Lit Tech Gaffes Lead to Clemens Mistrial

The following post was submitted by Mike Ko of Groundwork Trial Consulting in Chicago.

The Roger Clemens perjury trial ended in a mistrial when the prosecution repeatedly made evidentiary mistakes that even a "first-year law student" wouldn't have made, according to the judge (a news account of the trial is available here). Commentary on the trial makes it appear that this mistrial was about prosecutorial hubris or outright disregard for the judge's rulings. But a look at the offending evidence shows that this mistrial seems to be more about miscommunication between trial counsel and the tech personnel running the trial equipment.

Offense #1: Improper Character Evidence

The problematic pieces of evidence all came from the video from the 2008 Congressional hearings on steroid use in baseball. The prosecution played portions of the Congressional hearing where Rep. Elijah Cummings (D) commented on the positive credibility of Andy Pettitte, a key prosecution witness who would testify later in the trial. Rep. Cummings' comments bolstering the credibility of a Prosecution witness was clearly inadmissible and should have been redacted from the video. So, how did this get overlooked and get published to the jury?

The Solution: Communication with the Tech Operator

Presumably, these portions of Rep. Cummings' testimony would have been covered by a Defense motion in limine. In addition, it is unlikely in a trial of this magnitude that the government attorneys handling motions in limine would also be the ones to go back and make redactions to the video. That tells me that either: (1) trial counsel failed to communicate the judge's rulings to the person in charge of preparing the video for trial or (2) the person in charge of making those necessary redactions dropped the ball.

There are a couple of ways to avoid this type of communication failure. In particularly high-stakes trials or trials that are on especially expedited schedules, I recommend that the person(s) in charge of preparing/redacting visual evidence attend the motion in limine conference. That way, while the trial attorneys are making notes on how the rulings effect trial strategy, the tech operator (whether paralegal, attorney, or consultant) can take notes on how the rulings effect trial exhibits. If the tech operator isn't going to attend the motion in limine conference, the trial attorney must make sure to check in with the tech team to inform them as to what stays in and what needs to be redacted out.

The other way to avoid this type of communication failure is for the tech operator to check in with the trial attorneys. Whenever there is a evidence video deposition or other video that is going to be published to the jury, the tech operator should make a point to follow up (repeatedly, as is frequently necessary) with trial counsel to ensure that there are no additional rulings that will effect what gets redacted.

Offense #2: Double Hearsay

The prosecution also failed to redact portions of the Congressional hearings video where Rep. Cummings read an affidavit from Andy Pettitte's wife. At the same time the video played, the Prosecution displayed the transcript of what was being said. And although scrolling the transcript in a closed caption fashion is normally best practice, when the Prosecution paused the video upon the objection, this froze the text of Mrs. Pettitte's affidavit on the screen:

"I, Laura Pettitte, do depose and state, in 1999 or 2000, Andy told me he had a conversation with Roger Clemens in which Roger admitted to him using human growth hormones."

This text remained frozen on the screen in view of the jurors while the Judge and counsel held a sidebar to discuss how to minimize the damage of this inadmissible evidence. Apparently, this sidebar lasted for several minutes.

The Solution: Training

First, the lapse in communications that allowed the first error with the video also seems to apply here. The attorneys would have known that this portion of the video should have been redacted, but somehow, the tech operator didn't. Nevertheless, any seasoned courtroom tech operator or trial consultant should know that, whenever there is an objection to evidence being published electronically, it should be taken down immediately and republished only after the judge overrules the objection.

The twist, however, lies in the fact that this was video. Because of the software needed to scroll text along with the video, if the objection to the video is overruled, it can be difficult to resume play at the exact spot of the objection. In addition, some trial presentation software has a quirky bug where re-cueing a video to a specific point will cause the remaining redactions to the video to malfunction. So, pausing the video (rather than taking it down completely) is probably the best thing to do here. However, there are still numerous ways the tech operator could have avoided showing the transcript of the affidavit to the jury:

(1) Turn off the projector/TV: The laptop and software will still keep the place of the video, but the jury will not see anything because the juror screens will be off. If there are multiple screens and/or TVs, make sure to turn them all off. Also, many of the projectors powerful enough for courtroom settings also have a mute setting on their remotes, where the screen will go black and audio cuts out. Failing a mute setting on the projector, the operator can simply put the lens cap on and block the image. Sometimes, the low tech solution is the best. This would have been one of those times.

(2) Take down the exhibit anyway: even though it may inconvenience the court and jury for the operator to re-cue the video back to the spot of the objection, such an inconvenience is worth it when the alternative is a mistrial, as it was in the Clemens' trial. (Or, if you can live without scrolling text, you can export the redacted video to a format playable on a media player such as Quicktime or Windows Media Player. This would resolve re-cueing issues, and you can just take down the exhibit upon any objection without concern about resuming play.)

(3) If all else fails, kill the system. And do it fast; time is of the essence. Start with unplugging all the cords from the laptop - the vga cable and the audio cable. If that doesn't work, force shut down the laptop. If that doesn't work, shut down the projector. If that doesn't work, unplug everything. These measures are severe and will take some time to recover from before the trial can resume. But, again, given the alternatives, it will be worth it.

--Mike Ko. mikeko@groundworktc.com