SHOW . . . DON’T TELL
The Administrative Office of U.S. Courts-Defender Service Division offered a seminar (Feb. 4th-6th) on how criminal-defense lawyers can present electronic data to judges and jurors at trial to help secure “Not Guilty” verdicts.
Today, much of the evidence used in court is in electronic form. This includes pictures taken on digital cameras, discovery documents provided in pdf format, and videos of incidents or arrests taken from cameras on police officers. It is powerful evidence that is always exploited by prosecutors to help convict defendants.
Movies and reality TV show us how persuasive electronic data is to securing verdicts in criminal cases. Prosecutors will often play video confessions of a defendant admitting that he did the crime. Prosecutors will show video surveillance footage of bank robberies and then tell the jury that the defendant (who is wearing a ski mask) is the person in the video.
These documents and data—when presented to jurors in an appropriate way—can be powerful evidence to help convict a defendant.
But there is also a flip side to this type of electronic data. Frequently, there is evidence that either casts doubt on the prosecutor’s case, or establishes that the defendant did not commit the crime. And that is what this seminar in Houston was about—how to use electronic evidence in court to help acquit a defendant.
Instructors and Participants:
Our instructors were terrific. Penny Marshall and Debbie Allen showed us how to use TrialDirector and PowerPoint to cross-examine witness, conduct direct examination, and enhance closing arguments. Penny is an attorney from Delaware and Debbie works for the Federal Defender’s Office in Wichita, Kansas. I felt lucky to be in their group.
The participants in the seminar were broken into small groups so that we could learn how to use TrialDirector and PowerPoint in a classroom setting. The photo to the left is our group. I enjoyed meeting everyone and learning from the questions they posed to our instructors.
So what is TrialDirector? Before this seminar, I had no idea what it was. But in short—TrialDirector is a software package that allows attorneys to present electronic evidence and video to jurors in a way that makes it easy for jurors to process and absorb.
For instance, if a witness made two contradictory statements prior to trial, then the attorney can put both of those images on a screen side-by-side and highlight the inconsistencies for both the jury and the witness. It makes the cross-examination more dynamic. Also, TrialDirector allows attorneys to make video snippets from discovery provided by the Government and highlight the parts of the video that are consistent with the defendant’s version of events.
Using TrialDirector gives the criminal defense attorneys the tools to even the playing field against prosecutors who have all the resources in the world to prosecute defendants.
We have all been to talks where the speaker ran amok with PowerPoint. (Below is a classic Jon Stewart clip on how PowerPoint can be abused.)
The training showed us the dos and don’ts of preparing and using PowerPoint during direct examination and closing argument. When done properly—PowerPoint can help jurors remember evidence during the trial and adopt the defendant’s version of events during jury deliberation.
In today’s jury trial, attorneys must “show and not tell” the jury why their client is not guilty. The training described above taught me how to do that.
GENARO R. CORTEZ