Source of article The Litigation Consulting Report (A2L Consulting).
Most of the work that a trial consulting firm like A2L does for its clients takes place in civil cases. However, criminal cases also present unique challenges for trial lawyers and for trial consultants, and some of our most fascinating cases over the years have been criminal cases.
In fact, during my career, the biggest technological change I’ve seen in how criminal cases are tried is how often PowerPoint is used. As a presentation tool, it’s moved from rare use in the early 2000’s to ubiquitous use in a relatively short period of time.
In helping a company or an individual defend against criminal charges, perhaps the most important fact to note from a jury-persuasion point of view is that most jurors tend to believe instinctively that the defendant is guilty. They assume subconsciously that the government would not have gone to the trouble of amassing evidence and securing an indictment unless the defendant had done something wrong. Many jurors, perhaps because they have watched too many episodes of Law and Order and similar shows, believe that once a case is “closed” by detectives and prosecutors, it is essentially over and the defendants are guilty.
Accordingly, the best practices in most criminal cases essentially require the defendant to put together a thoughtful visual on the burden of proof in a criminal case and thus to show the jurors that “beyond a reasonable doubt” has a clear meaning as refined by thousands of cases over the years. Notably, this type of visual can be controversial because the prosecution can challenge it in advance as inappropriate because it invades the purpose of jury instructions. So before doing this, it’s advisable to obtain assurances in advance that this visual is not going to be objected to. This can be done in advance of the trial as part of the normal and informal exchange of demonstrative evidence between the parties. Or if the issue can’t be resolved between the parties, the judge will resolve it after a motion by one side or the other.
Another good subject for a visual in a criminal case is the topic of intent. Every criminal case will have an intent issue, and the term “intent” in the relevant statute may not always be identical with a juror’s notion of what the word means. So it often makes sense for the trial team to produce a clear visual breaking down the elements of intent, following the relevant case law. It might say something like, “To prove this intent, you need to conclude that A, B, and C facts are all true.”
Prosecutors can also use visuals effectively in criminal cases, and we have worked with prosecution teams quite often. For prosecutors, the biggest pitfall can be overreaching with their exhibits.
For example, one prosecutor had a murder conviction reversed by committing something an appeals court characterized as visual presentation abuse. There, the prosecutor was found to have inappropriately biased the jury by using inflammatory and conclusory titles in PowerPoint. See: http://www.a2lc.com/blog/how-powerpoint-failures-in-demonstrative-evidence-can-sink-a-case.
According to the judge in this 2015 murder case in Washington state, a prosecutor used 250 demonstratives to “appeal to the passion and prejudice of the jury.” The result was that an accused murderer went free, at least for a while.
The lesson for prosecutors is to present facts and argument, including the demonstrative portion of the case, in a conservative and dignified manner.
Other A2L Consulting articles and resources focused on criminal cases, white collar cases, and the use of PowerPoint:
- How PowerPoint Failures in Demonstrative Evidence Can Sink a Case
- Litigation Graphics in White Collar Cases
- 4 Litigation Graphics Tactics When the USA is a Client or a Foe
- 4 Reasons Televised Criminal Trials Get So Much Attention
- Litigation Graphics: The Power of Checklist Trial Exhibits
- Litigator & Litigation Consultant Value Added: A “Simple” Final Product
- How NOT to Go to Court: Handling High Profile Clients
- 5 Questions to Ask in Voir Dire . . . Always
- 6 Secrets of the Jury Consulting Business You Should Know
- Boston Bomber Death Penalty – Mitigating vs. Aggravating Factors
- The Effective Use of PowerPoint Presentation During Opening Statement
- 16 PowerPoint Litigation Graphics You Won’t Believe Are PowerPoint
- Webinar – PowerPoint Litigation Graphics – Winning by Design