Showing (not just telling) a story

By Maritza Sifuentez-Chavarria
Assistant District Attorney in Brazos County

Human beings are naturally drawn in and captivated by what we see. Visuals can connect us to people we’ve never met and make us feel a part of experiences we’ve never had. Using visuals to create a well-crafted demonstration can make us feel sad, angry, or violated on behalf of a stranger—even a fictional character on a television screen.  How does that happen? Because of the power of visuals. Bringing to life things that are unspoken, demonstrations command attention and make an impact where words simply aren’t enough.

            Prosecutors’ cases usually involve situations that are foreign to the average juror, and demonstrations can bridge that gap. They can be complex, such as when then-Harris County prosecutor Kelly Siegler famously demonstrated stabbing a victim more than 200 times on a bed in the well of a courtroom. They can also be simple, with no props at all. They are useful for a variety of reasons, but most importantly, in-court demonstrations help jurors view the case and the defendant from the State’s perspective, drive our points home, give jurors a sense of ownership and relatability, and allow them to live in the victim’s world, even for a few minutes.

            A court will ordinarily permit in-court demonstrations if 1) it is supported by the evidence, and 2) its probative value is not substantially outweighed by danger of unfair prejudice.[1] And while the trial courts holds the discretion to permit an in-court demonstration, this discretion is balance by the fact that the State is “entitled to demonstrate their theory of the case and show how the defense’s theory could not be.”[2] For guidance in satisfying some of the predicate requirements, prosecutors can turn to the TDCAA Predicate Manual for assistance in drafting questions relevant to their in-court demonstrations.

Why do demonstrations?

Unlike movies, books force readers to create visuals in their minds. Similarly, when attorneys examine a witness, a juror will imagine the scene in his own mind based on the facts he’s heard. That’s normally fine, and prosecutors try cases like that all the time. Sometimes, though, jurors need to be shown what happened. In-court demonstrations take the jury from the jury box and make them part of the action, just like a good movie can do. The prosecutor can use demonstrations to bring things to life and highlight the most important details of a case. 

            Physical demonstrations are not appropriate in every trial, but they can clarify fast-paced and dynamic events, such as assaults, or illustrate what happened when words alone do not do the event justice. They breathe life into the facts of our cases. They can show jurors the reality of a crime more powerfully than mere words within the sterile walls of a courtroom. In-court demonstrations also highlight a case’s human elements, such as fear, sadness, rage, or sheer brutality. Any time we want jurors to feel what a victim experienced, consider a demonstration. 

            Here are some situations where a demo might be helpful:
            •          when self-defense is the issue (to show how the defense’s position is physically impossible),
            •          to explain what type of act would cause a victim’s particular injuries,
            •          to help a jury understand unfamiliar scenarios that are important to the case (e.g., sexual assault exams—more on this in a moment), and
            •          to show the jury exactly what it was like when the defendant held the weapon in his hand. (Note that you’ll want to prepare the judge and bailiff for any scenarios involving weapons. Guns will need to be checked by the bailiff first to absolutely ensure there are no bullets accidentally left in the chamber.)

            In our office, prosecutors have used demos in a number of cases. Some are very simple. For example, the defense in an evading with a vehicle trial claimed mistaken identity—the defendant said he was not the driver who evaded the officer. Our officer, however, spoke to the defendant for 20 minutes before the defendant drove away from him. The idea that the officer was mistaken about the defendant’s identity after they spoke face-to-face for 20 minutes simply wasn’t plausible. In closing argument, I stood in silence for 20 seconds so the jury could have a sense of how long 20 minutes was.

            In another case, ADA Ryan Calvert put an unloaded gun into the defendant’s hands and had him demonstrate the exact way he shot the victim. Ryan instructed the defendant to put the gun in his waistband and then cover it with his shirt, as he testified it had been. Ryan asked him if he had a round in the chamber initially, and he said no (meaning that he had to pull it, rack it to chamber a round, aim it, and pull the trigger). Ryan told the defendant to imagine Ryan was the victim and to show what he did. The defendant jerked that pistol out, racked it, pointed it right at Ryan, and pulled the trigger in one fluid motion. He looked really comfortable doing it too. And it terrified the jury. After the trial, jurors said putting the gun in the defendant’s hands was the smartest thing the prosecutors could’ve done.

            There’s always a risk with doing demonstrations with defendants. Before doing one, prosecutors must consider all variables and determine if there’s a way the defendant could use the demonstration to hurt the State’s case. If the answer is yes, then the prosecutor should not proceed. Often, though, the defendant will have no good options in a demonstration. For example, consider an assault case where a defendant is asked to show the jury what he did to the victim. Often, defendants will seek to avoid “looking guilty” in front of the jury so they will minimize their actions, such as demonstrating a mere push or a slap, rather than punching with a closed fist. Such actions, though, might be inconsistent with other evidence in the case, such as photos of the victim’s injuries.  Thus, the physical demonstration illustrates that the defendant is lying to the jury. In the alternative, the defendant might demonstrate what he actually did, which will bring the crime to life in a way that words cannot.

Practice

In-court demonstrations are not for everyone, and that’s OK. The only way to know if they’re for you is if you try one. And if you are going to try, you must practice it before performing it for a jury. (There are some rare situations that are better left to the spontaneity of in-court surprise. I’ve watched experienced prosecutors in my office do this with ease, but for the rest of us, I suggest that we practice.)

            If it’s a demonstration you will do alone, practice the entire demonstration in front of the mirror. This will help you figure out if it’s weird or awkward. Toss it away if it is.

            If your demonstration is something you will do with another person—say, your trial partner or a witness—practice it with him so he knows what to do. The last thing we want is to be stumbling over each other in the well of the courtroom. The demonstration should be fluid but at the same time, not gimmicky or forced. Make sure the other person is just as comfortable with the demonstration as you are.       

Prepare

Recently, I tried a sexual assault where the defense claimed that the victim was lying about the crime. The victim, though, had immediately reported the incident and had undergone a sexual assault examination. From our training, we know that these exams can be invasive, humiliating, and traumatic experiences. And they are voluntary every step of the way. I wanted to show the jury how this victim, whom the defense had labeled a liar, had voluntarily subjected herself to a physical examination that most of us would never choose to experience.

            One option was to simply direct the nurse to explain the several parts of the sexual assault exam. But I needed the jury to feel like they were in the room with the victim. I wanted them to be uncomfortable for her. I wanted them to be uncomfortable with her. I wanted them to understand that a person who underwent such a brutal exam was a person who was telling the truth. How could I do that?

            I prepared. Before trial, I watched a “Grey’s Anatomy” clip where a victim underwent a sexual assault exam.[3] I watched that video several times before preparing the nurse for our demonstration. I also watched an excerpt from the Netflix show “Unbelievable.” It was another scene of a victim undergoing the highly invasive sexual assault exam. Those videos are powerful because they bring viewers from their living rooms into the examination rooms with the victims. I knew if I wanted that same impact, I needed to do something similar with my nurse.

            So that’s what we did:  We brought the exam into the courtroom. I chose to act as the victim so that I could control any unnecessary theatrics and so I wouldn’t subject another person to the humiliation of the exam. We walked through whatever was practicable and appropriate for court demonstration step-by-step as best as we could. The nurse stayed in the middle of the well with me, and we did her direct examination there. It was more fluid than re-taking our seats and then popping into the well for each step of the exam.

            She described the procedure. First, once in the exam room, the victim strips off all of her clothes while standing on a large white paper napkin. So I stood on the same type of napkin. I removed my shoes and my suit jacket and laid them in the corners of the paper just as the victim was required to do. Obviously, I didn’t remove all of my clothes! I wouldn’t get completely undressed in the courtroom, but the victim certainly had to be naked for the exam. To make that clear, the nurse and I discussed how I removed only my jacket and shoes, but the victim was left completely naked. I asked the nurse if the victim was given privacy to undress or if she was required to be with the victim the whole time. The nurse said that she was in the room with the victim while she undressed. Just like the victim was forced to undress in front of strangers, I wanted the jury to see what it must have felt like when I partially undressed for them. I wanted them slightly uncomfortable—but also sad for the victim.

            There were mouth swabs. There were skin swabs. She took scrapings from underneath my fingernails with a wooden stick, and she took fingernail clippings, too. She pulled hair out of my head. She brushed through my hair with a small plastic comb. The jury watched my head jerk as the comb tugged and pulled at my straightened hair. Each step of the way, she described the procedure, and asked if I consented to it—just as the nurse had done with the victim. 

            Some parts of the exam are either not practicable (i.e., that the length of time the exam is over three hours) or not appropriate for court (such as the speculum exam). But we didn’t ignore them; we just figured out a different way to include them. I highlighted how long the exam was by simply asking the nurse about it during direct examination.

            I had the nurse describe the things we were not able to show. Still standing in front of the jury, she talked about how she runs a comb through the victim’s pubic hair to gather evidence. The nurse showed jurors a speculum that she brought with her from the hospital and demonstrated how it stretches a woman’s vagina open for examination. Words alone don’t do it justice. The demonstration was long, and it was uncomfortable for everyone, including the jurors. And that was the point. The jurors felt some of the humiliation that the victim voluntarily experienced simply to report that she had been raped. It made it impossible for jurors to believe the victim was a liar and undermined the defense’s claim. The jury found the defendant guilty and sentenced him to prison.

Point back to the demo

Once you’ve done a demonstration in court, don’t just forget about it. Tie it into other parts of the trial—closing argument for sure. In fact, figure out a way to tie it into opening statement and voir dire, too.

            I am lucky to work in an office with some of the best teachers and mentors in the entire State of Texas. I’ve been taught to prepare my case backwards. That is, first, we prepare the court’s charge. Second, we prepare voir dire. After that, we focus on closing argument, and lastly, we work on our opening statement. Going in this order forces us to focus on the issues that might cause problems in proving the case, and then build our case around that.

            For example, we obviously cannot discuss a sexual assault examination in voir dire, but the ultimate issue in the sex assault case above was the victim’s credibility—was she lying about the assault? In voir dire, we discussed witness credibility and got jurors talking about whether an alleged victim had anything to gain or lose by making an allegation. This discussion fit beautifully with our eventual closing argument that the victim gained nothing but shame and humiliation from making the report, yet she did it anyway—and that could be only because it was true. That argument was supported by the jurors’ own embarrassment from witnessing parts of the sexual assault exam in court. Each phase of trial becomes part of a single continuous message.[4]

            Alternatively, if a demonstration is not needed to clean up an issue in a case, then it’s probably not essential to the trial and should be left out. If it doesn’t serve a legitimate purpose, a jury might be inclined to think you’re disingenuous or just playing games with their time. Time is valuable—for the judge, for yourself, and especially for the jury. A judge who believes a prosecutor wastes time on pointless matters might be less likely to go with us when we want to do something outside of the box in the future. When the time comes that an in-court demonstration is truly needed, we want the judge on our side rather than questioning the validity or necessity of our choices. Furthermore, in presenting our cases, every minute of a prosecutor’s time is precious. We hold jurors’ attention for only short periods of time. Unnecessary demonstrations focus the jury on issues that are not pertinent to the case’s resolution, potentially causing them to miss other things that need attention. The focus should always be on what we need to prove (either for guilt or punishment). The ultimate point is, just because you can do a demonstration doesn’t mean you should do one.

Pitfalls

We bask in the demonstrations that have gone great, but the real lessons have come from mistakes we’ve encountered along the way. I will share an example of a pitfall that I’ve experienced in hopes that other prosecutors can avoid them when employing visual demonstrations of their own.

            Once, I did an in-court demonstration of a stabbing. The victim was stabbed numerous times all over his upper body, but the defendant claimed he acted only in self-defense. I needed the jury to see how much effort it took to plunge a knife into another person more than 20 times. I also wanted them to see how the victim and defendant had to have been standing during the stabbing. Let me tell you, just acting it out was exhausting. We showed a blown-up medical chart of the victim’s injuries on the televisions behind us, and my chief and trial partner, ADA Nathan Wood, acted as the victim. I crossed the defendant on all of the injuries he inflicted on the victim. Each time the defendant admitted that he stabbed the victim, I simultaneously made stabbing motions toward Nathan in those areas. Where the victim showed injuries to the backs of his forearms, Nathan raised his hands in the same defensive position, and I showed the jury how that stab wound happened. The demonstration felt awesome. I was excited, and I thought it was going well. But there were so many stab wounds in so many directions that I inadvertently stopped counting and lost myself in the demonstration.

            After the jury found the defendant guilty, one juror told me that he noticed I “stabbed” Nathan more times in the forearms than the actual victim sustained in real life. Though it didn’t affect this verdict, a misstep like that might have created problems in a different scenario. The point I took away was that precision matters. Jurors pick up on even minor discrepancies. The slightest inconsistency can potentially undermine the entire demonstration, undo the work you did, and call your credibility into question. Sometimes we lose ourselves in the moment, but with practice, these mishaps can be minimized.

            Also, demonstrations that drag on or use more props than necessary to make the point work against us. When deciding what is actually needed for demonstrations, we should focus on the objects that are absolutely essential. Anything else will serve as a distraction and raise the chances of drawing (and the judge sustaining) an objection. Ask what point you are trying to prove and what can make it happen. If you must set up an entire courtroom with props, arrange everything during breaks or before court starts in the morning so you don’t waste the jury’s time while they’re in the box or fumble over yourself in the jurors’ presence. Furthermore, be conservative with time. We lose the jury’s focus pretty quickly. Take only the time you need to highlight whatever your demo serves to prove—and nothing more. Never-ending demonstrations are problematic in the same way too many props are: They are distracting, and they weaken the very impact we are aiming to achieve. 

            My advice is to use as few props as possible, be extremely cautious of demonstrations that require the defendant’s participation, and be creative with it.

Endnotes

[1] Wright v. State, 178 S.W.3d 905, 923 (Tex. App.—Houston [14th Dist.] 2005).

[2] Id. at 922.

[3]  It’s from the episode “Silent All These Years” in Season 15, Episode 19. Here is a clip of just the exam: https://www.youtube.com/watch?v=ZrsR7I1mLX4.

[4]  For more information about discussing these issues during voir dire, see Jury Selection by Ryan Calvert (TDCAA © 2020), available at tdcaa.com/books.