"A two-minute video, if well made, will make a greater impression on the minds and emotions of jurors than the world’s best expert. Once jurors see the video, the images will graven on their mind… The familiar power of television will shoulder everything else aside. The very value of using the videotape—its ability to impress and explain—is thus the source of the most persuasive arguments against its use."1
The Illinois Court of Appeals recognizes that "[c]ourts look favorably upon the use of demonstrative evidence because it helps the jury understand the issues raised at trial."2 Creating demonstrative evidence is a crucial task when preparing for trial since evidence is meaningless if not transmitted effectively and persuasively.3 Demonstrative evidence helps guide jurors’ perceptions to draw conclusions about the evidence. Computer-generated displays as demonstrative evidence maximize juror comprehension and interest. When created effectively by using appropriate color, contrast, symbols and style, computer-generated displays capture and maintain juror attention. These high-tech exhibits have revolutionized tort litigation. 4
Computer-generated displays come in various forms including animations, simulations and re-enactments. This paper will discuss the importance of using computer-generated displays and the components of creating an effective exhibit.
Humans are visual and verbal learners; we learn by both seeing and hearing. Neurophysiologists believe that one-third of the human brain is devoted to vision and visual memory.5 A visual presentation enables the lawyer to communicate a greater amount of information more efficiently and effectively. Visual stimuli enable jurors to retain more data with greater accuracy for a longer period of time.6 Research shows that visual communication alone is more effective than verbal communication alone and verbal communication coupled with visual communication is the most effective. 7 Therefore, you will greatly increase trial persuasiveness and overall effectiveness by engaging the visual senses to compliment verbal courtroom presentations.8
"The difference between a video and alternative evidence is like the difference between showing a child how to tie his shoes and giving him written instructions."9
Upon graduation from high school, the average student has received an estimated 11,000 hours of classroom education, yet has viewed over 15,000 hours of television.10 Television has become the crucial medium for gaining news, information and entertainment. Therefore, jurors are generally comfortable with the idea of receiving and retaining information from the television.11 By presenting information through a familiar medium you can help jurors feel comfortable with, and confident about, the information being presented. Computer-generated displays viewed on a television break up often tedious or boring testimony and draw juror attention back to the courtroom and your theory of the case.
A survey by the ABA found that jurors are often confused, bored, frustrated and/or overwhelmed by technical issues or complex fact patterns.12 Other research concludes that as the complexity of the issues presented to a jury increases the amount of interest, comprehension, and retention decreases. 13 A computer-generated display compiles complex fact patterns, technical data and other difficult information into easily recognizable and comprehensible visual data that is presented in a succinct and attention getting method likely to engage jurors.
Computer-generated displays invariably have a strong impact on jurors. They mesmerize factseekers and relax their often critical nature. 14 Jurors tend to be influenced even by simple animations15 and are comfortable with the notion that "seeing is believing." Computer animation allows you to display witnesses’ testimony as dynamic, visual demonstrations that are capable of psychologically engaging jurors in the scene.16
Computer-generated displays offer several advantages in jury trials. 17 One advantage is flexibility.18 They help jurors visualize a 3-D object. They show the occurrence in real time. Nevertheless, events may be slowed down or sped up to demonstrate events more clearly. Another advantage is they allow stop-action of the events for more detailed expert explanations. They can highlight important elements by focusing on the object and eliminating background details. Finally, computer-generated displays enable you to create a visual presentation using the "conflicting" testimony to show the infeasablility of the opposing theory.19 Altogether, computer-generated displays aid in jury understanding, persuade juries, and provide important benefits to you in presenting your arguments before the court.20
CREATING AN EFFECTIVE DISPLAY: CATCHING AND KEEPING JUROR ATTENTION
To catch and keep a juror’s attention, you must stimulate the person’s mind without challenging it too much. Using a computer-generated display helps the jurors perceive, attend to, and remember the information. An exhibit is not perceived based on the message content alone, but rather by a combination of the visual stimuli in the graphic display itself. These stimuli include color, size, contrast, contour, luminance, depth, movement, pattern and form.21 Well constructed exhibits draw jurors’ attention and help shape their perceptions by simplifying the information in an entertaining way.
People attend to stimuli that are salient and vivid.22 Something becomes salient relative to its surroundings.23 Ways to make a display or exhibit salient include being novel, figural—bright, complex, moving or otherwise standing out from their drab background, or by being unusual for the situation. The vividness of information in a display is relative to the display itself. Something is vivid if it is "(a) emotionally interesting, (b) concrete and imagery-provoking, [or] (c) proximate in a sensory, temporal or spatial way."24 Yet, vividness alone has not been shown to have a profound effect on persuasion.25 Just because you have an attractive display does not mean jurors will be persuaded. However, coupled with persuasive arguments, a display or exhibit gains a power incomparable to other means of presenting information. Successful graphics elicit attention and are memorable.
Color is a powerful instrument in impression formation. Effective use of color in exhibits enhances acceptance of the information being presented and improves juror usage of that information to decide the case.26 Use dramatic colors sparingly.27 Overuse of color makes an exhibit look cluttered and can confuse the jurors, because they do not know where to focus their attention. Use a novel color to focus jurors’ attention when trying to emphasize a point. The less frequently a color is used, the more it will grab the viewer’s attention.28 It is best to use five or fewer colors.29
Use colors and symbols that are consistent with user expectations. In our culture we have developed expectations of what certain colors30 and symbols represent. For example, we use red or an octagon for stop, yellow or a triangle for caution, and green for go. Take advantage of these well-known color expectations.
Utilize symbols that have common meanings in your displays to eliminate extra wording. Whenever you use familiar objects in the displays you have a better chance of commanding juror attention and persuading them.31
Use contrast to highlight information making the exhibit easier to read. The eye focuses most sharply on objects that have different colors and brightness.32 Contrast refers to the difference in perceived brightness of two objects.33 Choose a background color that complements the desired impression of the exhibit and contrasts the objects in the foreground. The following table includes some recommendations of effective color and contrast use.
A neutral, dull, light color such as gray is a useful background color for it focuses attention to the foreground of the display.34 Whereas a solid black, untextured background may cause objects to appear to float.35 Yellow text on a gray background is difficult to see, because the contrast between the colors is not great enough. Furthermore, avoid using blue for text or other small objects, because the eye has difficulty seeing blue clearly with any background.36 Instead, depending on the background, use black, white and gray for text or small objects, since the eye can focus best on these colors. Opponent colors such as blue—yellow or red—green have the highest contrast. These colors assist the viewer in seeing the various objects and recognizing that a distinction is being made.
Colorblindness makes certain color combinations difficult to distinguish. For example, even though red—green are opponent colors, people who are colorblind may not be able to distinguish between them. Five to eight percent of men (depending on the study) and half of a percent of women are born with this impairment.37 For those who have a red weakness, variations of red, orange, yellow-green and green appear shifted towards green. For green-weakness the same colors as above appear shifted toward red.38 Therefore, if you choose to use red and green as the colors to highlight and distinguish between events, vary the contrast, luminance and other factors so it will be distinguishable by those few who are colorblind.
Maintaining attention and helping jurors focus on the important factors require more than a strong case and arguments. It requires captivating them through a presentation that is informative, succinct and entertaining.
As beneficial and entertaining as a good computer-generated display can be, if it is too lengthy its impact on the jurors may be lost.39 In our culture, television and the media recognize the standard length of time an audience is willing to exert energy to focus. Years of research have established that 20 minutes is the maximum recommended length for an uninterrupted segment to maintain the greatest level of attention and focus without losing interest.
To sustain attention, exhibits must have specific features that make them salient, relative to the environment. Exhibits that are statistically or contextually novel, negative, extreme and relatively bright, moving, or complex are all salient. Information or graphics that deviate from prior expectations become salient too. The effects of salience include concentrated attention, extreme evaluations, and stereotyping.40 If a limited number of computer-generated displays are presented during trial, a display becomes salient by being novel, moving and complex relative to the other exhibits.
To maintain jurors’ attention during the trial process the displays and other exhibits need to be appealing as well as informative.41 An appealing display or exhibit must be simple, straightforward, and free of extraneous and distracting information for jurors to focus their attention on it.42 Furthermore, displays must convey a clear and understandable message.43 To facilitate processing the information in a display for easy recall during deliberations, point to the important factors in the display. 44 To maximize your persuasiveness, displays and exhibits should require little thought by the jurors and supply information in the form of themes, stories and conclusions rather than pure data.45
The old adages, "a picture is worth a thousand words" and "seeing is believing" hold true in the courtroom. Tap into these basic notions by using computer-generated displays and other demonstrative evidence. Carefully consider a display or an exhibit’s color, contrast and overall appeal when designing the display or exhibit. To catch and keep jurors’ attention, remember that the principal purpose of using displays and exhibits is to simplify evidence and enhance the jurors’ understanding of the facts.
1 Eli Chernow, From the Bench: Video in the Courtroom: More than a Talking Head, Litigation, Fall 1988, at 5.
2 People v Burrows 148 Ill.App. 3d 208, 213, 498 N.E.2d 682 (1986).
3 Declan O’Flaherty, Computer-Generated Displays in the Courtroom: For Better or Worse?, 4 Web JCLI at 5 (1996)(quoting F. I. Lederer, Symposium Changing Litigation with Science and Technology: Technology Comes to the Courtroom, and…. 43 Emory Law Journal 1095, 1113 (1994)).
4 Adam T. Berkoff, Computer Simulations in Litigation: Are Television Generation Jurors Being Misled?, 77 Marquette Law Review 829, 855 (1994).
5 Roy Krieger, Sophisticated Computer Graphics Come of Age—and Evidence Will Never Be the Same, 78 Dec. A.B.A. J. 92 (1992).
6 Craig Murphy, Computer Simulations and Video Re-enactments: Fact, Fantasy and Admission Standards, 17 Ohio N.U.L. Rev. 145 (1990)(citing Seltzer, Effective Communication: Seeing is Believing, Product Liability of Manufacturers 1988: Prevention and Defense 597, 599).
7 Berkoff, supra note 4, at 846 (citing Harold Weiss & J.B. McGrath, Jr., Technically Speaking: Oral Communication for Engineers, Scientists and Technical Personnel (1963)).
8 A study entitled "The Weiss-McGrath Report" found that after 72 hours, participants retained 10% of verbally presented information, while those who received the information visually retained 20%. But those who both heard and saw (visual and verbal presentation) retained 65% of the information. Found in Adam T. Berkoff, Computer Simulations in Litigation: Are Television Generation Jurors Being Misled?, 77 Marquette Law Review 829, 846 (1994). In another study conducted in a research courtroom called Limited Courtroom 21 researchers found that jurors, regardless of age, prefer visually presented material. Limited Courtroom is a research courtroom that is an international demonstration and experimental project utilizing commercially available technology with the latest technology located at William and Mary School of Law. Discussion of Courtroom 21 is found in Fredric I. Lederer, Introduction to Technologically Augmented Litigation, The Courtroom 21 Project at 3 (1997). Visual evidence as simple as a glossary of terms or a summing sheet improves recall in a 1988 study by Levi.
9 Chernow, supra note 1, at 3.
10 R. Dennis Donoghue, Demonstrative Exhibits: A Key to Effective Jury Presentations, 349 PLI/Pat 369, 371 (1992).
11 O’Flaherty, supra note 3, at 2.
12 Krieger, supra note 5.
13 Berkoff, supra note 4, at 845.
14 O’Flaherty, supra note 3, at 6 (citing M.M. Jenkins, Computer-Generated Evidence Specially Prepared for Use at Trial, 52 Chicago Kent law Review 600 (1976).
15 Murphy, supra note 6, at 158.
16 Federal Judge G. Ross Anderson Jr. and Ward Bradley, Law Clerk, Computer Animation: Admissibility and Uses¸ paper presented in a County Bar CLE presentation, Greenville, SC (Dec. 1994).
17 Berkoff, supra note 4, at 849.
18 O’Flaherty, supra note 3, at 6.
19 Berkoff, supra note 4, at, 849.
20 O’Flaherty, supra note 3, at 4.
21 Donoghue, supra note 10, at 375.
22 Susan Fiske and Shelley Taylor, Social Cognition, at 185. Random House, New York (1984).
23 Id. at 190.
24 Id. at 190 (quoting Nisbett & Ross, at Human Inference: Strategies and Shortcomings of Social Judgment, Englewood Cliffs, J.J.: Prentice-Hall (1980).
25 Id. at 190.
26 Lawrence J. Najjar, Using Color Effectively (or Peacocks Can’t Fly), (IBM TR52.0018) at 2. Atlanta, GA: IBM Corporation (1990).
27 Id. at 4.
28 Id. at 5.
31 Donoghue, supra note 10, at 378.
32 Najjar, supra note 25, at 5 (citing G.M. Murch, The Effective Use of Color: Physiological Principles, 7(4) Tekniques 13 (1983)).
33 Najjar, supra note 25, at 5.
34 Najjar, supra note 25, at 5 (citing Narborough-Hall Recommendations for applying colour coding to air traffic control displays, Displays 131 (1985).
35 Najjar, supra note 25, at 5.
36 Najjar, supra note 25, at 5 (citing G.M. Murch, The Effective Use of Color: Physiological Principles, 8(1) Tekniques 4 (1983)).
37 What Is Colorblindness and the Different Types?
39 Paul Marcotte, Animated Evidence, A.B.A. J., at 56, 55 (Dec 1989).
40 Fiske & Taylor, supra note 22 at 211.
41 Donoghue, supra note 10, at 378.
42 Donoghue, supra note 10, at 377.
43 Donoghue, supra note 10, at 376.
44 Donoghue, supra note 10, at 377.
45 Donoghue, supra note 10, at 376.
Patricia F. Kuehn, J.D., M.A. is a Trial Consultant with Carlton Trial Consulting & Research Center, Inc. She applies her social psychology background to jury research and case development. Ms. Kuehn’s experience includes mock trials, focus groups, witness preparation, jury selection, developing exhibits, and researching other jury behavior and trial issues.