You’ve built your evidentiary PowerPoint. It’s ready to take to court. It’s chock full of interesting and persuasive images, maps, diagrams documents etc. needed to prove your case. What’s next?
Previous columns covered the basics of creating an evidentiary PowerPoint (PPT). In this column I’ll begin to cover considerations for using a PPT in court.
The PowerPoint as an Exhibit
A crucial first step is to decide is how the PowerPoint will be filed as an exhibit.
Like any object or photo used in court the PowerPoint (PPT), once referred to by a witness or displayed in court, must be entered into evidence in order to preserve the record. The simplest way is to have the PowerPoint on a CD/DVD and have the disc and its case marked as an exhibit. USB flash drives, also referred to as memory sticks, may also be used.
In either case the PowerPoint must be “locked down” so that it cannot be altered after it is entered into the court record. You don’t want anyone (for example a juror during deliberations) who is reviewing the disc to inadvertently delete or change the files – this could potentially cause an embarrassing mistrial.
Generally it is easier, cheaper and safer to put your PPT onto a disc. Write-once discs cannot be altered or changed. If you are using rewritable discs however you need to make sure the files placed on them are secure. Software applications used to burn the disc generally will prompt you to consider whether you want the disc to be secure or open to being rewritten. For instance in our office we use Roxio to burn discs. As part of the burning process the Roxio application prompts the user to consider making the disc ‘write-once’, thus preserving its content (see below).
If you choose to use USB flash drive you must ensure that the read-only security function for the PPT is switched on. This will prevent changes when it’s handled in court. To activate ‘read-only’ protection simply locate the saved PPT in Windows Explorer, then highlight it and right click. This will bring up a menu – choose “Properties”. Under the “General” tab of “Properties” (see below) you’ll see “Attributes” click “Read-only” and “Apply” to lock down the PPT.
I much prefer discs – they are cheaper and more secure. While memory sticks are coming down in price they are still very expensive compared to discs.
Once the PPT disc is filed as an exhibit it is my practice is to provide a copy of the disc to the court and to opposing counsel. A small courtesy which assists the court when preparing a judgement or a charge to the jury.
Give consideration to also filing a hardcopy of the PPT along with the disc and case or flash drive. While the use of paper may not amuse environmentalist it will assist the trier of fact, especially jurors. The evidence is generally easier to follow and more memorable if the trier of fact has a hard copy and can make notes right onto it. For instance a juror may want to mark a photo that a witness has referred to.
For a jury trial I usually prepare 6 hardcopies for 12 jurors. This saves paper and requires jurors to share. In my opinion there is real advantage to the 2:1 ratio – it helps jurors stay on the ‘right page’ during testimony when the PPT is being displayed. If one juror has the wrong page the juror sharing the hardcopy will point it out. That way jurors stay engaged and focussed at the same time as building camaraderie based on sharing resources.
I’ve noticed another advantage of hardcopies. Jurors frequently like to keep occupied during long labourious cross examinations by opposing counsel, when boredom strikes jurors sometimes prefer to leaf through their hardcopies– a nice way to pass the time!
It is a wise idea to inform the court and opposing counsel about the technology you intend to use in advance. While most judges and counsel have easy access to laptop they don’t always bring them to court. In my experience when informed of the planned use of discs most judges and counsel will bring their laptops.
By giving advance notice it also allows the other side to consider pre-trial objections. In my experience I have yet to see anyone object to a PPT as a method of evidence presentation. Use of a PPT closing may bring objections however – more about that on another occasion.
Advance notice will allow coordination of technology. But advance notice does not always prompt awareness – in a recent case where I provided lots of advance notice of my use of a PPT, opposing counsel, who was a Mac guy, failed to consider Mac compatibility. The oversight delayed the start of court – something that would put most judges in the ‘wrong’ mood.
Beware and plan ahead.