[This article is a chapter in the newly-published Remote Advocacy: A Guide to Survive and Thrive, NITA 2020. The entire book can be found at https://www.nita.org/publications/books-dvds/Remote-Advocacy:-A-Guide-to-Survive-and-Thrive ]
Whether in a live or virtual proceeding, at trial or deposition we need exhibits. Sometimes they are the better or best proof. Sometimes they are the only proof. Sometimes they are just a better way of telling a story and maintaining the listener’s attention—ensuring that the point at issue is grasped and remembered. Those needs do not change in a world of virtual proceedings. But what may change is the calculus of how and when they are presented.
- The types of exhibits:
For adjudicative purposes, exhibits are often classified as constituting real, illustrative, or demonstrative evidence—the last two categories often, if inelegantly, treated as the same. When contemplating remote advocacy, the focus will be on three considerations: whether the evidence is in a two-dimensional (paper or photographic) form; whether it is three-dimensional (the broken steering wheel, the weapon seized during the investigation, the confiscated drugs); and whether it is intended to be marked up or otherwise altered by a witness or witnesses.
- Pretrial Exhibits Management
In remote advocacy, even more than in live trials, anticipate judicial orders or protocols governing pretrial disclosure of exhibits, as well as resolutions to challenges of those exhibits. Such pretrial decisions are already quite common; and in remote advocacy, when there may be little or no opportunity for all parties to debate about an exhibit in a sidebar, having those decisions—and any objection to a decision—on the record before trial is imperative.
In a criminal case, a mutual pretrial disclosure order may raise particular concerns, as disclosing an exhibit may also reveal a defense theory when by law an accused is not generally obliged to do so pretrial. However, there is a general approval of pretrial disclosure that is truly reciprocal. If there is a general disclosure mandate, a specific concern would have to be litigated, presumably by ex parte motion.
Assuming such an order or protocol exists, or the parties agree to such a process, a shared exhibits e-binder for two-dimensional exhibits may be the best trial management tool. A copy can be provided electronically to the court, so that once exhibits are introduced the judge sitting as finder of fact may review them.
Similar arrangements may be required for three-dimensional exhibits. What parties should propose, or what a court may require, will be appropriate displays—either a two-dimensional capture such as a photograph, or a video recording or live ‘handling’ of the exhibit by the witness in whose possession it is being held. The court may determine, or the parties may choose to agree to, how the object is to be portrayed.
A pretrial management protocol may require a stipulation to authenticity of all designated exhibits, or a presumption that all exhibits are deemed authentic unless specifically challenged on that ground before the trial. If they are not, a mechanism will have to be established for the authenticating witness to be “shown” an exhibit that both parties can also see but that the trier of fact cannot yet view. The simpler manner is with use of an e-binder of exhibits—the witness is directed to view a particular page and then is asked the traditional authentication questions. Once authentication is satisfied, that two-dimensional item may be offered to the factfinder (who may then be given access to that page in their e-binder or see it as it is displayed by the witness holding it up to the camera or by some electronic process such as screen sharing or presentation software). If there is no shared e-binder, counsel will need advanced technology to prevent the factfinder from seeing what the witness is being shown until it is ruled admissible.
- Content analysis
In all of this, where the focus is on entering the document or photo, what must not be forgotten is content analysis. Every exhibit must be reviewed for inadmissible content—lack of relevance, improper hearsay, character, “other acts” behavior, opinion, and more. In limited cases, review must also be made under the original writings doctrine. Especially in remote litigation, this should be the subject of negotiation between the parties or a motion in limine.
- Exhibits at trial
At trial, if a pretrial order or court protocol has been adhered to, admissibility (and potentially manner of display) will have been resolved. If an e-binder is in use, where each attorney, the Judge, and the witness has access, introduction and use should be fairly easy—the witness will be directed to the particular exhibit and will testify regarding the same, and the exhibit will be displayed in some fashion if need be (for example, if the witness points to a portion of a photograph). If jurors have e-binders they will be directed to the same source.
Alternative mechanisms for display and use might involve some form of presentation or trial management software. The advantage here is that the party proffering the item controls its display, but this necessitates a split or shared screen. Where the lawyer controls the display, it may make it harder for the witness to mark or alter the document or image; conversely, if the witness marks their copy, it is not clear how that marked copy will become part of the trial record. Indeed, the process of a witness placing an “x” on a map or similar document may require access to a shared document that becomes a new version of the exhibit. All of this needs to be managed, preferably before trial.
The dilemma becomes greater with physical evidence. The item can never be in the courtroom where all witnesses may hold, display or manipulate the item—it will be in one location in the possession of one party or one witness. That witness will be able to handle and maneuver the item; other witnesses, unless there is a facsimile of the item, will be restricted in how they address that evidence. Where this creates an uneven playing field, a judge might elect, pursuant to Federal Rules of Evidence Rules 403 and/or 611, to preclude all parties from using the real object and instead ensure parity by having each use the same two-dimensional depiction.
One additional concern arises with three-dimensional evidence—ensuring that it ultimately comes into the possession and control of the court. At the end of trial, exhibits need to be preserved for appellate review or the possibility of use in a trial in a related case or in the advent of a retrial. Arrangements to have the item(s) delivered to the court must also be determined and fulfilled.
- Exhibits and the criminal defendant client
Hopefully, all exhibits will have been reviewed with the accused in some manner before trial. However, this may be impossible because the exhibit was not available pre-trial or the accused is incarcerated and could not be provided with or shown copies in advance. In such circumstances, arrangements will have to be made to permit the exhibit to be shown to the defendant and to permit discussion between client and counsel before admission or use occurs.
While a person accused of a crime has the right to a public trial, courts have consistently held that this right does not extend to the public being able to view the exhibits as they are presented. As one court recently conclude, “[t]he right to a public trial is not implicated where evidence is presented in open court, and that right does not extend to the viewing of exhibits by the public.” People v. Groebe, 2019 IL App (1st) 180503, P40, 2019 Ill. App. LEXIS 808, *17-18 (Ill. App. Ct. 1st Dist. September 30, 2019). See also, People v. Robles-Sierra, 2018 COA 28, P17, 2018 Colo. App. LEXIS 305, *7-8, 2018 WL 1247579 (“that portion of a trial when evidence is presented should be open to the public. But it doesn’t follow that the right extends to the viewing of all exhibits by the public as those exhibits are introduced or discussed”).
- Unanticipated exhibits
It is not always foreseeable whether an item, photograph or document will have any relevance at trial. In remote litigation, a mechanism must be developed for distributing an exhibit that was not included in the e-binder or otherwise designated pretrial. This must consider how it will be shown to opposing counsel before it is shown to the witness; how the witness then receives the exhibit; how the finder of fact views it; and how it ultimately becomes part of the record for jury consideration, any post-trial proceedings, and appeal.
- Manner of presentation
Just as in a live proceeding, concerns will arise regarding manner of presentation. If counsel is controlling the display—as with a shared screen—questions that must be resolved include: how long the exhibit will be in view, how large or colorful the depiction is, and whether the lawyer may remove the witness’ image from the screen and show only the exhibit. The most appropriate resolution for these concerns is for them to be included in a judge’s order or protocol, or for parties to propose resolutions pre-trial.
- Exhibits that are not exhibits
At least three classes of documents are used at trial but may not go into the hands of jurors—documents used to refresh recollection (Rule 612, Fed. R. Evid.); statements of past recollection recorded (Rule 803(5), Fed. R. Evid.); and learned treatises (Rule 803(18, Fed. R. Evid.). In a criminal case, a writing or recording of the defendant’s confession is often treated the same—it may be read to or watched by the jurors but not sent out to be examined during deliberations.
Perhaps the most complex will be documents used to refresh recollection. They are to be seen only by opposing counsel, the court, and the witness, but never by the jury. Thus, some form of presentation modality will be required that can exclude jurors from seeing the document. For the other categories discussed in the preceding paragraph, the issue will be whether such exhibits are in the e-binder or otherwise displayed or used but not sent out to the jury room.
- Exhibits and Openings and Closings
Here, the issues should be no different than in a live trial. To use exhibits in an opening, before they are formally admitted, requires agreement of the opposing counsel and/or approval by the judge. For closing argument, again it should be no different than at a live trial.
- Exhibits and Jury Deliberation
As was noted above (section 8), not all exhibits are permitted to “go out” with jurors. Assuming there are e-binders for jurors, one issue will be whether that binder may be taken into the virtual jury deliberation room. If this is permitted, the e-binder may have to be culled for exhibits that were planned but not introduced or for exhibits that the law precludes from being possessed during jury deliberations.
If there is no e-binder, the court will then have to develop a mechanism for providing exhibits to the jurors. This may arise when the parties agree that certain exhibits are appropriate to be taken into the jury room right from the beginning of deliberations, or if jurors send a question requesting an exhibit.
- Preserving the Record for Appeal
In remote litigation, ensuring a complete record for appeal has its challenges. Video recording the trial will help; appellate review will be more complete than with paper transcripts as judges will be able to see/hear how an exhibit was used. The same is true if a witness marks or otherwise alters an exhibit; to the extent that this is captured on the video, appellate review will be facilitated.
Where an e-binder is created but not all exhibits in it are admitted or otherwise used at trial, the appellate record may need a modified binder, one where only the admitted or used exhibits are included. This may require cooperation of the parties or action by the trial court. Where real/three-dimensional exhibits are used, the creation of the appellate record becomes more complex. Depending on where the exhibit is retained, parties may need to create a two-dimensional copy for the record and agree to some form of exhibit preservation and access until the case is final.
While many of the above concerns for trials apply to remote depositions, a few additional notes are warranted. As with a remote trial, access to exhibits will have to be provided to all counsel, the court reporter, and any witness who will be questioned about the same. Where the witness is not in the presence of one of the attorneys, procedures will have to be developed to provide copies to that individual. If actual copies can’t be provided, a captured screen share will be needed to show that the document the witness is being asked about is one that all parties can agree to and can then display at trial. Where the witness is asked to initial the document or otherwise mark it up, if this can’t be accomplished by a screen share process that then captures the markings, the witness may need to be instructed to mark it up and then scan and send it to the court reporter.
In contemplating the use of exhibits at a deposition, what may be most important—whether it be a discovery deposition or a trial deposition—is ensuring that any exhibits used at the deposition are of the type that a trial judge would likely admit. If they are too inflammatory, whatever is gained in discovery by asking questions about them may be lost if the exhibit is likely to be excluded.
In Wardius v. Oregon, the Supreme Court held that liberal systems of discovery generally comported with the protections afforded to defendants under the Due Process Clause because allowing both parties the “maximum possible amount of information with which to prepare their cases…reduce[s]…surprise at trial” and would best serve the “ends of justice.” 412 U.S. 470, 472 – 474, 93 S. Ct. 2208, 37 L. Ed. 2d 82 (1973). The Court however places one important limitation on broad discovery rules: criminal defendants must be afforded reciprocal discovery rights.
United States v. Hitselberger, 991 F. Supp. 2d 91, 99-100, 2013 U.S. Dist. LEXIS 158812, *20, 2013 WL 5933655
. This process contemplates a bench trial. If there is a remote jury trial, a separate binder may need to be created as the trial progresses so that jurors possess, for deliberations, only those documents that are ultimately admitted. If the capacity exists, jurors may receive a virtual binder that has exhibits added to it as they are admitted at trial. A court will then have to determine which exhibits may be taken into the virtual jury room.