A missing tool in DWI trials

Behold, the ubiquitousness of PowerPoint. If you have a fifth grader, he will present his important reports in school with PowerPoint.1 If you attend a civic group luncheon, the presentations are probably in PowerPoint. If you go to a CLE seminar, there will be PowerPoint. Anywhere you find education, training, or group communication, you will see this tool. Well, except for the stuff that doesn’t matter, like criminal trials. This important means of presenting a case is sorely missing from courtrooms, and I am writing in the hopes of changing that.
    The message we send to juries when we make presentations in trial without up-to-date methods is that the subject of the trials is not worthy of good presentation. When we lose any chance to communicate with juries, the result benefits the defense.

Objections to PowerPoint
I know the objections are already forming. Let’s look at them, I will refute them, then let me provide some tips on how to use PowerPoint.
1. PowerPoint and computer equipment can break or malfunction. Any trial attorney knows that the more complicated we make a presentation, the more that can go wrong. But the worst that can happen, if we are honest with ourselves, is that we will have to do a trial just like we do now, without PowerPoint. Secondly, in using something new, attorneys will have to leave their comfort zones and actually touch technology. Your fifth grader can do it; it’s time you learned too. Practice and planning are essential to doing something new. You practice your close and you practice with your witnesses—you will have to practice using PowerPoint. (Speaking of witnesses: If we eliminate things that go wrong and don’t work right, we should get rid of witnesses long before we get rid of PowerPoint.)
2. New things are hard and judges don’t like new things. Sure, new things are hard. Get over it. Sure, new things scare judges. Get them over it. The defense will object that “PowerPoint is more prejudicial than probative.” Take a careful look at Rule 403. Does PowerPoint create unfair prejudice or confusion or mislead the jury? No—as long as you make sure that everything that goes into your presentation is not objectionable to talk about. Most of what goes into your presentation will be shown to the jury, just not as well. And while it will have an impact of prejudice, it is not an unfair impact; PowerPoint actually clarifies points and does not obfuscate (that’s what talking lawyers do).
    Secondly, does it create “needless presentation of cumulative evidence?” At first blush PowerPoint seems cumulative, but actually it allows simultaneous presentation of lots of different facts and massively speeds things up. My experience in Lubbock County was that once one judge used it, the remainder demanded it within months.
    Prepare the court for the shock. Ask the bailiff to work with you in setting it up in the courtroom; call on his expertise and then implicit ratification. Consult with your judge and make sure she can see your presentation from the bench. Make handouts for the court reporter, the bench, and defense counsel. Make it smooth, and you’ll overcome any objections (official or otherwise).
3. I am a good enough speaker that I don’t need PowerPoint. Vanity, thy name is Old Prosecutor. Oh, I know, the greats didn’t use PowerPoint. That is not what made them great. It was an obstacle they overcame, not a obstacle they avoided. If they practiced now, they would have both PowerPoint and laptops with Wi-Fi in the courtroom. They would also no longer smoke cigars in front of the jury. Things change. Great speakers are aided by the subtle and minimal use of visual prompts. The media uses it, politicians use it, entertainers use it, even preachers use it. Bad speakers overuse it, and that’s because they are bad speakers.
4. It is a flash-in-the pan gimmick that reduces my credibility. Nope, PowerPoint is not going away. Many members of any given venire panel are regularly exposed to it and have even used it in school. Several see it every Sunday in church. Older jurors have helped their kids with it. Secondly, when you count only on your jury’s ears and abandon their eyes to pick up what you’re trying to convey at trial, you lose the attention of all jurors to a degree and some jurors entirely.
5. If I use it, so will the defense. Communicating clearly and accurately is the realm of prosecution. If, during trial, a jury is lost, inattentive, or confused, it rarely if ever helps the State. Clear communication helps the side relying on truth and facts, not misunderstanding, conjecture, or doubt. If a tool “clears things up,” it is not for the defense—if they beat you with PowerPoint, they were beating you anyway. Never plan your trial around what the defense will do.
    Finally, my experience has been that defense counsel adapts more slowly than we do.

Tips
Far brighter folks than I have discussed the “how tos” of creating visual trial presentations. The one thing they all agree on, and I do to, is that less is better. The first time you use PowerPoint in trial, shoot for just three or four slides—and make them count. (Download the PowerPoint slides below for some examples of good, simple slides [and feel free to steal them!].) My old trial partner, George Leal, was a fanatic for visual presentations long before PowerPoint. Every trial he prepared for he made sure he had flip charts for voir dire, maps and charts for direct, and posters for close. He rarely had more than four or five. Like every trial tactic and every new thing, follow the K.I.S.S. rule: Keep it simple, stupid. In addition to simplicity:
1. Use cover slides to keep track of your presentations. Your document will automatically be named what you put on a cover slide, so put the case name and cause number on the cover slide of your PowerPoint. Make a brand new presentation for every trial. I’m telling y’all this as someone who once introduced photos of the wrong burglary in trial. Create it new every time; don’t work off of an old file. Now this does not mean you can’t carefully cut and paste. Just remember the “carefully” part. It is also never a bad idea to keep a copy of everything you do in a trial.
2. Element charts were made for PowerPoint. The element chart is a basic staple of the State’s voir dire. Covering the elements says we are thorough, prepared, fair, and knowledgeable. Showing it as well as talking about it demonstrates that we care that the jury understands it. An example of a DWI element chart is below. When the jury sees and hears what the issues are in trial, these issues are set in stone in their memories. Never pass up the chance to reinforce such parts verbally and visually.
    Use this slide to emphasize elements that will be in contest. I always put the word "intoxicated" in a bold color such as red.  The bright color helps me explain that this element will likely be an issue in trial. Reveal each element one at a time with a “text animation.” I suggest simply using “appear” rather than anything fancier—remember that less is more.
3. Don’t read a statute without letting the jury read along. Remember I told my DWI jury the issue was intoxication? Well, now I better tell them what intoxication means under the law in Texas. They need to read the law. And while it is good to hear it, it is much better to hear and see it at the same time. In DWIs we have to explain the unexplainable: implied consent. Read them the law, but more importantly let them read along in PowerPoint. As you become more comfortable in PowerPoint, animate the text as you go to help your explanation. Almost every trial will include a legal definition or explanation, so let the jury read along. Creating this slide is easy. Find the statute online here: www.statutes.legis.state.tx.us. Select the part you want, copy it, and then paste it on your slide. Couldn’t be easier.
4. When you have a great story, the book should have pictures. Imagine this from a State’s attorney at trial: “Ladies and gentlemen, ‘beyond a reasonable doubt’ is not beyond all doubt. When you work a jigsaw puzzle, at first you don’t know what the picture looks like. But as you go, it becomes clearer, and sometime before you put that last piece in, you know what the picture is. You know beyond a reasonable doubt. Sure, a couple of pieces fell on the floor or were hidden by the family jokester, but you know. Trials are like that too. Sure, some minor pieces may be left out, and some small details may be unclear—that’s unavoidable. But you know without a doubt what the picture is.”
    This is a great voir dire story. But it works better with pictures.  (See slides 5 and 6.) Every great analogy or bit you do on voir dire or on close works better with pictures. Think about it: Even adults will gather up for a reading of The Cat in the Hat, but you lose even the most dedicated book clubbers while reading Atlas Shrugged out loud for more than a minute or two. Ayn Rand may be more literary than Dr. Suess, but his pictures help tell a story.
5. Comparisons, maps, and timelines work better in PowerPoint. If you want the jury to see something, PowerPoint is your tool. Want them to see and compare the book-in photos (slide 7, above)? How about signatures on the DL (sober), booking in (intoxicated), and booking out (hungover but not intoxicated), all shown above on slide 8? 
    Maps work far better and easier on PowerPoint that on chalkboards or flip charts. Are you tired of officers not knowing scale or that “north is always up?” Well, PowerPoint is your answer. Timelines of your crime or punishment priors are easy and visually persuasive (see slide 9, above). All of these demonstrative exhibits are easier, faster, and cleaner when they are created and displayed on the computer.
6. A visual trial, like all other parts of trial work, is a work in progress. Start simple and work up. Drop stuff that doesn’t work. Steal great ideas from other prosecutors. Refine your presentation. One of the nice things about being a prosecutor is that we are a team. Scared of animation? Do it the first time without and then add a little slowly. Soon you will find dozens more applications than I have discussed here. When you do, share them with the rest of us!
    While we are talking about sharing, if you have a great slide (or four) for DWI trials, send them to me, one slide at a time, at abbott@tdcaa.com. I will start compiling them and adding them to the slides in this article on the DWI Resource page at www.tdcaa.com.
7. Just because you can do something doesn’t mean you should. OK, here we are again. As my friend Todd Smith says at our Train the Trainer program, “Power corrupts and PowerPoint corrupts absolutely.” Avoid fancy animations, colors, fonts, and clip art. Avoid like a contagious disease sounds in your animations. Keep it simple, keep it short, and keep the number of words on a screen to an absolute minimum. Show your PowerPoint around and be ready to take advice.
    In closing, each lawyer is charged with being competent in a matter they undertake for a client. Prosecutors are no different. The need to make our trials visual is profound. The ease of doing so using modern presentation software is astounding. The fact we are not using this technology in criminal trials, the most important communications taking place in our communities, is unacceptable. Take a cue from the country’s fifth graders and give PowerPoint a whirl.

Endnote
1 PowerPoint® is a registered trademark of Microsoft Corporation. It is not the only presentation software out there (Macintosh fans use Keynote, for example), nor is it even the best, but it does have the largest market share. For that reason and for our own ease in this article, we will use the term PowerPoint throughout to refer to presentation software.

AttachmentSize
DWI Template slides.ppt3.36 MB