Presenting evidence -

How to engage the jury

By Judge Dennis M. Sweeney
The Daily Record Newswire
 
BALTIMORE, MD—Over the years, law clerks and interns who came to work in my chambers arrived excited about the prospect of observing jury trials and eagerly looked forward to the first one. Often, after an hour or two of seeing an actual trial, the young person’s eyes glaze over and the intern starts asking about other work that may be available such as legal research or even filing or copying court papers.

Unlike the interns, jurors do not have the option to leave the courtroom, but many tell me after the case that the trial itself was very boring and, in their minds, unnecessarily tedious and repetitious.

 Lawyers and judges know that jury trials, and particularly civil jury trials, are rarely the dramatic and gripping events that appear in the movies or television. Presenting a case through witnesses and documents can be slow and laborious. Telling a moving and coherent story is a real challenge given the constraints of the rules of evidence, but there are methods that lawyers, with the approval of the trial judge, can employ to keep jurors engaged in the ongoing trial and hopefully receptive to the arguments being made.

Below is a list of suggestions that involve the jurors more closely in the story that you are trying to tell and should be considered.

Individual juror binders
If a trial is going to be lengthy, complicated or both, providing each juror with a personal binder can bring the case closer to the juror. The binder or notebook can have documents such as a list of all the parties and lawyers, a list of witnesses and others that may be frequently mentioned, a glossary of technical words or phrases that may come up frequently, a copy of some or all of the exhibits in the case and any preliminary instructions given by the court.
The binders are the individual juror’s to use throughout the trial and jurors may annotate the documents with their own notes. After receiving requests from jurors when I first did this, I now provide them with highlighters to allow them to emphasize what they find of interest.

If a core group of exhibits will be referred to by many of the witnesses, providing a copy in each juror’s notebook can be particularly effective. For example, in a medical malpractice case, there will often be a set of medical and hospital records that lay and expert witnesses will refer to repeatedly in testimony. Jurors who have the set in front of them, and can annotate them during the testimony, obviously become more involved and interested in the case.

Presentation of photographs
 A 4” by 6” photo can look big enough when you are in your office preparing for trial, but in a courtroom, the print looks like a postage stamp to a juror sitting 20 feet away in the jury box.

When you are hunched over a witness on the stand who is explaining to you where events occurred, pointing to the photo and saying things such as “right there” or “next to this light post,” the information is having little impact on the jurors. An obvious cure is to bring in larger prints, especially of important exhibits. You can set them on an easel and ask to have the witness leave the stand and point out the information on the photo where the jury can see it.
You can also use audio-visual devices such as visual projectors or computers that can project the photos on a screen where the jury can see it. However, you should not assume that the court can meet your equipment needs since most courthouses in Maryland are not outfitted with built in audio-visual devices.

On a related point, some lawyers seem to feel that more is always better. If they have 30 photos in their file, they try to put 30 photos into evidence regardless of whether they really add anything more than three or four carefully chosen from the group. An experienced lawyer on the other side may not object, knowing that the “good” photos for the other side can get lost in the pile of repetitious and marginally relevant ones.

Audio recordings

Sometimes an important piece of evidence is a video or audio recording containing conversations between people. Frequently, the audio portion can be hard to hear; playing it in a courtroom, where acoustics are often not optimal, may make it especially difficult to decipher from the jury box.

 To assist the jurors, the trial judge may allow you to present a prepared transcript to each juror as the recording is played, provided a foundation can be laid as to how the transcript was made and the other parties are allowed a chance to contest the transcript’s contents or submit an alternative transcript. Such a procedure was approved by the Court of Special Appeals in a criminal case where the prosecutor was presenting a recording made off a wire on a cooperating witness. Marshall v. State, 174 Md. App. 572 (2007).

Where this is done, the trial court should give instructions to the jury that emphasize how the transcript should be used, with a caution that the transcript is merely a guide and that jurors should ultimately rely on their own analysis of the recording.

Demonstrations
Any time witnesses are doing something in court other than just talking, jurors become interested and perk up. If it is relevant, simple things like having witnesses use aids such as anatomical models in personal injury cases can be effective. Again, it has to be something the jurors can actually see from where they are sitting and it may be a good time to ask the judge if the witness can leave the stand and get closer to the jury to demonstrate the point.
 In drunk driving cases, it is not unusual for either the state or the defense to ask the arresting officer to show how he demonstrated the “walk and turn” test to the defendant. Jurors usually are in rapt attention while the officer goes through the demonstration since they can picture themselves on the side of the road being asked to perform the test.

 The trial judge is given wide discretion to decide whether a demonstration will be allowed. The court will allow a party to perform an experiment, demonstration or test in open court before the jury when it will prove or throw light upon the issues in the trial. The experiments or tests should be made under similar conditions and like circumstances to those existing in the case at issue.

 O’Doherty v. Catonsville Plumbing and Heating Company, Inc., 269 Md. 371 (1973) is an example where the trial court allowed a demonstration and the Court of Appeals approved. The case was a suit for damages caused by a fire that occurred in a house where plumbers had been working on a bathroom repair. The trial judge allowed the same plumbers who had worked on the tub to perform the same tasks on a mock-up of the bathtub and surrounding wood framing that was brought into the courtroom. They demonstrated how they had used an acetylene torch, which was the item that the Plaintiff contended had set the fire.

In O’Doherty, the Court of Appeals cautioned that the trial judge should maintain “strict control” over every aspect of the demonstration and that, before it is permitted, the other party should have the opportunity outside of the presence of the jury to contest “the fairness of the demonstration and the essential similarity of conditions.” 269 Md. at 375.

Not all proposed in-court demonstrations will be allowed. In another case, Naughton v. Bankier, 114 Md. App. 641 (1997), the Court of Special Appeals upheld the trial judge’s decision not to allow a demonstration before the jury of a 8-foot slingshot that had shot a water balloon from a residence to the house next door, hitting the plaintiff and allegedly injuring his eye. The giant slingshot required three people to operate (two to hold the sides and one to pull the band with the water balloon) and was capable of hurling projectiles more than 70 yards at initial speeds approaching 240 miles per hour.

 The appeals court did not find any abuse of discretion in the court’s refusal to allow the in-court demonstration.

Approval required

Any of the methods of presentation discussed above will require the approval of the court and the party proposing the method should seek it as early as possible hopefully at a pre-trial conference. Having at hand examples where other judges have allowed similar things may persuade the judge to give you the leeway to present the case as you propose.

 Making trials interesting and compelling for jurors can be a daunting challenge but some imagination by lawyers and judges can present the case in a fashion that draws the jurors into the story that a trial represents.

Howard County Circuit Judge Dennis M. Sweeney, retired, chairs the Judiciary’s Committee on Jury Use and Management. Judge Sweeney can be reached at judgesweeney@mac.com.)

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