With an abundance of electronic gadgets finding their way into the courtroom, it is a good idea to revisit some basic trial skills to be sure, once the trial dust settles, the record reflects all that took place at trial.
For instance, some courtrooms are now equipped with touch screen monitors that allow counsel and witnesses the opportunity to give the appearance of drawing on an exhibit to demonstrate the evidence. While this may be of great assistance to a trial judge or jury, if the trial attorney does not fully describe for the record or elicit from the witness what the judge or jury is seeing, the evidence may be left behind.
As an example, one case presented a factual scenario where a person walked from one location to another—and, in this case, where the person walked to and where the witnesses stood relative to that person were important. The attorney asked each witness to draw, on the courtroom monitor, a line showing the path the person traversed and the approximate location the witness stood in relation thereto. Sounds simple enough and helpful too. However, the attorney did not describe for the record what the witnesses demonstrated on the monitor, so the visual evidence—though important at trial—was, for all intents and purposes, left behind. To borrow an oft-used phrase, what happened in the courtroom stayed in the courtroom.
It is essential that the trial attorney or witness describe all visual evidence for the record—not just that generated electronically. For instance, in one case the trial attorney did a masterful job of eliciting testimony from a pathologist to show the victim could not have been shot from the angle the defendant claimed the victim was shot (standing up). The attorney stood in the middle of the courtroom in front of the jury and, following answers elicited from the pathologist,visually demonstrated that it was impossible for the victim to have been standing at the time he was shot. Great trial work. However, the attorney did not describe in words for the record what he was demonstrating—the record was replete with references to "here" and "here"—referring, presumably, to where the bullet entered and exited the body and the position of the victim. Because the attorney did not describe for the record what "here" meant as he said it, or where he was pointing during his demonstration, the evidence was, for all intents and purposes, left behind. The appellate court judges cannot "see" what the trial judge and jury saw unless the attorney or witness describes it for the record.
In another case, concerning a dispute over real property, an expert witness took the stand and gave testimony on certain attributes and changes to the property—pointing to various places on maps. The attorney did not describe or elicit from the witness where the witness was pointing on the maps during his testimony. Once again, the evidence was, for all intents and purposes, left behind.
New technology in the courtroom may open doors to presenting evidence in more effective and interesting ways, but good, basic trial skills remain important so that evidence presented at trial is not left behind and has the same effect on appeal.
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