Podcast - Dealing with Evidence of Time, Distance and Speed
In this episode of his "The Trial Lawyer's Handbook" podcast series, litigation attorney Dan Small delves into the critical importance of establishing and relaying accurate measures of time, distance and speed in the courtroom. Mr. Small discusses the usefulness of demonstrative aids – such as stopwatches, tape measures or diagrams – and analogies or references to everyday objects to ensure the jury understands and believes your evidence.
Mr. Small is also the author of the new American Bar Association (ABA) book Lessons Learned from a Life on Trial: Landmark Cases from a Veteran Litigator and what They Can Teach Trial Lawyers.
Human beings are notoriously poor judges of time, distance and speed – how long something took to happen, how far away something is, how fast something was moving. Did the event take two seconds, or 10? Was the witness 25 feet away, or 50? Was the car going 30 miles an hour, or 20 miles an hour? The differences may be critically important to the case, but often witnesses don't really have an accurate idea, or are simply guessing, and the jury has to guess along with them. And even if the witness gets it right, the jury may not fully understand the meaning of the number.
If any of these issues matter, think long and hard about how you're going to go about proving your point or attacking your opponent's point. Don't assume that anyone will get anything right, or that the jury will understand it if they do. One approach is to use a demonstrative aid, such as a stopwatch or a tape measure, with a witness. Suppose, for example, the victim in a prosecution for a street robbery testifies that the whole episode lasted "only a minute or two." In all likelihood, the robbery didn't really take anywhere near that long.
How can you establish that? Use a clock or a watch, ask the witness to follow along with you as you watch the seconds tick by. Even a single minute is an agonizingly long time in a silent courtroom. You might get the witness to acknowledge that the length of the encounter was more like 10 seconds.
Or suppose a witness says she was 10 feet away from an accident that happened in the middle of an intersection. Ask the court for permission to have the witness hold one end of the tape measure, while you slowly walk away. Again, you might get the witness to acknowledge quickly that the distance was much more. Or if you have independent evidence of the distance, you might show the witness is wrong.
There's a wonderful scene in "My Cousin Vinny," where Joe Pesci, as the attorney, asks the witness how far the distance was. The witness tells him, and then he takes the tape measure and shows the witness that it's really much further than she thought, and that she can't really see that far. Of course, it's even better if you can go to the location beforehand with a measuring device and record the result. Perhaps you want to videotape the results or videotape the process. It's also helpful to set the scene with maps and photographs.
Other approaches include analogies, such as "the size of a toaster," or references to everyday places or things, like "a typical city street with parked cars along the curb."
Creating your own demonstrative aid can also be effective. You may remember seeing graphics in middle school, showing the relative size of the earth to the sun, or the distance of the planets from the sun. You would never have fully appreciated how all that worked or where everything was without seeing that wonderful graphic. A graphic showing a witness' distance from an event may be just as effective. Of course, such a graphic must be created scrupulously to scale, or it will be unfair and likely draw a sustained objection. Any measurement fact is likely to present similar issues.
For example, an estimate of the weight of something may be just a guess unless the witness was using a scale. An estimate of the size of something is really just an estimate of distance in three dimensions. Estimates of speed are particularly problematic. Unless the witness was actually looking at a speedometer or a radar gun, it's almost always a very rough estimate. Pretty close to a wild guess. If you don't have a video or something scientific, like an accident reconstruction based on skid marks, you probably won't have much to work with. Still, it can be helpful to get the witness to acknowledge, doubt or arrange, rather than an absolute number.
In addition, it's particularly difficult for jurors to understand numbers of any size or complexity if they're not written down. And by complexity, we mean just about anything more complicated than 1+1=2. You may have math majors on your jury, but you will almost certainly have others who were not.
For example, if you're putting in evidence of the plaintiff's annual earnings before and after an accident, you should always use a written chart. No one will be able to follow what the evidence is. If you simply have the witness prattle off numbers from the witness stand, the relative size of numbers, particularly very large numbers or very large discrepancies, is even more difficult to grasp. That's why graphs were invented. One of the most famous graphical portrayals of numerical values is a 19th century depiction of Napoleon's 1812 invasion of Russia by the French engineer Charles Joseph Monod. Napoleon invaded with an army of 422,000 men. Of those 422,000, only 10,000 returned alive and in one piece. Reciting the numbers alone does not do justice to the scale of the catastrophe, but it's immediately apparent from the plunging line of the graphic, those are people disappearing as the line goes down.
In short, "measurement" evidence is often wrong and sometimes difficult to grasp. The right demonstrative aid will go a long way towards helping the jury understand and appreciate the truth.