Tuesday, March 24, 2015

Criminal Trials and PowerPoint: The Importance of Juror Engagement

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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