INFORMATION RE CRIMINAL PRACTICE  E-DISCUSSION GROUP
ADDITIONAL RESOURCES
BACK TO INFORMATION RE CCJA PUBLICATIONS
IMPACT EXHIBITS
in Criminal Cases
copyright © 2000 Ray Moses
all rights reserved


Introduction

For more information about how to get the most impact out of your exhibits and how to establish legal foundations/predicates for exhibits, read  Introducing Tangible Evidence  and Establishing Foundations on the CCJA Criminal Pretrial and Trial Practice DVD. The DVD provides a more extensive and intensive discussion of exhibits than this page. For an excellent free guide to establishing predicates, check out lawyer Howards Nations' publication in the sidebar. You might want to take a peek at this hyperlinked article discussing the impact of computer generated exhibits on courtroom practices in the new century. Take it as a given that every criminal defense practitioner must become familiar with the use of electronic aids in creating, tracking, and presenting exhibits.]

Visuals/graphics as useful aids to storytelling

This section deals with techniques for creating, presenting, and using tangible exhibits in a "tell and show atmosphere." The idea is to achieve maximum persuasive influence by using left-brain visuals that complement right-brain word streams. You can almost always do without exhibits, but they add visual and tactile dimensions of enormous persuasiveness to your oral presentation. Exhibits are visual. You can use your exhibits to give life to your story in opening statement with proper preadmission. Exhibits are the keystone building blocks of your factual proof and graphic reminders that enhance your final jury argument. Your job is to present your exhibits in a way that makes them useful to the jury in understanding your story of the case.

Real tangible exhibits appeal to the senses. They can be touched, seen, smelled, heard, and/or tasted. Think about it.  Some tangible exhibits have a disproportionately persuasive impact. For example, jurors display a tendency to believe what is written in a document. It's been said that from the jurors' standpoint, "The palest ink is better than the best memory." Letting a person touch wet paint is more persuasive than telling him the paint is wet.

Exhibits can make your witness seem more credible, particularly when the witness is explaining the exhibit. Of course, if you don't know how to establish a foundation (predicate) for the exhibit or if laziness causes you to disregard the requirements of the rules, you give your opponent the right to interrupt your examination with a distracting and valid objection. Remember. your job is to present your exhibits in a way that makes them most persuasive to your jurors.

When we think of a past event, our left-brain tends to think about it visually? We remember our first car wreck in visual pictures. We describe the wreck by converting the visual images to words.   Of course, our right brain also remembers verbally. We can remember words without having a visual image of the past. Think of all the words that we have memorized, e.g., " I pledge allegiance ..."  Yet, some of the words we read without any triggering visual event will themselves conjure up visual pictures in our minds and in the minds of our listeners, e.g., "Now I lay me down to sleep," "I'll huff and I'll puff 'til I blow your house in," "Old Mother Hubbard went to the cupboard," "Five little monkeys jumping on the bed," "Three blind mice, see how they run," "Out, out brief candle." We can take words and conjure them into visual images as children do with nursery rhymes and fairy tales. We are also persuaded by visual images. How do we remember stories? We don't remember events as a transcript of running text. We remember them as verbal pictures. Think about some of the fairy tales that we learned as children. How do we remember "Goldilocks," "The Three Little Pigs," "Little Red Riding Hood"? Isn't it in the form of mental images? If I showed you a picture of a little boy and little girl walking through a forest dropping bread crumbs, would it trigger up the storybook images of "Hansel and Gretel"? You want to do the same thing with your exhibits. You want them to be part of the verbal pictures painted by the testimony of your witnesses. See Pretrial for a discussion of storytelling.

If details about a scene are important, there is no substitute for an accurate photograph. [Note: When I say "no substitute" I am probably exaggerating. Did you see the  simulated courtroom stabbing demonstration by Houston prosecutor Kelly Siegler (1), conducted while she straddled her co-counsel who was lashed to the marital bed of the accused, Susan Lucille Wright (1) and her deceased husband Jeffrey. Consistent with the evidence, the prosecutor simulated 191 stabs with the murder weapon, a butcher knife. Mere photos won't top that live demonstration.. A dynamite exhibit  that didn't make it to the jury is the computer generated animation that depicted billionaire Robert Durst's version of the killing in his 2004 murder case. The jury never saw the animation, but acquitted him anyway. (Read the opening statement of the defense -1) Re the problems with offering animations as evidence, see Commonwealth v. Serge, 896 A.2d 1170 (PA. 2006).] In these cases, "One picture may be worth a thousand words." If distances are important, a prepared diagram, drawn to scale, can drive home the point. In short, visuals (graphics) such as time lines, charts, illustrations, maps, etc. are sufficiently important to communicating your message that you owe it to your client and yourself to learn how to incorporate visuals into your presentation. In the present age of technology, the trial lawyer has a whole raft of media available for use in crafting  potential exhibits, e.g., exhibit boards, sketch pads, posterboards, foamboads, PVC sheets, mylar overlays, overhead projectors, slide projectors, fixed platform video camera (document camera), portable  video cameras, video recorder/players, laser disc players, computers with graphic display programs such as PowerPoint, digital projectors, etc.

Evidence as Spawner of  Facts   

Evidence gives rise to facts, but they are not the same. The mass of evidence is everything that is presented to the jury. The jury will find the facts only from that portion of the mass of evidence that is believable. In attempting to prove a fact, our goal with our evidence is to make it so credible that the jury will accept it as fact.

We have two jobs as presenters of tangible evidence: (1) learning how to comply with the foundational requirements so that the evidence is admissible, and (2) learning how, with present technology, to best use the evidence and milk it of its persuasive value in front of the trier of fact. The true question with each exhibit is what impression it makes on the trier of fact.

Real and Demonstrative Evidence

Tangible exhibits fall into two categories

  • Real evidence that is admitted and may be taken back to the jury room. It includes documentary evidence.
  • Demonstrative or illustrative aids to testimony (1), (2) that are displayed before the jury during witness testimony but that, in many jurisdictions, are not admitted into evidence and are not taken back to the jury room.

Both types of evidence are given exhibit numbers.

Real evidence is an exhibit that conveys information in and of itself. Exhibits of real evidence would encompass things such as the weapon used by the assailant, business records, and photographs of the crime scene. They typically go to the jury room for use during the deliberations, either as a matter of course or if the jury calls for them.  [Tip: If you have introduced helpful exhibits and practice before a judge who does not send the exhibits back to the jury room as a matter or course, be sure to tell the jury in jury argument that they, the jurors, have a right to ask the court for the exhibits; urge them to request the exhibits before they start deliberating. It sounds naive, but some juries don't realize they have a right to examine the exhibits during deliberations.]

Demonstrative evidence is used as an illustrative aid to testimony. Demonstrative evidence includes diagrams, charts, models, graphs, computer generated simulations, animations, etc. These aids to testimony may help the jury understand the witness' oral explanations. In themselves, they don't provide the basis for inferences; they simply assist in communicating information from the witness to the jury.  Illustrative aids don't have to be admissible in evidence. Authenticity, i.e., that the item is in fact the real item in question, is not an issue when you are dealing with  demonstrative (illustrative) evidence. The demonstrative or illustrative aid to testimony will have to be authenticated in the sense that a witness will have to testify: (1) what the demonstrative or illustrative exhibit portrays or represents and (2) that such exhibit will aid the jury in understanding what the witness will be trying to explain to the jury. The true purpose of the demonstrative exhibit is to help explain the testimony of a witness. [Tip: The more exotic your demonstrative evidence, the more judicial resistance there typically will be to its use.] See (1 - 7 pp. on demonstrative evidence in federal court)

Introducing Exhibits

To be effective in introducing real evidence,you have to know: (1) how to authenticate your exhibit; (2) elements of foundations; (3) the sequential steps for handling an item of potential evidence in the courtroom; and (4) appropriate responses to objections that may be made to your exhibit.  In Texas and federal court, the cross-examiner can introduce evidence. Using an opposition witness to establish the foundation for your exhibit has the obvious ethical advantage of packing integrity into the exhibit. In some jurisdictions, the proponent can only introduce evidence during the proponent's case, i.e., on direct. Check your jurisdiction's rules of evidence and procedure.
   
Authenticating Your Evidence: The idea underpinning authentication is to prove that the exhibit, e.g. writing, handwriting, tape recording, photograph, voice, telephone conversation,  is the same item that was obtained by or known to the authenticating witness. This must be done to show that the exhibit is what it purports to be. Authentication is also a predicate to any expert testimony concerning analysis of the contents of the exhibit. An example of authentication would occur when you are trying to have a witness make a voice identification. Rule 901(b)(5) TRE allows voice identification to be established by opinion evidence based on the authenticating witness having heard the voice at any time under circumstances connecting it with the alleged speaker; the voice identified can be a voice heard firsthand or through mechanical or electronic transmission or recording. If you establish these underlying facts, you will have authenticated the voice identification. You could also authenticate the participant in a phone conversation by having your witness testify that he called the phone number listed to the party in question and that party identified himself as the party in question. There are several other ways of authenticating the identity of the party at the other end of the line. (We are not concerned at this point with whether the contents of the conversation are hearsay. The question at this juncture is simply whether the identity of the party has been authenticated.)

Establishing Your Foundation: Your first objective as the proponent of real evidence is to qualify the exhibit for admission or use before the jury. This means establishing the proper foundation for the real evidence's admissibility. For demonstrative evidence, this means establishing that the exhibit will be helpful to the jury in understanding the witness' testimony. As explained below, you establish this by asking the witness something like "Will it assist the jury in understanding your efforts to explain (insert the issue, e.g., the layout of the bar) to show them a diagram of the bar?" The witness says, "Yes." Your second objective is to present the evidence in such a manner that the jury will accept it as reliable, believable, and persuasive of your point. Always plan your foundation for its persuasive impact.

The trial judge makes a threshold determination as to whether the proponent of the exhibit has established a foundation of preliminary facts that will support a ruling admitting the exhibit. See Rule 104 TRE and FRE which indicates that preliminary questions concerning the admissibility of evidence shall be determined by the court. In most instances you establish the foundation (predicate) for your exhibit in the presence of the jury. There are exceptions where you will need to establish your foundation out of the jury's presence. For example, if you are offering novel scientific evidence, you will be required to make a showing of admissibility out of the jury's presence. Another exception would occur in the case of a defendant's confession, where the defense raises an issue as to the voluntariness of the confession. See Art. 38.22, Sec. 6 TCCP.

Regarding demonstrative evidence, the key to the use of demonstrative evidence in aid of testimony is whether it would be helpful to the jury in understanding the witness' testimony. The predicate is simply to first have the witness identify the demonstrative aid to testimony, second, establish the relevance of the demonstrative aid to testimony by asking, "Would Exhibit D002 aid you in illustrating your testimony for the jury?" and "Do you believe that Exhibit D002 would aid the jury in understanding your testimony?" The key to relevance of a demonstrative aid to testimony is simply an affirmative answer to the issue of whether the demonstrative aid will help the witness illustrate her testimony for the jury, so that the jury will understand the oral explanation better or more fully.

Four factors are involved in establishing every foundation:
  • Competence of Witness - The proponent must show the competency of the authenticating or identifying witness to testify about the exhibit. (See Articles VI and VII TRE)
  • Relevance of Evidence - The exhibit must be of some relevance, i.e., it must appear that the exhibit makes the existence of any fact of consequence to the determination of the case more or less probable. (See Article IV TRE)
  • Authentication or Identification - The particular exhibit must be authenticated or identified in a manner that distinguishes it from other things, so that the exhibit is shown to be what it purports to be. (See Article IX TRE)
  • Trustworthiness  of Exhibit- The exhibit must be trustworthy.

Let's discuss each of the four factors that are involved in establishing a foundation for an exhibit:
   
Competence of witness: Rule 601 TRE provides that every person is competent to be a witness, except as otherwise provided in the rules. Rule 602 TRE provides, subject to a different rule regarding experts, that a witness may not testify to a matter unless there is evidence sufficient to support a finding that the witness has personal knowledge of the matter. Evidence to prove personal knowledge may, but need not, consist of the testimony of the witness himself.
   
Relevance of the exhibit: Rule 401 TRE defines relevant evidence as evidence that has any tendency to make the existence of any fact that is of consequence (material) to the determination of the action more probable or less probable than it would be without the evidence. So, evidence must be logically connected to the dispute and must have probative value. If evidence is relevant to one issue, e.g., credibility of a witness, and inadmissible for other purposes, the evidence is admissible only for a "limited purpose." [Remember also, that relevant evidence is not necessarily admissible. See Rule 403 that allows exclusion of relevant evidence where, for example, its probative value is substantially outweighed by the danger of unfair prejudice. See the discussion of trustworthiness below.]
   
Authentication or identification of the exhibit: The rules of evidence require you to prove that the evidence, e.g., the exhibit, is what it is claimed to be. Your authenticating or identifying  witness must have knowledge sufficient to recognize the exhibit and state what it is in a way that distinguishes it from other similar things. This applies to tangible objects and to certain testimonial evidence. For example, a witness to a telephone conversation can talk about what the other person said only when that other person is identified e.g., by voice identification; a document alleged created by a person may be authenticated, for example,  by the person who says s/he created it or by someone who was present and saw  the person create the document.
   
Trustworthiness of accuracy of the exhibits: The exhibit must be trustworthy. There may be grounds to question the trustworthiness of an exhibit, e.g., a material and misleading change of condition in a photograph. As mentioned above, there may be situations where the probative value of relevant evidence is substantially outweighed by countervailing dangers of confusion, unfair prejudice, and misleading the jury that will interfere with the jurors' fact-finding purpose. See Rule 403 TRE and FRE that allow exclusion of otherwise admissible evidence on the ground of "unfair'' prejudice.

Sequential Steps for Use and/or Introduction of Evidence: Here are the steps you typically follow in introducing and/or using tangible evidence:

  • Mark the exhibit - Have the court reporter mark the exhibit, real or demonstrative, for purposes of identification. Give each exhibit a number - either a straight number, e.g., 001 or a letter prefix number indicating prosecution (P) or defendant (D) plus a number, e.g., P001. Use stick-on labels or a pen or a permanent marking device or a numbering machine to stamp on the number. Always keep documents or alterable (changeable, fungible) evidence in pristine condition. If you have a series of interrelated documents, photos, etc. that need to be visualized as a group, mark each photograph as a sub-set of a single exhibit. For example, if you have 4 scene photos of the interior of a house that need to be considered together, mark them as D001A, D001B, D001C, and D001D. Also, if you have lots of exhibits of different types and want to get fancy, you may want to precede the exhibit number with a prefix code that lets you know the type of exhibit. For example, if you are dealing with photographs, Ph might be a good prefix, e.g., P-Ph-001A  would indicate Prosecution's Photograph Number 1, with the photo being the first in a sub-set of several photos that should be viewed together.

  • Tender the exhibit. - Tender the exhibit to the opposition. Have the record reflect that you have made the tender, e.g., "Let the record reflect that I am tendering what's been marked as P001 to defense counsel."

  • Qualify the witness. - Show by Q &A how this witness is able to know enough about the exhibit to be able to answer the foundation (predicate) questions.

  • Establish the evidentiary foundation (predicate). - Identify the exhibit and establish the evidentiary foundation for its admission as real evidence or for use as a demonstrative aid to testimony.

  • Offer the real evidence exhibit into evidence. - If the evidence is real evidence - offer it as evidence. Always use the work "OFFER." Don't "move it" or "submit it" or "admit it" into evidence - OFFER it as evidence. If you are trying to get a demonstrative aid to testimony, e.g., a diagram, before the jury, ask the court's permission to display the demonstrative aid to testimony. As part of the predicate for the demonstrative aid, let the jury know that the demonstrative evidence was prepared for them, e.g., ask the witness if the exhibit would assist the jurors in understanding the witness' testimony. For example, you might ask: "Mr. Witness, would it assist the jurors in understanding your description of (indicate the subject, e.g., the layout of the bar) if they were allowed to see this (indicate the nature of the exhibit, e.g., diagram)?"

  • Proffer the exhibit to the court if the judge so desires. - [Note; Many judges do not want to examine an exhibit before it is received. Find out your judge's preference prior to trial.  You don't look good if you proffer the exhibit to the judge and the judge waves it off. Whether you proffer the exhibit may also depend on the circumstances regarding the particular exhibit, e.g., is there a strong dispute as to its admissibility.]

  • Deal with opposing counsel's objection(s). - Respond to an improper objection made by the opposing counsel, provided that the court has given you permission to respond.

  • Obtain a ruling from the court. - Make sure that the trial judge has orally ruled on your offer, either admitting (receiving) or suppressing (excluding) the real exhibit or permitting or denying the use, display, exhibition of a demonstrative aid to testimony. If the trial judge excludes your exhibit, make an offer of proof, if necessary, and be sure that the excluded exhibit becomes part of the appellate record. 

  • Present the exhibit to the decision-maker (jury). - Have the received real exhibit "read, shown, displayed, and/or passed" [please, not "published" in my court] to the jury.

  • Make graphic use of the exhibit with your witness(es). - Have the witness use the demonstrative exhibit to explain his/her testimony.

  • Keep track of the foundations for your exhibits and the status of your exhibits and the opposition's on an exhbit list.  -  Make yourself an exhibit foundation worksheet, an exhibit list, and exhibit chart. (1 - downloadable pdf forms of all three)

  • Re-offer all of your real exhibits at the conclusion of your case. -  Keep track of the status of your exhibits and the opposition's on a exhibit list. The re-offer of all your exhibits is a safety net to ensure that all of your exhibits have been received and are part of the evidence available to the jury during deliberations.

Responding to Objections to Your Exhibits: There are many potential objections that may be made to an exhibit. Three of the most common objections to exhibits are: (1) "The exhibit is or contains inadmissible hearsay." See Rules 801, 802, 803, 804 TRE and FRE, (2) "The exhibit does not qualify under the 'original documents' or 'best evidence' rule." See Rules 1002, 1003, 1004 TRE, or (3) "The exhibit should be excluded because its probative value is substantially outweighed by the danger of unfair prejudice." See Rule 403 TRE and FRE. Long before you offer an exhibit, you must prepare to respond to potential objections to it. This means you must study and master the rules of evidence, the framework of all trials. [Tip: Read the Objections page for a cursory view and the monograph on Making and Meeting Objections in Criminal Cases.for detailed understanding. The monograph will give you a good handle on the law of evidence, TRE,  and the array of objections and responses that are available in Texas criminal cases. There's a handy laundry list of hundreds of tailor made objections in the back of the monograph, plus a guide to preserving error and a step-by-step guide to making an offer of proof when the trial judge excludes your evidence.]

Excluding the Opposition's Exhibits: You must become familiar with motions to preclude or exclude evidence. The idea underpinning the motion in limine or motion to suppress is to prevent certain material, tangible and/or verbal, from being introduced into evidence and, in jury cases, to prevent the jury from ever knowing of the existence of the potential evidence. Some courts will allow you to get rulings on the admissibility of real, documentary, and /or demonstrative evidence as part of the pretrial process. If you object to evidence during the pretrial process and the court rules that such evidence shall be admitted at trial, you should renew your objection at the trial. Do it out of the presence of the jury. See Rules 103(a)(1), 104(c) TRE. Even though there may be no formal statutory process for advance discussions of the evidence, you can challenge its admissibility by a pretrial motion to suppress and/or motions in limine to preclude the offer of inadmissible evidence.

Graphic Mediums
   
Choices: Here is a list of choices that you may have insofar as the mediums you can use to present           graphic evidence.

  • Paper Graphics: This type of graphic art medium includes easel and flip chart, drymounted photo enlargement, enlarged color medical illustration,  chalkboard, gatorboard mounting, foamboard mounting, magnetic board, laminated board, clear overlay, and dry erase whiteboard with dry ink markers and eraser.

  • Projector Screens: This involves optical projectors that enlarge and project an image on a screen; slide projectors and overhead projectors.

  • Electronic Systems: This includes videotape players, DVD and laser disc players, and/or visual presenters, such as a visualizer or platform document camera (Elmo or video evidence presenter), that transmit to a monitor or computer projector.

  • Digital Systems:  This involves use of a computer, e.g., your lap-top,  that transmits to a video monitor or projector. Using this mode with exhibits means having to put your exhibit into digital form. Here is a little collection of electronic exhibits, most of them day-in-the-life exhibits from civil cases but including one animated prosecution path-of-the-bullet exhibit, produced by various commercial visual litigation service providers.

[Note; If you are interested in how the evidence presentation ensembles work, take a look at these three manuals from the Doar company: (1) The Communicator (Elmo); (2) The Evidence Ensemble Presentation System ; and (3) The Quick Start Guide used to educate lawyers in my Texas county about how to operate the evidence presentation ensemble unit that is installed in each of the 40 courtrooms in the Criminal Justice Center.]  

Presenting  Documentary Evidence on the Cheap - The Document Camera, Transparencies and Screen (Monitor)

If you are not working from a computer in the courtroom, one of the most affordable mechanical devices for displaying documentary evidence is the platform document camera.. It's the poor man's document substitute for digital presentation. If your courtroom is not equipped with electronic evidence presentation hardware, you can buy or rent a good, "easy to set up and use"  document camera. Learn how to set it up and operate it before you use it in court. You don't have to rely on a sidekick or technician to run the document camera in court. Almost all document cameras have a "freeze" feature that allows you to place a document or item on the platform and freeze an image of it that remains on the screen after you remove the item from the platform. Thus, you may take the actual item to the witness while the image of it remains on display on the screen. . For displaying documents, you can buy 8 1/2  x 11 blank transparencies at any office supply store. They are not expensive. It is very simple to make transparencies of your paper documentary exhibits, demonstrative aids, and/or tell-and-show exhibits on any copy machine. You simply substitute the transparencies for paper and make copies in the usual way. When you make a transparency of a document, you may want to put an exhibit number on it. If you want to emphasize portions of  documents, make an enlargement of the particular portion of the document and make a transparency of the enlargement.  Colored markers can be used by your witness to highlight areas of a transparency as they rest on the platform. Colored markers are particularly useful when you are using a diagram to show "action paths" of people, e.g., a diagram of the movement of the hijacker during a bank robbery.

The use of a document presenter video platform (document camera) is described on a separate page. Review the brief description of the document camera, and then familiarize yourself with the device by means of "hands on" practice before you use the device in front of the jury. You don't want to appear to the jurors as an incompetent operator of your graphic/visual presentation devices. The obvious lack of operational skill detracts from your credibility, as well as the persuasive impact of your exhibit. But if something goes wrong with the document camera, always take the blame for being "fumble fingered" and present your exhibit in hard copy Never blame a technician when electronic presentations go awry. It looksto the jury like you are picking on an underling.

Several Types of Exhibits
  
Photographs, Recordings, Videotapes, and DVDs: Would you buy a house, car, suit of clothes, pair of shoes, refrigerator, washer, dryer, or TV set based entirely on a verbal description? Perhaps you might, if you were reasonably certain of the oral source's reliability. Police often take action based on 911 calls. But most of us want to see things before we buy them. For most of us, visual memory is more acute than auditory (aural) memory. So it is with jurors. Of course, the ideal exhibit is one that appeals to the ear and the eye, e.g. a  police chase scene or video of a crooked judge taking a bribe from a crooked lawyer..  
   
My advice to defenders is to buy a top of the line Polaroid camera, a good 35 mm. digital or top of the line regular 35 mm. camera, and a good portable digital video camera. In a pinch, you can use the camera on your cell or I-phione. If you have a regular 35 mm camera, it is possible to easily convert a normal photo into a digital photo file by means of a scanner, a machine not too unlike a copy machine. There is some high quality equipment available at your local discounter, e.g., Best Buy. Keep the Polaroid camera and extra film in an pretrial evidence kit in your car or office. That way, you will always have a back-up means of photographically recording a scene where time is of the essence and other equipment is not available.
   
Whether you want to use a photograph depends on your evaluation of the facts. If, for example, a witness' sight line is an issue, you might want to take a "sight line" photograph, either to impeach a witness to show that he couldn't see what he claimed to have seen from his vantage point or to accredit a witness to show the scene he described looked precisely as he said. If you are considering the use of a photograph as an exhibit, always factor any change of condition into your evidentiary foundation. For example, you might ask, " With the exception of (indicate the changed condition, e.g., 'the fact that the photo was taken during the day rather than the night'),is this photograph, Number P001, a fair and accurate representation of (describe the scene) as it existed on (specify the date and time)?"
   
When it comes to whether a photo or videotape is admissible, a good rule of thumb, subject to the Rule 403 balancing test, is that the accurate relevant photo is probably admissible if your witness can talk about what it depicts. Most courts, including Texas, treat photos as real evidence, though photos do have some of the illustrative characteristics of demonstrative evidence, e.g., maps and diagrams.
   
You can present your photos in different ways. The conventional method was to pass regular sized 8 x 10 glossy or matte photos to the jury. This method prevented all the jurors from seeing the photo at the same time. Now, it may be more common to use blowups pinned to corkboard or placed on an easel. Many courts allow electronic display of documents, photos, and small tangible objects using a document camera (video camera platform) hooked to a monitor or projected on a screen.  The nice thing about blowups and document camera presentations is that you can display the exhibit, e.g., a photo, and let the witness use or describe it with a pointer (your pencil pointed at the display platform on the document camera or your laser pointer from the witness stand to the screen), making the testimony more understandable by "tell and show."
   
A prosecutor friend who has used aerial epigraphs to give jurors a bird's eye view recently told me of two sites that provide satellite photos. Apparently, their photos are of decent quality and are of recent vintage. The companies are Space Imaging and Digital Globe.
   
Plan the order of presentation of photos and other evidence that needs to be looked at in a story telling sequence. If you choose to pass rather than display such evidence to the jurors, be sure the evidence gets marked, introduced, received, and passed to the jurors in the desired sequence.

    Diagrams: Remember that diagrams, models, look-alike objects, and other illustrative exhibits are relevant only when they can assist the jury in understanding the witness' oral testimony and are not misleading. Keep your diagram simple. Don't put so much on the diagram that it can't be easily understood. Freehand diagrammatic drawings may be easier to create. But remember, when you go the freehand drawing route with diagrams, you automatically open the diagram to attack because it is not drawn to scale and, therefore, may be misleading, inaccurate, and not authentic.  Also, if a diagram or any drawing is on the chalkboard, it is evanescent or transient and may be easily altered or destroyed by erasure. Of course, you can always take a Polaroid of a chalk-drawn diagram, but this reduces the diagram to the size of a photo. Having the witness draw the diagram on a flip chart with a marker is a better alternative. Prepared diagrams in the form of blowups and/or transparencies may be your best bet. Colored markers can be useful if you draw on the diagram.

    ChartsSome charts are used solely as a demonstrative aid to testimony; however, if your chart is a summary of voluminous writings, recordings, test analyses, or photographs that are otherwise admissible and that cannot be conveniently examined in court, offer the chart as real evidence. See Rule 1006 TRE allowing the use of summaries, when the originals or duplicates have been made available for examination or copying or both by the opposition. Note that the trial court may order that the originals or duplicates be produced in court.  If you use a big summary chart as real evidence, consider making a somewhat smaller version to go back to the jury room during deliberations. 

    Models:  If you plan to use demonstrative models, be certain that your qualified witness' reference to the models are reflected by the record. You can do this by having the witness put labels on the model regarding  the part of the model that the witness is referencing in testimony. [Read the masterful direct examination by the prosecutor, the late William Martin, in the "Chicago Nurses" mass murder case of Richard Speck in my Direct Examination monograph. Read the transcript out loud, if you have time. The exercise is guaranteed to make you a better presenter of evidence and a better direct examiner.] 

Practice Tips

Learn how to prepare graphics (1 - check out the article entitiled Seeing Is Believing) for your trials. PowerPoint is one of the most popular choices among the available software. There are numerous books and web sites that will help you master this necessary skill. Some are mentioned on the Courtroom Technology page.
   
When your prepared visuals or graphics include words, consider the style of type that you will use. Type faces with serifs, e.g., Times-Roman, Garamond, are best for strings of text, basically anything over one line. Type faces without serifs, e.g., Arial, Verdana, Helvetica, are best for anything less than one line, e.g., titles, subtitles, captions, numbers, callouts, etc.
   
You will typically need someone's testimony to give your exhibit meaning. In deciding how you are going to use an exhibit with a witness, know in advance how adept the witness will be with the exhibit. Let the witness know what you are going to ask re the exhibit. Find out in advance what the witness' response may be.

Arrive in court early so you can set up your exhibits for easy display. You don't want to be clumsy or wasteful of time when dealing with your exhibits in front of the jury.
   
Keep your exhibit covered until you are ready to offer it or use it before the jury.  If an exhibit is exposed prematurely, the jurors will focus their attention on it, wondering what it is and how it plays into the story.  This diversion of attention is at the expense of attention to the testimony  then underway. You will lose the impact of "tell and show." Instead, you will have premature "show" without explanation. When you are ready for the exhibit, present it with testimony. Display the exhibit in the way that suits you, e.g., put it on the Elmo, put it in the hands of the jurors, hold it up, etc. When you are through with tell and show, put the exhibit aside, e.g., give it to the court reporter for safekeeping until you need it again.
   
Learn before trial starts whether the court wants each exhibit proffered to it before ruling on admissibility. It looks bad if you proffer an exhibit to the court in the jury's presence and s/he waves you off. When in doubt, it's best to omit the proffer to the court.       
  
Exhibits that have been received in evidence cannot be altered, e.g., marked up by the other side, but demonstrative aids to testimony, e.g., diagrams, charts, maps, etc., can be marked upon. To prevent your demonstrative graphics from being savaged by your opponent's markings, you may use a mylar overlay sheet upon which the opposition or its witnesses can write without damaging your underlying original. You may also try the protective measure of taking your demonstrative aid down when you finish your direct examination of the witness.
   
When a witness marks on your exhibit, reference the non-verbal marking by making a statement for the record, e.g., "You just marked a red X on the middle of the diagram immediately below the depiction of the teller's counter to indicate where the defendant was standing when he pulled the gun. Is that a fair statement?" or, if you want to leave the witness out of it, "Let the record reflect that ..."
   
Make an effort to plan your presentation so that the jurors get to see the exhibit once it is in evidence. Don't wait so long that the first time the jurors see your exhibit is in the jury argument. Once again, the exhibit is typically causally the "show" of "tell and show" with your fact witness.
   
On direct, it may be best to let your witness, not you, be the one to point to the pertinent points on the exhibit or demonstrative aid. Unless you need to lead the witness, don't do so. The story should flow from the witness, not you.
  
If your case involves tape recordings, you will usually make an effort to supply the jury with an agreed transcript of what you and the opposition have been able to agree upon. The transcript of the tape is admissible only as aid to help the jurors understand the actual tape. The jurors must decide what is said on the tape. The trial judge will typically caution the jurors that the tape, not the transcript of the tape, is the thing of importance. In effect, the words on the tape, real evidence, always trump the transcript, which is just an aid to understanding testimony. If you are going to use a transcript of a tape recording, be sure to have a copy for each juror when the tape is played..
   
If you are planning to impeach a witness with numerous prior inconsistent statements, consider using a board to visually display the inconsistencies regarding the various points, either during witness questioning or as a demonstrative aid in argument.

Some judges will not send exhibits back to the jury room unless the jurors ask for them. If you have important exhibits, be sure to tell the jurors during jury argument that they should be sure to to ask to see the exhibits. Suggest that one of their first tasks after electing a foreperson should be to draft a note to the court asking to have the exhibits sent back to them. 

Resources 

You'll find lots of businesses that can, for a price, help you create demonstrative exhibits. (1 - boards, posters),  (2 - litigation graphics), (3 - animation), (4 - medical illustrations), (5- medical illustrations),(6), (7 - trial visuals), (8 - animation), (9), (10 - graphics). Here's a law school project that not only lists several visual litigation service providers but offers some samples of their work, primarily in civil cases but including one path-of-the-bullets animation from a murder case. Here's a pdf step-by-step guide to creating a courtroom exhibit. Also, check out these Internet resources: Ten Commandments of Demonstrative Evidence in Litigation  (1) (2) (3) (4) (5 -911 calls)(6)(7)(8)(9)(10)(11)(12)(13)(14)

+ A few ideas about visuals and the process of visualization from an employee of Doar. See the CCJA Courtroom Technology  and Document Camera pages.

+ The evidence store is a worth a look. Even if you don't buy anything, you may get some ideas of how to create some visuals. This site (mentioned above) has lots of prepared charts available for instant download. This one has visual evidence. This one has graphics.

+ Aerial photos and maps can be downloaded and printed and/or imported into your trial slide presentation.  Google Earth and Microsoft have each perfected the aerial and flat map to the point where you must become familiar with their respective capabilities. If your courtroom has Internet connections, either of these can provide you with fantastic demonstrative evidence. You'll need a witness to establish an accuracy foundation. See Technology.

+ The Internet offers downloadable basic information that can become an exhibit. For example, if you want to display a calendar of days or years gone by, Time and Date provides the material. See Criminal Law Links for a list of informational sites.

+ Give yourself a treat and browse around YouTube. There you will find streaming videos of a slew of exhibits, from tapes of 911 calls (1) to videos of chase scenes (1) to actual robberies (1) and shootings to taped confessions (1), etc. The viewing can sometimes be fascinating and informative for the inquisitive lawyer thinking about varieties of exhibits and how they can be packaged.

+ Defendant's who make statements about crimes they have committed on their social media, e.g., Facebook, webpages may be disappointed when the trial court receives the statements in evidence. For an example of a case where the accused allegedly reflected on his MySpace page about the facts of a murder he had committed, see Tienda v. State, 358 S.W.3d 655 (Tex.Crim.App. 2012); the court held that content of a social media page can be authenticated by events before and after the execution of the writing that tend to identify the author. Of course, we know that modern rules of evidence, patterned after the Federal Rules of Evidence, view statements of the defendant (a party) as non-hearsay..
     
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Seeing is believing. We believe things when
we see them with our very own eyes.

The Pentagon can prove that Saddam Hussein had weapons
of mass destruction; they saved the receipts.

One picture is worth a thousand words.

Un petit dessin vaut mieux qu'un long discours.
(A small drawing is better than a long speech.
Don't you love the French mode of expression!)

Give the jury something to look
at during the testimony.

Don't just tell us a thing if you can show it.

Some exhibit demos go south. (1)
Others don't. (1 - exhibits from the Moussaoui trial)

The opposition's exhibiit may provide your poetic case theme, e.g., "If the gloves don't fit, you must acquit!" People v. Orenthal James "OJ" Simpson



Sidebar


A law school professor gives you a 30-minute elementary review of the basics of exhibits in the courtroom.


Here's a criminal defense lawyer using a board with a prepared stair-step chart that helps explains the heavy burden of proof the government bears in proving all elements of the crime beyond a reasonable doubt. The board compares PBARD with other burdens. This sort of graphic is used by the lawyer as a teaching aid, most commonly during jury selection or jury argument. It is not an exhibit as such. However, it is displayed as an aid to the lawyer's explanation of the burden of proof.

Although the clip is from a a lawyer's ad, what he's saying is a very common argument used by many defenders.
If you prepare the chart as a demonstrative aid to your argument and find it effective, you can use it many times over the course of a career defending accused criminals. PBARD is the burden the prosecution bears in all criminal cases and is crucial to a "reasonable doubt defense."






With electronic visuals,
always have a primary presentation plan
and a backup plan.