Information, both substantive and temporal, gleaned through a forensic data investigation may be critically important to the issues in a legal case. Thanks to today’s technologies and investigative methods, this important evidence has never been as precise, accurate, effective, detailed, and voluminous as it is today.
These technologies and methods also make it easier and easier to retrace historical events, providing actual evidence of the details of those events as they relate to criminal behavior, business transactions, corporate espionage, and other interactions of people, places, and things.
This precision is necessary in accurately describing the details of a forensics examination (and in understanding those details in context). It does not matter how good the forensic investigation is, if the process of learning how and what was found is very dry and boring.
In other words, it is one thing to explain what was physically done during the forensics examination in order to retrieve the information. It is quite another to effectively present how the information recovered, in context, matters to the issues at hand.
The audience being provided the information needs to be able to understand the substantive value of the data and the findings. However, simply viewing a list or a spreadsheet does not reveal the value of the information contained within the substantive data. There is a difference between communicating the details of the events and telling the story of the data.
Whether you are a digital forensics examiner, or a prosecutor/lawyer tasked with communicating highly technical, complex information in a simple way, you need more than just the printouts of logs and data to piece together and retrace events. It takes a decent effort to properly and thoroughly articulate the findings of the examination in words—and in the most forceful and persuasive way.
What is the story?
Preparing for testimony at a hearing, deposition, mediation, arbitration or trial can be challenging. The challenge is first in understanding and remembering the relevant information yourself, and second in translating highly technical information to an audience that is oftentimes not very technical.
Telling the case story requires a thorough and proper analysis of the information discovered during a forensic examination – and, in doing so, reveals the true value of the data. So, first, the evidence needs to be analyzed and understood; then the story of what the data shows needs to be constructed. The story is told through illustrating the relevant events in the context of the important issues being litigated.
To develop the story, the first issue to consider is what information is absolutely necessary to convey to the audience (mediator, arbitrator, judge and jury). Of the information that the investigation revealed, which is superfluous, and which is relevant to the issues in the case? Of all of the possible information that could be discussed about a specific topic, which of it must be communicated in order to educate and, ultimately, persuade the audience?
To a non-technical audience, it is critical that the information be provided in a way that is easily understood, without using too much industry jargon. The goal is to make the technical details and nuances interesting, understandable, and relate-able to the decision makers. This is where visuals can be very helpful in telling a persuasive story.
Visualizing non-visual evidence
Visualization of forensic evidence is powerful. It is a force multiplier. Complex, detailed information, when fully understood and properly presented, can be immensely persuasive.
Visualization in litigation is not about showing “visual evidence,” as much as it is about making all evidence (especially, dry, technical data) visual. Employing the use of visualization is an essential step in helping the audience to understand the fine details and distinctions being drawn.
Some evidence is inherently visual by its nature (e.g. a 3D model or a video). Other evidence (data) is not inherently visual, but can be translated into a visualization to improve comprehension. Charts and graphs are helpful, but process graphics and timelines are more important.
Visualizing non-visual evidence will bring your important information to life and will help you to maximize the impact that your evidence presentation has on the mediator, arbitrator, judge, or jury.
Employing effective visuals makes you a better witness
Well-designed visuals can make you a better witness. Before trial, visualization helps you understand your case. Find gaps in your evidence, make non-visual evidence visual, and clarify the details (anchoring them into your memory of the investigation).
At trial, visualizations allow the witness to distinguish competing theories of the case, simplify complex issues, clarify and define unfamiliar concepts and ideas, expose legal nuances, rebut your opponent’s theories (and visuals), and captivate the attention of the judge and jury, so that they see the story precisely the way you see it.
In fact, even visuals created in anticipation of litigation, which are never shown during trial, can still be helpful to a witness, because the memory of those pre-made visuals can help to guide and inform a witness’ answers during live testimony.
This is, in fact, one of the best ways that a lawyer can ensure the witness does not divert his testimony into non-relevant issues. Creating a set of visuals during trial prep, solely for the purpose of establishing the parameters of a witness’s testimony, can allow the witness, while testifying under direct or cross-examination, to mentally refer back to those images showing topics to expound upon or avoid.
Who should design your visuals?
Just as you would not hire an artist to do the forensic exam on your data, ideally, you should not design your own legal visuals. If you have a limited budget, then any visual communication of complex principles is better than none. However, if your budget allows, it is far better to employ a professional consultant to create your trial visuals.
When deciding who should develop the visuals for your testimony, consider the following issues:
- Are you visually literate? In other words, when you look at a visual (video, graphic, presentation), do you thoroughly understand the details and the messaging (blatant and subtle)?
- Have you acquired any training in that area of expertise? Have you read about and studied visual communication and visual literacy?
- Do you know how to create visuals that precisely convey the message you are trying to send?
- Can you identify graphics that lie (e.g. charts that use volume in a false way)?
- Could the visual aids that you design for your own testimony unwittingly hurt your case?
- Is there more helpful information in your data or analysis that is hard for you to observe due to a confirmation bias blind-spot? For example, could a fresh set of eyes help to reveal gaps in your analysis or improve your presentation of the data?
How should visuals be designed and presented?
There are five considerations when designing visuals that can help you to communicate forensic information forcefully. Edward Tufte (an author and expert on the proper display of information) says: “It always comes down to making and showing smart comparisons.” That is the goal: to make and show smart comparisons in the evidence.
The following is the S.M.A.R.T. design process that I created. It stands for: Space, Media, Access, Relationships and Time.
Space: What spatial relationships exist in the evidence? What connections exist between the events, places, and things? Show these relationships. In doing so, you prevent any errant jury discussions about what happened where – linking a diagram or map to the evidence means that the jury will have seen and understood such details.
Media: What media is needed to maximize the understanding of the particular information you plan to present? If you are displaying video, a high definition monitor may be the best media to use. But if you want the jury to remember events on a calendar, a poster board sitting on an easel in front of them for the entire trial may be better than flashing the calendar only occasionally on the screen. Choose the media that best fits the information you intend to present.
Access: Do you need linear access to your presentation or interactive access? Is there a possibility that you may not want to, or be able to, testify to the information in a sequential manner? If so, then an interactive presentation may be necessary. If, however, the visuals are designed for the closing argument and the presentation will proceed sequentially, then a non-interactive slide presentation may be the best way to access that information.
Relationships: Who are the players? What does the organization look like? Who is part of the family or circle of friends? Relationship maps can help illustrate the connections between people and entities, making listening to testimonies about them much easier to follow. Process graphics, likewise, show the relationship between steps of a process.
Time: Who knew what, and when, is an important subject in most litigation, criminal or civil. Creating timelines for an investigation is helpful to give context to other relevant evidence and to help explain the story of the case. Timelines can also be used to help prepare the forensic expert before trial.
When can visualizations be used at trial?
Assuming the probative value of the evidence substantially outweighs any possible prejudicial effect, there are five times when visuals can properly be presented to a jury:
- As a display device (to show all jurors an item of evidence at the same time on a large screen)
- As a Chalk – an “illustrative aid” can be presented to a jury, as long as the visual will assist the jury to understand the testimony of the witness
- As a fair and accurate piece of evidence – as long as a witness authenticates it as such
- As scientific evidence (where a Frye/Daubert analysis is required) – as a technical illustration or animation developed by a computer (e.g. a simulation)
- In order to marshal the evidence – for example, during a cross-examination of a witness or in a closing argument
Three visualizations every forensic witness should use every trial
A good rule of thumb is that there should be at least one visual designed to punctuate the testimony of every single witness who testifies before a jury. When it comes to forensic experts, I recommend three specific visuals to help explain the forensic data examiner’s investigation. They are: process graphics, interactive timelines, and summary graphics.
Process graphics are visualizations, either still or animated, that illustrate a process. These are typically relationship maps explaining what, where, when, why, or how the investigator discovered the evidence. As an example, it could be the process of: how data was stored on a particular device, how data was recovered, how a timeline of important events was established, etc.
Every process that the factfinder needs to understand should be created to punctuate and memorialize it. Each step in the process should be broken down and built one step at a time. Preparing a process graphic allows the judge and jury to understand the testimony much more easily, because, while answering questions, a witness can routinely refer back to that visual explanation.
Timelines (the “T” in SMART design) are also very helpful to forensic experts. Interactive timelines are particularly powerful, because each of the relevant events can be shown in context, with the authenticating document linked behind the event on the timeline. Using an interactive timeline allows the witness to go through a large amount of information in a short time.
Making a truly effective, persuasive timeline takes time, thoughtfulness, and practice. PowerPoint can be used, but it is limited in its functionality. There are specific timeline builder tools, like TimeLaw and CrimeLines (which I created), to make building interactive timelines easier. Timeline creation is a skill where your effectiveness will improve with practice.
Interactive timeline software should include the following features:
- Unlimited space – scrollable, dynamic
- Zoom into specific time periods – change granularity on the fly
- Create different timelines from the same data for different witnesses
- Use colors and icons as storytelling elements
- Access to evidence linked behind each event
- Manual collision avoidance for events
- The ability to turn events on and off
Interactive timelines allow the forensic witness to explain both the big picture and the small details. They can thus show how each event fits into the overall story of the case.
So, for example, if the examination has revealed lost or destroyed emails and text messages, then the context of when they were deleted may give an insight into whether this was as the result of intentional acts of spoliation or simply the unforeseen consequences of normal user activity.
Determining the precise message of your timeline, however, can be the most challenging and time-consuming part of drafting one. A well-designed timeline should only show the critical events that are most necessary for conveying the details of a particular storyline.
You may want to design more than one timeline to address different issues. For example, you could create a general timeline of the forensic investigation and then one of the deleted emails and messages recovered. It is also helpful to be able to parse out individual events, creating unique timelines, allowing different witnesses to use the same data set.
By using different timelines from the same data set, no matter which witness is on the stand, the jury has been given a visual anchor for the overall events in the case.
Finally, summary graphics are useful to marshal the evidence, so that the jury is clear about the conclusions drawn by the forensic expert, regarding the details of the investigation.
Summary graphics condense volumes of information into a one-slide info-graphic for each major point being advanced. They clarify and give meaning to non-obvious spatial, temporal, or physical relationships. A summary graphic might show, for instance:
- How many deleted emails and text messages from a particular set of targeted individuals exist
- A summary of the rate at which communications to certain individuals were deleted compared to the overall deletion rate
- Where (physically) evidence was and was not found (e.g. on a cell phone but not on the hard drive of a computer)
To visualize the point being made, summary graphics can employ text, numbers, charts, or condensed timeline visuals.
By providing a visual summary of the conclusions of the investigation, the witness is able to restate the essential points of his testimony and clarify anything that has been left unclear.
Because today’s visualization technologies allow us to have custom, on-demand visuals, created specifically for the unique issues of a forensic investigation, there is no reason that an investigator’s testimony should ever be considered dry and boring.
Indeed, choosing not to develop custom visualizations explaining the complexities and details of a forensic investigation would be derelict. Obviously, budgets play a role in the quality of the visuals, but with the proper effort, research, and time, budgetary concerns do not prevent effective communication. Telling better digital stories is about making forensic evidence persuasive through well-thought-out visualization of the entire investigation.
About The Author
Brian Carney, Esq. is a veteran Boston prosecutor and the president of WIN Interactive, Inc. He has lectured on technology and the admissibility of demonstrative evidence to the American Bar Association, the National District Attorney’s Association, the National Association of Attorneys General, and numerous state prosecutor associations.
The creator of CrimeLines (interactive timeline software for prosecutors and law enforcement) and TimeLaw (interactive timeline software for the advanced litigator), Mr. Carney has developed demonstrative evidence and technology training programs for prosecutors, as well as proprietary software for the effective presentation of evidence. He has testified as an expert in forensic video analysis and 3D scene recreation and consulted on several high-profile criminal prosecutions.