One huge hurdle that litigators encounter during trials is not
only meeting their burden of proof to prevail, but also keeping the jury
engaged. A jury trial, especially in
more serious or complex matters is not the three minute clip that you see on
television or in the movies. Trials can be long, often
extending over months, depending on the matter
at hand. Throughout that time, we have a
jury box of humans who are taking in all of this information and then tasked
with deliberating to render a verdict. I
specifically point to the jurors as humans, because as humans we have shifting attention
spans. This is why it is extremely
important to put on compelling and engaging presentations to the jury. In the criminal context, it can be very
powerful to display demonstrative evidence in a memorable manner.
Research
has shown, in civil cases, that the spoken presentations coupled with the use
of PowerPoint can strengthen a parties’ case. From a series of studies performed at two different
universities researchers used mock jurors in civil cases to examine whether
PowerPoint slides may influence mock juror decisions. They found that when the
plaintiff used PowerPoint, mock jurors held the defendant company more
responsible for racial discrimination; and when the defense used PowerPoint
slides, mock jurors saw the defendant company was less responsible for the
alleged discrimination. This is not only
applicable to the civil sense. The
information is not more impactful if a party uses PowerPoint because they look
nice on a screen, but because more of a party’s case is retained. Studies show that when people merely hear information, they retain only about ten percent of what they hear, while people exposed to a combination of oral information
with visual aids retain approximately 85 percent of that information. Overall
the use of PowerPoint helps jurors understand trial information better. But what about criminal trials? Does PowerPoint have a place in the criminal
realm? It most definitely does. The fact is simply that the jury can still
benefit from a visual presentation, and it helps both the defense and
prosecution in regard to presenting effective arguments. Judge Herbert B. Dixon Jr., technology columnist
for The Judge’s Journal, tested this theory with eleven serious, complex
criminal jury trials using survey responses.
From 141 deliberating jurors and alternates, an overwhelming
97% agreed or strongly agreed with the statement, “viewing
the judge’s instructions on the monitors improved my understanding of the laws
in the case and my responsibilities as a juror.” Visual aids present alongside a verbal
component work as a double agent to the proper facilitation of information.
PowerPoint is a supplement to your courtroom
presentation, not to be confused with an end all substitute that will speak for
you and your side’s theory. The visual
components coupled with an opening, direct, cross, and closing allows the
jurors to follow you as you verbally lay out your foundation. From lawyers that thrive in this sort of trial
preparation and execution, the advice
for an effect PowerPoint presentation is to keep a clean and simple approach. While you want to be compelling and add
imagery to your verbal communication, you also want to be taken seriously and
not cross the line.
This
is extremely important in the criminal context. Within the realm of criminal law your client’s
liberty and/or life may hang in the balance from a defense perspective, and the
administration of justice is at stake from a prosecutor’s perspective, so it is
highly imperative that the three pillars of our judicial system are executed
effectively. Take the opening statement
for example, under the theory of primacy, the opening
statement is seen as the most essential part of the litigators role to influence the jury. At trial, jurors
perceive information presented early in an opening statement as more
valuable and meaningful than information
presented in the middle or at the end. Therefore,
the opening statement acts as a lens that the jurors will see the case through,
and based on your presentation of information, the juror has made up their mind
in the beginning. The addition of a
PowerPoint to help humanize your defendant, present your theme, spell out your
theory, illustrate a burden, or depict the rule of law is highly
effective to caption the juror’s attention. Captivating their attention as you implant
images into their minds, helps shape the lens that the use to view your case. In an opening you only have a few minutes to
grab their attention, so a visual presentation serves an important purpose. Ensuring that they can not only comprehend and
retain the essential sections of your theory is crucial to be effective and
have an impact.
Lawyers
can use PowerPoint presentations and other technologically-advanced methods to
enhance the retention rates of jurors. The
days of passing around a small photo in the jury box are gone. The Elmo is no longer the new wave. Now, lawyers have to appeal to the cognitive
of the jurors, and that can
be effectively done
through well thought out PowerPoint presentations. While compelling, and
growingly essential, practitioners must also proceed with caution. There is a fine line between aiding in the
reception of information and prejudicial visuals. Courts have overturned criminal murder convictions for misuse
of visual aids.. The Nevada Supreme Court
held that a PowerPoint, “as
an advocate’s tool, is not inherently good or bad” and
that “its
propriety depends on content and application.”
In
Washington, a murder trial was overturned after a prosecutor
showed the jury a PowerPoint presentation having over one hundred of
approximately 250 slides with headings such as “DEFENDANT
WALKER GUILRY OF PREMEDITATED MURDER” and a slide including the defendants
booking photograph with bold red letters across the photo reading “GUILTY
BEYOND A REASONABLE DOUBT.” On appeal,
the court noted that while it is an acceptable method for attorneys to use multimedia
presentations during
the trial the prosecutor has the duty to “subdue courtroom zeal,” and not add
to it, in order to ensure the defendant receives a fair trial. The court held that the
prosecutor’s conduct was improper and reasoned that it
is not permissible to alter admitted evidence in order to strengthen a sides
theory of the case.
With this in mind, it seems that a trial lawyer who spends
most of his courtroom time simply talking about his case may be far less
effective than a lawyer who uses an effective combination of the aural and the
visual when presenting a case. Using
technology such as PowerPoint throughout trials is becoming increasingly more
common. One can speculate that it will
soon be the new normal. With the high
stakes in criminal cases, this tool will prove to be very effective on the
jurors. As high as the stakes are, so are the risks, so ensuring that information is factual and probative while not prejudicial is also a very high safeguard that courts have imposed. Criminal litigators
should proceed full force with advanced technology in the courtroom but with
caution, as these sorts of presentation will become increasingly necessary to
putting forth a strong case.
Amber Cleaver
Senior Staffer, Criminal Law
Practitioner
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