Volume 18, Number 6
Using Technology during Trial to Persuade the Jury
A Defense perspective
By Luke M. Pittoni
The standard trial arsenal should include some basic systems. Scanned image presentation systems such as the Interactive Presentation System (IPS) offer an inexpensive way to manage large quantities of documents and graphics stored on hard, ZIP, or CD-ROM drives.
In a medical negligence case, for example, the plaintiff's hospital record, the defendant's office records, and prior and subsequent treatment records related to alleged negligent care can be scanned and presented like a slide show. A remote control allows the defense attorney to switch among documents and graphic or video images at will during direct or cross-examination, display particular pages, and enlarge or highlight the item in question or redline an especially damaging phrase. This instant access and annotation are particularly important on cross-examination, where flexibility is paramount.
Bar code technologies allow a defense attorney to locate and display exhibits instantly in the courtroom. Each document is coded and indexed; to retrieve the exhibit at trial, a bar code reader scans the index and projects it onto a screen for immediate viewing within the courtroom.
X-rays, CAT scans, sonograms, MRIs, and other medical tests demand more sophisticated scanning equipment to achieve proper resolution in projection. Graphic artists or medical illustrators can enhance X-rays, CAT scans, sonograms, or MRIs so jurors can have a clear image of what is projected for viewing in the courtroom. They can be forwarded quickly and easily as e-mail attachments with very good clarity using the JPEG format and given to experts for approval and feedback.
Choose the drawings and diagrams that best illustrate the testimony. In a recent case I tried, a defense expert neurosurgeon used graphically enhanced CAT scans to demonstrate brain tumor size and location and a life-size model of the skull to provide a 3-D view of tumor size and location. The expert could move back and forth between the displayed scan on the projection screen and the 3-D model. This was valuable in promoting jurors' understanding of the facts involved.
No matter how thorough the preparation, there is always the possibility that a document, photograph, or X-ray that counsel seeks to present to the jury was not scanned. A document visualizer permits last-minute display and is a very flexible tool for making a courtroom presentation. It operates using a video camera vertically mounted over a lighted base, instantly displaying the image on the television, jury monitors, or display screen to which it is attached. Focusing is automatic. The user can zoom in on a specific portion of a document with the touch of a button. The projected image also can be printed on the courtroom's printer for later use.
Trial display packages such as Trial Director or Trial-Link allow the defense attorney to store and display not only text material but also video clips, static clip art images, documents, charts, or photographs. Its effectiveness lies in its apparent simplicity-jurors watch the attorney perform commonplace activities like emphasizing phrases, enlarging key parts of exhibits or photos, or using video and animation.
Visual summaries marshal factual contentions in a dramatic, interesting way. In the hands of a skilled defense attorney, however, charts and graphs can provide almost continuous mini-summations throughout the trial, even as the proof is presented, often by witnesses who explain the chart to jurors through their direct testimony. Charts can be produced in-house using software such as CorelDraw or its counterparts. Clip art and visual graphics can be downloaded from a multitude of Internet sites.
Use at trial. When using technology at trial, know the courtroom. Various courtrooms around the country are equipped with user-friendly, reliable evidence presentation systems. Currently, there are nearly 50 integrated high-tech courtrooms in the United States, and many more are in the design or construction stage. Attorneys should know the size and layout of the courtroom before deciding on equipment so that it complements the space and greatly enhances the effectiveness of the evidence presentation.
If the courtroom is not equipped for the electronic presentation of evidence, the defense attorney can rent or buy projection equipment and document visualizers in order to use computer-generated exhibits. If the attorney plans to use high-tech evidence in multiple trials, buying a projector and screen makes better financial sense than renting.
The new millennium brings with in the beginnings of a substantial change in the way that we try cases. How do we envision an opening statement? Is the attorney standing at a lectern and speaking to the jury, pausing periodically to use a flip chart or place a photograph or graphic on an easel? Or is counsel standing before a control podium, speaking to the jury while smoothly illustrating remarks with a multimedia slide show, pausing periodically to circle key portions of images displayed on a flat-panel plasma screen using an electronic light pen? Studies show that one-third of jurors make up their minds about a case after hearing the opening statements. An opening statement that merely denies plaintiff's allegations or urges jurors to keep an open mind until all the evidence is in misses a golden opportunity to explain the highly sophisticated medical issues-which the jury will instead hear for the first time from plaintiff's witnesses. Microsoft PowerPoint, Freelance Graphics, Corel Presentation, or similar software allow the defense attorney to organize, illustrate, and focus the opening statement on the critical points of the case. Contrast this multimedia method with the traditional method of reading from notes scrawled on a legal pad.
Anything the jury reads or looks at during trial will divert its attention from other activity in the courtroom, including the defense expert's direct testimony. Multimedia technology can control the flow of direct testimony and supplement it with critical details such as the technical basis for the expert's conclusions. Remember, the ultimate goal is to persuade the jury to believe the defense expert. If jurors believe the expert, they will accept his or her conclusions.
Although cross-examination is more spontaneous than direct examination, counsel can prepare scanned exhibits likely to be used in cross-examination. The beauty of computer-assisted exhibits is that documents can be retrieved immediately whenever there is a change in the order of questions by using the bar codes. Technology is a powerful aid in confronting the witness on cross-examination because the rapid-fire presentation of the exhibits keeps the witness off guard.
Closing arguments should use the entire panoply of technology, as long as the multimedia imagery does not distract from the defense attorney's message. Remember, the message, not the medium, wins the trial. Technology should augment the arguments advanced by counsel.
How does this high-tech equipment affect the jury? Are we seen to be grandstanding or taking advantage of those who do not choose to participate in an electronic format? Since jurors are the deciders of fact, and their opinions are affected by their perceptions of the proceedings, these are important questions.
Naturally, the defense attorney may be concerned that the jury will perceive the use of computer-assisted exhibits as an unfair advantage of the wealthy defendant over the poor plaintiff. However, my experience supports juror survey results that indicate 90 percent of jurors respond favorably to courtroom technology. In fact, jurors are able to see evidence clearly and follow both the attorney's as well as the witnesses' presentations without being overpowered by the technology.
Luke M. Pittoni is with Heidell, Pittoni, Murphy & Bach, LP, New York, New York.
This article is an abridged and edited version of one that originally appeared on page 25 of The Brief, Summer 2001 (30:3).