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Continued... Page 4 > The Visualized Opening Statement

I think we should back up and look at this for a second. This is flat-out bizarre . . . This is utter off the wall stuff . . . I have never seen anybody in court trying to proceed in such a fashion . . . This is not part of the framework within the court system. I want it clear that I would really take violent exception to this . . . He shouldn't be allowed to do [this] in opening statement . . . That is way beyond the realm of acquainting the jury with what the evidence and issues are . . . To allow him at opening to bandy these props around is representative of what is out there. I object to. 8

THE JUDGE'S ROLE

The earlier discussion about the unchanging trial ritual does not presuppose that judges are opposed to the innovative and creative use of visual evidence in opening statement, or anywhere else in trial. Far from it.

One of the occupational hazards of being a judge is the daily ear scalding and boredom of enduring droning lawyers who always start out saying, ìJust briefly Your Honor . . . .î An intelligent trial judge knows that bored, inattentive jurors do not promote decision quality within the court system. Judge Warren Wolfson of Chicago , Illinois is one of many judges who sees visual evidence as a way to assist jurors:

I'm a big believer in blow-ups. I think everything ought to be blown up, especially photographs . . . [Often] [t]he jury hasn't the slightest idea what the lawyer is talking about. Important documents ought to be blown up, or put on slides and projected. Models of the body, when injuries have to be shown, ought to be brought in. Lawyers can't rely on words only. Words don't have the impact of share and tell.' Juries will retain best, and believe best, what they see and hear at the same time. Most lawyers just don't know how to do that. 9

In fact, most trial practice textbooks state that judges will be reasonably sympathetic to the use of visual evidence in opening statement: Most judges in exercising judicial discretion will permit the use of visual aids if it can be demonstrated in advance that these aids can properly be used and it is counsel's intention to use them during the taking of evidence. 10

Echoing the same type of sentiments expressed by Judge Wolfson, the higher courts of many states have enthusiastically favored the use of demonstrative evidence at trial. For example, in Norris v. State 11 the Court of Appeals of the State of Washington approved a series of drawings prepared by a professional artist of the scene of an accident where no photographs were available. Each drawing was identified and authenticated at trial by witnesses who supplied the artist with foundational information. The Court approved of this use of demonstrative evidence in sweeping terms:

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