The Washington Post recently wrote an interesting piece on trial attorneys using elaborate videos for jurors to gain some understanding of a victim’s life and the pain of the family. These videos offer pictures, performances and even emotional background music to represent the victim. The Supreme Court via Chief Justice Rehnquist allows videos to offer a “brief glimpse” into the lives of victims. While these videos may stretch the bounds of that glimpse, the Supreme Court refused to hear any appeals to cases using these types of exhibits.
The excellent article by Jerry Markon suggests that trial attorneys should consider this a “green light” for use of these videos in the future. While many of us take pride in making decisions based on logic, we all appreciate that most decisions are based in part on emotions. As you strive for credible, memorable, and clear testimony, video exhibits can help pull the “emotional heartstrings”.
Before attempting to show a video it is imperative to advise the opposing side of your intention to use the video and show it to them. This should be done with enough time before trial to obtain a court ruling. In most instances the applicable discovery rules will govern this situation. Additionally, when using videos it may be helpful to obtain testimony from a family member first and then introduce the video exhibit, which will corroborate key points. Once such a video has been viewed, you can ask the witness to review and explain the video, which will serve as a memory anchor for the jury.
Litigators should use caution, however, as histrionics are never appropriate. Avoid overly emotional appeals designed to manipulate the jurors. Such presentations may end up hurting your credibility.