The Champion
June 1998

Capital Cases
By Stephen P. Lindsay

Stephen P. Lindsay is a partner in the firm of Lindsay & Hensley, Asheville, NC. A 1985 graduate of the University of North Carolina Law School, he is a faculty member of the National Criminal Defense College (NCDC) in Macon, Georgia.

'Do You Hear What I Hear?' Demonstrative Evidence Makes A Difference

Sometime ago I was driving to the far western reaches of North Carolina for a trial. Christmas was a couple of months passed but the peaks of the surrounding mountains remained snow-covered. There was still a winter feeling in the air and I found myself humming a yuletide tune -- "The Little Drummer Boy." Although lyrics are by no means my strong suit, I started singing the following rendition: "Said the little lamb to the shepherd boy, 'do you hear what I hear?'" At that very moment, for whatever reason, two distinct thoughts came to my mind. First, any ambition I had to become a singer was unquestionably wishful thinking. Second, and more importantly, if the shepherd boy was anything like our jurors, he probably did not hear the same thing that the lamb heard.

However, the song goes on -- "Do you see what I see?" For several reasons, the chances are much better that the little lamb and the shepherd boy, although probably not hearing the same thing, did in fact see the same thing. From these events and observations comes an important lesson for those of us who are criminal defense litigators. We must do more than present mere testimony to our jurors. We must find creative ways to present our cases that will cause jurors to do more than listen to testimony -- ways that will make them tap into their various senses -- while deciding the fates of our clients.

Capital cases are not much different from non-capital cases when it comes to using demonstrative evidence. Family history charts or genographs, pressure charts, and various other visual aids are often used at the penalty phase to explain the testimony of experts. Although these things are powerful and should continue to be used in capital trials, the use of these items should not be in lieu of traditional demonstrative evidence. We must begin to be more creative with demonstrative evidence in our efforts to persuade jurors. We must change our ways, try new things, and work ourselves out of the demonstrative evidence rut into which many of us have fallen. The creative use of demonstrative evidence affords criminal defense attorneys numerous unique opportunities to become more powerful persuaders. Furthermore, preparing and presenting quality evidence is not necessarily an expensive proposition.

Prosecutors have figured out the power and persuasiveness of demonstrative evidence and are actively using it against us. In a recent capital murder case in my home town, a man was on trial for the kidnaping, rape, and ultimate murder of a young woman. He randomly selected her while she was out jogging, abducted her, took her to a remote place in the woods, tied her to a tree, then eventually took her life. The jury did not deliberate long at the guilt/innocence phase, finding the defendant guilty of first-degree murder.

During the trial, the prosecutor brought in the actual tree to which the victim had been tied. During her penalty phase closing argument, the prosecutor bound herself to the tree and talked from the perspective of the victim in her final moments of life. The jury seemed to hardly hesitate in returning a death sentence. Compelling? Yes. Did it change the outcome? Maybe. Was it persuasive? Absolutely! And it was persuasive in a way that mere words could not have as effectively conveyed. This is what prosecutors are doing in today's litigation arena. We simply cannot wait any longer to at least even the scales.

What Is 'Demonstrative Evidence?'
Black's Law Dictionary defines demonstrative evidence as:

That evidence addressed directly to the senses without intervention of testimony. Real ("thing") evidence such as the gun in a trial of homicide or the contract itself in the trial of a contract case. Evidence apart from the testimony of witnesses concerning the thing. Such evidence may include maps, diagrams, photographs, models, charts, medical illustrations, X-rays.

This definition, although commonly used, reminds me of fishing from an ocean pier -- it gets you out in the water a good way but it just doesn't go out far enough to let you fish for the big ones. If we limit ourselves to defining demonstrative evidence in this manner (which I suggest is the way many of us tend to view the matter), "demonstrative evidence" becomes nothing more than a synonym for "exhibit." However, there is much more to it than those items which we mark with an exhibit sticker, proffer to the court for introduction, and then pass to the jury.

Definition We Must All Start Using
Demonstrative evidence is anything and everything, regardless of whether admissible or even offered as evidence, including attorney/client/witness demeanor in the courtroom, which tends to convey to, and evoke from, the jury a "sense impression" that will benefit our case, whether through advancing our case in chief or diminishing the prosecution's case.

By "sense impression" I mean anything and everything which is calculated to target, or is likely to affect, the jurors' senses (i.e., sight, smell, hearing, touch). The evidence -- thereby empowers the evidence jurors to give greater appreciation to our clients' defense(s) through interpreting various testimony, evidence, and arguments in a particular context which complements the themes and theory of our defense. In other words, our cases are like giant, roll-top desks with many slots for information, some belonging to the prosecutor and some to the defense. The trial is a fight over getting jurors to place evidence in particular slots. Based upon our presentations, jurors will interpret evidence, assign weight to it, and place it into one of the slots in the desk. By effectively using demonstrative evidence and tapping into the jurors' sense impressions, our ability to get the jurors to place particular evidence into our slots is markedly increased.

Some Creative Suggestions Given Limited Budgets
Some time ago, attorney Jon Sands, Assistant Federal Public Defender in Phoenix, Arizona, and I presented a lecture on demonstrative evidence. I had been giving a presentation entitled "Demonstrative Evidence: Perspectives, Pointers, and Your Pocketbooks." Jon had been doing one called "Guerilla Warfare Demonstrative Evidence." We combined our presentations.

Very few of us have the opportunity to represent wealthy clients. As a result, most of us have very limited budgets when it comes to trial preparation. With limited budgets it becomes necessary to find ways to create quality demonstrative evidence that isn't too expensive -- "on the cheap," as Jon would say. The following are some ideas for demonstrative evidence which are inexpensive, easy to make and can be persuasively used in trial.

Use of diagrams is a wonderful way to get you up out of your seat, away from your podium and close to the jury. Because many jurisdictions require counsel to either remain at counsel table or at a podium, anything you can do to get away from these locales and closer to the jury must be exploited. Diagrams are an excellent way to do this. I have found that you can make diagrams for less than $10. If you need a diagram that shows the floor plan of a house or building, use your computer. In the Windows program, under the "Accessories" section you will find a program called Paintbrush. Through this program you can create small versions of floor plans which can then be enlarged and mounted at your local print shop. If you have a color printer, you can even use colors which are easily enlarged with a color copier (slightly more expensive).

You will find, though, that the end-product created out of Paintbrush is a bit rough around the edges. For about $20 - $30, you can purchase an architectural, home design program. These programs allow you to lay out floor plans to scale, include furnishings which you can place in various locations, and even allow you to add decks, swing sets, and landscaping. The program I use was a close-out and cost about $7. The end product is extremely professional, is relatively easy and quick to prepare, and is an inexpensive addition to your trial preparation materials, which can be used over and over again.

Diagrams also give you the opportunity to have a witness tell his or her story more than once. The more times the witness' version of events is told, the more likely the jury is to believe what is said. Use a funnel approach to diagrams. First use one showing a large area, then a second one showing/enlarging a smaller section of the first, then end up with one that focuses on the relevant location (i.e., neighborhood, house plan, room). This gives you and the witness multiple, legitimate opportunities to repeat the witness' version of the events.

Prosecutors will often attempt to undermine your diagrams in a variety of ways. You must do what you can to protect the integrity of your evidence. Prosecutors often mark up our exhibits and leave the exhibits looking like a doodle pad. This is easily avoided through purchasing (at little cost) a sheet of clear plastic which you attach to your diagram following direct examination. Fasten it down forcing the prosecutor and his or her witnesses to mark on the plastic. Once done, you can remove the plastic and effectively use the diagram in closing without the distraction of the various markings made by the prosecutor and his or her witnesses.

Art Students
I have had great success in using local art students to create demonstrative evidence. Most of these people will want little or no money to produce the work product -- usually they are so enamored with being involved in a criminal case that they will work for free. Have them produce their work then have it enlarged and mounted which will cost only a few dollars. The work product is attractive, usable, and uniquely different than anything you will see the prosecutor bring out.

Architecture and Engineering Students
As with art students, these students will work inexpensively or for free. They can build models for you of just about anything. Houses and other buildings can be reproduced to scale. Models are impressive to use in the courtroom and are extremely helpful in demonstrating various points of your case to the jury.

Color Photocopies
Many of your photographs will be small. The cost of enlarging photographs into bigger photographs is significant. Take your small photos to the copy center and get them to do a color enlargement and mount these on a foam board. An enlargement from a snap shot to an 8 by 10 is about $2 compared to the approximate $15- $20 necessary to do a photo-to-photo enlargement. Given today's technology, the quality of photocopy enlargements is quite good.

Make Slides From Photos
The cost of making a slide isn't much. Take your important photos, make them into slides, turn down the lights, and show them to the jury. Often times the impact of a slide is much greater than a photograph. There is also the added benefit that each juror will be taking in the information at the same time and under the same conditions. Think of what happens when a photograph is passed to the jury. Each juror looks at it separately while the judge is saying "move along counselor." The case keeps moving, other evidence which may be important is being offered, and the jury is called upon to look at the photo and also take in everything else. Slides make them do but one thing at a time -- look at the slides while listening to you.

Using slides can also be justified to the trial judge as a "time-saving" procedure. If the witness has several photos to go through, put them in a single photo album. Have the witness identify each photo then offer the album into evidence. Advise the judge that there is only one set and rather than take the time for each juror to go through the album, you have made slides of each picture and they are merely copies of the actual exhibit. Then dim the lights, go through the slides one at a time as the witness describes what is being shown.

Overhead Projector
Most copy machines will allow you to reproduce something onto acetate for use on an overhead projector. This is inexpensive and gives you an opportunity to get a lot of bang for your buck out of various aspects of the trial. I have used this for comparing the testimony of a witness at trial to that which she or he has said on an earlier occasion. Copy both, juxtapose the two, and put them up on the overhead. Show the jury how the two differ. The fact that a witness has blown hot and cold is brought home much more effectively if you show the differences as opposed to just telling about them. During closing, use the witness' plea agreement comparing it to how she or he testified about having no expectations from providing testimony. You might want to put the relevant jury instructions on credibility up if you plan to talk with the jury about a particular witness' testimony. Many court reporters have the ability to download the daily testimony onto disk. You can then put it on your computer, print it out, and copy it to an overhead for use during cross-examination, argument to the court, or closing argument to the jury.

Paint Chips
Paint chips are the sample colors you get from your paint store. Wal-Mart, K-Mart and hardware stores have them, they are easy to obtain, and they are free. The value of the paint chip is found in cross-examination of an occurrence witness. Your client was apprehended driving a blue car. The witness who saw the incident says the bad guy was driving a blue car. On its face, and with nothing more, you have a problem here. By using paint chips you can approach the witness and say: Mrs. Smith, you said the car you saw was blue. Was it closer to this blue or to this blue?

By doing this, and you can do it over and over using various blue colors, you force the witness to select between options and make choices. This may reveal some uncertainty. The witness whose testimony was damaging is softened a bit. Paint chips can also be used with skin tones. For example: Officer Jones, the store clerk told you the robber was a black man. Did you understand the clerk to mean his skin tone was closer to this color or to this color....

When you do the skin tone/paint chip cross-examination of your police officer, have him or her come down in front of the jury with his/her back to the defendant. When you start using the paint chips, nine times out of ten the police officer will peek over his or her shoulder to look at the defendant. This is a wonderful time to say "no cheating now." The point is brought home, powerfully and persuasively, that even the officer isn't sure. Even if the officer does not sneak a peek, you can still say to the officer "now don't peek."

Modern Technology Isn't Always Good
One of the neatest contraptions to come on the market is the laser pointer. If you are in a jurisdiction where you are required to remain by a podium or at counsel table, laser pointers give the judge a basis to prevent you from moving up towards the jury because it can be used from across the room. The wooden pointer, on the other hand, puts you in a position where you must be allowed to move to the diagram, which if strategically placed near the jury, gives you the opportunity to move around in the courtroom.

Non-Evidence Demonstrative Evidence
By defining "demonstrative evidence" as I have suggested, anything you do in the courtroom which is calculated to demonstrate something, even if an exhibit sticker is never affixed, or even if it is not formally offered, is necessarily included. At a very basic level, non-evidence demonstrative evidence even includes how you dress, how you act, react, or respond, and your overall attitude. However, the concept of non-evidence demonstrative evidence goes much farther, as illustrated by the following ideas and pointers.

What's Good For The Goose. . .
In almost every criminal trial, the prosecutor will ask a witness something along these lines:

Mr. Jones, do you see the person who robbed you in the courtroom?

Would you describe for the jury what he is wearing?

Your Honor, could the record reflect that the witness has identified the defendant.

Maybe I'm just getting tired of hearing this line of questioning. However, it occurred to me that "what's good for the goose is good for the gander." Now whenever I have a snitch on the stand who I am cross-examining, I include the following line of questioning:

Sluggo, you met with the district attorney to cut a deal.

That district attorney is in the courtroom.

Describe for the jury what that district attorney is wearing.

Your Honor, I ask that the record reflect that Sluggo has identified prosecutor Jonathan Johanson, this man right here, as being the person who cut the deal with him.

This process is intended to do two things. First, continue to establish Sluggo's "yuck" factor. Second, spread Sluggo's "yuck" factor onto the prosecutor. There is also the additional benefit that doing this is great fun.

Observe Witness Demeanor
Through discovery or otherwise, you will likely know the probable substance of what a witness will say on the stand. However, until you actually get the witness on the stand, you will likely have little idea as to how the witness will testify. By this I mean that witness demeanor is something you will have to analyze quickly. Sometimes you can find a gem and use it demonstratively during your cross. For example, in a sex offense case where you suspect the child is being coached by his or her parent, when the child is testifying, position yourself between the child and the parent/coach. You will find that the child and/or the parent will move to maintain eye contact. Keep repositioning yourself and force them to do this over and over again. The jury will catch on and before long the jury will look like the gallery at a tennis match -- left, right, left, right, turning first to the child and then to the parent/coach. The point is brought home that the child is being coached. However, nowhere in the trial transcript will that which was so persuasive be revealed.

Make Quantity Testimony Visual
We often have witnesses testifying who admit, either on direct or on cross, that they had been drinking at the time they supposedly observed that to which they are now testifying. If the witness says she or he had consumed about a case of beer that night, bring in a case of beer, count out the cans or bottles with the witness in front of the jury. Use the cans demonstratively in closing argument to again bring home the point that the witness, by her or his own admission, had "this much alcohol to drink." The impact is much greater if you show quantities as opposed to just talking about them.

Sometimes there is an issue about the size of something. For example, if your client is charged with breaking into a pinball machine and stealing $125, try and establish through the various witnesses that the defendant, who they say they saw leaving the area, didn't have anything in his hands, had no bulges under his shirt, his pockets or his clothing. Then go to the bank and get $125 worth of quarters. Show the jury the size of that much money. Thump it down on counsel table demonstrating its weight. The bottom line then becomes it could not have been your client or there would have been some evidence of this large, heavy amount of money in his possession.

In some rape cases, your defense will be, in essence, this was not rape it was regret. Establish through the investigating officers that they examined every article of the victim's clothing. Show that the detailed investigation, using microscopes and magnifying glasses, revealed that not a thread was loose, not a button torn free, not a zipper out of line. Use the physician to show that no evidence of trauma was found. Make two boxes to use in closing argument. Label one "Regret" and the other "Rape." With the jury, go through each item of clothing, as well as the other physical evidence. Make sure to point out that each piece of evidence could support the conclusion that sex occurred but that nothing about the evidence supports the conclusion that there was any force used. When you have finished talking with the jurors about each piece of evidence, place each item in the box marked "Regret." You are creating a full box marked "Regret" versus an empty box marked "Rape," thereby showing in a quantitative way that all of the evidence points to innocence. Attorney Sheila Lewis with the New Mexico Public Defender's Office in Santa Fe told me that she used this idea in one of her cases and when she mistakenly started to place an item of evidence in the "Rape" box, one of the jurors corrected her.

Aural Demonstrative Evidence
Getting jurors to listen to things other than mere testimony can also be particularly persuasive. Again using an example provided by Jon Sands. In a sexual assault case, Jon subpoenaed the bed on which the sexual assault had allegedly occurred. His investigation had revealed that many people were at home when this supposedly happened, were each in close proximity to the bed, and the bed had extremely squeaky springs. He introduced the bed into evidence then made his closing argument to the jury while sitting on the bed, bouncing up and down, making the bed squeak loudly. Jon's point was brought home perfectly -- listen to all of the noise that must have been made. Had a sexual assault occurred, the squeaking bed would have been heard by someone else in the house. No one heard it, therefore, it did not happen.

The aural senses of jurors can also be tapped into by using BBs and a metal bowl or galvanized pail. I use this in cases which center on fingerprints. We have all had cases where our client has been identified as the culprit but the identification is somewhat shaky. The strongest evidence against the defendant is that his fingerprint is found at the crime scene. In that the science of fingerprints is based upon similarities, not differences, and the examiners generally quit once they have found anywhere from six to twelve points of identification, there remains some 150 points of identification that are never discussed by the "expert." In closing argument you can ask the jurors to close their eyes and listen.

This case boils down to whether this fingerprint is in fact the defendant's.

But we know so little about the print. All we know is that it is supposedly the same in six places. (Slowly drop six BBs into the pail, one at a time).

But there are some 150 places we know nothing about. (Slowly pour 150 BBs into the pail).

I don't know how you define reasonable doubt, but I'd say you just heard it.

The impact of the differences in the two sounds is very effective. You can use the BBs in the pail in any situation where you have a large quantity versus a small quantity. Experiment with different types of pails. Some make better sounds than others. Although I started using BBs, I now use steel shot pellets which you can get in any sporting goods store. Steel shot is heavier and makes a louder noise when the pellets hit the pail.

Humanize Your Client
Find ways to make jurors realize the defendant is a real person, possessed of life, emotion, and feelings. Especially in death cases, it is imperative to do more than just have witnesses tell about their past experiences with the defendant. When the football coach testifies that the defendant was on his team, find and use a photograph of the defendant in uniform. If he got a trophy, find it and use it at trial. Perhaps the best example of humanizing the defendant comes from Attorney Bryan Stevenson who tells a true story that goes something like this:

In a little town in the South, a man was on trial for his life. The odds were already stacked against him for he was black and the victim was a young white woman. The evidence of guilt was strong and the jury didn't take long to convict him of first-degree murder. At the sentencing hearing the defense called the man's third grade teacher. The teacher was an elderly, white-haired woman, having taught the young man some 20 years before. She took the stand and told the jury how she had been impressed with the defendant when he was her student. She described how he had promise but that she instinctively knew it would never be achieved for he had come from a family that hadn't placed much emphasis on education. She recalled how one day she had taught his class how to make God's eyes -- two sticks crossed over around which yarn of different colors is woven. A few days later, on her way to her car after school, she heard the pitter patter of little feet running after her and felt a tug on her skirt. She turned around and saw it was the young defendant. In his hand was a God's eye -- one he had made for her in his home, at his kitchen table, using his yarn. She described to the jury how this had touched her deeply. Then she reached into her pocketbook, pulled out the God's eye and said "I have kept it with me ever since."

The teacher's testimony by itself was powerful. However, by bringing out the God's eye and showing it to the jury, an even more powerful and persuasive message was conveyed -- the sincerity of this woman became unquestionable. That the young man had goodness somewhere inside him was established. No exhibit sticker was affixed to the God's eye but it was probably the most powerful and persuasive piece of evidence presented by the defense. I'm told that the jury spared this man's life.

Incredibly Persuasive Weapon
Not every technique of demonstrative evidence has been discovered and used, and the techniques that have been used can always be done differently and better. Virtually all evidence can present more than one meaning. Constantly evaluate the evidence in your case to see not only how it might be perceived by the prosecution. If other meanings are helpful to your case, create ways to demonstrate those to the jury. Don't be confined to "the same old - same old," what other attorneys regularly do, or what you comfortably feel will be accepted without controversy. Be bold and creative -- make better use of that incredibly persuasive weapon in your litigation arsenal -- demonstrative evidence.

Readers wishing to contribute information, ideas or articles for this column should contact :

Tanya Greene
NACDL Death Penalty Research Counsel
83 Poplar Street, NW
Atlanta GA 30303
Phone (404) 688-1202
Fax (404) 688-9440

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