Keeping the Attention of the Video Generation- Innovative Ways to Communicate

By: Janet Ward Black and Rachel Scott Decker

Trying a case today requires preparing for a hostile audience. The jurors do not want to be there; most do not consider jury service an honor. When called as jurors, they are asked to interrupt their busy lives to address some dispute between people they do not know.

When jurors are at home, they receive information in small, visual increments such as the local news, CNN, MTV, and the pie charts of USA Today. They are used to receiving new information visually and quickly. The under-40 set is particularly used to fast, “in your face” visual displays from which they can remove themselves by changing the channel with the remote control or hitting the escape key.

The only oral presentations without visuals that are heard on a regular basis by jurors are often the twenty minute or less sermons heard on Sunday morning. Even then, napping can be a problem.

We ask juries to leave their lives, their families, and their jobs to sit on average six hours per day listening to lawyers talk about things which are often uninteresting and unimportant to the jurors.

Eighty percent of people learn better visually than orally. Many lawyers, however, insist on talking the ears off of the jurors. As Churchill said, we lawyers are often “consumed with the exuberance of our own verbosity.”

There is no doubt that visual evidence is recalled longer than oral testimony. The quintessential example is the “if the glove doesn’t fit” of the O.J. Simpson trial. Hundreds of thousands of dollars were spent on experts, but what is emblazoned on the American psyche is the picture of O.J. trying to put on gloves that were too tight.

Good trial presentation must be like a good television drama. Jurors expect visual evidence and believe visual evidence. To succeed, lawyers must “tell their story” visually.

Just because you should present a visual story to the jury does not mean you should break the bank. For example, many diagrams and other visuals can be downloaded off the internet. Other visuals can be created through computer programs such as PowerPoint.

Medical visuals can be particularly important in explaining to the jury the nature of an injury. The internet provides a vast resource of medical information, which includes visuals of the body that can be printed, blown up, and used in testimony. One such website that includes these diagrams is www.webmd.com. Additionally, doing a Google search of the relevant condition will often get you many diagrams of the issue at hand. Alternatively, the treating physician or expert sometimes has models in his or her office that he or she is willing and able to use in testimony.

In addition to the internet, many common computer programs can be used to make effective trial exhibits. PowerPoint is one such option. The tools within PowerPoint allow you to create exhibits that effectively and visually summarize important factual information. Once the exhibit is created, you can save it to disc, take it to your local Kinkos and have the image blown up and placed on boards for use at trial. Similar things can be done with medical records and the like. Highlight relevant portions carefully, and enlarge the desired exhibit at the local copy store.

Below are some of some legal issues involving demonstrative evidence.

Videotape Evidence

In North Carolina, videotapes may be introduced at trial as substantive or illustrative evidence. North Carolina General Statute Section 8-97 provides:

Any party may introduce a photograph, video tape, motion picture, X-ray or other photographic representation as substantive evidence upon laying a proper foundation and meeting other applicable evidentiary requirements. This section does not prohibit a party from introducing a photograph or other pictorial representation solely for the purpose of illustration the testimony of a witness.

N.C.G.S. § 8-97.

Section 8-97 explicitly provides that a videotape is admissible as substantive evidence where a proper foundation is laid. The videotape must be properly authenticated by a witness. See Albrecht v. Dorsett, 131 N.C. App. 502, 508 S.E.2d 319 (1998). A proper foundation for admission as substantive or illustrative evidence is laid where testimony reveals (1) the videotape fairly and accurately illustrates the events filmed (illustrative purposes); (2) the checking and operation of the video camera and the chain of evidence concerning the videotape; (3) the videotape is the same as the witness inspected immediately after filming (substantive purposes); or (4) the videotape had not been edited and the videotape fairly and accurately recorded the actual appearance of the area videotaped. North Carolina v. Mewborn, 131 N.C. App. 495, 507 S.E.2d 906 (1998); State v. Cannon, 92 N.C. App. 246, 374 S.E.2d 604 (1988), rev’d on other grounds, 326 N.C. 37, 387 S.E.2d 450 (1990).

In Mewborn, the court of appeals discussed the foundation necessary to introduce a videotape into evidence as substantive evidence. There, defendant was charged with two armed robberies, the second of which was recorded on the store video camera. The videotape was played to the jury, which found defendant guilty of both robberies. Defendant argued that the state had not laid a proper foundation for substantive admission of the videotape, arguing that the chain of custody was broken when the district attorney viewed the tape the morning of trial. Rejecting this argument, the court of appeals concentrated on the testimony of the state’s authenticating witnesses. These witnesses testified that they watched the tape at the store immediately after the robbery occurred, that they followed standard procedures to safeguard the videotape as evidence, and that they viewed the tape in court and it was the same as it was on the day of the robbery. The court of appeals indicated that this testimony cast no doubt on the authenticity of the tape and the trial court properly admitted the tape as substantive evidence. See also State v. Prentice, 170 N.C. App. 593, 613 S.E.2d 498, rev. denied, 360 N.C. 74, 622 S.E.2d 628 (2005) (finding proper foundation made for admissibility of video of sex crime taken by defendant and locked in defendant’s safe until seized by authorities); State v. Ayscue, 169 N.C. App. 548, 610 S.E.2d 389 (2005) (finding proper foundation laid to admit video of crime as substantive evidence); Cannon (where the court of appeals found no error in the admission of a videotape of a robbery as substantive evidence where testimony revealed the camera worked at the time of robbery and thereafter and testimony established a chain of custody).

Videotapes are also admissible as illustrative evidence. N.C.G.S. § 8-97. The same rules that govern the admissibility of photographs for illustrative purposes govern the admissibility of videotapes for illustrative purposes. State v. Blakeney, 352 N.C. 287, 531 S.E.2d 799 (2000); see also State v. House, 340 N.C. 187, 456 S.E.2d 292 (1995); State v. Buff, 170 N.C. App. 374, 612 S.E.2d 366 (2005).

Generally, a photograph is admissible for illustrative purposes if it fairly and accurately depicts what was photographed. North Carolina v. Mewborn, 131 N.C. App. 495, 507 S.E.2d 906 (1998). In City of Statesville v. Cloaninger, 106 N.C. App. 10, 415 S.E.2d 111, rev. denied, 331 N.C. 553, 418 S.E.2d 664 (1992), the court of appeals held that a proper foundation had been laid for the admission of a videotape as illustrative evidence. There, the city brought proceedings to condemn the defendants’ land, desiring an easement for an airport. The defendants introduced into evidence a videotape of a plane flying over their land. The defendants testified that they were present when the videotape was made, that the noise on the tape was representative of the noise on the day of the recording, and that the tape had not been altered or distorted in anyway since its recording. The trial court also found as fact that the operator of the camera was familiar with its use and the recording accurately recorded the sounds of the airplane. The court of appeals found no error in the admission of the videotape as illustrative evidence where this foundation had been laid.

There are numerous general rules governing admissibility of photographic evidence for illustrative purposes in a criminal case. For example, gory photographs used for illustrative purposes are generally admissible as long as the photographs are not excessive or repetitious or used solely to inflame the jury. Blakeney. Such photographs can also be admitted to show the condition of the body and its location when found. Id. As indicated above, these same rules apply to the use of videotapes in criminal matters.

In Blakeney, the North Carolina Supreme Court held that the trial court did not abuse its discretion in admitting into evidence a videotape of the crime scene that showed the condition and location of the victim’s body at the crime scene. The supreme court noted that the trial court had excluded portions of the videotape it found repetitious and nonprobative. As such, there was no error in the admission of the state’s videotape.

The fact that the videotape is a replay of television news footage does not alter the evidentiary rules. In State v. Lewis, 58 N.C. App. 348, 293 S.E.2d 638 (1982), rev. denied, 311 N.C. 766, 321 S.E.2d 152 (1984), the court of appeals found no error in the trial court which allowed the State to play television news footage of the crime scene. There, defendant was charged as an accessory after the fact to grave desecration. The sheriff authenticated the television news footage by testifying the footage accurately portrayed what the sheriff had found at the cemetery. The court of appeals noted that the rules for the admissibility of motion pictures and photographs are the same, and the aforementioned testimony was sufficient to authenticate the news tape for illustrative purposes. See also State v. Gaither, 161 N.C. App. 96, 587 S.E.2d 505 (2003), rev. denied, 368 N.C. 157, 593 S.E.2d 83 (2004).

When admitting television news footage, an additional question arises regarding the spoken words that accompany the footage. In State v. Burgess, 134 N.C. App. 632, 518 S.E.2d 209 (1999), the court of appeals found that the trial judge’s limiting instruction to disregard the news reporter’s commentary was sufficient to address any prejudices raised by such commentary. There, the defendant was convicted of felony child abuse and second degree murder. Her 3 week old child died, and at first, defendant reported to the physicians and police that the child had fallen off of her chest while she slept. Evidence began to emerge suggesting that the child’s injuries were a result of “shaken baby syndrome”, and defendant changed her story to suggest that her boyfriend shook the baby. The news footage showed defendant making statements about the victim having fallen and included commentary by the reporter suggesting that the reporter did not believe defendant’s fall explanation. The court found that the limiting instruction to disregard the commentary provided sufficient protection to defendant.

Additionally, edited video is admissible in some instances under Rule 1006 of the North Carolina Rules of Civil Procedure, which deals with summaries of voluminous records. Broadbent v. Allison, ___ N.C. App. ___, 626 S.E.2d 758 (2006). Rule 1006 is discussed more thoroughly below. In Broadbent, the court of appeals held that the trial court did not err in admitting edited video tape depicting several airplanes flying over plaintiffs’ property, en route to or from defendants’ adjacent airport. The video tape lasted six minutes but the flights actually occurred over several months. The court of appeals found that the video was time and date stamped indicating that the six minutes was a summary of a longer period. Because the jury knew the tape was an edited summary and Rule 1006 permits such summaries of voluminous exhibits, there was no error in admitting the evidence.

Probably the most effective uses of videotapes are reenactment and day in the life videos. These types of videotapes are admissible as illustrative evidence.

In State v. Billings, 104 N.C. App. 362, 409 S.E.2d 707 (1991), appeal dismissed, 332 N.C. 347, ___ S.E.2d ___ (1992), the court of appeals affirmed the trial court’s admission of a crime reenactment to illustrate the testimony of witnesses. There, defendant was tried for rape, robbery, and other counts. A witness, Davis, assisted police in creating two videotapes that illustrated the route she took as she drove by defendant. The videotapes showed the witness Davis driving very slowly by defendant and speaking to him. The actual car defendant was driving on the day of the crimes was used, and the witness Davis directed police where to place it in the street. Further, the witness Davis instructed police about the route she drove that was depicted in the videotape. Based on the forgoing, the court of appeals found no error in the admission of the tapes by the trial court.

The court of appeals addressed the admissibility of a day in the life video in Campbell v. Pitt County Mem. Hosp., Inc., 84 N.C. App. 314, 352 S.E.2d 902, aff’d, 321 N.C. 260, 362 S.E.2d 273 (1987), overruled on other grounds by Johnson v. Ruark Obstetrics & Gynecology Assocs., P.A., 327 N.C. 283, 395 S.E.2d 85 (1990). In that case, the plaintiffs brought a medical malpractice action against defendant alleging defendant’s negligence at the time of the minor plaintiff’s birth resulted in her cerebral palsy. The plaintiffs introduced a day in the life video. The mother of the minor testified that the video accurately illustrated the minor’s activities, capabilities, and deficiencies. The videotape was introduced to illustrate the mother’s testimony. The court of appeals found no error in the introduction of the tape as illustrative evidence.

In addition to laying a proper foundation, a party must meet all other evidentiary requirements for a videotape to be admissible into evidence. N.C.G.S. § 8-97. Like all other evidence, videotapes are subject to objections based on relevancy and unfair prejudice. In Albrecht, the court of appeals held that a properly authenticated surveillance videotape was relevant in a personal injury action to show the extent of plaintiff’s damages. The court of appeals also held that the trial court did not abuse its discretion in refusing to exclude the videotape as unfairly prejudicial to the plaintiff. The plaintiff argued that the videotape was repetitious; however, the appellate court found no abuse of discretion.

Deposition Evidence

Rule 32 governs the use of depositions at trial. Any deposition can be used for impeaching or contradicting testimony of a witness. Rule 32(a)(1). The rule also allows for some depositions to be used as substantive evidence. The rule specifically deals with the use of a deposition of a party as follows:

The deposition of a party or any one who at the time of taking the deposition was an officer, director, or managing agent, or a person designated under Rule 30(b)(6) or 31(a) to testify on behalf of a public or private corporation, partnership or association or governmental agency which is a party may be used by an adverse party for any purpose, whether or not the deponent testifies at the trial or hearing.

Rule 32(b)(3). Clearly, the deposition of a party is admitted for any reason. See Floyd v. McGill, 156 N.C. App. 29, 575 S.E.2d 789, rev. denied, 357 N.C. 163, 580 S.E.2d 364 (2003). The interesting issue is the use of depositions of the opposing party’s employees. If the employee is an officer, director, or managing agent, the deposition may be used for any purpose pursuant to Rule 32(b)(3).

Elliott v. Food Lion, L.L.C., 2004 N.C. App. LEXIS 2294 (December 21, 2004) addresses the meaning of “managing agent” in Rule 32. There, the court of appeals found the trial court did not err in admitting into evidence the deposition transcript of one of defendant’s employees, the Customer Service Manager and most senior employee on duty at the time of plaintiff’s fall. The court of appeals found that the trial court did not abuse its discretion in determining that the Customer Service Manager was a managing agent within the meaning of Rule 32. The court of appeals further noted that the trial court had considered appropriate factors in making its determination, those including: (1) whether the corporation had invested the employee with discretion to exercise his or her judgment; (2) whether the employee could be depended upon to carry out the employer’s directions; (3) whether the employee can be expected to identify him or herself with the interests of the corporation as opposed to the interests of the opposing party; (4) the degree of supervisory authority of the employee; and (5) the employee’s general responsibilities regarding the matters at issue in the litigation.

If the deposition is a former employee or a rank and file employee, Rule 32 still may allow its use. Rule 32 (a)(2) provides:

The deposition of a person called as a witness may also be used as substantive evidence by any party adverse to the party who called the deponent as a witness and it may be used by the party calling deponent as a witness as substantive evidence of such facts stated in the deposition as are in conflict with or inconsistent with the testimony of deponent as a witness.

The depositions of medical experts that are videotaped may also be used as substantive evidence by any party. Rule 32(a)(4) provides:

The deposition of a witness, whether or not a party, may be used by any party for any purpose if the court finds: . . .the witness is an expert witness whose testimony has been procured by videotape as provided for under Rule 30(b)(4).

Government Reports

A traffic accident report is admissible in North Carolina under two exceptions to the hearsay rule, the business records exception and the public records exception.

Rule 803(6), the business records exception provides:

[a] memorandum, report, record, or data compilation, in any form, of acts, events, conditions, opinions, or diagnoses, made at or near the time by, or from information transmitted by, a person with knowledge, if kept in the course of a regularly conducted business activity, and if it was the regular practice of that business activity to make the memorandum, report, record, or data compilation, all as shown by the testimony of the custodian or other qualified witness, unless the source of information or the method or circumstances of preparation indicate a lack of trustworthiness. The term “business” as used in this paragraph includes business, institution, association, profession, occupation, and calling of every kind, whether or not conducted for profit.

N.C.R. Evid. 803(6). The appellate courts have allowed the admission into evidence of the traffic accident report where the officer testified to the elements of this hearsay exception in Nunnery v. Baucom, 135 N.C. App. 556, 521 S.E.2d 479 (1999); Keith v. Polier, 109 N.C. App. 94, 425 S.E.2d 723 (1993) and Wentz v. Unifi, Inc., 89 N.C. App. 33, 365 NS.E.2d 198, rev. denied, 322 N.C. 610, 370 S.E.2d 257 (1988). In both of these cases, no portion of the report was redacted from evidence.

Rule 803(8), the public records exception to the hearsay rule, provides:

Records, reports, statements, or data compilations, in any form, of public offices or agencies, setting forth (A) the activities of the office or agency, or (B) matters observed pursuant to duty imposed by law as to which matters there was a duty to report, excluding, however, in criminal cases matters observed by police officers and other law enforcement personnel, or (C) in civil actions and proceedings and against the State in criminal cases, factual findings resulting from an investigation made pursuant to authority granted by law, unless the sources of information or other circumstances indicate a lack of trustworthiness.

The comment to the rule further explains that when material is introduced under subsection C, the term “factual findings” used in the rule is not intended to exclude conclusions or opinions that are contained in the government report. In determining whether an opinion contained in a report is admissible under this exception, the comments suggest looking to a number of factors including the timeliness of the investigation, the special skill or experience of the official making the report, whether a hearing was held, and the possible motivation problems associated with the report.

Many other governmental reports are also admissible under the public records exception to Rule 803(8). The case law follows the rule’s commentary regarding the admissibility of the opinions or conclusions contained within those reports. For example, in Branch v. Dempsey, 265 N.C. 733, 145 S.E.2d 395 (1965), the supreme court found that the trial court erred in completely excluding a death certificate and a coroner’s report from evidence but did not err in excluding the conclusions and hearsay statements contained within the report. There, plaintiff was killed in a motor vehicle collision and his estate sued defendants alleging that one defendant was the agent of the other and had caused the collision. The defendants denied both agency and that in fact a collision had occurred. The coroner’s report and death certificate included statements from unidentified individuals about how the collision occurred. The supreme court found that these statements from unidentified individuals were inadmissible hearsay and did not become admissible merely because they were included in a public report. See also Bolick v. Sunbird Airlines, Inc., 96 N.C. App. 443, 386 S.E.2d (1989), aff’d, 327 N.C. 464, 396 S.E.2d 323 (1990) (finding that the trial court properly excluded hearsay portions of a report of investigation of an airplane crash made by the National Transportation Safety Board).

Voluminous Records

In North Carolina federal and state courts, the rules of evidence specifically authorize the admission into evidence of tables and summaries that summarize voluminous exhibits. The rules provide:

The contents of voluminous writings, recordings, or photographs 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.

N.C.R. Evid. 1006. Rule 1006 of the Federal Rules of Evidence is identical.

In North Carolina courts, the court of appeals has set the parameters of Rule 1006. To be admissible, the summaries must be accurate summarizations

Of the underlying materials, fairly representing the underlying documents. Coman v. Thomas Mfg. Co., Inc., 105 N.C. App. 88, 411 S.E.2d 626, rev. denied, 331 N.C. 284, 417 S.E.2d 249 (1992). A summary is inadmissible where a basis of the summary is a party’s unsupported speculation. Id. (where the court of appeals affirmed the trial court’s refusal to allow plaintiff’s summary of trip reports into evidence where the summary included plaintiff’s estimated arrival and departure times which were not part of the underlying trip reports). Further, this rule cannot be used to allow counsel to create an exhibit during a witness’s testimony that summaries the witness’s testimony. Marley v. Graper, 135 N.C. App. 423, 521 S.E.2d 129 (1999), rev. denied, 351 N.C. 358, 542 S.E.2d 214 (2000) (where the court of appeals indicated that the admissibility of such evidence is under Rule 611 of the North Carolina Rules of Evidence, not Rule 1006 since Rule 1006 deals with a summary of exhibits and does not contemplate the creation of an exhibit while a witness is testifying).

Because the federal and state rules are identical, the federal cases interpreting Rule 1006 are instructive in North Carolina courts. See Marley and Coman. The federal law is much more developed with respect to the admissibility of these summaries.

Whether to admit a summary into evidence is within the trial court’s sound discretion. Bristol Steel & Iron Works, Inc. v. Bethlehem Steel Corp., 41 F.3d 182 (4th Cir. 1994); United States v. Pineda, 1996 U.S. App. LEXIS 15827 (4th Cir. 1996). The federal rule allows introduction into evidence of a summary, be it through summary documentation or testimony. United States v. Haidara, 1997 U.S. App. LEXIS 8815 (4th Cir. April 28, 1997). For a summary to be admissible, (1) there must be voluminous underlying documents, United States v. Johnson, 54 F.3d 1150 (4th Cir.), cert. denied, 516 U.S. 903 (1995); (2) the underlying exhibits must be admissible, United States v. Griffith, 1999 U.S. App. LEXIS 12085 (4th Cir. June 11, 1999), although the underlying exhibits themselves need not be admitted; (3) the summary cannot go beyond a description of the information contained in the voluminous underlying material, Haidara; and (4) the summary may leave out material if the other party has access to the underlying material and the other party has an opportunity to reveal inaccuracies through cross examination. United States v. Pineda, 1996 U.S. App. LEXIS 15827 (4th Cir. 1996).

For a summary to be admissible there must be voluminous writings, recordings, or photographs that cannot be conveniently examined in court. Rule 1006. The Rule cannot be used to summarize prior testimony of witnesses. United States v. Johnson, 54 F.3d 1150 (4th Cir.), cert. denied, 516 U.S. 903 (1995). Rather, Rule 611 addresses the admissibility of charts developed to summarize witness testimony. Id.

For a summary to be admissible, the underlying exhibits must be admissible. United States v. Griffith, 1999 U.S. App. LEXIS 12085 (4th Cir. June 11, 1999). In that unpublished opinion, the Fourth Circuit clarified that while the underlying documents must be admissible, it is not necessary for the party using the summary to actually admit the underlying documents into evidence, as long as the underlying documents were made available to the other side such that the other side could cross examine. In that case, the Fourth Circuit indicated that the trial court had properly allowed into evidence a summary of banking records although the banking records themselves were never admitted into evidence. See also Bristol Steel & Iron Works, Inc. v. Bethlehem Steel Corp., 41 F.3d 182 (4th Cir. 1994) (where the Fourth Circuit held that the purpose of the Rule is to prevent the need to introduce all of the underlying documents into evidence and thus the underlying documents need not be admitted into evidence if the summary is admitted); United States v. Bakker, 925 F.2d 728 (4th Cir. 1991); United States v. Strissel, 920 F.2d 1162 (4th Cir. 1990) (per curiam); but see United States v. Wilkinson, 137 F.3d 214 (4th Cir.), cert. denied, 525 U.S. 873 (1998) (where the Fourth Circuit failed to reach the issue of whether the underlying documents needed to be admitted into evidence, holding instead that any failure to admit the underlying documents would be harmless error anyway).

While the summary cannot contain information beyond what is contained in the underlying materials, the summary can leave out information contained in the underlying materials. See United States v. Haidara, 1997 U.S. App. LEXIS 8815 (4th Cir. April 28, 1997) (where the Fourth Circuit rejected defendant’s argument that the trial court improperly allowed a government witness to testify about credit card transactions, noting that the testimony of the witness never went beyond what was contained in the underlying credit card receipts); United States v. Pineda, 1996 U.S. App. LEXIS 15827 (4th Cir. July 1, 1996). In Pineda, the government entered into evidence a summary of invoices of defendant who was charged with arson. Through the summary, the government attempted to show that defendant could not have as much inventory as she reported to her insurance carrier at the time of the fire. Defendant argued that the government’s summary did not account for lost, misplaced, or destroyed invoices, and therefore inaccurately depicted the discrepancy between what defendant reported to her insurance company as destroyed and what the invoices reported as being owned by defendant at the time of fire. Rejecting this argument, the Fourth Circuit noted that the invoices were voluminous, could not be examined conveniently in court, and were available for inspection by defendant. The court further noted that defendant had ample opportunity to cross-examine the witness regarding the summary. As such, the trial court did not abuse its discretion in admitting the summary.