Technology in the Courtroom:

Smoke & Mirrors B How to Use and Attack

New Forms of Demonstrative Evidence

National Association of Criminal Defense Attorneys

Innovative Advocacy in the Big Easy:

CSI-Style Defenses, Technology & Criminal Litigation

Steven Kalar, Senior Litigator

Federal Public Defender, Northern District of California

San Francisco, CA

Steven_Kalar@fd.org

AIf you at last must have a word to say,

Say neither, in their way,

>It is a deadly magic and accursed,=

Nor >It is blest,@ but only >It is here.=@

Steven Vincent Benet, John Brown=s Body, quoted in Neil Postman, Technopoly, A Surrender of Culture to Technology (1992).

I. Introduction

A. A Mechanized Debate: Technology versus Oration.

B. What is Atechnology in the courtroom?@ There are too many gadgets available to creative attorneys to describe all technology available in the courtroom during our brief presentation. Broadly construed, the term can include sophisticated computer simulations or animations, real-time testimony transcription, or the use of programs such as Trial Director to recover and display digitized documents.

One of the simplest of the new technologies is the projection of images onto a screen to display to the jury. The basic equipment used to create and project these images is relatively inexpensive and simple to use, making this the technology most realistically available to the defender of indigent clients. Perhaps more importantly, it is a technique that has been embraced by the Department of Justice. Many FBI agents are now trained on how to create PowerPoint slideshows, and graphic artists are rumored to be on the full-time staff of several U.S. Attorney offices.

1. Simple projection of images. The technique used by your fourth-grade science teacher has been the traditional display technology found in the courtroom: a simple overhead projector showing pre-prepared transparencies. The modern analogue of this old standby is a Avisual presenter.@ The most common visual presenter is manufactured by Elmo, and is usually called an AElmo.@

a. Advantages: The Elmo captures an image of almost any object that will fit onto its display plate. An important advantage of the Elmo over traditional projectors is that it is unnecessary to pre-prepare Atransparencies.@ Within limits, any object B a document, an apple, a gun B can be placed on the Elmo and instantly shown to the jury. Notably, even opaque images, like writing on heavy-bond paper, will project well. Another advantage is that it is incredibly simple to use: simply place the object on the screen and hit autofocus. Finally, unlike computer displays sent through projectors like the Proxima, you don=t need to scan in documents or photos to use the Elmo.

b. Disadvantages: Semi-translucent documents such as carbon copies do not project well. In addition, the Elmo still requires counsel to keep track of the physical evidence, which can be overwhelming and slow in a heavy-paper case. The machine has bright side lights used to illuminate the objects that it projects. Unfortunately, these lights often shine directly into the eyes of opposing counsel, the jury, or the judge. Finally, most Elmos require a separate projector to project the image captured--adding to costs and to the hassle of lugging and setting-up gear.

Some Elmos or Elmo-like machines, (including one manufactured by Sony), will capture the image of a tangible object and will accept input from a computer for display of slides and presentations. These machines have come down in price, and can be purchased for under $3,000. See http://www.projectorsuperstore.com/.

The low-end Elmo EV-400F runs around $3,200 and the most sophisticated machines can cost over $10,000. Elmos are the projection gear of choice of the United States Attorney=s Office in the Northern District of California.

2. Projection of computer-generated images: Projection of computer-generated images to the jury is becoming increasingly common in criminal trials. Evidentiary issues surrounding the display of these images are discussed in the following sections. Some of the tools used to create and display these images include:

a. Microsoft PowerPoint: In the Northern District of California we have used Microsoft=s APowerpoint@ software and have been pleased with the ease of use and lack of software glitches. We=ve used Powerpoint in five federal trials, sixteen full mock trials, and over two-dozen classroom presentations and have yet to have a presentation problem caused by the software.

(1) PowerPoint 2002 is available on-line for under $229 ($109 upgrade) and is often included in Microsoft Office Suites. See http://www.microsoft.com/office/powerpoint/howtobuy/default.asp#just.

(2) Microsoft mysteriously suggests that PowerPoint will run on a 486 computer with 8 MB of RAM and 25 MB of hard disk space. In reality, the program will promptly melt the innards of such a machine. We have run PowerPoint on a Pentium 100 with 80 MB of RAM and 50 MB of available hard disk space, but s-l-o-w-l-y. To create a slide show with any graphical images, one should ideally have a Pentium 200 MHZ with at least 32 MB of RAM and 80 MB of hard disk space.

b. Corel Presentations: The software company Corel, distributors of Wordperfect, also distribute presentation software imaginatively named, APresentations.@ Defenders who use Wordperfect probably also have the APresentations@ software on their Corel disks.

(1) The Presentations program has been used by defenders in Pennsylvania and Arizona, who report that they are pleased with the software.

c. Scanners: We have had good luck with Hewlett Packard scanners, which are relatively easy to install and use. The last year has seen a real drop in scanner prices, however, and the entry into the market of other reliable scanner manufacturers. Scanners can be had for as low as $99 B but these bargain basement machines should be avoided. A good color scanner with a free suite of supporting software and decent scanning speed will cost between $200-$350. It is often worth it to buy a scanner that will handle .pdf scanning B useful for complex cases where discovery is handled by Adobe Acrobat.

(1) For a thorough evaluation of new scanners, see http://www.pcworld.com/reviews/article/0,aid,109707,00.asp

d. Projectors: To get that persuasive image you=ve created from your computer monitor to that big white screen you=ve placed in front of the jury, you will need a projector. The projectors discussed will themselves permit limited modification of an image B like highlighting, zooming, or spotlighting. In general, however, they just project an image that is generated by another source; typically a computer or VCR. As with scanners, projector prices have tumbled in the last several years while quality and features have increased. The newest generation of projectors are as light as laptop computers and can project clearly in a well-lit courtroom. For an excellent review of the latest projectors and prices, see http://www.pcworld.com/reviews/article/0,aid,109643,00.asp

(1) Proxima: The Proxima is the projector we used to use at the Federal Defender=s office in the Northern District of California. The Proxima UltraLight LS1 was purchased for $5999, but offers the most features of its generation of projectors. Since we bought and used the Proxima, however, many new projectors B such as the Toshiba line B offer higher lumens (brightness of display), with less weight and lower cost.

(2) Kodak: The DP 1100 is the projector of choice for many FPD offices upgrading to newer models. Much brighter and clearer than the Proxima, it costs around $3500 and weighs 8 pounds with cables.

(3) Toshiba: Our office has just upgraded to a Toshiba data projector that has the ability to capture images as well. These high-lumen new combination projectors can be found for under $3,000. See http://www.projectorsuperstore.com/.

II. Evidentiary Overview: Core differences between use of images during presentation of evidence and arguments; roadmap to substantive vs. demonstrative or illustrative evidence.

A. There is relatively little academic discussion of the evidentiary basis for use of demonstrative or illustrative evidence during trial. See Brain & Broderick, Demonstrative Evidence in the Twenty-First Century: How to Get it Admitted.

B. Fundamental issue: Is demonstrative evidence relevant? If not, how do we get away with using it?

1. General proposition: Admission of evidence is committed to the sound discretion of the court. See, e.g., Rogers v. Raymark Indust., 922 F.2d 1426 (9th Cir. 1991); Daily Herald Co. v. Munroe, 838 F.2d 380, 388 (9th Cir. 1988). The same proposition is true for the admission of expert testimony. See Salem v. United States Lines Co., 370 U.S. 31, 35 (1962).

2. Courts have further held that the introduction of demonstrative evidence is similarly committed to the discretion of the court. Wright v. Redman Mobile Homes, 541 F.2d 1096 (5th Cir. 1976) (recognizing court=s ability to exclude inaccurate demonstrative evidence); Lies v. Farrel Lines, 641 F.2d 765 (9th Cir. 1981) (admission of demonstrative evidence largely lies within discretion of trial court).

III. Get It In: Overcoming Evidentiary Hurdles to the Use of Images by the Defense

A. A ASix-Pack:@ Displaying a photo line-up.

1. Analogous to a fingerprint expert or IRS agent using a chart.

a. ACharts, graphs, and diagrams are admissible if they are fairly accurate, if they are judged to be helpful in understanding the matters at issue and if any deficiencies in them are made known to the factfinder.@ Gregory P. Joseph, Federal Practice, Computer Evidence, Nat=l L.J. Mar. 8, 1999 at B6 (col. 1).

(1) See United States v. Gardner, 611 F.2d 770, 776 (9th Cir. 1980) (holding that use of a chart Acontributed to clarity of presentation@ and was therefore admissible under Fed. R. Evid. 611(a)).

b. The test for admissibility of computer-generated demonstrative evidence remains the same as that for traditional exhibits. See, e.g., People v. McHugh, 124 Misc. 2d 559, 560 (Sup. Ct. Bronx. Co. 1984) (AWhether a diagram is hand-drawn or mechanically drawn by a computer is of no importance.@)

(1) See, e.g. Pierce v. State, 1997 Fla. App. Lexis 4947 at *8, *10 (Fla. App. May 7, 1997) (ATo admit a demonstrative exhibit illustrating an expert=s opinion, such as a computer animation, the proponent must establish the foundation requirements necessary to introduce the expert opinion . . . and the computer animation must be a fair and accurate depiction of that which it purports to be.@)

(2) See, e.g., Byrd v. Guess, 137 F.3d 1126 (9th Cir. 1126) (upholding, in appeal of civil rights case, district court=s admission of a computer animation showing shooting of decedent over plaintiff=s challenge that decedent was portrayed as Aa nutty android . . . like someone who is crazed.@)

(3) See, e.g., People v. Hood, 53 Cal. App. 4th 965, 969 (Cal. Ct. App. 1997) (refusing to require California=s Kelly scientific analysis for admission of computer animations in appeal of murder conviction).

c. Computer-created evidence is not cumulative. See, e.g., Louisiana v. Harvey, 649 So. 2d 783, 789 (La. Ct. App. 1995) (A[T]he [computer] animations were not merely cumulative of Dr. McCormick=s testimony, autopsy report, and autopsy pictures. The animations illustrated Dr. McCormick=s version of how the shooting most likely occurred. Thus, they enhanced the jury=s understanding of the autopsy report and pictures as to the direction of the bullets and the position of the shooter.@)

d. Computer-generated evidence does not unfairly prejudice the opponent merely because it is created by a computer. See Ladeburg v. Ray, 508 N.W. 2d 694, 696 (S. Ct. Iowa 1993) (AThe diagrams were merely mechanical diagrams made by a computer and the expert who prepared them was available for cross-examination. Under these circumstances, the trial court was well within its discretion in admitting the drawings into evidence.@)

2. Procedure: admit the underlying document, Adisplay & pray.@

B. A Testimonial Chart: (A chart reflecting corroboration or inconsistencies in witness= testimony).

1. Potentially very effective. Mock jurors responded positively to it; if simple enough, jurors can copy it into their notes.

2. Problems to anticipate: argumentative, cumulative, repeats the testimony, appropriate for argument and not for cross-examination.

3. Unclear whether, if used at trial, a testimonial chart can be admitted into evidence. See United States v. Cox, 633 F.2d 871, 874 (9th Cir. 1980) (stating admission of illustrative evidence may be reversible error, unless defendant can cross-examine witness and a limiting instruction is given.)

IV. Keep It Out: Erecting Evidentiary Hurdles to the Use of Images by the Government: The use of technology to create and display evidence in the courtroom is a relatively recent phenomenon, and evidence law has yet to catch up with this new tool. In this unsettled field there is no shortage of evidentiary questions to lob at an AUSA who--unlike youBhas unlimited access to the latest gadgets and has all the support staff needed to use the gear in court.

1. For a particularly thorough discussion of the limitations and uses of summary charts as demonstrative evidence, see State v. Lord, 822 P.2d 177, 193-97 (S. Ct. Wa. 1991), as changed (Feb. 7, 1992) (en banc) (discussing use of charts summarizing extensive and complex scientific evidence in a murder case, and ultimately holding that the state=s use of these charts did not prejudice the defendant).

A. Example One--The Six-pack Photo Line-up. Say ANo Way@ to Display & Pray: The previous section discussed admitting a tangible piece of evidence, like a photograph, then recommended the Adisplay and pray@ approach B go about projecting the image and pray that your opponent has no evidentiary objections.

When your demonstrative evidence is a roll of butcher paper and a magic marker, however, and you are dreading the bells and whistles cooked-up by the government=s graphic artists, make sure the AUSA=s prayers go unanswered. Share with the judge the following evidentiary objections and let the AUSA articulate the answers that have thus far eluded the scholars.

1. Objection: The image that the government intends to display does not fairly and accurately reflect the testimony of the witness. As discussed in the preceding section, the foundation for use of a projected image displayed as demonstrative evidence is the same as that required for an old-fashioned diagram or map drawn on a piece of butcher paper:

(1) the testimony on the issues depicted in the image must be admissible under the substantive rules of evidence;

(2) the witness must be familiar with the image;

(3) the animation must fairly and accurately reflect the testimony on those issues; and

(4) the animation must aid the trier of fact in understanding or evaluating the witness= testimony.

See, e.g. Brain & Broderick, Demonstrative Evidence in the Twenty-First Century: How to Get it Admitted, Winning Trial Practice in the 21st Century at 369 (John C. Tredennick, ed.). Projection of an image can create subtle changes in its appearance. Photos projected through an Elmo, for example, may change in shade or coloring. An objection may therefore lie that a computer demonstration does not fairly and accurately the testimony of a witness, or the tangible, Areal@ evidence admitted.

a. Query: Does the process or system used to create the projected image create an accurate result? See Federal Rule of Evidence 901 (AThe requirement of authentication or identification as a condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the matter in question is what the proponent claims . . . [such as] Evidence describing a process or system used to produce a result and showing that the process or system produces an accurate result.@) Fed. R. Evid. 901(a), (b)(9).

(1) See also Fed. R. Evid. 901 Advis. Comm. Notes, 1972 Rules, Ex. 9 (AExample (9) is designed for situations in which the accuracy of a result is dependent upon a process or system which produces it. X rays afford a familiar instance. Among more recent developments is the computer, as to which see Transport Indemnity Co. v. Seib, 178 Neb. 253 . . . .@)

2. Objection: The testimony that the government will elicit with the projected image has been asked and answered. Or, Objection: The display of the projected image is cumulative and will cause undue delay. One advantage of a projected image is that it does naturally produce repetition of important testimony. The witness first verifies that the tangible, substantive evidence is fair, accurate, and would aid the jury in understanding her testimony--and then an image of that piece of tangible evidence is projected, and an abbreviated routine of identical questions are asked again.

This strategic advantage is an evidentiary vulnerability under Federal Rule of Evidence 403. As the witness discusses the image now displayed on a huge screen before the jury, he or she necessarily is covering ground already trod in laying the foundation for the Athing@ itself.

The Acumulative@ or Aundue delay@ argument becomes most effective when employed against counsel who has not thoroughly considered the dual foundations for the substantive evidence and for the demonstrative image. Their fumble or repetition becomes boring, and boredom is the essence of many successful 403 objections.

To set the cumulative trap, do not permit the government to cut evidentiary corners and simply project every piece of evidence admitted. When the direct examination begins to drag as the AUSA plods through foundational requirements, the 403 objection becomes ripe.

3. Objection: The unfair prejudicial value of the projected image that the government intends to display substantially outweighs any of its probative qualities. Certain facts have become such a part of American culture that they cannot be disputed. One such fact is that we are an image-driven society that receives much of its information from television. Another is that many jurors will find an image that is displayed of greater persuasive power than, for example, a photograph or drawing on paper.

These facts are, of course, what drives the use of projection technology in the courtroom. But while projection of an image may enhance its persuasiveness, it also amplifies its prejudicial effect. Thus, it is reasonable to argue that a huge displayed image of hundreds of marijuana plants is no more probative than a 3"x 5" photo that can be passed among the jurors. The projected image, however, certainly has a greater prejudicial impact than the snapshot.

Again, analogies to the precursors of displayed technologies may be useful. Courts have long been suspect of the government=s attempts to drive home damaging evidence by blowing up images onto huge posterboards. Pictures projected from a computer or by an Elmo are even larger and have a greater prejudicial impact than poster boards, and this type of demonstrative evidence taps into a juror=s overvaluation of televised images.

a. See, e.g., Lloyd v. United States, 226 F.2d 9, 17 (5th Cir. 1955) (AThe use of [summary computation charts] . . . however, has inherent dangers to the accused, for a jury is often unfairly and unduly impressed by the apparent authenticity of the government witness= chart computations, as such, rather than by the truth and accuracy of the underlying facts and figures supporting them. A trial court is charged with grave responsibilities in such instance to insure that an accused is not unjustly convicted in a >trial by charts,= however impressive the array produced. Ordinarily, it would be the better practice, now so carefully observed in this instance, to require that the source of the facts and figures upon which such a chart is based be fully disclosed before its admission into evidence.@)

4. Objection: Emphases added to the image that the government intends to project makes the demonstrative evidence argumentative. It is dangerously easy in PowerPoint to add emphasis to an image through the use of animated arrows, circles, or different colored backgrounds. To a lesser extent, these accents can be added to an image captured by an Elmo through use of a zoom feature that focuses on a particular word or phrase. In the photo-array used in this presentation, for example, arrows and circles marked the subject of what we felt was a suggestive line-up.

If these altered images are displayed during cross-examination, an objection lies that the image is no longer demonstrative evidence, but argument. Counsel should be free to highlight a phrase or zoom-in upon facial characteristics during closing argument, but during direct examination these gimmicks can be characterized as testimony by the attorney.

a. Demonstrative becoming tangible evidence. Consider the challenge that the jury will be unable to distinguish inherently argumentative evidence from tangible evidence. See, e.g., Steele v. United States, 222 F.2d 628, 630 (5th Cir. 1955) (A[Regarding] the sending of [computations charts] to the jury at the request of the district attorney after the jury had retired and while it was in the jury room considering its verdict, we agree with appellant that the jury could scarcely consider this act of the court other than as investing these exhibits with an air of credibility as demonstrative evidence over and above, and independent of, the evidence which they purported to summarize and embody, with the undoubted effect of completely erasing from the minds of the jury, as to the so-called exhibits, any therapeutic effect the charge to the jury that the exhibits were not original evidence and were not binding upon the jury, was intended or calculated to have.@); but see United States v. Krasn, 614 F.2d 1229 (9th Cir. 1980) (AWe agree that the charts should not have been admitted into evidence, but we also hold, as we did in [United States v.] Abbas, [504 F.2d 123 (9th Cir. 1974), that the admission of the charts was not reversible error. Krasn had a full opportunity the challenge the facts, figures, calculations, computations and methods upon which the charts were based. . . . Moreover, the court gave a limiting instruction to the jury cautioning them not to give undue weight to the charts since they were not evidence or proof of any facts themselves.@)

b. Preview the government=s case:You should be allowed to view every piece of demonstrative evidence before it is shown to the jury, to permit you to object to its content or form. See United States v. Abbas, 504 F.2d 123, 124 (9th Cir. 1974) (A[E]ven in circumstances where the use of the chart is not improper, Bartone held that >it is necessary that the trial judge carefully examine this type of evidence and supporting exhibits, out of hearing of the jury, in order to determine that everything contained in the summary is supported by the proof.=@) (quoting United States v. Bartone, 400 F.2d 459 (6th Cir. 1968)).

The government may try to meet this requirement by handing you a set of black-and-white print-outs of the slideshow that will be shown to the jury. Do not accept this alternative. A hard-copy print-out of PowerPoint slides will not completely portray the animations that the program will execute as the slides are displayed.

You should therefore request to see the entire slideshow on the government=s computer before it is shown to the jury. If the court will not permit you this preview, ask the government to warrant that there are no animations or colors in the animations that are not captured in the hard-copy print-outs. Because AUSA=s rarely actually prepare the slides, this will prompt a quick and confused huddle between the prosecutor and the FBI agent and graphic artist--further delay caused by these new gadgets, and another basis for your Federal Rule of Evidence 403 challenge.

(1) Beware: If you are the only counsel using a PowerPoint presentation, anticipate that the court will force you to disclose your slides before a cross-examination or opening or closing argument. One way to avoid playing the actual program is to print-out the slides on a color printer, and select, Awith animations@ when printing. You can then assure the judge that the hard-copy that you are providing to the government fairly represents the demonstrative evidence that you plan to use.

5. Objection: The image that the government intends to project contains inadmissible hearsay. In the photo array used in this example, computerized animations emphasized answers given by a witness during cross-examination. As discussed in the preceding section, an opponent facing the use of this technology could object that the emphases were argumentative.

Another objection is that the emphases are hearsay. The circles or checkmarks or words written over a photo are:

(1) Out-of-court statements [prepared out of court by the technician who created the display];

(2) not made by the declarant while testifying at the trial or hearing [because it was not the declarant who originally drew the circle or typed-in the comparative words];

(3) offered to prove the truth of the matter asserted--in this case, that the array was suggestive.

See Fed. R. Evid. 801(c). On its own, this may appear to be a hyper-technical objection, but in conjunction with an Aargumentative@ challenge it may prevent use of the image.

6. Objection: It is improper to allow demonstrative evidence into the jury room. With the assistance of computers it is increasingly easy to create professional-looking summary or illustrative charts, some of which the government may attempt to admit into evidence and send back into the jury room. Do not permit it. Demonstrative evidence is a testimonial aid, not substantive evidence of an offense. See United States v. Abbas, 504 F.2d 123, 125 (9th Cir. 1974) (AWe would conclude that it would have been better practice for the trial court to have allowed the charts to be marked for identification and used by the foundation witness as a testimonial aid, or, since they purported to represent summarized testimony, to be utilized by counsel in argument as visual summary of complex facts. In either event, the charts should not have gone to the jury for use during their deliberations. The dangers are apparent. A signed or handwritten statement of a defendant presents an apt analogy. It would be considered physical evidence and admitted as an exhibit; an unsigned typewritten statement of such defendant is itself hearsay. It may be read to the jury under certain circumstances; the conversation it represents may be repeated by percipient witnesses; but the unsigned typewritten statement itself would not be received as evidence. The danger inherent in such evidence is that it would act as a speaking, continuous witness throughout the jury=s deliberation of certain specific--albeit, significant--testimony to the exclusion of the evidence taken at trial which must be viewed in its entirety.@)

B. Example Two--The Handwriting Exemplar. When in Doubt, Daubert. The challenges of admitting or fighting the use of full-scale, sophisticated computer animations or simulations is beyond the scope of this presentation. If you encounter such use of technology or plan on using it, we recommend the Brain & Broderick article, Demonstrative Evidence in the Twenty-First Century: How to Get It Admitted. (Enclosed in your program materials).

Basic, rough animations or the use of computers to create moving charts are much more likely to be encountered in criminal trials involving indigent clients. In this presentation, we have created for illustration a chart that could be used by a handwriting expert to compare known and suspect writing.

The biggest fear of technology advocates has long been that courts will subject computer demonstrative evidence to the same strict scrutiny applied to other types of scientific evidence, such as DNA sampling. See, e.g., Mario Borelli, Note: The Computer As Advocate: An Approach to Computer-Generated Displays in the Courtroom, 71 Ind. L.J. 439 (1996) (describing how to avoid challenges under the Frye and Daubert tests).

When a visual presenter or projector is simply used to display an image to a screen, a Daubert challenge is certainly not appropriate. The analogy would be a scientific challenge to the photocopy shop that enlarged a photo or diagram.

If, however, a computer is being used to store and compare evidence the advocate of the image could be forced to undergo Daubert scrutiny. For example, in this presentation we=ve demonstrated how a seemingly straightforward chart could contain images that have been manipulated. The United States Supreme Court has recently bolstered this possible attack, in its decision in Kumho Tire Co., Ltd. v. Carmichael, No. 97-1709, 1999 WL 152455 (U.S. Mar. 23, 1999).

1. Kumho Tire and AExpert@ Testimony: In Kumho Tire, the Supreme Court considered a tire Aexpert@ offered by the plaintiffs in a civil action. Id. at *7. Although this was a non-scientific expert, the district court nonetheless excluded his testimony by employing the Agatekeeping@ analysis found in Daubert v. Merrill Dow Pharmaceuticals, 509 U.S. 579 (1993). The Court upheld the approach of the district court and explained the goal of the gatekeeping approach: AIt is to make certain that an expert, whether basing testimony upon professional studies or personal experience, employs in the courtroom the same level of intellectual rigor that characterizes the practice of an expert in the relevant field.@ Kumho Tire, 1999 WL 152455 at *10.

When technology goes beyond simply displaying an image, it is possible to argue that the process that went into the display should be subject to a Daubert analysis under Kumho Tire. For example, can the Atheory or technique@ of the presentation be tested? Id. at *9 (quoting Daubert, 509 U.S. at 592-94). Has the importation of images into a computer and their display Abeen subjected to peer review and publication?@ Id. Is there a high Aknown or potential rate of error,@ and are there Astandards controlling the technique=s operation?@ Id. Handwriting, fingerprint, and other forensic experts who use computers in their analyses are entering new territory; in general, Daubert disfavors pioneers.

a. Non-Daubert cross: Kumho also stands for the proposition that the Daubert factors are not exclusive. Defense counsel should therefore bring other attacks on the process used to make the display. For example, when faced with the handwriting chart used in this presentation the defense should be entitled to cross-examine each person who contributed to the final display used by the handwriting expert. Who scanned the original handwriting exemplars into the computer? What program was used to cut and paste the letters eventually displayed? Who created the slide or image that contained the comparison of the letters? Did the handwriting expert personally compare the digitized letters to the Ahard-copy@ letters written in ink on paper?

(1) See, e.g., People v. Hood, 53 Cal. App. 4th 965, 970 n.4 (Cal. Ct. App. 1997) (upholding admission of computer animations in appeal of murder conviction, but noting that A[o]f course, the experts who supplied the information all testified at trial and were extensively cross-examined by the defense and certain portions of their testimony were additionally challenged by contrary evidence offered by [the defendant].@

(2) See also Cornell v. Georgia, 463 S.E. 2d 702, 703 (S. Ct. Ga. 1995) (upholding trial court=s exclusion of computer reenactment, noting that A[w]hether the computer simulation is a fair and accurate representation of the scene sought to be depicted addresses itself to the discretion of the trial judge which will not be controlled unless abused.@) (internal quotations and citations omitted).

b. The response of the technology advocate: Evidentiary scholars who support the use of technology criticize the application of the stringent Daubert or Frye scientific analysis to the routine use of computers to project images or run simulations and animations. See, e.g., Brain & Broderick, Demonstrative Evidence in the Twenty-First Century, supra. They argue that, while an opponent to the presentation may be entitled to cross-examine those who prepared the images, it is erroneous to subject the programs and process itself to the Agatekeeping@ scrutiny. See, e.g., Hood, 53 Cal. App. 4th at 968 (refusing to apply California=s Kelly scientific test to computer animations in a murder case, viewing them a Aa mechanized version of what a human animator does when he or she draws each frame of activity, based upon information supplied by experts, then fans through the frames, making the characters drawn appear to be moving.@)

That analysis may be intellectually correct, entirely logical, and may someday make its way into the Federal Rules of Evidence. Until it does, however, one effective strategy to prevent the use of technology in the courtroom is to oppose its characterization as demonstrative evidence, and push for a Daubert analysis of the processes and procedures used to create a display.

V. Smoke and Mirrors: Lessons Learned. At the time of this presentation, we have used projection technology in two federal trials and have observed its use in four mock trials. We have polled juries about the technology in five of these six trials, and have gleaned some general truisms about what works and what does not.

A. The Best Slide is a Blank Slide: One of the earliest lessons learned was how easy it is to overuse the technology. In closing arguments, for example, it is a mistake to have a slide or image before the jury at every instant. Doing so lessons the impact of an image, distracts the jury, and destroys the personal contact between counsel and jurors.

We=ve found that the single most effective slide is the blank slide built into a presentation, that follows an important image. When the screen darkens the jury will naturally return their attention to counsel, critical image still fresh in their minds. Of equal value, after displaying an image you know that every juror has been exposed to the point at least once and will be with you as you discuss it.

Most importantly, always end a presentation with a blank screen. You need to re-establish human contact with the jurors as you make your final point, and ending on a slide or image will leave them distracted.

B. Less is More: A crowded slide immediately destroys your control over the jury. A juror cannot struggle to read all of the detailed text, subpoints, or lengthy jury instruction on a complicated slide and listen at the same time. As a result, the juror will ignore counsel and look at the slide.

1. Jury instructions: The danger of overwhelming a juror is particularly strong with jury instructions. Resist the temptation to display all of the jury instructions--or even an entire single instruction. It will bore the jury and dilute your point.

It may be a delicate process to crop a portion of an instruction for display without drawing objections from opposing counsel, but it is a process worth undertaking. Two key lines from a reasonable doubt instruction are compelling, the entire instruction itself, dull.

C. Comparative Charts: Jurors have consistently praised the use of simple comparative charts that contrast the testimony of two witnesses, or compare the statements of a witness as they evolves over time. These charts are easy to create and use during closing, although you should anticipate objections to their use during cross-examination.

D. Animations: Animated text, arrows, bullets, and circles are like bitters used in cooking: a dash adds flavor, more ruins the dish, and no one misses it if it isn=t there. Few jurors have complemented the use of animated text or arrows in presentations. Many jurors have complained that it was patronizing or distracting. Moreover, animated arrows and text run the danger of drawing objections from the government and ruining the entire presentation.

Given the risks and the cool reception for animated emphases, it is better to avoid them altogether and stick to a laser pointer.

E. Bullets and Names: Jurors have responded best to three or fewer phrases laid out in bullet points, or to a simple list of the names of the players in the case. One student in a mock trial effectively used a simple question displayed on the screen as a starting point for each of his subjects in a closing.

1. Some mock jurors suggested a list of characters displayed during opening argument, to help orientate the jury before the government=s case in chief begins.

F. Neat, or not at all: While technology in the courtroom seems like a brave new world for defense attorneys, the jurors we=ve spoken with seem to expect it. Every juror has seen animated, computerized displays used by a weather person or sportscaster, and many have seen PowerPoint used in business presentations.

Accordingly, jurors bring in fairly high standards for use of technology in the courtroom. If you intend to display a scanned-in picture, make sure that the picture itself is sharp and the scan is crisp. Use one type of font consistently for all slides, and make sure the font size is large enough for the jury to read. (Generally, 16 point or larger, although 36 to 44 point is best).

Fortunately, it is simple to create a professional-looking presentation in PowerPoint or Presentations. Take the time to do so, or don=t use the technology: the jury will hold a sloppy presentation against you.

1. Presentation tips: A good source of tips for effective presentations using projection technology can be found at: http://www.bitbetter.com/powertips.htm