Admissibility

Using Demonstrative Evidence in Opening Statements

Your Honor, if I can tell the jury about this evidence, and it’s voluminous, why can’t I show it to them?

by David Adams

Texas Rules of Evidence – Effective March 1, 1998:

RULE 1006. SUMMARIES… The contents of voluminous writings, recordings, or photographs, otherwise admissible, which cannot conveniently be examined in court, may be presented in the form of a chart, summary, or calculation. The originals, or duplicates, shall be made available for examination or copying, or both, by other parties at a reasonable time and place. The court may order that they be produced in court.

Since 1986, I’ve been designing demonstrative evidence for use in civil trials in Texas. During my tenure at Litigation Sciences, Inc. in the early 90’s, I was privy to the results of research data involving thousands of surrogate jurors. One of the key discoveries of this research, not surprisingly, was the significance of opening statements in the unconscious formation of psychological anchors within the juror’s minds.

During extensive “mock trials”, some of which were multi-day studies, a brief questionnaire was given to the surrogate jurors immediately after the plaintiff opening. A second questionnaire was distributed immediately after the defense opening. A fill-in-the blank was among the questions asked. It read: “In you own words, what’s the case about?” When the answers to these open-ended questions were compared to the post-deliberation verdict forms, there was a high degree of correlation between the opening statement and the juror response.

That study demonstrates how jurors develop a view of the case very early on that subsequently becomes a mental filter for sorting the facts presented to them. In other words, jurors unconsciously develop biases during opening statements that will color their opinions throughout the trial. This filtering process serves to amplify facts that are congruent with the view that the juror already held, while downplaying facts and evidence that are contrary to that view. Once indoctrinated, jurors “see what they want to see and hear what they want to hear.”

Even though the judge will instruct the jurors that opening statements are not evidence, the jurors, not surprisingly, are unable to make that distinction and quickly start digesting the attorney’s narratives about the case. Additionally, as opening statements are made at the beginning of the trial, the jurors are hearing them when they are both mentally alert and have a heightened curiosity about the case.

Every case, no matter how complex, will get “boiled down” in the jurors’ minds to a handful of key case facts or psychological anchors. If you’ve ever conducted post-trial juror interviews in your own cases, you’ve this phenomenon in action. Jurors will make comments referring to the specific documents or witnesses that they found most compelling, yet they define “compelling” during opening statements.

As ninety percent of the data we have in our brains comes in through our eyes, it’s easy to see how important it is to supplement your opening statements with some sort of visual trial exhibit. In my experience with hundreds of cases, I’ve always advised my clients to have a demonstrative, often times a timeline chronology board, prepared for use in opening statements. This board serves as a road map of what is to come, becoming ingrained in a juror’s mind even more than the words of an attorney.

“Will the judge let me use the demonstrative evidence in my opening statements?“

This is the most common question of all, and here are two proven strategies that you can employ to gain the strategic advantage that opening statements provide.

1. JUDGE’S DISCRETION

Judges have lots of discretion and wildly varying degrees of evidentiary knowledge. For instance, I’ve seen some judges let both sides use all sorts of evidence in openings. Oftentimes, a judge responds to objections to this use of evidence with, “I’m going to let you both try your case. Proceed.” So, you might as well make an effort. After all, “nothing ventured, nothing gained.” You can always exchange small versions of your demonstratives with the other side during motions in limine and explain to the judge which pieces you intend to use in opening, the argument, and ruling. If the judge rules against you, it won’t be in front of the jury anyway.

On rare occasions, I’ve seen lawyers use compelling video deposition clips in opening statements, creating a powerful effect. I worked on one case where the judge ruled during motions in limine that a timeline could be used, but insisted that the colors and the icons had to be removed, which we accomplished in a timely fashion. He was of the opinion that the colors and icons made the demonstrative “inflammatory.” However, once the board was revised, it was used with all the original language intact.

2. TEXAS RULES OF CIVIL EVIDENCE, RULE 1006: SUMMARIES…

The contents of voluminous writings, recordings, or photographs, otherwise admissible, which cannot conveniently be examined in court, may be presented in the form of a chart, summary, or calculation. The originals, or duplicates, shall be made available for examination or copying, or both, by other parties at a reasonable time and place. The court may order that they be produced in court.

If you’ve got a powerful demonstrative trial exhibit, you’re very likely to draw an objection from opposing counsel. If the trial exhibit is properly prepared, (for instance, if it quotes documents and sworn testimony verbatim) one could argue that it’s a summary of voluminous records and is therefore admissible as a demonstrative aid. One successful response to objections, which I have personally witnessed, is, “Your Honor, I’m going to talk to the jury about each piece of evidence that’s on this demonstrative. If I can talk about the evidence, why can’t I show it?” The judge shrugged his shoulders and looked at the lawyer making the objection. Since he didn’t have a response, the judge let the demonstrative be used.

Another rule states that you can include items from evidence that have been pre-admitted or agreed upon by opposing counsel. This also means that the opposing counsel can’t complain about your opening demonstrative aids.

Again, “nothing ventured, nothing gained.” Good luck in trial!