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“The wave of the future clearly lies in the use of electronic technology both in discovery and courtroom presentation.”[1] (U.S. Magistrate Judge Hughes – Nov. 27, 2002).
I find that, in today’s society, people are expecting to see technology in almost everything. Our phones have become portable minicomputers. Our cars talk to us and tell us what direction we’re supposed be traveling. And our television records programs that it “thinks” we would like. Mastering new technology is not always easy. And people are inherently fearful of change. Yet, to ignore technology is to provide a disservice to yourself and your client. There was a time when MRIs, EMGs, Ultrasounds, and CAT scans didn’t exist. But today, a doctor failing to utilize these tools would most likely be the Defendant in a malpractice lawsuit. So, why are attorneys fearful of utilizing technology in the courtroom? Many lawyers believe that courtroom technology means dramatic computer recreations and expensive, overly-dramatic, and evidentially-problematic presentations. This is a common misconception of definition of courtroom technology. I hope that the information on this site will conquer these incorrect beliefs and encourage the use of technology in the courtroom. Further, I anticipate that this site’s information may change the views of some classic-style attorneys.
Trial lawyers are currently behind the Judiciary in efforts of utilizing technology in the courtroom. Technology has already become a standard part of our judicial system. Most court proceedings utilize digital audio recording. Many courtrooms have video-recording capabilities. New Jersey’s Municipal Courts are equipped with video conferencing technology in order to communicate directly with the correctional institutions of the State. Newer County courtrooms are being built with the thought of bringing our system into the 21st century. As a simple point, many courts in New Jersey allow e-filing of court documents and are headed towards a paperless system.
New Jersey’s District Court has an entire website dedicated to attorney courtroom technology.[2] The Court “encourage[s] the Bar to take advantage of [their] equipment and [they] hope its availability eases the presentation of demonstrative evidence.” The District Court provides, to the Bar at no cost, the use of a document camera, LCD projector, Automatic Projection Screen, Shadow Box, and VCR/DVD player. By their actions and comments, the District Court has made it abundantly clear that they are requesting the use of their technological equipment during the presentation of cases. In August of 1999, the Administrative Office of the U.S. Courts published the Courtroom Technology Manual.[3] The Manual explains the importance of courtroom technology in its introduction: “The Judicial Conference has endorsed the use of technologies in the courtroom and… urged that (a) courtroom technologies – including video evidence presentation systems, videoconferencing systems, and electronic methods of taking the record – be considered as necessary and integral parts of courtrooms undergoing construction or major renovation; and (b) the same courtroom technologies be retrofitted into existing courtrooms or those undergoing tenant alterations as appropriate.”
In addition to its benefits to the court, technology can be used in assisting the jury understand the evidence of the case. It allows an attorney to place evidence before the judge, the jurors, the lawyers, and the witness; and all at the same time. The presentation of evidence through technology allows the jurors to feel involved in the proceedings. They are able to observe the evidence at the same time as it is referenced by the attorney or the witness. They can read the documented proofs at their leisure; without having to rush to pass it to the next juror seated in the box. Further, some jurors learn better through visual means rather than auditory means and the presentation may increase their ability to understand the testimony and argument.
The most important thing to remember is that there is nothing improper in the use the demonstrative or illustrative evidence.[4]
But what is demonstrative or illustrative evidence? It is any evidence that replicates the actual physical evidence, demonstrates some matter material to the case, or illustrates certain aspects of an expert’s opinion.[5] As with our District Court, our Superior Court Appellate Division has acknowledged that the use of visual aids and power point presentations are widespread and growing.[6] And that comment was made five years ago, in 2005.
Visual Aids have been in courts for a long time. In the 1950s, blackboards were utilized[7]. They progressed into large pads that were propped on top of easels. Next, the court witnessed the use of large blown-up versions of evidence: photographs, maps, and documents. Subsequently, slide projectors, overhead projectors, and videotapes were utilized. CD players, DVD players, and televisions have become commonplace. The next logical step, therefore, is the use of a laptop computer and projector. “Computer technology evolves at such a fast rate that future predictions are impossible. The courtroom of the future has already been built, the future law office has already been designed, and advanced computer technologies have already been implemented that will take the modern lawyer into the next century.”[8]
Demonstrative aids have already been utilized by judges, prosecutors, criminal-defense attorneys, plaintiff attorneys, and defense attorneys.[9] That does not mean that everyone is on board for its use. It is imperative that the information contained in the demonstrative aid be admissible under the New Jersey Rules of Evidence and that the attorney seeking to utilize the evidence be fair in its presentation. The evidence must be authenticated, relevant, and “its probative value must not be offset by undue prejudice, unfair surprise, undue consumption of trial time, or possible confusion of issues.”[10]
Since the trial court enjoys wide latitude in admitting or rejecting demonstrative evidence or visual aids, the evidence should not be hidden from the court. Its a surefire way to lose the support of the court if the first time the judge learns of your plan to use technology is when you are bringing equipment into the courtroom on the first day of trial. I find that it is important to make your adversary and the court aware that you will be using technological evidence or digital presentation technology. It makes the court more receptive to its use and allows your adversary an opportunity to raise an objection prior to presentation. It would be embarrassing, damaging, and frustrating if you are unable to use the evidence that you spent hours crafting due to trying to hide its existence until the time in which you wished to present it.
Rule of thumb: If you can say it, you can display it. In other words, if you can properly say it in court under our rules of evidence and case law, you can properly display it court through the use of a visual aid. This rule has been true since the blackboard-argument days.[11] And just as simple a rule: What you can not say, you can not display.
Remember, visual aids are not evidence. They are visual depictions of what you are arguing and of what the witnesses are stating during their testimony. Because visual aids are not considered evidence, most judges do not admit them formally in evidence and some do not let them into the jury room during deliberations. Some will by the way. I figure, if you don’t ask, then the answer is already no. Visual aids do not require strict foundation requirements. If the information or exhibit is properly before the court, it can be presented in electronic form. Of course, the form should not distort the original piece of information or confuse the jury as to the testimony. The visual aid is admitted for the sole purpose of aiding the jury in understanding the evidence presented in court. There is an extreme difference in impact between testimony about a crime scene and a photographic depiction of the actual location. Further, the oral presentation combined with visual aids or demonstrative evidence is far superior to either when presented alone because most people combine visual and auditory learning. The oral presentation and the visual presentation reinforce the information.
Visual aids are different than demonstrative evidence. Visual aids assist in the presentation of facts to the jury. Demonstrative evidence represents the real thing. Visual Aids are used to illustrate the testimony of a witness or the argument of an attorney. Its main objective is to assist the jury in visualizing the information. Therefore, the demonstrative evidence requires that the exhibit be admitted into evidence and the proper foundation be presented. The information does not have to be to scale. It only has to fair and accurate without being distorted, misleading, or confusing. Once the foundation has been laid regarding its fair and accurate depiction, the witness should acknowledge that the demonstrative evidence will be helpful in explaining his or her testimony.
A computers’ ability to organize and present documents, graphics, and videos has given rise to numerous litigation support programming and presentation software. Some programs allow the trial lawyers to have at their fingertips their entire file, make it possible to retrieve any document in seconds and search the contents therein. With this new technology, you can create a plethora of demonstrative and visual aids that can be presented in numerous ways: Tables, Charts, Graphs, Models, Demonstrations, Reconstructions, Animations, Magnification, Video Depositions, and Slide Show Presentations.
Computer Technology and Litigation Support Systems are not required in every case and they should not be utilized in every case. Every case is fact sensitive and certain files do not require the use of a technological presentation. Additionally, time, effort, and monetary factors may preclude you from utilizing the technology. And if used improperly, technology has the ability to detract attention from the main argument. While technology may not be appropriate in every instance, it can be of tremendous assistance in the correct instance. I feel that technology can assist us in providing the jurors with a visual interpretation of testimony about an event, a location, an object, a procedure, complicated terminology, or a document. As stated previously, it can be utilized for the purpose of reinforcing the evidence testified to by the witnesses in the courtroom. It helps us organize the presentation of voluminous facts and helps us present a summary of the admitted evidence. Since evidence has to be presented by witnesses, it rarely follows a chronological or systematic format. The use of technology allows us to reorganize the evidence for better understanding and storytelling.
It is important to think about your use of technology before becoming bound by its utilization or frozen from the fear of change. With 3-D movies as realistic as Avatar and 2-D fictional character’s are realistic as the dinosaurs in Jurassic Park, lay persons have grown accustomed to computer-produced animation. I try to remind myself that an animation is only an electronic illustration. It is something that is created to demonstrate information that we can derive from other sources. Truly, it is the next step in artistic display. It enhances the testimony of my witnesses and strengthens my argument. “Demonstrative evidence is a valuable tool used by prosecutors and defense trial attorneys alike to assist jurors.” – Judge Neafsey J.S.C.[12]
[1] Fanelli v. Centenary College, 211 F.R.D. 268, 271 (D.N.J. Nov. 27, 2002)
[3] http://www.ndd.uscourts.gov/pdf/litigants_manual.pdf (August 1999)
[4] Rodd v. Raritan Radiologic Associates, 373 N.J.Super 154, 164 (App. Div. 2004)
[5] Id at 165; citing State v. Scherzer, 301 N.J.Super 363, 434 (App.Div.), certif. denies, 151 N.J. 466 (1977); State v. Gear, 115 N.J.Super 151, 153-154 (App. Div.), certif. denied, 59 N.J. 270 (1971); and State v. Raso, 321 N.J.Super 5, 19 (App. Div.), cerif. Denied, 161N.J. 332 (1999).
[6] State v. Sabar, 2005 WL 2509882 (App. Div. 2005),certif. granted; reversed on other grounds, 186 N.J. 360 (2006); Habeas Corpus denied, 2008 WL 305474 (D.N.J. 2008)
[7] Cross v. Lamb, Inc., 60 N.J.Super 59 (1960)
[8] 71 AMJURTRIALS 111, 167 (2009)
[9] State v. Sabar, supra, 2005 WL 2509882 (App. Div. 2005); State v. Price, 2006 WL3299754 (App. Div. 2006); Merck Sharp v. Teva Pharmaceuticals USA, 2008 WL4837397 (D.N.J. 2008); State v. Robinson, 2007 WL 1892226 (App. Div. 2007);
[10] Rodd v. Raritan Radiologic Associates, P.A., 373 N.J.Super 154 (App. Div. 2004)
[11] “The purpose of this kind of use of blackboards is essentially exhortatory and not explanatory is apparent from the commonly expressed judicial justification therefore –anything which counsel has the right to argue as a legitimate interpretation of or inference from the evidence he is free, within the discretionary control of the court, to write upon the blackboard.” Cross v. Lamb, Inc., 60 N.J.Super 59, 74-75 (1960)
[12] State v. Harte, 395 N.J.Super 162, 174 (Law. Div. 2006)
