Chapter 5

• Jurisdiction: United States

Chapter 5 Direct Examination Visuals

"Turn your life-care planner's testimony into a show-and-tell. That keeps her testimony interesting and makes each of the care needs more concrete to the jury. Have her bring things to court—the leg braces, the special dinnerware, the Velcro fasteners for clothing, the urinary catheter, etc. Pass these things around the jury. Rub them with alcohol pads beforehand so that jurors will be comfortable handling them and the room will smell like a clinic.
"Have your life-care planner teach the jury what these things are for—especially how they are used. Have her show videos of the kinds of therapy in her plan. Show a video tour of the rehabilitation center."
David Ball, David Ball on Damages 3, 190 (2013)

A. The Value of Visuals for Direct Examination

Visuals serve at least seven purposes when they are utilized during direct examination of a witness. First, visuals, such as photographs of the plaintiff's injuries in a personal injury case, can bring direct examinations alive for the jury. Second, visuals, for instance, those photographs of the plaintiff's injuries, constitute proof of the claim that the plaintiff was injured. Third, because generally jurors have short attention spans, visuals can be generously interspersed throughout a witness's testimony to gain and maintain the jurors' attention. Fourth, visuals, such as a summary chart in a case involving a mass of documents, can simplify the information, helping jurors understand the complex case. Fifth, if the jurors only heard testimony, they would retain only a small portion of what was said; visuals help the jurors retain the testimony elicited on direct examination. Sixth, with visuals counsel can repeat the substance of portions of the witness's direct testimony. For example, the lawyer can first have the witness describe how the collision occurred at the intersection, and, then, with the aid of a diagram of the intersection, have the witness reiterate what happened while showing the jury what happened. Seventh, the visuals can help the witness educate jurors about complex subjects, particularly when displayed during an expert witness's testimony.

In addition to discussing how visuals serve these seven goals, this chapter describes both a pretrial process for gathering visuals and how to prepare a witness for the employment of exhibits during direct examination. Specific visuals that enhance witness testimony are discussed in this chapter, including photographs, scene diagrams, video depositions, courtroom demonstrations, summary charts, animations, and simulations. Finally, trial techniques for getting the most out of these visuals are also provided.

B. Pretrial Preparation

1. Preparing the Visuals

a. Gathering the Visuals

Pretrial preparation entails not only gathering those potential visuals for trial that already exist but also creating new visuals. When you enter the case, certain visuals will already exist, and you will have ready access to them. There is the real evidence, which is the actual evidence in the case. For instance, in a criminal case, the police will investigate and take items, such as a weapon, into evidence, take pictures, collect documents, and generate other real evidence, such as fingerprints from the suspect that can be compared to latent prints collected at the crime scene. If you were a prosecutor, and the case were presented to your office, much of the visual evidence will have already been collected and placed in the police evidence room or in the police department's file. Defense counsel's investigator in a criminal case may perform much the same functions that law enforcement did in gathering and creating real evidence visuals.

In a civil case, the clients may have real evidence visuals that they can provide to their attorneys, and the lawyers' investigators can also gather and create evidence. In a civil case, the lawyer also may need to advise the client to preserve evidence, such as electronically stored information, and may need to notify the opposing party to preserve evidence, thereby preventing spoliation.

Demonstrative evidence can be developed to demonstrate or illustrate a fact or condition that is to be proved in the case. Demonstrative evidence is a visual aid that a witness can use to help the jury understand the case. Demonstrative evidence includes summary charts, animations, anatomical drawings, computer slideshows, scene diagrams, and timelines.

Usually in criminal cases, law enforcement agencies and/or crime laboratories will prepare the demonstrative evidence for the prosecution. That task for criminal defense or for the plaintiff or defense in civil cases will be done by either an attorney or an attorney-employed communication litigation organization.

What are you looking for in visuals? A good trial visual serves one or more of the seven purposes of a visual. You are looking for a visual that will help prove your case; it should support one or more elements of your legal theory. For example, in a breach of contract case, plaintiff's counsel would want a visual that shows the jury the clause in the contract that was breached.

b. Creating the Visuals

In addition to proving your case, you are looking for a way to display the visual in a way that it grabs the jurors' attention and helps them retain the information, two other purposes of an effective visual. To accomplish this in the breach of contract case, plaintiff's counsel could have the contract provision enlarged and displayed on a board that could be placed on an easel in front of the jury. Or, using Sanction software, counsel could project the contract page onto a screen and then highlight the pertinent clause.

Counsel is not confined to the visuals that exist when counsel accepts the case; counsel can and should create visuals. The only restrictions are counsel's imagination and the rules of evidence. For instance, in an automobile tort case, counsel could have a diagram of the intersection prepared, and a witness to the car crash could use that diagram to explain how it occurred. Or, in a bank fraud case, counsel could have a summary chart prepared that shows the banking transactions, and at trial counsel could have an expert utilize the chart when explaining what took place to the jury.

2. PreparingYourself

a. Visit the Scene

Go to the scene. You will never fully understand your case if you fail to go to the place where the incident took place. You may have looked at photographs of the scene, but you need to see it in three dimensions. For example, in a homicide case involving a shooting in an apartment, only by going to the apartment could the prosecutor and defense counsel get a clear understanding of the layout of the apartment and the exact location of the defendant and the victim at the time of the shooting. Counsel also can observe the distances between places in the apartment and look at significant places and items in the apartment from the vantage points of witnesses.

In sum, a scene visit gives counsel a clear understanding of the scene that counsel can rely upon in conducting a direct examination that recreates the scene so that the jurors also will have a clear picture of the place, the people in it, and what took place.

Four guidelines exist for when and how to visit the scene. First, go to the scene as soon as you can because the scene can change. For example, in the apartment homicide case, the furniture might be moved. Second, it is preferable to go to a scene at the same time of day that the event took place because lighting and sounds can be different at different times of day, and those factors can affect a witness's perception of what took place. Third, if possible, have someone familiar with the location and what happened accompany you to the scene. That person can explain what happened, where it happened, and what the sound and lighting conditions were at the time of the incident. Fourth, take a camera because you may see something that you want to photograph or video.

When you visit the scene, consider whether you might want to move for a jury-scene visit. For example, in the Michael Peterson murder trial (see pages 35-37), the jury visited the Peterson mansion and viewed the staircase where the prosecution alleged Kathleen Peterson was beaten to death but where the defense claimed she fell down the stairs. Did the plush surroundings of the Peterson's mansion affect the jurors?

b. Know Each Visual

Counsel is responsible for every exhibit and visual offered at trial. While counsel may have a visual prepared by a communication's consulting firm, counsel is still responsible for every aspect of it. Inspect each exhibit and visual closely. Notable and sometimes embarrassing things have resulted when counsel did not carefully inspect an exhibit. For instance, in a convenience store robbery case, the defendant's clothing at the time of the arrest was admitted into evidence without defense counsel's objection, and the jury, during deliberation, found a receipt from the store that was robbed in the pocket of the defendant's jeans despite his denial at trial that he had ever been in the store before. Counsel should also be sure to proof any graphics that are created for trial for simple issues, such as misspellings. It can be easy to miss spelling errors, and that can be embarrassing at trial.

c. Prepare the Direct Examination

We recommend that you write out the predicate questions that you will ask at trial to lay the evidentiary foundations for exhibits you plan to introduce that might draw an objection. In Chapter 8 "Evidentiary Predicates," we provide templates of predicate questions for exhibits and visuals, and you may be able to modify those predicate questions for your situation.

In preparation for trial, decide how you can best present your visuals to the jury. Will you do it in a computer slideshow? An enlarged image on a board sitting on an easel before the jury? Parade it in front of...