Why Use TRIAL DIRECTOR?
Courtroom technology is a boon for attorneys conducting courtroom presentations. Perhaps its greatest advantage is that the technology allows you to present your theory of the case in a visual way. Research and experience show us that having relevant graphics is more persuasive than words alone.[1] A principal challenge for the defense in criminal cases is that we are reactive to the government. We have to adjust to how the prosecution builds its case in chief when putting on our defense. Trial Director’s[2] greatest benefit for defense practitioners is that it allows them to add a visual component to their cross examination on the fly. This feature is critical, as more often than not we will be unsure how a witnesses’ testimony will come in on direct, and what we may need to focus on during cross-examination. To illustrate how Trial Director can be a useful tool for CJA panel attorneys and Federal Defenders, we will review a real case I worked on, United States v. Lucero, No. 19-10074 (9th Cir. 2021). This trial involved explaining complex scientific and regulatory information to a jury. Let me give you an example of how we used Trial Director and visuals to assist with the cross-examination of witnesses – and then tied it together in closing. I served as the “hot seat” operator, pulling up and annotating exhibits under the attorneys’ direction, as I describe in detail below.
Dumping Debris into a WOTUS
Our client, a dirt broker, was charged with illegally dumping debris onto federally protected wetlands on an undeveloped, privately owned property in Newark, California. This area covers about 400 acres located south of San Francisco near Mowry Slough. It is next to the Don Edwards San Francisco Bay National Wildlife Refuge. At the time of the charged offense, a consortium of developers was in the process of planning a master-planned golf course community on the site.[3] The case was brought under the Clean Water Act, 33 U.S.C. § 1251 et seq. (“CWA”) which made it a crime to discharge pollutants onto wetlands, regulatorily defined as traditional navigable waters, without a permit. At trial, we conceded that our client dumped debris without a permit. The judge denied our requested knowledge instruction, so the government did not have to prove Lucero’s knowledge of the wetland issue. Multiple government experts testified that the dump sites qualified under the regulatory definition as “wetlands.” However, the sites did not appear wet at the time of our client’s conduct, because the dumping occurred during the summer and after several years of drought.
As we shall show below, we were able to set up the issue of knowledge at trial, and eventually won on appeal. Below are a series of brief examples designed to illustrate how we used TRIAL DIRECTOR during the cross-examination of witnesses.
Educating the Jury
The map at Figure 1 was one of the exhibits we used during the cross-examination of a government expert. Initially, this expert was hired by the developers to conduct an environmental analysis of the area. During direct examination, the government showed the expert a series of maps to elicit testimony designed to illustrate precisely where, on the property designated as wetlands, our client dumped debris. These two regions in the map below demarcated with red boundaries were where he dumped debris using dump trucks over a period of several months.
This map included a key indicating which parts of the area were designated as wetland (Figure 2).
During cross-examination of the expert, we used what Trial Director describes as a “callout.” The attorney directed me to zoom in on the portion of the exhibit that had the map key. Using the software program, I drew a box around the map key. The software program pulled out that portion of the exhibit, making it larger, while adding a 3-D fade-black effect on it with projection lines. NOTE: I could adjust the size and shape of the “callout” on the fly, and even scroll within it as needed. The attorney then elicited testimony about how, for example, there were significant segments of the area in question that were not designated as wetland, to support our lack-of-knowledge argument.
Tributaries, Culverts, and Navigable Waters
Figure 3 is another map of the same region, again with red demarcations showing that the area where our client dumped debris was protected wetland, but with additional details such as references to tributaries and culverts.
The map at Figure 4 is a screenshot of what I did live in front of the jury pursuant to the attorney’s instructions. This process was dynamic. The attorney asked me to do a callout, and instructed me to draw arrows to show the areas where our client was accused of dumping debris, within the “South Fill Area and the North Fill Area”.
The crucial fact in dispute was whether this area was considered a WOTUS, and that determination involved the question of whether the TNW had a “tributary;” that is, whether it showed physical features of flowing water. One of the areas of “flowing water” was this culvert. Live, in front of the jury, the attorney instructed me to use the “Zoom Region” tool in Trial Director to allow the jury a closer view of the map detail (Figure 5).
The Presentation screen is a feature of Trial Director that can be used to display multiple pieces of evidence simultaneously. It is divided into nine zones – Zone 1 is the left side of the screen, Zone 2 is the right side of the screen, Zone 5 is to the top left quadrant, and so forth. We used this feature to address the question of whether the culvert was a WOTUS during cross-examination of a witness. Figure 6 shows the aerial map of the area with the culvert in Zone 1, shown side by side with a video of the general area of the culvert Zone 2, paused to show the culvert in the foreground. The attorney then instructed me to use the annotation tools to add arrows and ellipses to indicate where the video footage of the culvert was in relation to what was shown in the aerial map. (Figure 6).
Figure 7 (below) is an iteration of Figure 6, with the aerial map still on the left side of the presentation screen (Zone 1) while on the right side of the screen (Zone 2) the attorney instructed me to again pull up the same video exhibit. However, instead of the same frame of the clip shown in Figure 6, the attorney instructed me to play the video and then pause it at a point showing a close-up of the water flowing through the culvert. The attorney also instructed me to use the annotation tools to add arrows and ellipses to indicate where the video frame of the culvert was in relation to what was shown on the aerial ma. One related and exciting feature of Trial Director is its ability to do a callout of a portion of a video while it plays. You can zoom in on a specific area of the video, do a callout, and let it continue running to show the zoomed area in detail as it plays. This feature can be particularly useful when playing surveillance or body cam videos.
A Close Reading of Topographical Maps
One of the government’s witnesses in the Lucero case was a civil engineer who had been involved in conducting a land survey of this area – again, the issue was whether the geological and ecological features of the area met the criteria for it to be considered a WOTUS. We conducted an extensive cross-examination of the civil engineer, during which we closely reviewed a series of topographical maps, such as the one shown in the video below (Figure 8). To effectively pull off this cross-examination, the testimony was tied to a close reading of the topographical maps, focusing on the significance of the gradients indicated by the contours. The ability to dynamically pivot on the fly, depending on how the witness testified, was critical.
Closing Argument
When using courtroom technology, most people will use PowerPoint for opening statements and closing arguments. However, Trial Director can be used for openings and closings as well. Many experienced practitioners will use PowerPoint as their primary tool during a closing, but then switch over to Trial Director to show an exhibit, so as to respond to a point made during the government’s closing, and then switch back to PowerPoint to continue. One of the themes we focused on during closing argument was the government’s experts’ re-writing of history. Reports prepared between 2007 and 2016 by environmental consultants hired by the developers, and by the US Army Corps of Engineers, differed in key aspects with the reports developed by the witness the government hired. For example, the 2007 reports did not find that there were any tributaries, while the government’s expert report determined that the ditches in the South Fill Area were in fact ”tributaries.” (Figures 9 & 10)[4]
Furthermore, between 2012 and 2016, California experienced the most severe drought in a millennium, and the bulk of the pictures introduced by the government at trial were from the 2007 reports and January 2017. We argued these photos of ponding, or water, did not prove water in the summer of 2014, when the charged conduct occurred (Figure 11).
Dumping Debris into “Water”
Our defense hinged on educating the jury about technical issues related to wetlands and the complex regulatory definition of WOTUS. The government had a much easier job, namely, to focus on the seemingly unambiguous visual impact of debris dumped onto this area. Our client was found guilty. (Figure 12.)
On appeal, the United States Court of Appeals for the Ninth Circuit reversed our client’s conviction and vacated his 30-month sentence. It held that the district court erred by not instructing the jury, as the defense had requested, that the government had to prove the defendant’s knowledge that the sites where he dumped debris were “water.” (Figure 13).
The Lucero trial provided an example of how using Trial Director played out in a real case and establishing a factual record for appeal. We were able to demonstrate on appeal with evidence from the record that the knowledge issue was important given how the site appeared dry at the time of the offense. The visuals provided the backdrop for our expert’s declaration, which we submitted as an offer of proof. The appellate court relied on this record to reverse on the knowledge issue.
If the government had opted to retry the case, it would have had to prove that our client knew he was dumping debris into “water” in the generally understood sense of the term, rather than into an area defined as “a water of the United States” within the meaning of the CWA. Ultimately, the government opted not to re-try the case. On October 20, 2021, our client, who had remained out of custody while the case was pending, pled to one CWA count and an agreed-upon sentence of one year probation.
The chart below sets forth practical considerations for using the software in the courtroom (Figure 14).
This blog post was designed to provide an overview of how you can utilize Trial Director. If you would like to take a deeper dive with a hands-on, one-on-one training, please contact Kelly Scribner or Joe Wanzala.
[1] “People learn more deeply from words and graphics than from words alone. This assertion can be called the multimedia principle, and it forms the basis for using multimedia instruction – that is, instruction containing words (such as spoken or printed text) and graphics (such as illustrations, charts, photos, animation, or video) that is intended to foster learning.” (Mayer, 2021, in press-a). See https://www.researchgate.net/publication/369588588_Learning_by_Teaching.
[2] As of July 2023, IPRO has renamed TrialDirector 360 to TRIAL DIRECTOR. It has also been called Trial Director and TrialDirector (one word) in the past. For the purposes of this post, we will use the term “TRIAL DIRECTOR” and “Trial Director” interchangeably to describe the software program.
[3] https://www.santacruzsentinel.com/2016/03/22/carmel-man-charged-with-illegal-dumping-in-newark-wetlands.
[4] In April 2020, the Environmental Protection Agency promulgated a new WOTUS rule which narrowed the definition of ‘waters of the United States’ and found that ditches would not be considered to be “tributaries.” The most current version of the WOTUS rule took effect March 2023, but then there was a subsequent Supreme Court decision limiting/revising the meaning of WOTUS. see, https://www.epa.gov/wotus/current-implementation-waters-united-states