PROTECTING THE BURDEN OF PROOF IN KENTUCKY:
PROCEDURAL SAFEGUARDS FOR THE USE OF VIDEO
EXCERPTS DURING CLOSING ARGUMENTS
James D. Theiss*
I. INTRODUCTION: USING VIDEO EXCERPTS DURING CLOSING ARGUMENT
Closing arguments serve as “the chronological and psychological
culmination of a jury trial.”1 Increasingly, practitioners are incorporating
audio-visual, multimedia presentations into their closing arguments as a
way of “adapting to a culture in which audiences are accustomed by their
everyday work and leisure experiences . . . to rely on multimedia
information.”2 In many instances, these presentations involve replaying
video excerpts of trial testimony or depositions admitted into evidence.3 In
Kentucky, this technique requires a deviation from the normal procedure for
closing argument. Practitioners are typically given leeway to interpret
evidence and refer to the record,4 but before they can play video excerpts as
part of their closing argument, the excerpts must be reviewed by the trial
court.5 The purpose of this screening is to ensure that “the segments
presented to the jury are not overly lengthy, do not overly emphasize one
party’s case, and are not a misrepresentation of the witness’ [sic]
testimony.”6
This form of prophylactic review goes a long way towards protecting
against the prejudicial abuse of visual arguments.7 However, it also can
* Candidate for Juris Doctor, May 2012; Bachelor of Arts from Centre College, 2009.
1
THOMAS A. MAUET, TRIAL TECHNIQUES 387 (7th ed. 2007).
2
Richard K. Sherwin et al., Law in the Digital Age: How Visual Communication Technologies Are
Transforming the Practice, Theory, and Teaching of Law, 12 B.U. J. SCI. & TECH. L. 227, 233–34 (2006)
(“Lawyers . . . have always known that effective persuasion requires speaking in terms that their audiences
understand. They are now adapting to a culture in which audiences are accustomed by their everyday work and
leisure experiences with television, movies, print media, and computers to rely on multimedia information. . . .
[L]awyers (and the litigation consultants who help them) are now introducing new kinds of visual and
multimedia displays. . . . To build opening statements and closing arguments around multimedia displays that
integrate text, photos, video clips, original graphics, and sound files, lawyers need not rely on . . . sophisticated
consultants . . . . They can do it themselves with PowerPoint®.”)
3
See, e.g., Video Transcript of Record at 9:32 AM–9:48 AM, Froman v. Neonatal Assoc. (Jefferson Cnty.
Ky. Cir. Ct. Div. 13 July 7, 2010) (No. 04-CI-10681) [hereinafter Froman transcript].
4
See Jones v. City of Bowling Green, 354 S.W.2d 749, 751 (Ky. 1962).
5
See Morgan v. Scott, 291 S.W.3d 622, 636–37 (Ky. 2009).
6
Id. at 636.
7
See Evelyn Marcus, Note, The New Razzle Dazzle: Questioning the Propriety of High-Tech Audiovisual
527
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create a problem for advocates bearing the burden of proof at trial.8 The
Kentucky Rules of Civil Procedure provide that the party bearing the
burden of proof addresses the jury last in closing arguments.9 This
opportunity to address the jury last is a “precept of fundamental fairness,”10
as parties bearing the burden of proof are allocated the “risk of nonpersuasion.”11 For the party not bearing the burden of proof (typically the
defendant),12 reviewing the excerpts that the opponent intends to use creates
a strategic advantage; it allows insight into the work product that is the
proponent’s closing argument.13 A clever advocate can use this insight to
tailor her own closing argument to rebut the points that her opponent will
emphasize. In essence, the defendant is given the opportunity to make an
anticipatory rebuttal of the opposing party’s closing argument before that
argument is made.14
This procedural breakdown in the adversarial process can be cured by
simple alterations to the procedural requirements to use video excerpts.
Proponents should be required to give pretrial notice of the intent to use
video excerpts and to disclose the nature and aggregate length of excerpts to
be used so that the trial court is in a better position to fulfill the need for
prophylactic screening.15 If necessary, the trial judge should be able to tailor
Displays in Closing Argument, 30 VT. L. REV. 361, 390 (2006) (“Close scrutiny is necessary ‘where a party
chooses limited excerpts as part of its argument.’ . . . [O]pposing counsel ought to be afforded an opportunity to
respond to such presentations where the form of the presentation itself has the potential for exerting too great an
influence on the jury.”). For a discussion of visual arguments, see generally J. Anthony Blair, The Rhetoric of
Visual Arguments, in DEFINING VISUAL RHETORICS 41, 41–61 (Charles A. Hill & Marguerite Helmers eds.
2004).
8
See Froman transcript, supra note 3, at 9:45 AM (The plaintiff’s counsel responded to the
judge’s inquiry about the prejudice created by allowing defense counsel to view the excerpt as follows:
Judge: “Well, what’s your prejudice if the defense counsel is present?” Plaintiff’s counsel: “Because
what I’m going to do, is, I’m being asked under Kentucky law to reveal portions of my closing argument
in advance of the closing argument so defense counsel can then stand up and craft an argument to rebut
that which he hasn’t heard yet. And that, in effect, loses the plaintiff the advantage of going second.”).
9
KY. R. CIV. P. 43.02(e) (“In the argument, the party having the burden of proof shall have the conclusion
and the adverse party the opening.”).
10
See PETER C. LAGARIAS, EFFECTIVE CLOSING ARGUMENT 16 (2d ed. 1999).
11
See 31A C.J.S. Evidence § 195 (2010) (“The test for determining which party has the affirmative,
and therefore the burden of establishing a case or issue, is found in the result of an inquiry as to which
party would be successful if no evidence at all were given, the burden being on the adverse party. In this
connection, the burden of proof is ordinarily on the party who would lose if no evidence at all were
introduced, or who, absent meeting this burden, is not entitled to relief or who runs the risk of nonpersuasion.” (footnotes omitted)).
12
See id.
13
Froman transcript, supra note 3, at 9:40 AM–9:48 AM.
14
See id. at 9:45 AM.
15
See State v. Muhammad, 820 A.2d 70, 81 (N.J. Super. Ct. App. Div. 2003).
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PROTECTING THE BURDEN OF PROOF IN KENTUCKY
529
the screening process in a way that protects the party with the burden of
proof’s opportunity to address the jury last.
This Note will examine the history and evolution of approaches to
dealing with the problems created by using video excerpts during closing
argument. It will also evaluate the strengths and weaknesses of different
approaches for screening video excerpts. Finally, it will make proposals for
minor alterations to the procedure for using video excerpts in Kentucky that
will allow a trial judge to fulfill the need for protective screening while
preserving the function and sequencing of closing argument.
II. BACKGROUND: THE HISTORY & EVOLUTION OF SCREENING VIDEO
EXCERPTS IN KENTUCKY
Kentucky’s treatment of video excerpts during closing argument
developed from New Jersey case law,16 which has addressed the interplay
between juries and video technology over the past two decades. In State v.
Michaels, the New Jersey Superior Court held that it was not prejudicial
error to allow a jury, during deliberation, to view portions of video
testimony that had been played over closed circuit television during trial.17
Despite its holding, the court recognized that replaying video excerpts was
much more powerful than simply reading a transcript.18 As the court wrote:
It is clear that videotaped testimony provides more than conventional,
transcribed testimony. The witness’ actual image, available in a video
replay, presents much more information than does a transcript reading. In
essence, the witness is brought before the jury a second time, after
completion of the defense case, to repeat exactly what was testified to in
the State’s case. The witness’ words and all of the animation, passion, or
19
sympathy originally conveyed are again presented to the jury.
In Condella v. Cumberlands Farms, Inc., the New Jersey Superior
Court, citing Michaels, approved the use of video excerpts during closing
argument.20 Ironically, the Condella court likened the use of video
16
See Owensboro Mercy Health Sys. v. Payne, 24 S.W.3d 675, 678 (Ky. Ct. App. 1999) (citing Condella v.
Cumberland Farms, Inc., 689 A.2d 872, 875 (N.J. Super. Ct. Law Div. 1996)); Morgan v. Scott, 291 S.W.3d 622,
637 (Ky. 2009) (“[W]e agree with another New Jersey court’s holding that a trial court ‘out of the jury’s
presence, should therefore view the proposed portions of the videotape testimony in open court on the record to
make sure that it accurately reflects the evidence.’”).
17
625 A.2d 489, 523–24 (N.J. Super. Ct. App. Div. 1993).
18
Id. at 524.
19
Id.
20
689 A.2d 872, 874 (N.J. Super. Ct. Law Div. 1996).
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testimony to reading excerpts from a trial transcript, despite the earlier
differentiation between transcripts and video recordings in Michaels.21
Nevertheless, the Condella court found that using video excerpts had
several advantages over using a written transcript.22 As the court wrote:
Just as it is acceptable to read portions of the trial testimony from a
transcript to the jury during summation, similarly, there should be no
prohibition against showing actual portions of the videotape testimony.
Showing portions of videotape testimony is certainly at least as accurate, if
not more accurate, than reading portions of the written transcript, as the
replay of the actual testimony is complete with the intonations and
emotions of the witness. Showing the videotape testimony is also more
economical; a ten dollar fee entitles counsel to the tape of the entire day’s
testimony as opposed to a per page charge for a written transcript. Further,
obtaining videotape testimony is more convenient than ordering a written
transcript, since the videotape is available at the end of each court day for
immediate review, with no need to wait hours or overnight for receipt of
23
the written transcript.
However, the court also recognized two potential “pitfalls” in using
video excerpts: (1) using video excerpts “should not be so lengthy as to
constitute a second trial;” and (2) the portions used should not misstate the
evidence.24 In order to safeguard against these pitfalls, the Condella court
recommended that a hearing should be conducted, out of the jury’s presence
but on the record, in open court, to ensure that the excerpts did not
mischaracterize the evidence.25
The Condella case is one of the few to address a plaintiff’s strategic
concerns with the open court hearing on video excerpts.26 The plaintiff in
Condella requested that the hearing on the video excerpts come after the
defendant’s closing argument so that the defendant would not gain insight
into the plaintiff’s summation.27 The New Jersey Superior Court upheld this
method of screening, but cautioned against its use in certain
circumstances.28 When this form of review takes too long, the “delays
between closing arguments . . . could impair the orderly and efficient
21
22
23
24
25
26
27
28
Id.
Id. at 874–75.
Id.
Id at 875.
Id.
See id.
Id.
Id.
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PROTECTING THE BURDEN OF PROOF IN KENTUCKY
531
administration of the jury process,”29 resulting in prejudice to the defendant
because the plaintiff’s argument would be fresher in the minds of the
jurors.30
In State v. Muhammad, the New Jersey Superior Court extended
Condella’s holding and procedural requirements to criminal cases.31 The
Muhammad court also made some accommodations for a prosecutor who
did not wish to disclose the video excerpts to be used in closing.32 As the
court wrote:
An attorney who intends to use [video excerpts] should so inform the court
and all other counsel at the earliest possible time, certainly before any
party sums up. If not sooner, the intent should be disclosed at the charge
conference. A . . . hearing should be conducted in all cases, unless the
proponent has identified the excerpts to be played and opposing counsel,
with knowledge of those excerpts, expressly waives a hearing with the
court’s approval. If the proponent is not the first scheduled party to sum up
and does not wish to disclose the proffered excerpts, the proponent should
advise the aggregate length of the excerpts to assist the court in
33
minimizing delay between summations.
In Kentucky, the first case to address the use of video excerpts during
closing argument was Owensboro Mercy Health System v. Payne.34 Relying
primarily on Condella, the Payne court upheld the use of video excerpts
during closing argument.35 In Payne, the plaintiff’s counsel was permitted
to replay portions of a witness’s trial testimony to the jury during closing
argument.36 The court of appeals recognized the powerful impact that video
excerpts may have on the jury, and necessitated that trial courts “take
precautions to guard against the edited portions of the videotape misstating
the evidence.”37 In Payne, the trial court held a hearing in chambers before
allowing the excerpts to be shown to the jury.38 The court of appeals upheld
this procedure as an adequate precaution.39
29
30
31
32
33
34
35
36
37
38
39
Id.
Id.
820 A.2d 70, 81 (N.J. Super. Ct. App. Div. 2003).
Id.
Id. (emphasis added).
24 S.W.3d 675 (Ky. Ct. App. 1999).
Id. at 678–79.
Id. at 678.
Id. (quoting Condella v. Cumberland Farms, Inc., 689 A.2d 872, 875 (N.J. Super. Ct. Law Div. 1996)).
24 S.W.3d at 679.
Id.
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In Morgan v. Scott, the Kentucky Supreme Court also approved the use
of video excerpts during closing argument.40 The trial court in that case
allowed the plaintiff’s counsel to show video excerpts during closing
argument without reviewing the excerpts to be used.41 The supreme court
found that this was error, but that it was not reversible.42 The Morgan court
noted that the decision to allow video excerpts during closing argument was
at the discretion of the trial court.43 If a trial judge decides to allow video
excerpts, the court emphasized that it is the judge’s duty to “scrupulously
control”44 their use to ensure that the clips are not “overly lengthy, do not
overly emphasize one party’s case, and are not a misrepresentation of the
witness’ testimony.”45 Citing Condella and Muhammad, the supreme court
then recommended two safeguards to prevent abuse of video excerpts: (1)
that a cautionary instruction be given to the jury informing them of the
weight and consideration to be given to the excerpts; and (2) that a hearing
be conducted in open court, out of the presence of the jury, to review the
video excerpts.46
It should be noted that in both Payne and Morgan, it was the defendant,
on appeal, who was objecting to the plaintiff’s use of video excerpts during
closing argument.47 Kentucky appellate courts have not addressed a case
where a plaintiff wished to prevent disclosure of the video excerpts to an
adversary. However, Kentucky trial courts, in applying Morgan’s
procedural recommendation, have found that the plaintiff’s concerns for
protecting their closing argument are outweighed by the need for
prophylactic review.48
New Jersey allows accommodation for a proponent who—not
addressing the jury first—does not wish to disclose the exact video excerpts
she intends to use during summation.49 The Condella and Muhammad
opinions indicate that, so long as the proponent gives notice and advises the
court of the aggregate length of the clips to be used, the court may conduct
40
291 S.W.3d 622, 636 (Ky. 2009).
Id. at 635.
42
Id. at 637.
43
Id. at 636.
44
Id.
45
Id. (citing Condella v. Cumberland Farms, Inc., 689 A.2d 872, 875 (N.J. Super. Ct. Law Div. 1996)).
46
Morgan, 291 S.W.3d at 636–37.
47
See Owensboro Mercy Health Sys. v. Payne, 24 S.W.3d 675, 678 (Ky. Ct. App. 1999); Morgan, 291
S.W.3d at 635–36.
48
See Froman transcript, supra note 3, at 9:47–9:48 AM.
49
State v. Muhammad, 820 A.2d 70, 81 (N.J. Super Ct. App. Div. 2003).
41
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PROTECTING THE BURDEN OF PROOF IN KENTUCKY
533
a hearing on the excerpts between closing arguments if the length of such a
procedure does not prejudice the adverse party.50
III. ANALYSIS
A. The Role and Sequence of Closing Arguments: The Party with the
Burden of Proof Addresses the Jury Last and Without Rebuttal
Though the argument portions of a trial are not evidence, they “create a
lasting impression for jurors.”51 Closing arguments, in particular, serve “to
facilitate the jury’s proper analysis of the evidence presented at trial so that
it may arrive at a just and reasonable conclusion based on the evidence.”52
In Kentucky, as in other jurisdictions, an attorney is given “great latitude”53
in presenting his or her closing argument to the jury.54 Each side is “free to
draw reasonable conclusions from the facts before the court”55 so long as
those conclusions are drawn from the facts and evidence presented at trial.56
As a threshold matter, “physical evidence used in closing argument
must have been admitted into the record at trial.”57 Traditionally, the major
limitation imposed on closing arguments was that it was improper to
inflame the “passions and prejudices of the jury trying the case”58 such that
their verdict disregards the evidence, and goes to “an extreme and
unjustifiable length in arriving at a verdict.”59
In some jurisdictions, the party with the burden of proof is entitled to
begin and conclude closing argument.60 In jurisdictions which follow this
practice, the total amount of time allotted to each side for summation is
usually limited.61 Thus, if the plaintiff or prosecution wishes to take
advantage of the rebuttal after the adverse party’s summation, he or she
50
Id.
Dean A. Morande, A Class of Their Own: Model Procedural Rules and Evidentiary Evaluation of
Computer-Generated “Animations”, 61 U. MIAMI L. REV. 1069, 1124 (2007).
52
Craig Lee Montz, Why Lawyers Continue to Cross the Line in Closing Argument: An Examination of
Federal and State Cases, 28 OHIO N.U. L. REV. 67, 73 (2001).
53
Jones v. City of Bowling Green, 354 S.W.2d 749, 751 (Ky. 1962).
54
See id.
55
Commonwealth Dep’t of Highways v. Reppert, 421 S.W.2d 575, 576 (Ky. 1967).
56
Monohan v. Grayson Cnty. Supply Co., 54 S.W.2d 311, 314 (Ky. 1932).
57
Marcus, supra note 7, at 377–78; see also JACOB A. STEIN, CLOSING ARGUMENT: THE ART AND THE
LAW § 47, at 207 (1996).
58
Ill. Cent. R.R. v. Jolly, 84 S.W. 330, 331 (Ky. 1905).
59
Louisville & N. R.R. v. Smith, 84 S.W. 755, 758 (Ky. 1905); see also Marcus, supra note 7, at 378.
60
LAGARIAS, supra note 10. Kentucky does not follow this practice. As Kentucky Civil Rule 43.02(e)
states, “In the argument, the party having the burden of proof shall have the conclusion and the adverse party the
opening.” See KY. R. CIV. P. 43.02(e).
61
LAGARIAS, supra note 10, at 17.
51
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must apportion the allotted time appropriately.62 Furthermore, the rebuttal
argument is limited to matters which have been raised already.63 New
arguments or issues are not supposed to be raised in rebuttal.64
In Kentucky, the party with the burden of proof is given the opportunity
to address the jury last.65 In civil cases, this usually means that the plaintiff
will address the jury last and in criminal cases, the prosecution will speak
last.66 This privilege has been recognized in Kentucky for over a century.67
In O’Connor v. Henderson Bridge Co., the former Kentucky Court of
Appeals affirmed the trial court’s grant of a new trial because of a
misallocation of the burden of proof that forced the defendant to present
evidence first, without the opportunity to address the jury last.68 As the
court wrote, “We think the burden of proof in the whole case was on the
plaintiffs, and there could be no question of their right to conclude the
argument . . . if the court had, as required . . . ruled them to first produce
their evidence.”69
In either system, the right of the party with the burden of proof to speak
to the jury last is carefully preserved. The party not bearing the burden of
proof is never given an opportunity to rebut their opponent’s final remarks.
The rationale for this construction is “a precept of fundamental fairness”70
because the party with the burden of proof “runs the risk of nonpersuasion.”71 As such, the opportunity for the party with the burden of
proof to address the jury last—and without rebuttal from the adverse
party—is much more than an arbitrary sequencing of closing arguments; it
is a principal of fundamental fairness closely intertwined with the
functioning of a fair trial. As such, preserving this right should be a priority
for Kentucky courts.
62
Id.
Id.
64
Id.
65
KY. R. CIV. P. 43.02(e). There is some discretionary power placed with the trial court to alter the order of
closing arguments if there are multiple defendants or plaintiffs involved, or if the court improperly placed the
burden of proof during the presentation of evidence. See id.; Dayoc v. Johnson, 427 S.W.2d 569, 571 (Ky. 1968).
66
THOMAS L. OSBORNE, TRIAL HANDBOOK FOR KENTUCKY LAWYERS § 41:3 (2010).
67
See O’Connor v. Henderson Bridge Co., 27 S.W. 251, 252 (Ky. 1894).
68
Id.
69
Id.
70
LAGARIAS, supra note 10, at 16.
71
See 31A C.J.S., supra note 11, at § 195.
63
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PROTECTING THE BURDEN OF PROOF IN KENTUCKY
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B. Why Prophylactic Review Is Necessary: Video Recordings and Their
Impact on the Jury
The use of video technology is becoming commonplace in the
American courtroom72 and “closing arguments are the place where
attorneys can practice their most powerful visual rhetoric.”73 Using readily
available equipment and software, practitioners can enhance their
arguments by integrating excerpts of video testimony to emphasize and
reiterate the main points of their case.74 These visual arguments do much
more than provide stimulation for a jury that may have become desensitized
by a long trial;75 they reflect the modern way audiences process and
interpret information.76 As Professor Lucille Jewel wrote:
[V]isual advocacy . . . reflects the modern way in which information is
processed and received. Not only has our culture become highly visual,
but it has also evolved into a multi-modal “convergent” culture . . . .
[I]nformation flows to us through “transmedia” stories; stories that present
“the same information, the same stories, and the same characters . . .
77
across multiple modes of representation.”
In essence, “[m]ultimedia presentations allow advocates to clarify and
synthesize trial information to increase the jury’s interest, comprehension,
and memory retention.”78
Roughly “one-third of people rely primarily on their sense of hearing to
learn new information.”79 On the other hand, messages are more persuasive
“when they are supported or supplemented by a videotaped presentation.
72
Cf. Elan E. Weinreb, Note, ‘Counselor Proceed With Caution’: The Use of Integrated Evidence
Presentation Systems and Computer-Generated Evidence in the Courtroom, 23 CARDOZO L. REV. 393, 394
(2001).
73
Lucille A. Jewel, Through a Glass Darkly: Using Brain Science and Visual Rhetoric to Gain a
Professional Perspective on Visual Advocacy, 19 S. CAL. INTERDISC. L.J. 237, 244 (2010).
74
See Robert Aronson & Jacqueline McMurtrie, The Use and Misuse of High-Tech Evidence by
Prosecutors: Ethical and Evidentiary Issues, 76 FORDHAM L. REV. 1453, 1460 (2007) (“Computers may help
jurors understand complex concepts, and the use of these presentations becomes increasingly important as jurors
come to expect technological displays during trials.”); see Sherwin et al., supra note 2, at 233–34.
75
See Jewel, supra note 73, at 237 (“Based on the number of news stories of bored jurors refusing to look
away from their blackberries during trials, attorneys might be fighting a losing battle to control the attenuated
attention spans of modern jurors.”).
76
RICHARD C. WAITES, COURTROOM PSYCHOLOGY AND TRIAL ADVOCACY 387 (2003) (“[J]udges, juries,
and arbitrators want information in rapid, complete, and meaningful formats. They need to understand the basics
of a case quickly.”).
77
Jewel, supra note 73, at 291 (footnotes omitted).
78
Brian Carney & Neal Feigenson, Visual Persuasion in the Michael Skakel Trial: Enhancing Advocacy
Through Interactive Media Presentations, 19 CRIM. JUST. 22, 34 (2004).
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. . . There is an authoritative anchoring effect that builds confidence in a
message when courtroom decision makers see and hear that message
repeated in different forms in different media.”80 Some studies show that
the amount of information an audience retains nearly doubles when it is
transmitted to them in audio and visual form.81 This means that practitioners
using video excerpts with a projected transcription of the recorded
testimony can nearly double the retention rate of the jury when compared to
lawyers quoting from a transcript.82
In addition to increased retention, our minds respond to visual stimuli at
an unconscious level in a way that affects “both our emotions and our
decision-making processes.”83 We are often ignorant of this effect because
we “fabricate rational reasons for our behavior after the fact.”84
Practitioners can prey upon this unconscious processing by using visual
presentations to create “logical fallacies.”85 These fallacies can have subtle
but powerful effects upon the viewing audience. Two such logical fallacies
are affect transfer and false causal connections.86
Affect transfer87 “refers to when ‘an emotional response from an
unrelated object or event is transferred to the product being sold, simply by
showing an image of the product, followed by an image of the emotional
object or event.’”88 Essentially, affect transfer is “a way of connecting latent
emotions and feelings with another concept.”89 Attorneys commonly use
affect transfer as part of their trial strategy. As Professor Jewel wrote,
“Anytime attorneys associate their clients with positive narratives or images
or associate the other side with negative stories and imagery, affect transfer
79
WAITES, supra note 76, at 32.
Id.
81
Jewel, supra note 73, at 289 (“[T]he average listener retains 10% of information presented in text form;
20% of information presented in audio/verbal form; and 30% of information presented in visual form. When
information is presented in both a visual and audio form, the retention rate jumps to 50%.” (footnote omitted)).
82
Id.; see also Gerald R. Williams et al., Juror Perceptions of Trial Testimony as a Function of the Method
of Presentation: A Comparison of Live, Color Video, Black-and-White Video, Audio, and Transcript
Presentations, 1975 BYU L. REV. 375, 408 (1975) (finding jurors to be more receptive to live and video
testimony than to a reading of a transcript).
83
Jewel, supra note 73, at 252.
84
Id. at 256.
85
Id. at 280.
86
Id. at 281.
87
What Professor Jewel refers to as “affect transfer” appears to be closely related to the concept of
“layering and masking.” See Marcus, supra note 7, at 374–76 (“Closely related to the method of layering is the
concept of masking. Masking is the technique of calling attention away from one element, ‘called the target,’ by
overlapping it ‘spatiotemporally’ with a second element, ‘called the mask.’”).
88
Jewel, supra note 73, at 281 (quoting Charles A. Hill, The Psychology of Rhetorical Images, in VISUAL
RHETORICS, supra note 7, at 25, 37).
89
Id. at 282.
80
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PROTECTING THE BURDEN OF PROOF IN KENTUCKY
537
is involved.”90 In arguments, affect transfer can be used for something
simple, like projecting an image of the state flag to impart upon the jury the
idea that the plaintiff is a home-grown business.91 While affect transfer may
be common, this procedure becomes bothersome when the jury’s “attitudes,
opinions, and . . . actions are influenced without any conscious
processing,”92 thus undermining the jury’s deliberative function.
False causal connections93 are a way of creating a causal connection
between images or events through sequencing.94 In essence, this logical
fallacy plays upon the way our brains perceive information in order to
achieve a desired outcome.95 As Professor Jewel wrote, “the perception of
false causal connections is a product of the mind’s constant attempts to
arrange complex information into a unifying pattern.”96 This process is
abused when our judgment is “tricked into creating complete pictures in our
minds that do not exist in reality.”97 For example, a prosecutor could
overlay an audio recording of critical testimony given by a defendant with
pictures of a murder victim in order to create a causal connection between
the defendant and the victim.98
Given these opportunities for prejudicial abuse, the movement towards
visual advocacy has been embraced by some and rejected by others,99 but
90
Id. at 281.
See Avi J. Stachenfeld & Christopher M. Nicholson, Blurred Boundaries: An Analysis of the Close
Relationship Between Popular Culture and the Practice of Law, 30 U.S.F. L. REV. 903, 908–09 (1996)
(discussing how practitioners used images of the Texas flag in opening argument to promote the concept that
their client—a Texas oil company—was a homegrown business in a fraud action brought against a New York
banking firm).
92
See Hill, supra note 88, at 37.
93
Evelyn Marcus in her Note refers to the concept of parallelism, which conceptually appears to be the
same idea as false causal connections. See Marcus, supra note 7, at 376 (“Similar to the patterning of words and
concepts in literature, visual elements may be associated and connected in patterns. ‘Connections are built among
images by position, orientation, overlap, synchronization, and similarities in content. . . . [T]he perceiving mind
itself actively works to detect and indeed to generate links, clusters, and matches among assorted visual
elements.’” (footnotes omitted)).
94
Jewel, supra note 73, at 286.
95
Marcus, supra note 7, at 377 (“Human beings are predisposed to seeing patterns and ‘deriving meaning
out of essentially separate and disparate elements.’ This predisposition, however, leaves us vulnerable to
‘perceptual filling-in and smearing’ of information.” (footnote omitted)).
96
Jewel, supra note 73, at 286.
97
Marcus, supra note 7, at 377.
98
This scenario describes the prosecution’s closing argument in the case State v. Skakel, 888 A.2d 985
1067–68 (Conn. 2006). For a full discussion of that case, see infra Part III.C.
99
Compare Jewel, supra note 73, at 294 (“[W]hile I agree that manipulative and overreaching visual
arguments present serious problems . . . , a strictly limiting approach would be wrong. Advocating that attorneys
should ignore the realities of our modern media culture and cling instead to legal culture populated by
Dictaphones and yellow legal pads, is bad advice for anyone who is serious about zealously advocating for their
client.”), with Aronson & McMurtrie, supra note 74, at 1487 (“If the prosecution can make the same presentation
in a low-tech fashion, the use of a high-tech presentation may be unnecessary and overly expensive. . . . Not only
91
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the impact of these techniques upon the viewing audience is undeniable.100
It is because of the strong influential—and potentially prejudicial—impact
of visual arguments, that even the strongest proponents of video aids
caution against their unchecked use.101 The next section will evaluate a
number of methods and procedures trial courts have used when confronted
with the misuse of video excerpts during closing argument.
C. Prophylactic Measures Employed to Combat Misuse of Video Excerpts
The regulation and control of closing argument is an area within the
sound discretion of the trial judge. As Jacob Stein wrote in his book,
Closing Argument: The Art and the Law:
The argument of counsel is subject to the supervisory direction and control
of the trial court . . . . While there exist no hard and fast rules to which
counsel must adhere, in presenting closing argument, the supervisory
discretion and control of the trial court governs such matters as the
direction, range, and line of discussion permitted, the language used in
delivery . . . as well as the manner and method of presentation, including
102
counsel’s use of visual aids.
Objections during closing argument are rare103 and reversals for matters
relating to closing argument are even rarer.104 With this in mind, it is no
surprise that trial judges have employed a number of approaches to
screening closing arguments and, regardless of their propriety or
impropriety, no appellate court has reversed the outcome of a case based
upon the trial court’s screening process.105
Despite the deference appellate courts have given to the rulings of trial
judges, certain approaches to dealing with video excerpts have advanced
must the prosecution expend scarce public resources to pay for the creation of such an exhibit, but also a
substantial portion of the trial may be devoted to examining how the prosecution created the evidence.”).
100
See Jewel, supra note 73, at 290–91.
101
See id. at 294 (“The first step for diffusing the negative effects of visual arguments would be for the
courts to take a stronger gate-keeping role with respect to visual evidence and arguments.”).
102
STEIN, supra note 57, § 13, at 33 (footnotes omitted).
103
See Marcus, supra note 7, at 374 (“[O]bjections to opponents’ closing arguments are rarely made and
rarely sustained.”).
104
Id. at 378. However, some courts have expressed a willingness to overturn in a close case where the use
of visual aids was particularly egregious. See, e.g., United States v. Crockett, 49 F.3d 1357, 1362 (8th Cir. 1995)
(“[W]e will necessarily be more inclined to reverse in a close case if the testimony has been unfairly summarized
or the summary comes wrapped in improper argument.”).
105
This refusal to reverse is largely caused by the deferential standard of review that decisions pertaining to
closing argument are subjected to on appeal. See, e.g., Morgan v. Scott, 291 S.W.3d 622, 636–37 (Ky. 2009).
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principles of fairness and equity better than others. These next sections
evaluate the strengths and weaknesses of five approaches that courts have
used in screening video excerpts.
1. Admit Video Excerpts During Closing Argument Without Review
It is not uncommon for attorneys to be frustrated by the screening
process used for video excerpts during closing argument.106 After all,
attorneys may read excerpts from the trial transcript during closing without
submitting the portions to be read for review.107 However, it is the
potentially prejudicial effect of video arguments that requires trial courts to
“take a stronger gate-keeping role with respect to visual . . . arguments.”108
Given the potential for prejudicial abuse, it is unwise for courts to
uniformly allow video excerpts in closing argument without screening.
One of the most publicized instances of unchecked use of audio-visual
technology came in the Connecticut case, State v. Skakel.109 In that case, the
defendant, Michael Skakel, was convicted for the murder of a teenage
girl.110 The victim was found beaten to death with a golf club outside her
home in 1975.111 Skakel had grown up across the street from the victim but
was shielded from initial investigation by a corroborated alibi that placed
him at a friend’s house on the night that the crime was committed.112 It was
not until twenty-five years later that the defendant was charged with the
victim’s murder.113 The case against the defendant was tenuous.114 As one
commentator wrote, “Up until the time the State offered its closing
106
See, e.g., Froman transcript, supra note 3, at 9:41–9:42 AM.
See, e.g., Gregory T. Jones, Lex, Lies & Videotape, 18 U. ARK. LITTLE ROCK L.J. 613, 629 (1996) (“Just
as an attorney might use blowups of critical deposition testimony during closing arguments, the attorney should
be free to play excerpts from video depositions during summation.”); GREGORY P. JOSEPH, MODERN VISUAL
EVIDENCE § 3.03(2)(f) (2010) (“It is occasionally suggested that any replay of video recorded testimony might or
should be excludable on the ground that it unduly and unfairly emphasizes deposition testimony over trial
testimony. . . . Once in evidence, video recorded testimony is freely usable in argument subject to the court’s
discretion and usual constraints . . . . Indeed, any contrary rule would be irreconcilable with the well settled
proposition that counsel may read portions of the trial transcript to the jury.”).
108
Jewel, supra note 73, at 294.
109
State v. Skakel, 888 A.2d 985, 1067 (Conn. 2006); see also Jewel, supra note 73, at 276 (“The Skakel
trial received much attention in the . . . press and in law journals, because it represented an unsolved murder in an
affluent town and involved a relative of the Kennedy family.”).
110
Skakel, 888 A.2d at 997.
111
Id. at 998–99.
112
Marcus, supra note 7, at 364–65.
113
Skakel, 888 A.2d at 997. For an explanation of why it took so long to charge Skakel, see Jewel, supra
note 73, at 277–78.
114
See Marcus, supra note 7, at 368.
107
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arguments to the jury, ‘both sides thought Michael [Skakel] might be
acquitted.’ It was the State’s closing argument that made the difference.”115
During closing argument, the prosecution used an audio-visual
presentation that juxtaposed a projected transcription of an audio interview
given by the defendant116 with two photographs that depicted the victim’s
body at the crime scene and one photograph that showed the victim “alive
and smiling.”117 As one commentator described the presentation: “[T]he
prosecution used Skakel’s audio testimony, photographs of Martha Moxely
(both alive and in death) and projected the text (in red letters) of Skakel’s
words to reinforce its theory that Skakel’s feeling of panic derived from the
fact that he killed Martha Moxley.”118 As the prosecution addressed the jury
last, the defense was not given an opportunity to view or respond to the
presentation before it was made.119 Skakel was convicted and sentenced to
twenty years to life imprisonment.120
The conviction was appealed but the Connecticut Supreme Court
affirmed the judgment.121 With regard to the closing argument, the court
concluded that the prosecution’s display was not improper because it was
not deceptive.122 As the court wrote:
[The] presentation consisted of the written transcript of the interview with
123
Hoffman,
which the jury already had seen in its entirety, the
corresponding audio and three unaltered photographs of the victim that
had been entered into evidence . . . . By juxtaposing the photographs of the
victim with the defendant’s statements, the state’s attorney sought to
convey to the jury in graphic form what the state believed was the real
115
Id. (citations omitted).
Skakel, 888 A.2d at 1067–68.
117
Id. at 1070.
118
Jewel, supra note 73, at 278. The subtle persuasion created by the juxtaposition of images, words and
audio of the defendant’s testimony cannot be understated by those critical of the outcome. See id. at 247–48
(“The manipulation problem is best explained in the way the prosecution took advantage of the rapid cognition
process individuals use to comprehend sensory information and the unconscious emotional reactions people have
when they see gruesome images.” (footnote omitted)).
119
Aronson & McMurtrie, supra note 74, at 1466. It should be noted that the Connecticut trial court in this
case used a sequencing of closing argument where the party bearing the burden of proof (the prosecution) was
permitted to have the opening remarks to the jury and a rebuttal after the defendant’s closing argument. See
Marcus, supra note 7, at 368.
120
Skakel, 888 A.2d at 1004.
121
Id. at 997.
122
Id. at 1070.
123
Richard Hoffman was a writer who was collaborating with the defendant in writing a book about the
defendant’s life. Hoffman tape recorded an interview he had with the defendant in 1987 in which the defendant
described in detail the events on the night of Moxley’s death. See id. at 1002–03.
116
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reason for the defendant’s panic, that is, that he had killed the victim.
541
124
Several commentators have attacked the Supreme Court of
Connecticut’s interpretation of the prosecution’s presentation as
harmless.125 As one author wrote of the court’s decision, “Viewed on a
small laptop screen, away from the court room and years after the jury
delivered its verdict, the audiovisual display in Skakel appears less than
‘sexy.’”126 Three aspects of the prosecution’s presentation were particularly
troubling: the manipulation of written text, the selective editing of the
audiotape, and the juxtaposition of words and image.127 As one
commentator wrote:
[T]he layering and juxtaposition of lurid crime-scene photos with the
selectively edited audiotaped “confession” directly connected Skakel’s
voice and words with Martha Moxley’s death. Photographs of the victim,
alive and happy, dissolved into hideous photographs of her lying face
down and naked on the ground; these flashed in synchrony every time
Skakel said the word “panic.” Where courts have found that color slides
are too inflammatory and prejudicial to allow their use in closing
argument, it is difficult to imagine how they can properly allow this
128
layered display of photographic images, audiotape, and text.
Whether the closing argument in Skakel actually resulted in injustice is
a matter of opinion,129 but permitting the unchecked use of audio-video
displays creates the strong potential for their abuse, resulting in improper
verdicts. Kentucky has rightfully rejected this laissez-faire approach as a
124
Id. at 1070.
See Jewel, supra note 73, at 288–89 (“[T]he prosecution probably went too far in its closing argument by
sidestepping the defendant’s rationale for [Skakel’s] panic (that someone had seen him masturbating outside the
night before) and presenting its own theory, that Skakel’s murder of Martha Moxley was the cause of the panic,
as the only common-sense explanation . . . . Likewise, the prosecution’s visual construction of a cause and effect
relationship may have improperly exploited visual heuristics to manipulate the jury, as opposed to presenting an
argument that invited rational deliberation.”).
126
See Marcus, supra note 7, at 391.
127
Id. at 388.
128
Id. (footnote omitted).
129
Compare Carney & Feigenson, supra note 78, at 23 (“The prosecution’s success depended heavily on the
collective efforts of the prosecution team . . . . Their diligent trial preparation and especially Benedict’s
experience as a prosecutor and his acknowledged oratorical skill were instrumental.”), with Marcus, supra note 7,
at 387–88 (“Where no semen or other evidence of sexual assault was found, and no credible testimony was
offered to support that story, the only connection that the jury could draw from the juxtaposition of the image
with the prosecutor’s words would be a faulty one.” (footnote omitted)).
125
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uniform response to the use of audio-visual presentations during closing
argument.130
2. Disallow Video Excerpts During Closing Argument Altogether
One way of addressing the prejudicial effects of using video excerpts
during closing argument is simply to disallow the technique altogether.131
Indeed, trial judges would be exercising their proper control over closing
argument in utilizing such a blanket prohibition.132 However, this type of
prohibition of video excerpts ignores their multiple beneficial aspects.133
Therefore, this approach is also imprudent.
In Hawkins v. Rosenbloom, the Kentucky Court of Appeals affirmed the
decision of the trial judge to exclude portions of video excerpts of trial
testimony during closing argument.134 Noting that the appellants could cite
to no authority that required a judge to allow video excerpts, the court
concluded that the decision to disallow video was within the trial judge’s
discretionary control.135
Although the trial judge in Hawkins may have been acting within his
proper discretion, other courts have been more accepting of using video
excerpts after considering their benefits. The Condella court recognized
three advantages offered by using video transcripts.136 First, video
transcripts are more accurate than written transcripts.137 Not only do they
perfectly record testimony, they capture aspects of human expression that
cannot be conveyed through writing. Second, using video excerpts is
cheaper than getting a written transcript.138 A small fee “entitles counsel to
the tape of the entire day’s testimony as opposed to a per page charge for a
written transcript.”139 Third, obtaining video transcripts is more convenient
for the court system.140 As the Condella court pointed out, “the videotape is
130
Morgan v. Scott, 291 S.W.3d 622, 637 (Ky. 2009) (concluding that it was error, albeit not reversible, for
the trial court to allow the plaintiff to use video excerpts during closing argument without any review of the
excerpts beforehand).
131
See Hawkins v. Rosenbloom, 17 S.W.3d 116, 120 (Ky. Ct. App. 1999).
132
Id.; see also Aronson & McMurtrie, supra note 74, at 1487 (recommending that if an argument can be
made in a low-tech fashion, it should be so done).
133
See Condella v. Cumberland Farms, Inc., 689 A.2d 872, 874–75 (N.J. Super. Ct. Law Div. 1996).
134
Hawkins, 17 S.W.3d at 120.
135
Id.
136
Condella, 689 A.2d at 874–75.
137
Id.
138
Id. at 875.
139
Id.
140
Id.
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543
available at the end of each court day for immediate review, with no need to
wait hours or overnight for receipt of the written transcript.”141
In Kentucky, video recordings are the method for creating a record of
the trial proceedings.142 This means that if an attorney wants to obtain a
copy of testimony given during a trial to use during closing argument, it is
easier for both the attorney and the court system to obtain a video recording
than it is to obtain a written transcript. As such, a uniform prohibition
against using video excerpts during closing argument would be both
inconvenient and impractical.
3. Adversarial Screening Between Closing Arguments
The plaintiff in Condella suggested that the prophylactic hearing on the
video excerpts come in between closing arguments so that the defendant
would not gain insight into the plaintiff’s summation.143 In theory, this
approach satisfies all concerns about the prejudicial effect of video excerpts
during closing argument. It subjects the excerpts to adversarial review to
guard against prejudicial abuse and it protects the opportunity for the party
bearing the burden of proof to address the jury last. The major roadblock to
this approach is situations where the screening creates too long of a gap
between summations.144 Therefore, the propriety of this approach is casespecific.
In Condella, the New Jersey Superior Court approved screening
between closing arguments but cautioned against this procedure under
certain circumstances because of a fear that “this procedure could result in
long delays between closing arguments which could impair the orderly and
efficient administration of the jury process.”145 This could unduly prejudice
the defendant because the plaintiff’s argument would be fresher in the
minds of the jurors.146 In State v. Muhammad, the New Jersey Superior
Court approved this procedure in a criminal case so long as two
requirements were met.147 First, the proponent must give advance notice to
141
Id. While obtaining the transcript itself is simpler, there is obvious work that goes into editing the video
recording to obtain the excerpts to be used during the proponent’s closing argument. However, this burden of
production is placed upon the proponent rather than the court system.
142
For a discussion of the history and expansion of video recordings in Kentucky courts, see WILLIAM E.
HEWITT, VIDEOTAPED TRIAL RECORDS: EVALUATION AND GUIDE 3–5 (1990).
143
Condella, 689 A.2d at 875.
144
Id.
145
Id.
146
Id.
147
State v. Muhammad, 820 A.2d 70, 81 (N.J. Super. Ct. App. Div. 2003) (“If the proponent [of video
excerpts] is not the first scheduled party to sum up and does not wish to disclose the proffered excerpts, the
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the court and all other parties of the intent to use video excerpts.148 Second,
the proponent must inform the court of the “aggregate length of the excerpts
to assist the court in minimizing delay between summations.”149
Kentucky has relied on New Jersey law when developing its own
system of screening video excerpts, but has never expressly adopted this
language from Condella or Muhammad.150 Under the appropriate
circumstances, this is the best approach to screening a plaintiff or
prosecutor’s video excerpts. So long as the video excerpts to be used are
relatively short and can be reviewed with few technological barriers, a
hearing between summations should not result in prejudicial delay. But in
order to be implemented properly, the notice requirements recommended in
Muhammad are essential. Without knowledge of the aggregate length of the
clips to be screened, a trial judge cannot evaluate whether this approach
would result in prejudicial delay between arguments.
4. Adversarial Review Before Closing Arguments Are Delivered
A common approach that has been approved by courts in Kentucky has
been to review the video excerpts before closing arguments in an open court
hearing, without the jury.151 Subjecting the excerpts to this adversarial
review ensures that inappropriate excerpts are not used.152 Furthermore, by
conducting the hearing before closing arguments are made, the concerns
about prejudicial delay between arguments are abrogated.153 However, if the
proponent of video excerpts bears the burden of proof, this screening
process allows potentially prejudicial insight into the proponent’s closing
argument before that argument is made.154
proponent should advise the aggregate length of the excerpts to assist the court in minimizing delay between
summations.”).
148
Id. at 81 (stating that this should happen “at the earliest possible time”).
149
Id.
150
This is probably because it was the defendants in Payne and Morgan who were appealing the use of
video excerpts.
151
See Morgan v. Scott, 291 S.W.3d 622, 636–37 (Ky. 2009). Although Morgan did not explicitly state
whether the hearing should be adversarial or ex parte, at least one Kentucky trial court has interpreted Morgan to
require an adversarial hearing before closing argument. See Froman transcript, supra note 3, at 9:47–9:48 AM. It
should also be noted that when the proponent of video excerpts does not bear the burden of proof, this is the ideal
form for screening video excerpts because it has no adverse effect on the weight or sequencing of closing
arguments.
152
See Marcus, supra note 7, at 388 (describing how the adversarial process is used to reach the truth).
153
See Condella v. Cumberland Farms, Inc., 689 A.2d 872, 875 (N.J. Super. Ct. Law Div. 1996) (describing
the potential pitfalls of screening between closing arguments when “this procedure . . . result[s] in long delays”).
154
See Froman transcript, supra note 3, at 9:43 AM–9:44 AM. Evaluating the advantage this insight gives is
a difficult proposition because the advantage varies depending upon the skills of the attorneys involved.
Furthermore, it is difficult to evaluate the impact of an anticipatory rebuttal upon a jury because it is unknown
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545
For some, the potential for prejudicial abuse resulting from video
excerpts outweighs any work product concerns that an advocate may have
with exposing portions of his or her closing argument.155 As one
commentator wrote:
Where the possibilities of improper prejudicial influence on a jury are
inherent in the very form of the medium, the shield of work product
protection is inappropriate.
Minimally, opposing counsel should be informed of an attorney’s
intention to incorporate audiovisual displays and digitized graphics in
summation. Alternatively, where multimedia closing presentations are not
subject to prior scrutiny, they should not be allowed in rebuttal closings.
Opposing counsel ought to be afforded an opportunity to respond to such
presentations where the form of the presentation itself has the potential for
156
exerting too great an influence on the jury.
Under certain circumstances, this position is undoubtedly correct. If the
proponent has expressed a desire to show lengthy video excerpts or if the
trial judge suspects prejudicial abuse, concerns about protecting the
proponent’s closing argument are outweighed by the need for adversarial
screening. In those types of situations, a screening before closing arguments
may be justified even when the proponent bears the burden of proof.
However, if the defendant is able to use the review hearing to gain
insight and rebut portions of the plaintiff’s closing argument, then the
defendant has received an advantage by that rebuttal that ordinarily would
not be given.157 The right of the plaintiff to address the jury last has long
been protected by both Kentucky courts and the Kentucky Rules of Civil
Procedure.158 Trial judges should be cognizant of protecting this right as a
“precept of fundamental fairness”159 and should only deviate from
how they would have evaluated the arguments without it.
155
Marcus, supra note 7, at 390.
156
Id. (footnotes omitted).
157
The effect of this advantage varies depending on the circumstances and the relative skill of the lawyers
involved, but with so many variables at play in a lengthy trial, it is an advantage that has the potential to alter the
outcome of a trial.
158
See KY. R. CIV. P. 43.02; United Benefit Life Ins. Co. v. Schott, 177 S.W.2d 581, 584 (Ky. 1943) (“The
privilege of making the closing argument is universally recognized as a distinct advantage in the trial of any law
suit, and this Court has repeatedly held that an error of the Court denying the burden of proof and the right to
make the closing argument to the party entitled thereto, is an error so prejudicial to such party that it would
require a reversal of the judgment, if judgment had been obtained against it.”); O’Connor v. Henderson Bridge
Co., 27 S.W. 251, 252 (Ky. 1894).
159
LAGARIAS, supra note 10, at 16.
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protecting it when countervailing interests of justice and fairness make it
necessary to do so.
5. Ex Parte Review by the Trial Judge
The most time-efficient prophylactic measure for reviewing video
excerpts is ex parte review by the trial judge, which dispenses with time
consuming objections from opposing counsel. This approach contravenes
the open court hearing recommended by the Kentucky Supreme Court in
Morgan.160 While there may be some propriety in allowing the trial judge to
conduct the screening process without adversarial input, this approach
should only be used in limited circumstances where the potential for
prejudicial abuse is small.
The main disadvantage of bench review is that it removes the excerpts
from the adversarial testing process that defines the American trial
system.161 While some inadmissible excerpts may be plainly recognizable to
the trial judge without assistance, the interests of justice are better served by
adversarial screening. The adverse party is in a much better position to
perceive bias or prejudice inherent in the video excerpts as they are the
party directly affected.162 Thus, a trial judge would be assisted in reviewing
the video excerpts by having opposing counsel present to raise
objections.163 As such, subjecting video excerpts to adversarial screening is
the ultimate check against abuse.
However, if the amount of video to be played is short or other
circumstances indicate that there is little chance for prejudicial abuse, it
may be in the best interests of judicial economy for the trial judge to
quickly review the excerpts ex parte. After all, matters pertaining to closing
argument are within the discretion of the trial judge,164 and during closing
argument an attorney is given “great latitude”165 in presenting his or her
argument. Implicit in these concepts is the idea that if the testimony that is
the subject of the excerpt was admissible during evidence, it should be
admissible during closing argument.166 Having heard and seen the excerpts
160
See Morgan v. Scott, 291 S.W.3d 622, 636–37 (Ky. 2009). Although Morgan did not explicitly state
whether the hearing should be adversarial or ex parte, at least one Kentucky trial court has interpreted Morgan to
require an adversarial hearing pre-summation. See Froman transcript, supra note 3, at 9:47–9:48 AM.
161
See Marcus, supra note 7, at 388 (“[T]he [American legal] system depends on competent counsel to
protect the interests of the represented party by means of objection, cross-examination and rebuttal.”).
162
See Froman transcript, supra note 3, at 9:44 AM.
163
Marcus, supra note 7, at 389.
164
Hawkins v. Rosenbloom, 17 S.W.3d 116, 120 (Ky. Ct. App. 1999).
165
Jones v. City of Bowling Green, 354 S.W.2d 749, 751 (Ky. 1962).
166
See Marcus, supra note 7, at 377–78 (“As a threshold rule, physical evidence used in closing argument
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during the presentation of evidence, the trial judge is in some position to
evaluate the excerpts to make sure that they do not mischaracterize the
evidence. And if the ex parte review leaves the trial judge feeling uncertain
about the excerpts’ admissibility, he or she could still subject the excerpts to
further adversarial screening.
IV. PROPOSALS FOR RESOLUTION
Of the five approaches to using video excerpts during closing argument,
blanket prohibitions can be rejected as impractical167 and unchecked use can
be rejected as injudicious.168 That leaves ex parte bench screening,
adversarial screening before summation, and adversarial screening between
summations as three viable options. The propriety of each approach is casespecific, and the best system is one that gives the trial judge discretion to
select the most appropriate method.169 Kentucky trial judges are in the best
position to make this selection by implementing and emphasizing a few
minor procedural requirements that New Jersey courts use.170
The first requirement should be advance notice of the intent to use
audio-visual excerpts.171 This intent should be expressed very early in the
process, ideally pretrial, to give the trial judge notice of the screening
procedures that need to take place.172 If the only party proffering a
multimedia closing argument is the defendant, there is no need to deviate
from an adversarial screening before closing arguments. On the other hand,
if the proffering party bears the burden of proof, the trial judge is put on
notice of the potential to implement a screening procedure that deviates
from a pre-summation screening.173
must have been admitted into the record at trial.”).
167
See Condella v. Cumberland Farms, Inc., 689 A.2d 872, 874–75 (N.J. Super. Ct. Law Div. 1996).
168
See Owensboro Mercy Health Sys. v. Payne, 24 S.W.3d 675, 678–79 (Ky. Ct. App. 1999) (citing
Condella, 689 A.2d at 875).
169
This is consistent with the supervisory discretion trial judges traditionally have over closing argument,
which includes control over the manner and method of presentation. See STEIN, supra note 57, § 13, at 33.
170
See State v. Muhammad, 820 A.2d 70, 80–81 (N.J. Super. Ct. App. Div. 2003).
171
See id. at 81 (“An attorney who intends to use this technique should so inform the court and all other
counsel at the earliest possible time, certainly before any party sums up. If not sooner, the intent should be
disclosed at the charge conference.”).
172
However, jurors should not be given advance notice of the intent to use video excerpts because it would
“conflict with the obligation that jurors pay careful attention to all of the evidence as it is presented.” Id.
173
Advance notice of the intent to use video excerpts during closing argument is the most important aspect
of this system. As such, failure to give advance notice of the intent to use video excerpts during closing argument
should result in the waiver of any objections the party bearing the burden of proof has to the implementation of a
pre-summation hearing on the excerpts to be used.
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The second requirement should be to place the burden of deviating from
Morgan’s prescribed pre-summation hearing on the party bearing the
burden of proof.174 New Jersey and Kentucky case law indicates that
placing the adversarial hearing before closing argument is default
procedure.175 Therefore, if the party bearing the burden of proof wishes to
deviate from this procedure, the burden of doing so should be placed upon
that party to move the trial court to do so.176 This has a sort of self-fulfilling
purpose too; if the burden of deviating from prescribed procedure is placed
upon the party wishing to do so, they are much more likely to utilize audiovisual excerpts that allow for deviation. For example, if the plaintiff wishes
to prevent adversarial disclosure before closing arguments, the plaintiff is
more likely to select excerpts which allow for ex parte bench screening or
screening in between summations. This should simplify the decision that
trial judges have to make.
The third requirement should be disclosure to the trial court of the
aggregate length and nature of audio-visual material to be used.177 From
these disclosures, the trial judge is in a better decision to evaluate what type
of screening procedure will be most effective. If the amount of material to
be used is relatively short in length, ex parte bench review or adversarial
review in between closing arguments may be viable options. Conversely, if
the amount of material to be used is lengthy, then the trial judge knows that
screening in between closing arguments is inappropriate.178 In that type of
174
This seems to be the practice in New Jersey, as courts only deviate from an adversarial screening presummation if the proponent does not wish to disclose the excerpts to be used. See Muhammad, 820 A.2d at 81
(“If the proponent is not the first scheduled party to sum up and does not wish to disclose the proffered excerpts,
the proponent should advise the aggregate length of the excerpts to assist the court in minimizing delay between
summations.”).
175
See id.; Froman transcript, supra note 3, at 9:48 AM.
176
Similar to the intent to use video excerpts during closing argument, this desire to deviate should be
expressed very early in the trial process, ideally at a pre-trial conference. If the proffering party does not feel that
there is any need to deviate from the normal procedure of screening before arguments, then the trial court need
not be hassled with these concerns.
177
The length of material lets the trial judge know the amount of material that needs to be screened before
closing argument. See Muhammad, 820 A.2d at 81 (“[T]he proponent should advise the aggregate length of the
excerpts to assist the court in minimizing delay between summations.”). The nature of the audio-visual material
lets the trial judge know what type of material needs to be screened. Of course, this type of disclosure cannot
happen until the testimony or evidence that is being excerpted has been entered into the record during the
presentation of evidence. Under the Kentucky Rules of Civil Procedure 43.02(c), the party with the burden of
proof presents evidence to the jury first. KY. R. CIV. P. 43.02(c). In most situations, video excerpts used during
closing argument are likely to come from the proffering party’s presentation of evidence. Therefore, the party
bearing the burden of proof should be able to disclose to the trial court the length and nature of any video
excerpts to be used during summation in advance of the closing arguments.
178
Condella v. Cumberland Farms, Inc., 689 A.2d 872, 875 (N.J. Super. Ct. Law Div. 1996) (finding that
long delays between closing arguments could impair the orderly and efficient administration of the jury process).
Furthermore, if the proffering party discloses that it intends to use lengthy portions of video excerpts during
2012]
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situation, the trial judge may decide that the need for adversarial review
outweighs the right to address the jury last, and decide that a presummation, adversarial hearing is the best procedure. This decision would
not be incorrect, so long as it was made by balancing the interests at
stake.179
V. CONCLUSION
Closing argument is within the realm of discretion of the trial judge,180
and the best system for regulating closing argument is one that gives the
trial judge flexibility in tailoring the screening process to the particularities
of the case at hand. The failure to follow screening procedures should not,
without further evidence of misuse or prejudice, give cause for reversal on
appeal.
Nevertheless, as Kentucky courts adapt to the changes that technology
brings to the courtroom, any changes in trial procedure should be made to
promote the interests of justice and fairness that underlie the adversarial
process. While screening visual arguments to be used during closing
argument is important, this process should be done in a way that respects
the work product of closing argument and protects the party bearing the
burden of proof’s opportunity to address the jury last, and without rebuttal.
closing argument, the trial judge is put on notice that a more rigorous screening process may be necessary to
avoid a second presentation of the evidence. See id. at 874–75.
179
See Muhammad, 820 A.2d at 82 (“Trial judges have broad discretion in setting the permissible
boundaries of summations. . . . The determination is guided in each case by balancing the benefit to the
proponent against the possible prejudice to the opposing party.”).
180
STEIN, supra note 57, § 13, at 33.