Chapter 23 - § 23.4 THE "AUDIENCES" OF ANY COURTROOM TECHNOLOGY PRESENTATION

• Jurisdiction: Colorado

§ 23.4 THE "AUDIENCES" OF ANY COURTROOM TECHNOLOGY PRESENTATION

There are several "audiences" that demand the attention and careful consideration of any attorney using courtroom technology.

The Jury

The first audience is the finder of fact, typically the jury. Jurors are the most mission-critical, and unforgiving, of the audiences. In coordinating a technological presentation to a jury, it is important to understand how jurors absorb courtroom evidence and retain information that they see in court. Research shows that jurors retain approximately 10 to 15 percent of what they only hear, approximately 20 percent of what they only see, and approximately 80 percent of what they both see and hear.²² These statistics support the appropriate use of courtroom technology before juries to the maximum extent possible. They also provide guidance as to when, how, and which courtroom technology to use during trial.

As one commentator notes, technological evidence and exhibits:

have an advantage over words alone because they are often more efficient tools of communication. Humans assimilate information mentally at a much faster rate than it is verbally expressed. Thus, even the most articulate and rapid orator will, on some level, dull a jury. . . . If a "picture is worth a thousand words," then a computer-generated animation says a thousand words, sings a thousand songs, and paints with a thousand colors all at once.²³

As a threshold matter, an attorney must ensure that the jury can see and hear any anticipated technological exhibits. Not surprisingly, technological equipment and capability vary dramatically from courthouse to courthouse and, in some instances, from courtroom to courtroom. For example, the Alfred A. Arraj United States Courthouse in Denver offers virtually unlimited courtroom technology. Each courtroom is equipped with connections for a laptop or tablet, an ELMO®, a sound system, video capabilities, and television screens for attorneys, jurors, the witness, the judge, and the gallery. Technological capability in state courts is much more sporadic and, typically, far less advanced. Attorneys should familiarize themselves with the technological capability of the courtroom well in advance of any hearing or trial. Most often in state court, the attorney is responsible for making appropriate arrangements to provide necessary equipment, including television screens, projectors, cables, and sound systems.

The Judge

An attorney's second "audience" in using courtroom technology is the judge. Indeed, using technology in advance of trial, including at hearings, can result in dispositive outcomes before a juror is ever subpoenaed. The value of technology at these stages should not be overlooked. Courts have permitted — and in some instances required — counsel to argue substantive motions such as motions for summary judgment through videoconferencing technology. At least one court stated that it could "confidently say — after nearly twelve years on the bench — that it does not make much, if any, difference to the Court whether it hears arguments in person, by telephone, or via videoconference."²⁴

Technology may also be appropriate in many pretrial phases. Commentators have noted that "[v]ideoconferencing would be beneficial over court calls and drastically reduce courtroom costs," especially in "proceedings in which individuals appear without attorneys, such as family court [and] criminal court . . . ."²⁵ Courts have permitted pretrial witness examination via Skype and WebEx when the witness resides far from the courtroom or cannot travel without hardship.²⁶ In fact, the availability of videoconferencing has led multiple courts to deny motions to transfer related to the inconvenience or unavailability of witnesses.²⁷

In any courtroom context, however, as the manager of the courtroom and "gatekeeper" of the evidence, the judge retains ultimate discretion over what technology is permissible and how it must be used. Occasionally, judges have published courtroom procedures explaining the acceptable, expected, and, in some cases, mandatory use of courtroom technology. In some instances, a judge's procedures explain the technological equipment available in court and set forth technical specifications as to how courtroom evidence is to be tendered to the court or presented by counsel. In the U.S. District Court for the District of Colorado, for example...