Not only with a view to action, but even when we are not going to do anything,
we prefer seeing to everything else. The reason is that sight, most of all the senses,
makes us know and brings to light many differences between things.
Technological progress is like an axe in the hands of a pathological criminal.
Change is the process by which the future invades our life.
Without explanation, visibility can be a trap.
Jurors may have to see it to believe it, but they also have to believe it to see it.
INTRODUCTION to COURTROOM TECHNOLOGY
This is the era of technologically advanced trial strategy and the electronic high tech courtrooom (video) (1 - Bexar County Courtroom video), (2 - Sample Federal Courtroom), (3 - Report), (4 - How a part-time preacher, full-time lawyer used technology to whip a giant drug company in the Texas Vioxx trial), (5- article), (6 - Courtroom Technology in Harris County, TX), (7 - various configurations of electronic courtrooms) (8 - 2006 video of Courtroom Technology in the Harris County, Tx, Civil Courthouse). At one time, Federal Judge Janis Jacks of Corpus Christi, Texas, had posted a 16-minute streaming video of the courtroom technology in the new Corpus Texas federal courthouse; it was standard stuff but very nicely explained; naturally, the feds too the video down.) This is the age of the geek, not the geezer. Skilled defenders must possess technical skills. If (like me at 75) you are a geezer, you have to adapt to the situation. Technology has tremendous potential as a tool for favorably impacting trial advocacy, e.g., (1), (2), (3), (4). Every advocate has the duty to learn how to integrate new strategies, technologies and delivery systems (1 - See Computer Generated Exhibits in Seeing Is Believing - part of a 376-page 2005 presentation on indigent defense), (2 - how to) into the trial process as a way of enhancing the trial presentation. Electronic gadgetry, e.g., the computer and a plethora of other delivery devices like scanners, CD burners, LCD projectors, video platforms (document camera), monitors, speakers, DVD players, printers, etc., furnishes a number of weapons for use in your arsenal of advocacy tools. At the case management level (See the list of case management software products below.) your computer can function as the pretrial notebook that helps you plan your case. You can use it to keep track of deadlines, pleadings, documents, discovery, work products, witness statements, pretrial motions, voir dire questions, openings, arguments, etc. Later you can use it as a trial notebook. [Note: On the issue of personal computers, I have had disastrous service from two expensive Dell laptops; fool me once, shame on Dell; fool me twice, I take the blame for the second purchase. Never again.] Modern day prosecutors - most of 'em are much more computer literate than defenders - are definitely gearing up for the electronic courtroom. Except for in-house training programs of public defenders, much of the CLE offered to defenders focuses on chest-thumping pigs-I-have-stuck stories, hand-wringing over constitutional violations, and discussion of constitutional due process criminal procedure. Only in 2009, at a 5-day program at Cal Western, did federal public defenders eschew their traditional one-speech-after-another conferences and first try their hand at a learning by doing trial advocacy program. Meanwhile, state prosecutors go about their business of getting ready for the courtroom trial, creating nationwide training programs, conducted by the National College of District Attorneys (the educational arm of the National District Attorneys Association), in cities throughout the U.S.A., and building a huge National Advocacy Center (NAC) training facility, complete with full-service hotel, in Columbia, SC, where prosecutors from throughout the nation flock for state-of-the-art trial practice training. The National District Attorneys Association and its research arm, the American Prosecutors Research Institute (APRI), offer state prosecutors a buffet of free NAC 4-day training programs concentrating on development of advocacy skills in a learning-by-doing atmosphere. The US Department of Justice (Office of Legal Education) has similar training facilities for federal prosecutors at the NAC in Columbia, including a dedicated intensive technology training center. [Note: Every state court prosecutor in the country should subscribe to my friend Jim Dedman's Pros-CLE Yahoo E-Discussion Group.]
Modern day jurors - most of 'em are either geeks or baby boomers - receive and process information through increasingly sophisticated visual media. Every trial lawyer, particularly defenders, must learn how to use technology to engage the jury. The persuasive force and eloquent power derived from using visual and aural displays of information in electronic form, e.g., computer-generated exhibits, at trial simply cannot be ignored. In their most complex form, these types of exhibits, i.e., computer generated exhibits, re-create events in animated or simulated form. In electronic courtrooms around the country, we see graphic depictions of so many things, e.g., scientific principles and concepts such as DNA, real time occurrences such as complex homicides, injuries to internal aspects of the body, the trail of money in money laundering cases, chronologies of events in timelines, explanations of mathematical calculations, complicated factual scenarios, etc.
To sum it up, in these days, every defense advocate must learn to maximize the persuasiveness of the defense presentation by employing technology. For courtroom presentations, this means that you'll have to spend some money to purchase a powerful laptop computer with as much RAM (random access memory) and hard driver space as possible, a wireless radio wave driven mouse, a projector, and a screen (assuming the courtroom does not have the last two). You'll also have to get a lasso over the ins-and-outs of how technology can be utilized at each stage of the pretrial and trial process in a criminal case. This includes office and case management, discovery, motion practice, hearings, openings, witness questioning, and argument. If defense CLE programs fail to provide the training that will allow you to unlock the predicament of how to present evidence and argue with electronic assistance, you must train yourself, e.g., enroll in a basic PowerPoint course, read how-to-do-it books, network with colleagues who have learned how to use their laptops in court, consult an expert, etc.
A FREE COURTROOM TECHNOLOGY RESOURCE THAT YOU SHOULD DOWNLOAD:
There is a very useful free 369-page resource available to you on the subject of courtroom technology. The Federal Judicial Center produced a book in 2001 entitled " Effective Use of Courtroom Technology: A Judge's Guide to Pretrial and Trial." You'll use more than half a ream of paper if you print this one, but the game is definitely worth the candle, provided, of course, that you make time to read the material. Press here for the pdf download of this excellent reference. Of course, you'll need the free downloadable Adobe Acrobat reader program to download pdf files.
OTHER USEFUL RESOURCES FOR INFOMATION ABOUT APPLICATIONS OF TECHNOLOGY FOR PRACTICING LAWYERS
- Check out these sites and Blawgs for technology advice in connection with management of your law office, e.g., document assembly, building a law firm web site, etc. (1 - ABA), (2 - DennisKennedy), (3 - Future Lawyer), ( 4 - for solos), (5 - Techno Lawyer), (6 - Law Practice Tips), (7 - InterAlia), (8 - Lawgarithms), (9 - for Macintosh afficianados), (10 - Tech Trends), (11 - Ernie the Attorney), (12 - Lawyerist), (13 - ride the lightning), (14 - lawsites), (15 - the latest legal technolog, updates, and apps for users of iPhones and iPads). (. You'll also find web-based articles and blog postings on high-tech trial presentations (1 - Do's and Don'ts), (2 - Illinois Trial Practice Blawg), (3 - SC Trial Law Blawg), (4 - Trial Tech View) by Googling. See also Effective Use of Courtroom Technology: A Judge's Guide to Pretrial and Trial , discussed above, and CCJA's Law Office Management for the Criminal Defense Lawyer. - Try the ABA Law Practice Web Site. It's got some useful articles and tips on technology. - Case Law Regarding the Use of Technology in Opening and Closing: Sucharew v. State, 66 P.3d 59 (Ariz. App 2003) authorized the use of a 30-slide PowerPoint presentation during the prosecution's opening statement and stated that the trial court has full discretion in conducting the trial and that this discretion will not be overturned absent a clear showing of abuse of discretion; Milson v. State, 832 So.2d 897 (Fla. App. 2002) authorized the prosecution's use of a PowerPoint presentation in jury argument, holding that the determination as to whether to allow the display of a demonstrative exhibit is a matter within the trial court's discretion. The Michael Skakel murder case in Connecticut, State v.Skakel, 888 A.2d 985 (Conn. 2006), involved courtroom technology, particularly in the prosecution's highly persuasive jury argument. Here's a short video clip from that argument. Skakel's conviction was affirmed. Regarding the use of computer animation, see Serge v. Commonwealth, 896 A.2d 1170 (PA 2006). [Note: Of course, technology can be used to present exhibits during the direct/cross-examination phases of trial, e.g., (1 - computer-generated video demonstrating the mechanics of "shaken baby syndrome."). See Exhibits.]
- Written Material That Will Help You Properly Display Information in Court:
- Tufte as a Must Read: Every lawyer doing multimedia visual courtroom presentations must read the work of Edward R. Tufte. His books focus on how to use visual evidence for the maximum persuasive impact. Tufte's work will give you insights that you don't get from the mechanical paint-by- the-numbers books listed later on this web page. He educates you on the psychology of presenting information. If you are on a budget, order the first two $7 paperbacks for your toolbox; the hardcovers are a bit dearer. (Note: I got these prices from Amazon in January 2011.):
- Tufte, The Cognitive Style of Powerpoint: Pitching Out Corrupts Within (2nd edition 2006) paperback +-$7 Tufte contends that the popular PowerPoint templates (ready-made designs) usually weaken verbal and spatial reasoning. He discusses the problem with PowerPoint and suggests how can we improve our presentations?
- Here is a list of several articles about technology in the courtroom; these get dated rather soon, but each contains useful comments:
- Galves, Where the Not-So-Wild things Are: Computers in the Courtroom, the Federal Rules of Evidence, and the Need for Institutional Reform and More Judicial Acceptance, 13 Harv. J. L. & Tech 161 (2000). - Smalley, Establishing Foundation to Admit Computer-Generated Evidence as Demonstrative or Substantive Evidence, 57 Am. Jur. Proof of Facts 3rd 455 (2000). - Strong, Technology Tools in the Courtroom: How to Use Them, and How to Oppose Them, 11 Practical Litigator 15 (2000). - Watt, Technology Creates Winning Visual Evidence, Trial, Sept. 2000, page 68. - Joseph, Simplified Approach to Computer-Generated Evidence and Animations, 43 New York.Law School Law Review 875 (1999-2000). - Lederer, Some Thoughts on the Evidentiary Aspects of Technologically Presented or Produced Evidence, 28 Southwestern University Law Review 389 (1999). - Lederer, The Road to the Virtual Courtroom? A Consideration of Today's and Tomorrow's High Technology Courtrooms, 50 South Carolina Law Review 799 (1999). - Bennett, Seeing Is Believing, or Is It? An Empirical Study of Computer Simulations as Evidence, 34 Wake Forest L. Rev. 257 (1999).
- Butera, Seeing is Believing: A Practitioner's Guide to the Admissibility of Demonstrative Computer Evidence, 46 Cleveland State Law Review 511 (1998).
- If you go to the Presentations web site, you'll usually encounter some helpful articles about how to persuasively present information to an audience. You'll also learn about the latest presentation hardware and software ("chips and salsa" in tech lingo). - The NITA (National Institute for Trial Advocacy) web site has a number of courtroom technology publications for sale, e.g., Basic Powerpoint Exhibits, Digital Projector and Laptop Computer, Argument Slides, etc., by Siemer & Rothschild around 2003. If you are looking for contemporary material, be advised that these are dated. - A 2006 publication from Aspen Publishers is Rogers, Litigation Technology: Becoming a High Tech Trial Lawyer. $43. This one provides some helpful starter guidance regarding how to use PowerPoint and Sanction. The chap who wrote it is a former Chicago dyed-in-the-wool prosecutor who teaches litigation technology as adjunct professor. I have heard him speak. He knows his stuff. He started a litigation consulting company. I don't know if it is still operative, but if it is, you should check it out. - Here's a web article on computer animation. This short article by a personal injury plaintiff's lawyer on the practical use of courtroom technology is worth a read. Try this for an 8-page discussion of Effective Use of Courtroom Visuals. An entire issue of the ABA's Criminal Justice Magazine discussing technology in the courtroom is temporarily open (The ABA opens a few of the issues from time to time as teasers. If you are interested in courtroom technology, you'll find this one helpful.) for free viewing by non-members. Google "courtroom technology" and you'll come up with articles like these (1 -24 pp), (2). Here are some technology links. - A search of Youtube may provide you with some useful video examples of public speaking coupled with multimedia displays. - Casesoft has a series of short 4-7 page articles on subjects such as timelines, the chronology of your case, etc. - Legal Presentation Software: (Excellent article on PC-Based Trial Presention Programs - it also provides a list of iPad options for trial presentation apps.) Here are some web sites selling legal presentation software systems:
- Sanction (This trial presentation software now owned by LexisNexis is very popular among prosecutors. The current price is around $700 for a single user, plus maintenance. Though I have never used it, anecdotal laudatory comments from prosecutors would cause me to be favorably inclined about the usability of Sanction software in the prosecution of criminal cases.)
- Trial Director (This software is also quite popular among criminal defense litigators; the web site suggests that the price for a single user is about $700.)
[Note: I do not personally endorse any legal presentation software system. Before buying, check with other consumers who do have experience with the systems. If you are on a prosecutor or defender listserv, seek comments from your colleagues.]
-Check out these NIJ Publications from the DOJ involving Digital Evidence and Electronic Crime Scene Investigation for Prosecutors and Law Enforcement; once you get past all the back-patting that always infests these government reports, there is some guidance for prosecutors and useful information for defenders:
COMPUTER GENERATED VISUALS
When you are thinking about embarking into computer-generated visual aids, there are several factors to consider. First, you must be familiar with your computer (the basic hardware). Second, you must be familiar with and have available other presentation hardware, e.g., video projector, aside from your computer. Third, your computer-assisted visuals must always compliment and support your aural presentation, not overwhelm it. Visuals rarely depict the whole story. They are merely tools that help you tell the story.
Typefaces of choice for your visuals: When choosing fonts for your prepared visuals, consider that experts tell us anything longer than one line usually looks better with serified fonts such as Times or Garamond. Correspondingly, any text no longer than a line usually looks better without serifs, e.g., Arial, Helvetica, Verdana. [Note: I have violated these rules. This text is Helvetica.]
Distance between jurors and display screen: The easiest way of determining proper viewing distance is by doing a dry run, e.g., sitting in the jury box and looking at a projected image. If you want a ballpark estimate, you can calculate the minimum visible height of the projected image on the screen from last row of jurors: Measure the distance between the last row of jurors and the display screen. Take that number and divide by 8. The result is the minimum visible height of the projected image for your jurors, e.g., if the screen or monitor is 32 feet from the last row of jurors, the projected image must be at least 4 feet in height, if the screen is 24 feet from the last row of jurors, the projected image must be at least 3 feet in height. You can also do this calculation based on a fixed image height. Simply measure the height of the fixed screen and multiply that number by 8 to get the maximum distance at which you can place the screen from the jury, e.g., if the height of your projected screen (monitor) is 2 1/2 feet, the screen should never be more than 20 feet from the last row of jurors. How close can the display screen be to the jurors? Determine the minimum distance between the screen (monitor) and the jurors by multiplying the height of the screen by 2. If the screen is 2 1/2 feet in height, it might be placed as close as 5 feet from the jurors.
+ Microsoft's PowerPoint -: For those who want to use computer generated visual aids in a "tell and show" presentation to enhance the persuasive impact of your case, there are various software packages that are available. Complex cases with large numbers of documents or videotaped evidence may require a document presentation system such as "TrialDirector" or "TrialPro." A linear slide show with PowerPoint seems to be the package of choice for most criminal defense lawyers and prosecutors. It lends itself to slide shows but is not a complete trial presentation package that allows you to load your whole case into the computer. If you are looking for a handy book to teach you how to use PowerPoint, currently in the 2005 edition, in court, check out NITA, which sells a 704 page book with CD appropriately entitled PowerPoint 2002 for Litigators for $69.95; this NITA book includes a practice case file that allows the technologically impaired advocate to learn step-by-step how to prepare and animate bulleted lists, document and photographic enlargements, call outs, time lines, relationship charts, annotated diagrams, etc. NITA sells a scaled-down $24.95 version called Basic PowerPoint Exhibits. It's for beginners, and teaches you how to set up to use PowerPoint and how to construct bullet point lists and make and show photo and document slides NITA also has some PowerPoint litigation files that you can download for free. A San Francisco federal public defender has posted a useful little article on the subject of PowerPoint in the courtroom. This article contains PowerPoint tips.
If you are trying to learn PowerPoint or sharpen your existing PP skills, YouTube is a no-cost source. The following bibliography may be a helpful starting point:
+ Graphics Editor for PowerPoint Images - A lawyer friend who knows more about PowerPoint than anyone else I know heartily recommends the latest freeware IrfanView (download the application and plug-ins; for IrfanView tutorial) graphics editor, e.g., for resizing and organizing your photos for PowerPoint display. For the same purposes, this graphics guru is also a big fan of the XN graphic multimedia viewer, browser, and converter to manage and convert graphic images, available from XNView. Finally, he also recommends Smartdraw (programs from $69 to $267; 30 day trial period) for useful graphics programs, e.g. a plethora of charts, diagrams, etc., that easily paste to PowerPoint. + Freeware Software to Provide Backgrounds - Take advantage of the opportunity from Sausage Software to download the free Reptile Version 2.0 for use in creating backgrounds, including your PowerPoint slides. + Freeware for Flash Presentations - Powerbullet maybe available as freeware for your presentations. + Diagrams - Portable Dia - Free, portable and recommended by my guru for basic courtroom diagraming tasks. + Photos & Graphics - Photos (1), (2 - UPI photo database - 150,000 pix). The photos on this site are of ancient views. Free photo editor. Easy thumbnails for free. For graphics (1). Here are two books for those who are interested in who use Adobe's consumer-level Photoshop: Photoshop Studio Skills, Wiley Publishing Inc., Hoboken, NJ pp. 317 (2003); Ulrich, Laurie, Photoshop Elements2 Bible, Wiley Publishing, Hoboken, NJ, pp. 553 (2004). See also Corel Graphics Suite 12; Smart Draw Legal Drawing Software (Free Trial) + Jazz Up Your Photo Slide Show - Check the Photodex Slideshow site for help in adding style and humph to your courtroom computer presentation of photos on slides. + Alternatives to PowerPoint - Folks in the know say that the OpenOffice software which is available for free download contains two programs, Impress and Draw, that have some capabilities that exceed PowerPoint. You may find it useful to go to OpenOffice and take advantage of this highly regarded freeware. For those who want flexibility in the presentation of their exhibits and visuals, the current edition of Sanction II case presentation software is said to be quite useful; it runs around $600. See also information re Trial Director, Summation, and Trial Pro above. + Aerial Photographs - Aerial photographs may be useful in giving your jurors a bird's eye view of a crime scene, arrest scene, or other relevant location. Aerials are available for free on the web, where they may be saved, downloaded onto your hard drive, and either imported into your trial slide show or printed for display. You may find aerials at geography sites, e.g., (1), but the Google Maps, Microsoft Maps, and Terra Fly site are the ones that I find most interesting.They allow you do bring clear ultra-close up aerials to your jury. There are also some bells and whistles that provide line drawing capacity, distances, stickpins, etc. to the flat maps. If you want 3-D, that is also available. You will have to check the Google and Microsoft map sites out for yourself. They could be wonderful exhibits if you can establish them as accurately depicting the site(s) in question at the relevant time(s); this should not be too difficult if you have a qualifying witness who is familiar with the relevant scene, even though s/he hasn't personally seen it from a bird's eye perspective. Satellite photos may be obtained from a number of sources, including Digital Globe and Space Imaging. For 2010, check out Google Map Buddy. [If you use aerials, try to insure that the field of vision focuses on your target and doesn't include extraneous, irrelevant vistas that will distract the jurors. Also, remember that your aerial photos are more accurate and useful when they are shot from directly over the target image. If you use aerials taken from an angle, the perspective may not be as useful, as the relative distances will be distorted according to the steepness of the angle of the shot.]
+ VHS Videos to MPEG format - VHS videos can be transferred to MPEG format and stored in your computer.
+ Doar Evidence Presentation Ensembles - Many jurisdictions are outfitting their courtrooms with electronic evidence presentation ensembles, some of which are Doar products. If you practice in one of these jurisdictions, you may be interested in exploring the following links: (1) Explanation of the Doar video platform (Elmo); (2) Explanation of Doar's evidence ensemble unit; and (3) Doar's Quick Start and Reference Guide. + Three Dimensional Presentations - For an insight into the latest in very pricey 3D graphics and animation presentation technology, check out the 3Dfy web site. + PowerPoint Templates - This site provides over 4,000 attractive PowerPoint templates, both static and animated, to jazz up your presentation; under $200. This one sells for $99 plus shipping. Others: (1), (2) + Graphics and Audio-for-a-Price Companies - Be aware that there are a slough of visual litigation service providers that offer to prepare your legal and courtroom graphics for a price, e.g., (1), (2), (3), (4), (5), (6), (7), (8), (9), (10), (11), (12 - created first animation admitted in Pa. criminal court, e.g., bullet-path), (11), (12), (13 - Medical), (14- Medical), (15- Medical), (16). See also the "Resources" listed on the CCJA Exhibits page for other sources. Audio clips are also available (1). Check out the information concerning trail graphics on the New York Law School's Visual Persuasion Project. + A Few Vendors - If you are new to presentation hardware, you may want to visit a few of these sites to see what sort of electronics are available: Document Cameras: (1), (2) Projectors ( LCD=Liquid Crystal Display) (DLP= Digital Light Processing): (1), (2), (3), (4), (5), (6), (7), (8), (9), (10); Monitors (Plasma, LCD, DLP, CRT= Cathode Ray Tube): plasma panels (1) (2), (3), (4) LCD (1) ;Whiteboards (1), (2) ;Wireless Presentation Remotes (Infrared), (RF=radio frequency), (Bluetooth) (1). For an exhaustive list of display and projection hardware, video equipment, computer hardware and peripherals see Presentations Buyers Guide
+ Fair Use Notice When You Use Works of Others - If you use the creative works of others in your public courtroom presentation, it may be advisable to apend a notice such as follows: The multimedia presentation and digital material used in this presentation contains the creative works of others which are used under the fair use doctrine of 17 USC 107. The presentation was prepared under the CONFU guidelines and further distribution or use is not permitted.
+ A Few Housekeeping Tips - Find out if and when the courtroom opens early so you can cart any electronic gear in before the crowds arrive. Determine if and where the court will allow you to store your presentation gear. Find out who controls lighting in the courtroom. (It is usually the bailiff.) Find out where all electric outlets and computer connections are. You may need to be prepared with extension cords and power strips. When you secure cords, don't use tape that will leave any residue on the courtroom carpet; if you are going to use the court's equipment, e.g., video monitors, check on availability and reserve it in advance.
+ A Great Site for Links to Computer Technology Information - The Marin County Public Defender provides a page devoted to computer technology links, some with a brief description. + ABA Members - Free Technology Training - The ABA TechEZ web page provides ABA members with a new technology training video every Tuesday. There is a library of previous videos in the TechEZ archives.