We all have sea stories. Us older lawyers have many. To us they are exciting and interesting. To others, I know . . . But move beyond the braggadocio and sea stories can at times be instructive and helpful. So, with a shout-out to our seagoing brethren, the Coast Guard, let me tell a story which I put in the category of Aids to Litigation. Now, No-man is going to tell me this is about trials. But read on, and I think you will see how this story can aid appellate litigation for the appellate lawyers and appellate judges. OK, the ship is ready for sea in all respects – stand by to cast off. Ooops, let’s though first set the Sea & Anchor Detail with a cobbled together part of a transcript.
TC: Tell the members how far away you were when you saw the accused hit the victim.
WIT: About twenty feet.
TC: So in terms of this courtroom, gives us an idea where the victim was distance-wise.
WIT: Well sir, about from me to where the accused is now.
TC: So, what did you see when the . . . .
MJ: Trial counsel, before you continue, let’s get that for the record, describe for the record about how far that is the witness pointed to.
TC: Sir, it’s about 15 feet.
MJ: Defense, do you agree.
DC: Well, sir it’s more like 18 feet.
MJ: Well, I think it’s about 16 feet, but that’s close enough. Carry on trial counsel.
When I was at, what was then NLSO Norfolk (twice), we had an aid to litigation. At the judge’s bench was a diagram of the court-room, and counsel had one as well. The dimensions of the room were marked with various interesting points, and then there were various distances marked out using the witness box as the anchor point. As I go around I don’t see this any more. What we see and hear is witnesses and counsel struggle to get done what happened in my transcript example. Of course, the testimony is then harder to visualize and understand if you are an appellate lawyer or judge because you weren’t there and only have a cold record to read. So you can see where I’m going with this sea story. Let’s ignore some other trial-craft pointers that appear in the example above and hit a way-point which relates to the principle of aiding witness testimony clarity.
There are many things to dislike about Army CID investigation reports. But one of the entries I do like is the crime scene analysis. The ROI documents such things as the temperature, weather, and to quote Commandant Lassard, many, many, things. The reports usually include a crime scene sketch with layouts and distances and measurements. Ah, an aid to litigation. So, we’ve been on our cruise, let’s prepare to anchor using the aid to navigation we had at NLSO Norfolk.
TC: Tell the members how far away you were when you saw the accused hit the victim.
WIT: About twenty feet.
TC: So in terms of this courtroom, gives us an idea where the victim was distance-wise.
WIT: Well sir, about from me to where the accused is now.
MJ: For the record, the court will take judicial notice that the distance from the witness chair to the defense counsel table is 16 feet. Trial counsel, at the next break, make sure the court reporter gets a copy of the chart as an appellate exhibit. Carry on trial counsel.
Obviously I’ve simplified the transcripts here. But think of the many, many cases where there has to be a lot of discussion about locations and distances. Getting bogged down in discussing court-room dimensions is a distraction and interrupts the flow of testimony. Is there a way to do a better presentation. Photo’s help too. Most people have the ready ability to take crime scene photo’s these days, it’s on your phone.
Cross posted on CMTP/CAAFLog.