Response to Motion to Limit Technology in Opening Statement

IN THE CIRCUIT COURT FOR HOWARD COUNTY

SANDY RIVERS
Plaintiff,

v.

IMTIAZ H. COHEN, M.D., et al.
Defendants

CASE NO.: C-12-0941124 MM

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PLAINTIFF’S RESPONSE TO DEFENDANTS’ MOTION IN LIMINE TO PRECFLUDE USE OF VIDEO DEPOSITIONS IN OPENING STATEMENTS AND TO PRECLUDE USE OF COMPUTER GENERATED EVIDENCE

Plaintiff, Sandy Rivers files Plaintiff’s Opposition to Defendants’ Motion In Limine to Preclude Use of Video Depositions in Opening Statements and to Preclude Use of Computer Generated Evidence and in support thereof states as follows:

SUMMARY OF ARGUMENT

First, Defendants fundamentally misunderstand the purpose and permissible scope and content of opening statements. It is beyond dispute that counsel may orally describe any prospective evidence in an opening statement. Most courts that have considered the issue have held that any prospective evidence that might be orally described to the jury may also be shown, read from, or played. Moreover, the Maryland Rules permit videotaped depositions of parties and expert witnesses to be used for “any purpose.” Opening statements fall within “any purpose.”

Second, PowerPoint presentations are not “computer generated evidence” within Md. Rule 2-504.3. PowerPoint is the electronic equivalent of an easel or whiteboard that may be used to display bullet points, show photographs, or play video. It is merely a presentation medium that may be used to exhibit to the jury any prospective evidence that counsel has a good faith basis to believe may be admissible. It is not computer-generated evidence as defined in Md. Rule 2-504.3, and Plaintiff’s Md. Rule 2-503 Notice made clear that it is Plaintiff’s position that PowerPoint is not “computer generated evidence,” disclaimed any intent to use “computer generated evidence” and indicated that the Notice was filed merely as a precautionary measure.

ARGUMENT
I. Decisional Standard.
The order, length, scope and permissible content of opening statements is within the discretion of the trial court. Wilhelm v. State, 272 Md. 404, 421, 326 A.2d 707, 719 (1973)(whether to grant a mistrial based upon content of opening statement is within the discretion of the trial court); Baltimore & Ohio R. Co. v. Plews, 262 Md. 442, 463, 278 A.2d 287, 298 (1970)(correcting improper or prejudicial statements or arguments of counsel is within the discretion of the trial court); Shedlock v. Marshall, 186 Md. 218, 46 A.2d 349 (1945)(regulating the order and length of opening statements is within the discretion of the trial court); Muhammad v. State, 177 Md.App. 188, 934 A.2d 1059 (2007)(“broad discretion is entrusted to the trial judge to control the flow of the trial …”).

II. The purpose and scope of opening statements under Maryland Law.

Jurors are nearly always strangers to the judicial process. The purpose of opening statement is to fairly apprise them of the issues and evidence to be presented to them and what, in the end, each of the parties will be seeking from them in terms of a verdict. ‘In our juridicial procedure the purpose of an opening statement is to acquaint the judge and jury with the facts that counsel hopes and expects to prove….’ It is appropriate for counsel to provide an overview of the facts and, in cases of personal injury, to tell the jurors that damages will be sought.”

CSX Transportation, Inc. v. Haischer, 151 Md.App. 147, 160, 824 A.2d 966, 973-74 (2003)(internal citations and quotations omitted). “Although the purpose of an opening statement is to apprise, with reasonable succinctness, the trier of facts of the questions involved and what is expected to be proven, such opening statement does not need to be limited to a factual recitation of what is expected to be elicited from the prospective witnesses.” Height v. State, 185 Md.App. 317, 339, 970 A.2d 921, 934 (2009).

While counsel should be allowed reasonable latitude in opening statements, they “should be confined to statements based on facts that can be proved and [the] opening statement should not include reference to facts which are plainly inadmissible and which [counsel] cannot or will not be permitted to prove, or which [counsel] in good faith does not expect to prove.” Wilhelm v. State, 272 Md. 404, 411-12, 326 A.2d 707, 714 (1974). “Opening statements… are discretionary and have no binding force or effect.” State v. Despert, 73 Md.App. 620, 625, 535 A.2d 963, 965 (1987).

III. Permissible Content of Opening Statements.

“Today, a majority of courts seem to take a liberal approach, allowing litigators to display actual evidence or use demonstrative aids during opening statements.” Mindy G. Barfield, Use of “Evidence” in Opening Statement: The Most Dangerous Weapon in a Litigator’s Arsenal, For The Defense, P. 50 (Defense Research Institute, Spring 2009). “Courts have found that if an attorney can detail a piece of evidence during its opening statement, there is no reason to prevent counsel from simply showing jurors the item of evidence at that time.” Id. at P. 88.

A review of cases and secondary sources reveals several customary rules regarding the use of demonstrative aids and actual evidence in opening statements. First, trial courts are afforded discretion in ruling on the conduct and scope of opening statements, and their rulings are typically respected on appeal. Trial courts, in turn, give counsel wide latitude in presenting their opening statements and depend on the good faith of trial lawyers to confine their presentation to appropriate matters. Just as litigators are confined to discussing evidence that they have a good faith belief will later be admitted into evidence, counsel may only display actual and demonstrative evidence in an opening statement when abiding by the same good-faith standard.
Id.

A. Statements of general knowledge.

"Jurors may be reminded of what everyone else knows, and they may act upon and take notice of those facts which are of such general notoriety as to be matters of common knowledge.” Wilhelm v. State, 272 Md. 404, 439, 326 A.2d 707, 728 (1974)(permitting reference in closing argument to the number of people murdered in Baltimore City in the previous year).

B. Photographs, videotapes and tape recordings.

“[I]t is well settled that the use of photographs and tape recordings, intended later to be admitted into evidence, as visual or auditory aids is appropriate.” People v. Wash, 6 Cal.4th 215, 257, 861 P.2d 1107, 1132 (1993)(It was not error to permit the prosecution to show five photographs of injuries to child victims during opening statement, where those photos were later properly admitted into evidence). “Cases suggest that, if the items used are ultimately admitted at trial, any error in allowing their use during opening statements is harmless.” Fisher v. State, 220 S.W.3d 599, 602 (Tex. App. 2007).

Even where objected to, it was not an abuse of discretion for the trial court to permit the prosecution to display two 8x10 photographs of a naked four year old’s corpse in opening statement. People v. Trent, 315 Ill. App. 3d 437, 448-49, 734 N.E.2d 1, 9-10 (2000). “During opening statement, the prosecution showed the jury an enlarged color photograph of the first victim, the 81 year old prosecuting witness as she lay in a hospital bed recovering from her injuries.” Sherley v. Commonwealth, 889 S.W.2d 794, 799 (S. Ct. Kentucky 1994). “Presenting the photographs of the victim to the jury during the opening statement was not reversible error.” Id. “Such photographs of the injuries of a victim are admissible to show how those injuries were sustained.” Id. See also, Fields v. Commonwealth, 12 S.W.3d 275, 279 (S.Ct. of Kentucky, 2000)(it was not an abuse of discretion to permit use of a videotape of crime scene in opening statement, but playing the narration containing inadmissible hearsay was reversible error); Baltema v. Caterpillar, Inc., 1999 U.S. Dist. LEXIS 6301 (N.D. Ill. 1999)(permitting defense to display surveillance video of injured plaintiff in opening statement where it was consistent with the expert testimony to be admitted at trial).

C. Tangible evidence.

“Undoubtedly, it is legitimate during opening statements for a prosecutor, or defense counsel for that matter, to verbally describe, in detail, the evidence he intends to prove, including tangible pieces of evidence.” Commonwealth v. Parker, 591 Pa. 526, 538, 919 A.2d 943, 951 (2007)(Holding that it was not an abuse of discretion to permit prosecutor to display a gun during opening statements). “We fail to see the distinction between verbally describing that evidence and physically picking it up and displaying it to the jury as the attorney describes what he intends to prove with regard to that particular piece of evidence.” Id.; See also, People v. Trent, 315 Ill. App. 3d 437, 448-49, 734 N.E.2d 1, 9-10 (2000)(it was not an abuse of discretion to permit the prosecutor to show the bloody coat worn by defendant the night of the murder to the jury during opening statement where it was subsequently identified by witnesses and admitted into evidence); Shelton v. Commonwealth, 280 Ky. 733, 742, 134 S.W.2d 653, 658 (1939)(it was not plain error to permit use in opening statement of a child murder case a metal pole and spatula used to commit the crime where no objection was made).

D. Deposition Transcripts and Videotaped Depositions.

The Maryland Rules contemplate that transcripts and video recordings of depositions may be used in opening statements. “The deposition of a party or of anyone who at the time of taking the deposition was an officer, director, managing agent, or a person designated under Rule 2-412(d) to testify on behalf of a public or private corporation, partnership, association, or governmental agency which is a party may be used by an adverse party for any purpose.” Md. Rule 2-419(a)(2)(emphasis added). “A videotape deposition of a treating or consulting physician or of any expert witness may be used for any purpose even though the witness is available to testify if the notice of that deposition specified that it was to be taken for use at trial.” Md. Rule 2-419(3)(E) (emphasis added).

“[B]y and large, the courts allow videotapes to be used during opening statements.” Linda S. Crawford, Videotaped Depositions Can Be A Blessing Or A Death Knell in Court, Medical Liability Monitor, Vol. 30, No. 2 at P. 4 (February, 2005). “Using video evidence in opening statements is typically allowed as long as the evidence is otherwise admissible.” Christina L. Dixon & Jennifer K. Hohnstein, Rock Stars, Lies, and Videotape: Using Videoed Deposition Testimony, 17 Com. Tr. Evid. 3, P.2 (A.B.A., Fall 2008).

See also, Spence v. Southern Pine Electric Cooperative, 643 So.2d 970 (S. Ct. Ala. 1994)(trial court did not err in permitting defense counsel to use enlarged copies of the deposition transcripts of two witnesses as demonstrative exhibits in opening statements); Sadler v. Advanced Bionics, LLC, 2013 U.S.Dist. LEXIS 46637, 7-9 (W.D. Kentucky 2013)(Court would consider permitting use of excerpts of videotaped depositions during opening statement if they were “otherwise admissible at trial” and “not unnecessarily lengthy”); Smith v. I-Flow Corp., 2011 U.S.Dist. LEXIS 63329, 11-12 (N.D. Ill. 2011)(denying motion to prohibit use of excerpts of videotaped depositions during opening statements); Northfield Insurance Co. v. Royal Surplus Linse Ins. Co., 2003 U.S.Dist. LEXIS 27959, 8 (Central D. Cal. 2003)(permitting the use of video deposition excerpts and transcripts in opening statement because the deposition of a party may be used “for any purpose”); MBI Acquisition Partners, L.P. v. The Chronicle Pub. Co., 2002 U.S.Dist LEXIS 28458, 3 (W.D. Wisc. 2002)(permitting use of excerpts from a video deposition during opening statement).

E. Demonstrative evidence.

“The trial court is granted wide discretion in determining whether to allow the use of a demonstrative aid, and the appellate court need not address an argument if the appellant fails to prevent convincing legal authority or argument that the use of a demonstrative aid was an abuse of discretion.” Miller v. Hometown Propane Gas, Inc., 86 Ark. Ap.. 189, 197, 167 S.W.3d 172, 178 (2004). “We see no reason or need to restrict the use of demonstrative evidence in an opening statement unless a genuine and unresolved question exists as to its admissibility.” West v. Martin, 11 Kan.App.2d 55, 713 P.2d 957, 958-59 (1986). “Demonstrative evidence is a valuable tool in ‘setting the stage.’” Id. “It will enable the jurors to understand what is going to be presented so that they see the whole picture rather than ‘bits and pieces,’ or what might otherwise appear to be disjointed and meaningless evidence.” Id.

“The use of summary charts, diagrams, and other visual aids is generally permissible in the sound discretion of the trial court.” U.S. v. Crockett, 49 F.3d 1357, 1360 (8th Cir., 1995). “Visual aids that summarize other evidence are generally permissible pedagogic devices, especially when used to organize complex testimony or transactions for the jury.” Id. at 1361.

The trial court allowed the state to display several charts to the jury during the prosecutor’s opening statement and closing argument. These displays included one chart comparing the property stolen during each robbery with property recovered by the police and one chart listing similarities between the various crimes. In addition, seven charts were displayed, each of which identified (1) a particular crime situs, (2) the defendant charged with being involved at the situs, (3) the charges in the indictment that resulted from the particular situs, (4) a list of the property stolen, and (5) a list of the evidence to be presented at trial relevant to the particular situs.
In addition, the latter referenced charts were displayed throughout the trial as well as during the state’s opening and closing remarks. However, only the information identifying the crime situs, the particular defendant charged and the offenses charged remained in the jury’s view.

Upon review of the record, we find that those charts that were displayed only during opening and closing statements merely assisted the state in explaining its case. The trial court properly instructed the jury that this material was not to be considered as evidence in the case. In addition, the material that was displayed to the jury during the trial mirrored the contents of the indictment in this case. The display of this material was proper to assist the jury in understanding the multicount indictment and to avoid confusion as to the defendants and the charges in the case.
State v. Parker, 72 Ohio App.3d 456, 466, 594 N.E.2d 1033 (1991); See also, State v. Bjorklund, 258 Neb. 432, 604 N.W.2d 169 (S.Ct. Neb. 2000)(use in opening statement of charts depicting enlargements of criminal information was not an abuse of discretion).

“Counsel are given wide latitude in use of demonstrative aids at trial to assist the jury in understanding the issues they must decide.” Tench v. Galaxy Appliance & Furniture Sales, Inc., 255 Ga. App. 829, 567 S.E.2d 53 (2002)(holding that it was not an abuse of discretion to allow use of a chart that was not later admitted into evidence as demonstrative evidence during opening). “In the trial of any civil action, counsel for either party shall be permitted to use a blackboard and models or similar devices in connection with his argument to the jury for the purpose of illustrating his contentions with respect to the issues which are to be decided by the jury, provided that counsel shall not in writing present any argument that could not properly be made orally.” Id.; See also, Miller v. Hometown Propane Gas, Inc., 86 Ark.App. 189, 197-98, 167 S.W.3d 172, 178 (2004)(holding that it was not an abuse of discretion to permit counsel to “flick” a Bic cigarette lighter in opening statement as a demonstrative aid).

F. PowerPoint and other multimedia presentations.

Using multimedia presentations during opening statements can be an effective and compelling way to present your case to a jury. Although such presentations will not win cases by themselves, they can be important tools in the advocate’s arsenal. If done correctly they help keep the trier of fact engaged and make arguments more effective. Displaying Digital Media During Opening Statements: Tactics, Techniques, And Pitfalls, Simberg, Joel, 60 DePaul L. Rev. 789, 803 (Spring 2003).

Most litigation consultants urge lawyers to include computer-driven graphics in their opening statements. Trial practice courses deliver the same message. And lawyers are quick to see the advantages in making opening statements more interesting, compelling and expeditious. For these reasons, even if there are very few uses of court-room technology in other parts of the case, counsel may want to use some visuals during opening statement. They are likely to include bullet-point slides, as well as some of the exhibits that have been admitted during the pretrial conference. Federal Judicial Center, Effective Use of Courtroom Technology: A Judge’s Guide to Pretrial and Trial, P. 153-54(2001).

Inexperienced lawyers sometimes fear objections if they use displays during an opening statement. The court can overcome this concern by advising during pretrial proceedings the general rule governing bullet-point slides: the words on the slide are not objectionable if they could be spoken by the lawyer during the opening statement. Id.

Courts have held that permitting the use of “PowerPoint” or other multimedia presentations in opening statements was not an abuse of discretion:

Prior to trial the prosecutor informed the court and defense counsel that he intended to use a ‘PowerPoint’ presentation during his opening statement.” The presentation consisted of a series of thirty slides including: 1) a title page; 2) photographs of the vehicles and accident scene with superimposed descriptions and headings; 3) a map; 4) a listing of the defendant’s blood alcohol content and physical symptoms; and 5) a list of the elements of the two charged offenses.

State v. Sucharew, 205 Ariz. 16, 66 P.3d 59 (2003). The photographs included in the presentation were the same ones disclosed to defendant during pretrial discovery and later admitted into evidence at trial. Moreover, even though the photographs included superimposed descriptive words and labels, the words and labels simply tracked the subject matter of the prosecutor’s opening statement to the jury, and defendant made no objection to any of the content or substance of the actual opening statement. Id. We conclude, therefore, that there was no abuse of discretion by the trial court in permitting the State’s use of the ‘PowerPoint’ presentation.” Id.

III. A PowerPoint presentation is not “computer generated evidence” as defined in Md.Rule 2-504.3.

Md. Rule 2-504.3 requires disclosure of only very specific types of computer generated “illustrative” and “simulation” evidence, both of which a PowerPoint presentation is not. This requires only a glance at the definition provided in the Rule:

(a) Definition — Computer-generated Evidence. — “Computer-generated evidence” means (1) a computer-generated aural, visual, or other sensory depiction of an event or thing and (2) a conclusion in aural, visual, or other sensory form formulated by a computer program or model. The term does not encompass photographs merely because they were taken by a camera that contains a computer; documents merely because they were generated on a word or text processor; business, personal, or other records or documents admissible under Rule 5-803(b) merely because they were generated by computer; or summary evidence admissible under Rule 5-1006, spread sheets, or other documents merely presenting or graphically depicting data taken directly from business, public, or other records admissible under Rules 5-802.1 through 5-804.

It is clear that a PowerPoint presentation is not what this rule is talking about, unless it happens to contain evidence that would otherwise be subject to the rule. This is also the view expressed in Maryland Rules Commentary:

CGE may be either a computer-generated aural, visual, or other sensory depiction of an event or thing or a conclusion in aural, visual, or other sensory form formulated by a computer program or model. CGE is intended to include computer-generated evidence that is “illustrative,” such as an animation demonstrating the “lift” principles of an airplane wing. It also includes computer-generated evidence that is a “simulation.” Because a simulation can be challenged for its accuracy, more complete discovery about it may be necessary.

The rule makes clear, however, that not everything generated by computer is CGE. Thus, this rule does not purport to address the use of photographs, documents, or spread sheets even though they are generated by a computer. These forms of evidence are still regulated by the traditional rules of evidence and do not require the application of the additional procedures mandated by this rule. Paul V. Neimayer & Linda M. Schuett, Maryland Rules Commentary, p. ??? (3d Ed. Lexis-Nexis 2003).

Plaintiff’s Rule 5-403.3 Notice indicated that it was filed as a precautionary measure, and stated that “to the extent this court considers Microsoft PowerPoint presentations as computer generated evidence, the Plaintiff reserves the right to use Microsoft PowerPoint presentations, however at this point in time the Plaintiff does not possess any evidence that was actually created or generated by a computer software program.” Exhibit 1.

That has not changed. Plaintiff does not intend to present any evidence, in opening statement or otherwise, that was created or generated by a computer software program. Plaintiff only intends to use PowerPoint as a medium to present to the jury non-computer generated evidence that could be shown to the jury in any other way (such as showing a physical copy of a photograph as opposed to projecting it electronically). Plaintiff has not provided Defendants with any computer generated evidence, because there is none.

CONCLUSION

Defendants’ Motion should be denied. First, the prevailing rule is that any evidence that could be described to the jury orally may be shown to the jury in opening statements. Deposition transcripts or videotapes, or any other kind of evidence which counsel has a good faith belief is admissible may be shown, exhibited, or played for the jury in opening statements. Second, a PowerPoint presentation that does not contain material created or generated by a computer software program is not subject to Md. Rule 2-504.3 and may not be excluded on that basis. Accordingly, Plaintiff respectfully requests that Defendants’ Motion be denied.

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