Trial strategy: Should you let jurors handle the evidence?

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A recent study by the University of Notre Dame suggests that humans learn and retain information differently if their sense of touch is engaged.

Trial consultant Douglas Keene said this means the value of touching a piece of evidence cannot be overstated.

“When jurors touch or hold evidence, it reinforces their recollection, takes the verbal and makes it physical and creates a more lasting impression,” said Keene, of Keene Trial Consulting in Austin, Texas.

By holding an item in their hands, jurors “are creating their own narrative, deciding for themselves in their own words and own experience the meaning of the object,” he added.

Andrew Sheldon, a lawyer and psychotherapist who founded SheldonSinrich, a jury consulting firm in Atlanta, said that allowing jurors to touch evidence can counter the way that trials can make them “feel deprived of information, regulated in whether or how they can ask questions.”

Sharing evidence can also build trust, said Michael Cobo, chief operating officer and co-founder of DecisionQuest, a jury consulting company in Los Angeles.

“Jurors like when they are handed something because they believe the lawyer is being up front and not trying to hide things,” he explained.

In certain types of cases, having the jurors handle the evidence might even be particularly desirable. For example, a plaintiff in a patent infringement suit might want jurors charged with comparing two patented or trademarked objects to handle them, because handling a medical device, a car part or a tool can make it easier to see similarities between the two, Keene said.

Out of control

But there are risks to letting jurors handle evidence, because you can’t control how they will perceive it, said Daniel Wolfe, the director of jury consulting at Trial Graphix in Chicago.

One juror perusing an Excel spreadsheet may be reading the wrong column of numbers, for example, while another might be lost in the footnotes and a third could be on the wrong page entirely.

“Once you hand it to them, you don’t know where the jury is focused,” Wolfe noted.

That lack of control is problematic, said Cobo.

“If there is something you want jurors to focus on, like a particular area or line of a document, then not giving them the document is a much better option,” he said.

Further, if an item needs to be explained, it should definitely be presented, not handed out, Cobo said. He used the example of a demonstrative item used by an expert, such as a model that explains how a certain part of the body works.

But Sheldon said that educational exhibits should always be shared with jurors.

For example, “for jurors to get a good understanding of the way the spine works in a personal injury case, provide a model of the spine they can look at, feel, see how it bends,” he suggested.

Amy Singer, a trial consultant and licensed psychologist with Trial Consultants, Inc. in Gainesville, Fla., suggested showcasing the evidence first, with an explanation of  “how this is a part of what they are going to be thinking about and looking at,” and then giving it to jurors.

Without that explanation, “it’s like when a teacher hands out a worksheet at school – this is your homework,” she said.

Keene noted that jurors handling evidence can be a procedural issue as well as a strategic trial question. Some courts and judges don’t allow it.

And demonstratives – like a timeline or a flowchart – not introduced as evidence can’t be handed out and taken into the jury room for deliberations, Wolfe added.

More issues

Certain types of cases may present more specific challenges.

Keene cautioned attorneys about sharing visually disturbing or graphic photographs. “I’ve seen jurors refuse to touch [such] pictures when they are handed around the jury box,” he said.

Singer agreed, noting that providing graphic pictures to the jury can habituate them to the images. In the case of a badly injured plaintiff, the last thing a lawyer wants is for jurors to become so accustomed to the pictures that it reduces the sympathy they feel and the resulting damages award.

Keene suggested instead having a witness describe the photographs and then placing them in an envelope made available to jurors.

“That demonstrates respect for the sensitivity of jurors but it also raises their curiosity to an incredibly high level,” he said.

To get a sense in advance about how jurors might react to a particular piece of evidence, lawyers might consider using a mock jury or a focus group, especially in a high-dollar value case.