Podcast - Why Demonstrative Aids Are Critical in Every Case

As a rule, many lawyers don't make enough use of demonstrative aids. That was true 25 years ago, when good graphics were hard to create, often expensive and cumbersome to use in the courtroom, but it's also true today, even though graphics can much more easily be created for free and easily displayed to juries.

Let's be clear on what we're talking about. Demonstrative aids are not part of the evidence. They are created to help explain and understand the evidence. They are created to help you use the evidence to persuade the jury.

Examples of Demonstrative Aids

Here are some typical examples:

• Diagrams
• Charts
• Graphs
• Maps
• Timelines
• Lists
• Video animations

A demonstrative aid is not evidence and does not usually go to the jury room. The basic rule is that a demonstrative aid can be used if: 1) it is based on the evidence, 2) it would help the jury to understand the evidence and 3) it is not unfair.

Demonstrative aids should be used in virtually every trial. They are helpful, they provide visual interest and they're usually simple to make. What's more, jurors like them and jurors expect them. It's remarkable how often jurors create their own charts and lists and timelines — sometimes, those things are taped up all over the walls in the jury room. That they find this necessary shows lawyers have missed an important opportunity. Surely it's better to create your own demonstrative aids and show them to the jury and use them in your discussions and in your presentation of the case, than to hope that the jurors will do it on their own and that they will get it right.

In a complex case, the need for demonstrative aids may be obvious. Hardly anyone would try a patent case, for example, without them. But they can be just as effective in a small case.

Let's take a simple federal drug case involving a controlled buy of cocaine. Suppose you are the prosecutor. Suppose there were eight conversations — telephone and in-person — that were secretly recorded. Suppose those conversations had different participants and took place at different locations and times.

It's obviously not impossible for the jury to keep those conversations straight. It may not even be very difficult. But why not make it as easy as possible? Why not prepare a chart listing the dates and times of the conversations? Why not the participants and the locations numbered 1 through 8? Why not show the jury a map of the locations, and photographs of the locations? Or a timeline perhaps connecting them to other events? Draw them in, make it a part of their reality. And, for closing arguments, why not prepare a chart with the key quotations?

Maps are particularly important in cases involving the movement or location of people or vehicles. Numbers are best shown on a graphic for people to understand them. Sometimes a demonstrative aid can even be as simple as a list of names.

Closing Comments

Timing and the order of events can be easily confused, but they can just as easily be clarified and emphasized by a simple timeline. You should consider a timeline demonstrative in almost any case, whether it tracks seconds, hours, days or years. If the timeline is important enough or complex enough, maybe you should have more than one. Have timelines for specific issues or specific parts of the case. It's important, of course, that demonstrative aids are accurate and not misleading. They should be disclosed to opposing counsel before they're shown to the jury in order to give counsel a fair opportunity to object. Don't make them so aggressively argumentative that they're bound to draw an objection, or that they're viewed by the jury as unfair or unfactual.

Demonstratives should also be simple, clear and free of clutter. Don't put too much information into any one visual. If you can't display information clearly in one chart or one demonstrative, use two.

Finally, don't let the perfect be the enemy of the good. If you have the ability and the budget to create fancy demonstratives, great, good for you. But making them clear is more important than making them pretty. Simple demonstratives can deliver powerful messages. Use them.