Persuasion at Trial: Nontestimonial Evidence
Nontestimonial evidence plays an important and potentially dramatic role in the persuasiveness of an advocate's case. Jurors often point to the impact of certain items of nontestimonial evidence, e.g., contract terms, animations, charts, or the critical part of an allegedly defective product, as key factors in their verdicts. The importance placed by jurors on nontestimonial evidence is heightened when there is conflicting testimony from credible witnesses. Understanding what influences the persuasiveness of nontestimonial evidence, therefore, is of particular importance to trial attorneys.
Obviously, the most important aspect of nontestimonial evidence is the probative value of the evidence. However, probative value alone does not equate to the evidence being persuasive. The persuasiveness of nontestimonial evidence (or any information for that matter) is influenced by how jurors attend to the evidence, process it into their memories, and recall the evidence from memory at a later time.
The first requirement of persuasive nontestimonial evidence is that jurors attend to the evidence. Attention is influenced by such qualities as novelty, distinctiveness, vividness, movement, and uniqueness of the information/evidence presented. For example, the novelty provided by computer animations presented in the courtroom increases attention. Distinctiveness of the evidence, through the use of bright colors and contrasts, increases attention to both the evidence in general and specific features of the evidence. The vividness of injuries conveyed through the use of color as compared to black and white photographs increases attention. Also, attention is increased by movement. Movement of the evidence, either through the moving parts of a model or animation, or simply moving of the evidence itself (e.g., raising the murder weapon in one's hand) increases attention. The unique or one-of-a-kind nature of certain kinds of nontestimonial evidence, e.g., DNA testing, also increases attention paid to this evidence. Finally, the attention paid to nontestimonial evidence can be increased by varying the form of the evidence presented. For example, the creative use of multimedia presentations of evidence, e.g., slides, enlargements, videotape, and models, can keep jurors' attention at a higher level than repeated use of the same form of evidence, e.g., a series of enlargements.
Attention alone does not guarantee persuasiveness of the evidence. Jurors must process and recall the evidence. The processing and recall of information is enhanced by the organization, meaningfulness, and repetition features of the evidence. Organization and meaning can be fostered by removing nonessential, distracting information from the evidence. For example, charts and graphs developed for use by an expert at trial should be screened to prevent information overload which serves to attenuate the impact of the essential information present. Meaningfulness and organization also are enhanced by the concreteness of the physical evidence. The more abstract the representation, the more difficulty jurors have in attaching meaning and in organizing the intended information. Realistic models are of more value to jurors than blocks or other objects which bear little or no resemblance to the objects they intend to represent, e.g., automobiles or trains.
In addition, meaning and organization of information is furthered by visual representations of complex information. Charts illustrating the relationships among different entities or objects present a clearer picture of these relationships than a number of documents which detail the relationships, e.g., a summary chart versus contract documents. Visual representations of the sequence and timing of events or actions, e.g., time lines, help jurors organize the information being presented.
Also, meaning and organization can be fostered by secondary information present in the visual representation. When certain features of an object need to be stressed, present the object within the visual field of something that highlights these features. For example, when the "meaning" of the enormity of an object, e.g., an oil tanker, is important to convey to jurors, photographs of the tanker with crew members or workmen on board or next to the tanker can provide the necessary perspective that would otherwise be absent if the photograph only showed the tanker at sea.
Finally, physical evidence which involves a number of senses at once can increase memory (and influence opinions) concerning the evidence. Capitalizing on the senses of touch, sight, smell, and hearing can make the evidence more persuasive. Passing evidence to the jury allows them to touch, see, and potentially smell the evidence. Not only can memory be enhanced, but positive or negative impressions may be formed of the owner/user of the object because of some desirable or undesirable feature (e.g., a "reeking" whiskey bottle placed near the jury box yielding negative impressions of the defendant because of the unpleasant odor).
In light of the above discussion, there are a number of recommendations that can be made to facilitate the effective use of nontestimonial evidence.
Start by asking the following questions:
—Does the evidence make its intended point in a clear, well-organized, and understandable manner?
—Are there features of the evidence that will act to increase the jurors' attention to the evidence, e.g., vividness, uniqueness, distinctiveness, novelty, or movement?
—Does the evidence capitalize on the use of multiple senses?
—Are there features of the evidence that add impact or perspective beyond the general purpose for which it was intended?
—Does jury familiarity with the evidence increase their understanding or does the evidence provide the appropriate emotional impact?
Use nontestimonial evidence frequently. Use nontestimonial evidence where possible to increase attention, comprehension, memory, and emotional affect. However, just because an exhibit or chart can be made does not mean that it should be used at trial. Overloading jurors with nontestimonial evidence can cause confusion and actually weaken the impact of important nontestimonial evidence.
Use nontestimonial evidence in opening statements and closing arguments. Opening statements and closing arguments are potentially significant areas where nontestimonial evidence can be used effectively. The use of key nontestimonial evidence in opening statements can help jurors get a better understanding of one's case. In closing arguments, the implications of nontestimonial evidence can be fully, and persuasively, argued. In addition, repetition effects of the use of key nontestimonial evidence in closing arguments will foster greater memory for this evidence.
Use summary exhibits. Use summary charts or exhibits to help jurors organize, understand, and remember crucial information. Time lines, organizational charts, and flow charts all serve to give meaning and organization to vast amounts of information.
Vary the form of the evidence. Reduce the potential for attention loss and confusion by varying the form of the nontestimonial evidence where possible. Avoid presenting nontestimonial evidence through only one medium, e.g., large numbers of enlargements of written materials.
Seek clarity, simplicity, and accuracy. The goal of nontestimonial evidence is to foster juror comprehension of the information presented. Inaccuracy and complexity can lead to juror confusion and, in some cases, even animosity.
Remove irrelevant or unfavorable/negative information. Where possible, remove irrelevant information that could distract the jury from what you want the evidence to communicate. In addition, remove unfavorable or negative information, e.g., bumper stickers supporting alcohol consumption or brand preference attached to a car involved in an alcohol-related accident.
Get the most from your evidence. When choosing among nontestimonial evidence of the same form which communicates similar information, select items that maximize the most desirable information. Photographs which not only show the object, but also add desired information (e.g., size perspective or emotional relationships) should be selected over photographs which do not convey such additional desirable information.
Do not ignore potential nontestimonial evidence. If real evidence is not available, use demonstrative evidence to communicate important points. If the weapon used in an assault is not available, introduce a similar weapon for demonstrative purposes. Let the jury understand the fear engendered by facing such a weapon.
Demonstrative evidence should be concrete. Demonstrative evidence should be as concrete as possible. Accurate representation of objects facilitates juror comprehension. Do not force the jury to imagine key features of nontestimonial evidence beyond what is necessary.
Critically evaluate your opponent's demonstrative evidence. Evaluate your opponent's demonstrative evidence to prevent problems that arise when inaccuracies or misleading perspective or scale information is present in the evidence. Camera angles in photographs and videotapes and inappropriate measurement information in graphs can produce misleading impressions of the evidence in the minds of jurors.
Use movement to facilitate understanding and interest. Operational models increase the jurors' attention to the evidence. In addition, operational models foster the jurors' understanding of the information presented by letting jurors see how the object works. Also, using the movement present in bump charts or flip charts facilitates understanding and interest. However, where possible, make sure that the models and charts employed cannot be used by one's opponent to illustrate unfavorable information.
Allow jurors to interact with appropriate evidence. Where possible, key evidence should be passed to the jury. When passing evidence to the jury, explain or highlight important features or points prior to its being passed. Do not continue with important testimony while evidence is being circulated to the jury. Jurors should not be distracted from their consideration of the evidence. For bulky or large items of evidence, have the jury leave the box to examine this evidence. In this manner, jurors gain a better understanding of the importance of the evidence. In addition, the attorney is able to see what jurors pay attention to when examining the evidence.
Capitalize on multiple senses. Use evidence which capitalizes on multiple senses in the desired manner. The sound made by a safety switch being engaged can improve understanding for how the switch works. The "musty" smell from bales of marijuana can lead to a negative impression of the criminal defendant.
Always be aware of physical evidence in the courtroom. When possible, leave favorable evidence in the courtroom where jurors can see it. However, seek to remove unfavorable evidence from the jurors' view as soon as possible.
Protect your evidence. Do not let your opponent make notations on your evidence. Numerous markings on charts and maps tend to render the exhibit confusing. If necessary, prepare extra copies of the exhibit.
Take advantage of videotape. Use videotapes to depict such issues as suffering of the plaintiff (e.g., "day-in-the-life" film) or potential jury views. Videotapes can communicate information more effectively than verbal descriptions from the witness stand.
Consider using "jury books." Prepare notebooks that assemble together the key nontestimonial evidence, e.g., photographs, charts, and memorandum, from your case. Have these "jury books" available for closing arguments and, possibly, jury deliberations. Jury books can serve as valuable organizational tools to convey desirable information.
Nontestimonial evidence can play a key role in persuading a jury of the merits of one's case. However, persuasiveness is dependent on a number of factors that influence how jurors attend to, process, and recall the evidence. Attorneys who develop and present nontestimonial evidence in a manner that fosters attention to important features of the evidence and promotes organization, comprehension, and recall of the information presented take a major step in making their nontestimonial evidence persuasive.