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Criminal Justice Magazine
Spring 2004
Volume 19 Number 1

Chair's Report to Members

Digital Evidence, Courtroom Technology, and the Art of Storytelling

By Norman K. Maleng

Norman K. Maleng is the chair of the Criminal Justice Section and the King County prosecuting attorney in Seattle, Washington.

The Criminal Justice Section is pleased to devote this issue of Criminal Justice magazine to the topic of "digital evidence." Attorneys today have a multitude of high-tech tools to choose from and need to be aware of the options at hand that can enhance their abilities in the courtroom. I have encouraged the deputies in my office to learn all they can about the latest in trial-exhibit technology.

But, just because you can, does not mean that you should. Sure, technology is fun and impressive, and jurors, especially those from the MTV-generation, may come to expect to be entertained with a computer-generated simulation of the crime. But the prosecutor and defense counsel who are considering the investment of money, time, and credibility in creating a piece of digital evidence should first ask whether this will get in the way of their primary job, which is to tell a story.

As a simple farm boy myself (I was raised on a small dairy farm near the community of Acme in northwestern Washington State), I have great admiration for famed defense attorney Gerry Spence. He has had tremendous success appealing to the average juror, and has made a second career out of reminding us that "most of all, lawyers must be storytellers."

The courtroom remains the one place in our society where a good story can be told, without interruption, without the audience changing channels or leaving the room. The jury wants to hear a good story, stripped down to its best elements, but with the appropriate emotion intact. Spence recommends practicing the story so that it is no longer than three minutes and so that itcan be understood by children:

"Drive down the highway in your car addressing the jury in the rear view mirror," he advises. "Tell the story, the alarm on your watch set for three minutes. Tell them why you care about your client.

"When you arrive home, gather up your children and tell them a bedtime story for practice, for if you can explain it to your children, then you finally have acquired the skill to speak to a jury," he continued. "I say this not out of disrespect for the jury, but for the lawyers who cannot speak to children. It takes little skill to mouth the puckery brine of legal gibberish. But it takes skill, indeed, to relate a clear and understandable talk that our children will cherish."

Making complicated stories simple is not something that law schools train lawyers to do. In fact, the law school experience can have the opposite effect, teaching us to take the passion out of a story in favor of hard-headed legal analysis to distill causes of action, statutory elements, admissibility of evidence, or precedential value. Every member of the bar should strive to be a good technical lawyer, but the best among us have also mastered the art of telling a good story.

Now we also know that "a picture is worth a thousand words." The best stories of our childhood were in picture books, where the illustrations served to etch the narration into our eager memories. The arguments in favor of using demonstrative aids are powerful and empirical. Studies show that, after 72 hours, people remember only 10 percent of what they hear, 20 percent of what they see, but an amazing 65 percent of what they see and hear. There is no doubt that demonstrative visual aids can help reinforce a message and make a lasting impression.

This also argues for the repeated use of a simple theme to describe your case. Like a cola struggling for market share, your case theme needs to be catchy and repetitive to help jurors remember whether "It's the Real Thing," or "The Choice of a New Generation."

But, does technology help tell the story, or does it become the story?

We all know the sleepy feeling that comes over us when a lecturer dims the lights for a PowerPoint presentation. We also know how statistics, charts, and graphs can be used to manipulate. The same jurors who want to see a computerized re-creation of the crime may also be the most skeptical that it will reveal the truth because they know how such systems are engineered and how results can be fabricated. They may be entertained, but will they be convinced?

So when deciding whether to go high-tech in the courtroom, ask yourself these questions:

o Will the digital evidence enhance my credibility, or will it cause the jury to focus instead on the data that went into the final product? Will opposing counsel successfully cast doubt on the digital evidence so that it is either ignored or, worse, it damages my credibility?

o Will I know what to do if the system crashes in the middle of my opening statement? Will I look comfortable and smooth with the technology or like I am out of my element?

o Am I spending too much time on creating the visual aid and not enough on developing the simple theme behind the story?

The most important tools a lawyer can bring into a courtroom are credibility, passion, and the ability to tell a good story. Whether digital evidence will add or subtract from these essential tools is the question each attorney must ask before taking the big leap into high-tech lawyering.

Every lawyer must find his or her own style that is natural, compelling, and engaging. Your style might be complete with a good story and a felt pen, or it might be as a master of the latest in digital evidence and courtroom technology. Whether you are a high-tech master or a simple country lawyer, don't forget to pack your story!


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