I recently had a trial that caused me to think long and hard about what is the best evidence at trial. I concluded that documents, photos and videos beat witness testimony hands down. I believe that a case built around documentary evidence is stronger than a case build on witness testimony.
I think the reason is simple. With documentary evidence, jurors can look at documents and form their own opinions about what the documents say and mean. Jurors are savvy enough nowadays to suspect that the lawyers in the case will try to bamboozle the jurors into concluding that the documents say something that the documents don’t say. If the jurors’ conclusions about the documents are consistent with the trial lawyer’s arguments, the jurors will form other conclusions consistent with the trial lawyer’s argument. If the jurors’ conclusions about the documents conflict with the trial lawyer’s arguments, then the jurors will conclude that the lawyer is trying to trick them and they will be suspicious of the lawyer for the rest of the trial. I believe that jurors form conclusions about the documents, photos, and videos in the case, and then evaluate the witnesses and lawyers against those conclusions.
Witness testimony is inherently unreliable. Countless studies show that two witnesses can view the exact same incident and come away with two different versions of what happened. Jurors already know this. Neither witness is lying, but unlike documentary evidence that does not change, inconsistency in witness testimony means that the jurors will have to decide which witnesses’ testimony is consistent with the jurors’ own perceptions of what happened. Also, witnesses are subject to cross examination. If the jurors trust the lawyer, then an effective cross examination can be brutal. If the jurors do not trust the lawyer, then cross examination can generate juror sympathy for the witness. Witness testimony comes to the jurors through the questions and answers provided by the lawyers and the witnesses. In the end jurors have to evaluate the witnesses’ testimony against other witnesses, the lawyers, and the jurors’ conclusions drawn directly from the documents.
Documents, photos and videos that are entered into evidence go back to the jury room and jurors are encouraged to review all the evidence during deliberations. Live testimony depends on the ability of the jurors to recall what was said among several witnesses and at times several days ago. Like everyone else, two jurors may not remember the testimony the same way, and now the jurors must resolve the their own inconsistent memories. I believe that instead of resolving these inconsistencies, jurors tend to focus on the documentary evidence that they have with them in the jury room.
So back to my recent trial. In that case, there were emails that on their face were not good for my client’s case. We knew that we could explain our side of the emails, and we had great witnesses to do just that. The other side had witnesses who testified consistently with the emails. After the trial the judge permitted us to talk to the jurors. All 12 of the jurors told us that they liked our witnesses, but that the jurors felt that the emails told the story. There was no mention of the other side’s witnesses. Our witnesses were good, but not good enough to overcome the jurors’ conclusions about the emails.
What is the best evidence at trial? Documents. Jurors can touch them, look at them, and reach their own conclusions about them.