have different

meaningsor significancefor different people-- just becausewe say somethingdoesn't mean it's

interpretedin the manner intended. How many times have we said somethingto someoneonly to learn laterthat his or her interpretationof what we said is very different from what we

intended?This can meandeath to a relationshipand could literally meandeath for your client. Demonstrativeaids ensure that your messageis not ambiguousand that your words won't be misinterpreted.

For example,when the prosecutoror you talk aboutthe knife your clientused to defend himself,will theyimagine this??

's imaginationif it's importantto your

Demonstrativeaids are memorable

Evenif you areable to avoidmisinterpretation and paint a word picturethat everyone imaginesthe samew&y, that's not enoughfor effectivecommunication. Why? Wordsalone are notas memorable as words combined with a demonstrativeaid. If thejury doesn'tretain the informationyou've fed them,it's asif you neversaid the words in the first place.

Studiesshow that information retention is enhancedwhen people are presented with verbaland visual evidence. One study found that when groups were presented with oral information,they retained 70% after 3 hours,but only lloh after72 hours.Groups presented with visualinformation retained 72% after 3 hours,but only 20%after 72 hours.Groups presentedwith bothoral andvisual information retained 85% after 3 hoursand a whopping 65% after72 hours. Showand Tell is the mosteffective way to presentinformation in a memorable fashion.Who would have believed that we learnedall we neededto know abouteffective communicationin gradeschool?

Demonstrativeaids are persuasive

In thisday and age, our jurors are accustomed to receivingtheir informationboth visually andverbally. It's our obligationto entertainthe jurors the way theyare accustomed to being entertainedin theireveryday lives. Whenyou presentinformation to themin a mannerthey're comfortablewith, "you win credibilitybucks," as my friendTony Cuetois fondof saying.

You can't be persuasiveif your audiencedoesn't understand you. You can't be persuasiveif they can't follow what you're saying. We all know that words alone are not as effectiveas demonstrativeaids when it comesto explainingcomplex relationshipsand difficult concepts.Think back to chemistryclass.

In trial, we must communicateeffectively. Demonstrativeaids help us do that.

Demonstrativeaids help us presentinformation in away that can't be misinterpreted,allow us to presentinformation that will be remembered,and help us to be persuasive.

DOs AND DON'Ts OF DEMONSTRATIVE AIDS

Thefollowing list of do'sand don'ts apply to everydemonstrative aid you use.

DOs

D Usethem earlv and often

o Usethem with everyimportant witness

tr Work with the witnessthat will be usinga demonstrativeaid to ensurea seamless presentation tr Considerhow you will presentit to thejury

If it's a photo,you will probablywant to presentit in a mannerthat allows all thejurors to seeit at thesame time. Otherwise,you will losesome of thejurors as the testimony proceedsand they're still concentratingon thephoto that was just passedto them. Also, whilethe witness is testifling aboutwhat is picturedin thephoto, you will wantthe jury to follow alongwhile theyare looking at thephoto. So,you shouldconsider presenting thephoto in a mannerthat will allowthe witness, you, and the jury to seeit at the same time.

Onceyou've decided how you will presentthe demonstrative aid to thejury, makesure youknow how to usethe device. For example, if you'll be placingan enlarged photo on an easel,make sure there's an easelin thecourtroom and that you know howto openit. If you'reusing a slideprojector, make sure you knowhow to placethe slidesin the projectorso they don't projectthe imageupside-down. If usingtransparencies, make sureyou know whichdirection to placeit on the overheadso it doesn'tproject upside down.

Keepit simplewhen using PowerPoint slides or charts:Too muchinformation can confuserather than clarifu

. Eachchart should have only onemajor point . Usemultiple charts that build on oneanother for morecomplex ideas . Eliminateextra words, numbers, and details

Testit out with peopleunfamiliar with thecase, preferably non-lawyers, to determineif it's confusing,unintelligible, or sendingthe wrong message

Protectit from your opponent

Everyonewho's hadthe experienceof watchingthe prosecutor ruin a beautifuldiagram or chartby writing all overit will not soonforget it. Think abouthow you will protect your demonstrativeaid from desecrationbefore you enterthe courtroom.

If you havea chartor diagram,you canprotect it by usingoverlays. This protectsit from theprosecutor. It alsoprevents from seeingwhat other witnesses have done.

Oneingenious way to protectit is oneI readabout in SteveLindsay's paper entitled: "Do You HearWhat I Hear:Why DemonstrativeEvidence Makes a Difference."Federal PublicDefender Jon Sands protects his exhibitsby sprayinghis entirediagram with PAM vegetablespray. A personcan't write on somethingsprayed with PAM -- the inkjust beadsup. Beforehe spraysthe diagram,he placesVelcro in theareas where he will later affix something.Even if the prosecutorhas Velcro, it won't stickto a PAM protected diagram.

Makesure the prosecutorcan't use it to his or herbenefit Improveinterest through variefy

For example,using PowerPoint for all yourcharts, diagrams and photos can get tedious andboring. Think aboutchanging it up: Usefoam board enlargements for someand PowerPointfor others.

Usecolor to simplif, your chartsand unif, relateditems within the chartor between charts

Makesure that charts include a sourcefor the informationit conveys

Thiswill forceyou to veriff thatthe informationon your chartis accurate.It will also provideyou with a quickresponse to theprosecutors when they object that your chart is misleadingor inaccurate.

tr Practicein the courtroomto makesure your demonstrativeis visibleto everyone

You don't want to learn during the trial that there's a pole that preventshalf thejurors from seeingyour demonstrativeaid. You want to practicewhere you will standin the courtroomso that you aren't blocking the exhibit. If the imagewill be projected,you want to make surethat the lighting in the room is suchthat you can seethe imageon the screen.

Play with your toys

Make surethat you're comfortablewith the demonstrativeaid. If you're not comfortable, it will show. Then thejury will spendmore time beingworried aboutwhether you'll succeedor fail than listeningto what you haveto say. You needto think aboutthings like, "Do my handsshake when I'm nervous?" If so,you probablydon't want to usea laserpointer. If you're going to usean easel,make sure that you're tall enoughto flip the pagesover with ease. If you're going to use an overheadprojector or an ELMO, make sureyou know which direction to lay the paperor documentdown so you're not fumbling with it in front of the jury.

Stealgood ideas

Shareyour good ideas

DON'Ts

o Waituntil the eveof trial to think aboutyour demonstrative aids. You will alsoviolate almostevery "do" from the abovelist if vou wait until the lastminute.

o Let thedemonstrative aid competewith you for attention.If you'reusing a chart,either walkthe jurors through the chart or givethem time to readthe chart before you start talking. It's difficult if not impossibleto concentrateon what a lectureris sayingwhile readingat the sametime.

o Overkill: Use it only when necessaryand effectiveto a centraltheme. Familiarity breeds boredom.

D Usetoo many colorsin your slideswhen usingPowerPoint or anothersimilar program. It can be distracting. Studieshave shown that a blue backgroundand white text is easyto read. A black backgroundwith yellow text is dramatic.

o Simply mirror your oral presentation-- that's incredibly boring and tedious.The whole point of using demonstrativeaids is to make your presentationmore effective and memorable. If your demonstrativeaid is simply a PowerPointslide that mirrors word for word what you're saying,the only thing you areaccomplishing is puttingyour jury to sleep.

EXAMPLES OF DEMONSTRATIVE AIDS

This is wherethe fun begins.Demonstrative aids are limited only by your imagination.

Whenthinking about demonstrative aids, take off your lawyerhat. You'll limit your creativityif you startout thinking like a lawyer.You'll startasking: Is it discoverable?Will theother side object?Is it admissible?Instead of thinkinglike a lawyer,think like a film director.What propswill helpsell your story? Whatwill makeyour storymore persuasive and more believable?Once you've come up with ideas,then you canput your lawyerhat back on and work backwardsto anticipateobjections and your responses.

When coming up with ideas,think aboutusing demonstrativeaids that will engageone or moreof thejurors' senses. Examplesof this will be given below.

DIAGRAMS

Diagramsare an obvious exampleof a demonstrativeaid. You can usediagrams to show the floor plan of a house,to show streets,to show where blood was found in a car, etc.

Diagramsmake it easyfor yourjurors to follow alongwith testimony.For example, manyof yourjurors are directionally challenged. When you talk aboutyour clientdriving in a northeasterlydirection on the streetthat runs east-west, many jurors' eyeswill glazeover. Your job is to makeit easyon thejurors. So,use a diagramto showthe streets.Use a pointerto show whichdirection your clientwas driving on the streetshown in thediagram.

You cancreate your own diagramusing the Paintbrush program. You canfind the

Paintbrushprogram in Windows,under Accessories. You canalso buy a newor used architecturalhome design program for under$30 to createyour own floor plan. You canbuy

StreetAtlas USA, a singleCD-ROM that has every street in the US, for about$45.

If youhave no artisticabilities, or don'twant to figureout how to usecomputer programs,You can hire art,architectural or engineeringstudents to helpyou. Manywill volunteertheir time eitherbecause they can use the project for schoolcredit or becauseit will givethem valuable experience to put on theirresumes.

How canyou makea diagraminteresting? Animators at Law suggesta conceptthey call I "ThematicVisual Messaging." This is a processwhere data is arrangedinto a shapethat tells your story. For example,Animators at Law createda diagramfor a trial wherethe themewas

"All eyesat Rochewere focused on theproject." Animators at Law arrangedall the datathat supportedthis theme into the shapeof an eye.

Of course,the title to your diagramcan also be persuasive. For example,you've created a diagramthat shows fingerprints not belongingto yourslient or anyoneelse who lived in the housein placeswhere your client's fingerprints should be if he'dcommitted the robbery. The titleof thediagram could be: "Stranger'sFingerprints" or "ForeignFingerprints."

Not only do diagramspresent information in an easily understoodmanner, but they also allow you to tell the story that supportsyour theory more than once. When questioningthe

' "Trial Exhibits- Thereis More ThanMeets the Eye," by AnimatorsatLaw, www.an imators.co ml aallpr essarticles. witness aboutthe stranger'sfingerprints found in all the placesyour client's fingerprintsshould

have beenif he'd robbedthe house,you first havethe witnesstalk about the placeswithout using

the demonstrativeaid. Then, have the witnesstesti$r to the samefacts using the diagram.

DOCUMENTS

Another obvious sourceof demonstrativeaids are documents. Someexamples of

documents are copiesof plea agreementsor dealswith a governmentwitness, or impeachingor

contradictoryportions of police reports.

There are multiple ways to show a documentto thejury. One benefit of scanningthe

documentonto your computer is that you can then animatethe document. In other words, you

can havethe entire documentshowing on a slide, and then have a particularword, sentenceor

paragraphcalled out of the documentin order to highlight it.

PHOTOS

Anotherobvious source of demonstrativeaids are photographs. One thing to consider

whenusing photos is the benefitof slidesif you wantto portraya senseof movement.For

example,if you wantto showthe jury theroute the killer took out of theresidence, you canplace

theslides in the orderyou wantthem to showthe jury theexit throughthe eyesof thekiller. CHARTS

Theseare limited only by your imagination.An effectiveuse of chartsis to createthem

duringthe testimony of witnesses.For example,let's sayyou havean identificationcase and the witnesshas given 3 differentdescriptions of theperpetrator. While the witnessis on the stand, takea pieceof paperand write the date of thefirst descriptionon thetop of the page.As the witnessgives testimony on crossexamination, write the height, weight, €y€ color and other descriptorsthe witness admits he gaveto policeon theday in question.Then take a secondpiece

l0 of paperand write the dateof the seconddescription. Do the samething as with the first description. The jury will seeyou createthese documents during the testimony. Then, during your closing,place eachpiece of paperon an easelcreating a chart that showsthe jury the differentdescriptions that the witnessgave over time. There can be no argumentfrom the prosecutorthat you're wrong aboutthe testimonybecause the jury saw you createthe chart duringthe testimony.

You can do a similar thing in an alibi case-- with eachalibi witness,take a piece of paper and write down the time frame during which the witnesssaw your client. During closing,you can placethese on a chart to demonstratethat your client was someplaceelse when the murder occurred. Creatingcharts that accuratelysummarize awitness' testimony can also helpjurors who are taking notes-- you are literally writing their notesfor them.

PAINT CHIP CARDS

This is an idea from SteveLindsay that can make a witness' once unimpeachable testimonyappear uncertain. Let's say the witnesstestifies that he saw a blue car leavethe scene of the accident. Your client, of course,has a blue car. Have you ever thought about how many shadesof blue there are? "Mr. Witness,you said the car was blue. Was it this blue or this blue

(while holdingup paint chip cardsfrom any paintstore)?" You can do this for eye color, skin color, or any other color that's importantto your case.

YOURSELF

The way that you dress,act, react,respond, and your overall attitudewill be a demonstrativeaid whether you want it to or not. The samegoes for your client. Expertshave shownthat simple oral communicationis about Tohthewords we use,38% the way we talk and

ll 55% the way we look and act. Think aboutways to useyourself as a demonstrativeexhibit. For

example,your tone of voice can show scorn for a witnesswho is a liar.

In a DUI case,when you know that the officer will demonstratethe field sobrietytests for

thejury, take the initiative and demonstratethem yourself during opening statements.

Here'sa brilliantexample used by JodieEnglish in a drugsale case in whichshe argued thatthe snitch had the drugs hidden on hisbody. Duringclosing, she pulled hidden sugar

packetsfrom variousparts of herbody to demonstratethat it is possibleto hidesmall amounts of

drugsin placeswhere a searchwouldn't necessarily reveal them.

MAKE QUANTITY VISIBLE

Insteadof talkingabout quantity, show the jury thequantity. Show the jury thata gram

of cocaineis the sizeof a penny,for example.

Here's an exampleof a lawyer making quantify visible to the jury. The client was accusedof stealing$125 worth of quartersfrom a machine. The lawyer demonstratedthat everyonewho saw the accusedimmediately after the supposedrobbery didn't notice any bulges underhis clothing or anything in his hands. During closing,the lawyer brought in $125 worth of quarters,showing the jury the weight and sheernumber of quartersthe client must have been carrying if he'd committedthe robbery.

Working with exhibits can also show you when the power of words is strongerthan the visualaid. $250,000sounds like a lot more moneythan it looks like. I tried to duplicatea bundleof money in a murder caseand discoveredthat the bundle did not look as big as the numbersounded.

In a caseinvolving a critical witnesswho admitsto drinking a caseof beer,bring a case of beerto court. As the witness is testif,ing aboutthe amounthe had to drink that day, count out

t2 thecans of beerone by oneand place them in frontof the witness,on thejury bar,on the

prosecutor'stable, or anywherethat they will all fit.

MAKE SIZE VISIBLE

In a self-defensecase, part of yourdefense is thatyour clientwas justifiably scared of the

muchlarger men who surroundedhim. In a caseJeff Robinson and Mike Iariatried in Seattle,

theycreated life sizedcardboard cut-outs of theirclient and the menwho surroundedtheir client

to showthe sizedifferential.

MAKE DISTANCE VISIBLE

Many peopleare not adeptat visualizingdistances. For example,whenever people

testifuthat the areawas the sizeof a footballfield, that description means very little to people

whoaren't sports fans. If distanceis important,use a tapemeasure to showthe jury thedistance.

Justmake sure that your tapemeasure is longenough if you planon doingthis in frontof the ju.y. Theother option is to measurethe distancein thecourtroom before the jury arrivesand

markthe distance with a pieceof maskingtape.

MAKE SPACE VISIBLE

If your clientconfessed and your theory is thathe felt threatenedin the small

intenogationroom with two copsinterrogating him, makethe interrogationroom visible to the jury. Re-createthe dimensionsof the roomusing masking tape on the floor of the courtroom.

Thiscan be donebefore the witness testifies and outside the presence of thejury. Whenthe cop

is on thewitness stand, you canconfirm the distances you've marked out on the floor. Thenput

thefurniture in the room. You cansit whereyour client was sitting. Havethe copwitness enter

theroom and show where he wasstanding and conduct your crossfrom there,if you can.

t3 THE PROSECUTOR

This example is from SteveLindsay. In this example,you can turn the tableson the prosecutor'sfavorite tool of having the witnessidentif, your client in the courtroom. You can havethe snitch identiff the prosecutoras the personwith whom he cut the dirry deal.

Mr. Snitch,you met with the prosecutorto cut a deal. That prosecutoris in the courtroom. Describefor the jury what that prosecutoris wearing. Your Honor, I ask that the recordreflect that Mr. Snitch has identified Mr. Prosecutor,this man right here,as the personwho cut the deal with him.

WITNESS DEMEANOR

We've all had the experienceof a witnesswho keepslooking over at the prosecutor beforeanswering any questionyou ask. Make the witnesspay for it. Every time the witness looks over at the prosecutiontable, you follow his gazeand look too. You can decidewhether to make your gazeobvious by exaggeratingyour headmovement. You can look over therewith a puzzledlook on your face. Pretty soon,the jury will understandwhat you're doing without you having to say anything.

ENGAGE THE SENSES

Here area few examplesof using demonstrativeaids that engagemore than one sense.

Laura Hogue from Macon, Georgia cameup with this one. A critical witness for the prosecution hasadmitted to drinking a caseof beer beforehe supposedlysaw your client running away from the sceneof the murder. During closing argument,while discussingthat witness,start opening cansof beerand pouring them, one by one, into a largepitcher(s). Not only will the jury seethe amountof beer,they will smell it.

In a rapecase, Jon Sandssubpoenaed the bed where the rapehad supposedlyoccurred.

The bed had extremely squeakysprings. Not one personwho had been in the househad heard

14 the squeakysprings. During closing argument,he broughtthe bed into the courtroomand deliveredhis entireclosing while on that bed with the squeakysprings, making thejury hearthat it was impossiblefor his client to have rapedthe "victim" when not a single personheard the springs.

SteveLindsay usessound to demonstratequantity. For example,in a casethat centerson fingerprints,he usesBB's and a metalbowl or galvanizedpail. This is what he saysduring closingafter he hasthe jurors closetheir eyes:

This caseboils down to whetherthis fingerprint is in fact the defendant's. But we know so little aboutthe print. All we know is that it is supposedlythe sameas the defendant's in 6 places.(Slowly drop 6 BB's into the pail, one at a time). But thereare some200 placeswe know nothingabout. (Slowly pour 150BB's into the pail). I don't know how you define reasonabledoubt, but I'd say you just heardit.

MAKE TIME VISIBLE

You have a police officer on the standwho testifiesthat I and ll2 minutesis not enough time for your clientto haverun aroundthe house,discover 3 bodies,and then call 9l I . One and one-halfminutes doesn't sound like a long time. How can you show thejury how long it actually is? Have the witness look at the clock in the courtroom. Then startwalking aroundthe courtroom,get a glassof water, exit the courtroomand walk down the hallway, come back in and walk aroundthe courtroom again. You can stop after 30 secondsand confirm with the witness,"Now, that was only 30 seconds,right?" Then keep walking. You can probably stop after I minutebecause your point will havebeen made.

MAKE SOUND VISIBLE

You knowthat a witnesswill testiff thathe couldclearly hear your client'swhispered conversationeven though he wasstanding 20 feetaway. At somepoint before your crossand out of thesight of thewitness, measure 20 feetfrom the witness stand and place a smallpiece of

l5 maskingtape on the floor. Then,at somepoint during your cross,stand in that spotand start askingquestions in a softtone of voice,like a whisper.Hopefully, the witness will askyou to speakup becausehe can'thear you.

CONCLUSION

I've just given you a few examplesof ways to think about and use demonstrativeaids.

The list really is limited only by your imagination.Be creative,steal good ideasand havefun!

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