Criminal defense lawyers are constantly trying to find ways to keep a jury’s attention during trials. In our technologically-saturated world, criminal defense lawyers are not utilizing technology to its fullest extent.
Our firm is using a program called TrialDirector during our jury trials. We, criminal defense lawyers, have used it in a Hennepin County Domestic Assault Strangulation (Felony) case, a Chisago County Criminal Sexual Conduct (Felony) case, and a federal jury trial where our client was accused of possession four pounds of pure cocaine and a loaded handgun.
Federal court is much better equipped for technology than State court. Federal courts have several screens in front of the jury, big monitors facing the gallery, a screen in front of each the judge, the witness, the attorneys, and the podium. Some of the screens are touch screens allowing for interactions with the displayed images. State courts, for the most part, still require us to bring our own projector, sometimes a screen, and too many cords to count. Still, each setting has been effective and incredibly persuasive before a jury.
“Movie-making is telling a story with the best technology at your disposal.” ~Tom Hanks
In our technology-centered world, the law is trying to keep up . . . emphasis on “trying.” United States Attorneys (federal prosecutors) and Federal Defenders seem to be at the forefront of this movement. State prosecutors and criminal defense lawyers rarely use technology and when they do it is a boring presentation using PowerPoint and bulleted lists. We have realized that when using an interactive program like TrialDirector, the jury instinctively is drawn to it. (We also quickly learned to utilize the blank screen feature. This resulted in the jurors and other people in the courtroom to refocus on us rather than the screens immediately when the screen when blank.)
Trial is essentially telling a story—leaving the ending completely in the hands of the jury. Explaining why the case was charged and why our client is not guilty. The story involves giving the jury a summary at the beginning, having witnesses explain bits and pieces through the trial, and explaining to the jury at the end why the story should end with a not-guilty verdict.
Programs like TrialDirector have given criminal defense lawyers a new way of telling the story . . . however too few criminal defense lawyers are taking advantage of the new technology. In fact, besides our firm, we are unaware of any private criminal defense lawyer in Minnesota currently using this technology.
With TrialDirector, we can input transcribed statements, documents, images, squad videos, and more. We can confront witnesses with previously-stated biases:
When an opposing witness is testifying, we can pull up previous statements and zoom in and highlight parts of the statement that contradict his current testimony. Or we can put two contradicting statements on the screen, highlight the discrepancy, and ask the witness to explain it—either way, he’s a liar and his lie is up in front of the jury in huge letters and vivid highlights.
Using TrialDirector is an extremely effective way to destroy the witness’ credibility.
“Audience members are only concerned about the story, the concept, the bells and whistles and the noise that a popular film starts to make even before it’s popular. So audiences will not be drawn to technology; they’ll be drawn to the story. And I hope it always remains that way.” ~Steven Spielberg
There are limitations to TrialDirector. We have found that while technology can sometimes be invaluable, it can also be overkill or distracting. It is important to know when to use it and when to avoid it. Confronting an opposing witness with a conflicting former statement is much more persuasive when blown up and highlighted rather than simply read to him. The jury’s focus is on the screens and the conflicting statement (usually in our favor). It is more persuasive to see the statement printed and shown on the screens than hearing the criminal defense lawyer for the defendant read it out loud.
In other contexts, technology takes away from the most important part of the case: telling the story to get that not guilty verdict. We have found that the only times we, as criminal defense lawyers, really get to tell the story is during opening and closing statements. As much as we get to talk during our examinations of witnesses, the story comes from the witnesses. But when we get to tell the story, we need as few distractions as possible. Using a PowerPoint or TrialDirector takes away from our story.
“Technology is nothing. What’s important is that you have faith in people, that they’re basically good and smart, and if you give them tools, they’ll do wonderful things with them” ~Steve Jobs
When the trial is over, it is twelve individual human beings who make the determination. They do not take our trial program back into the jury deliberation room with them. They do not take our images we created. But it is hard to forget those images blown up on the screens, highlighting the witnesses’ contradicting statements. These are some of the tools going back with the jury. These are the tools they use to create the ending to the story. These are the tools we give to the jury to decide to end the story our way. And it has worked . . . over and over again. Not Guilty.
See PDF of this article here.