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Standard Chartered PLC v. Waterhouse11/7/1996
In contrast, no one could mistake the Titanic video shown by S. Ct. for a scientific or literal representation of what actually occurred in the case before the jury. This characteristic, however, does not make the use of this video more acceptable than the use of the video in Bledsoe.
SC's video combined high-technology visual images with the voice of an unseen narrator. The video used graphic representations from a Hollywood version of an event wholly unrelated to the events that the trial concerned. The video also included figurative visual representations of events about which testimony had been received--for instance, a scene in which a stack of papers, each labeled "LOAN," was serially initialled at a rapid rate. The video had the flavor of a televised, negative political advertisement on the eve of a hotly contested election.
The function of closing arguments is to enable each party to review the evidence and tie it to the applicable law in a light that favors its legal position at the trial. Demonstrations before the jury should not be used to divert the jury from the evidence but to help the jury understand it. See People v. Dowds, 253 Ill. App. 3d 955, 625 N.E.2d 878, 879, 192 Ill. Dec. 723 (Ill. App. 1993); People v. Harp, 193 Ill. App. 3d 838, 550 N.E.2d 1163, 1166, 141 Ill. Dec. 117 (Ill. App. 1990), appeal denied, 555 N.E.2d 380 (1990). During summation counsel may state matters not in evidence, but only those which are common knowledge or are illustrations drawn from common experience, history, or literature. People v. Wharton, 53 Cal. 3d 522, 809 P.2d 290, 317, 280 Cal. Rptr. 631 (Cal. 1991), cert. denied, 502 U.S. 1038 (1992); People v. Love, 56 Cal. 2d 720, 366 P.2d 33, 38, 16 Cal. Rptr. 777 (Cal. 1961), overruled on other grounds by People v. Morse, 60 Cal. 2d 631, 388 P.2d 33, 36 Cal. Rptr. 201 (Cal. 1964). As the court stated in People v. Thompson, 161 A.D.2d 195, 555 N.Y.S.2d 266 (App. Div. 1990):
Summation is not an unbridled debate in which the restraints imposed at trial are cast aside so that counsel may employ all the rhetorical devices at his command. There are certain well-defined limits . . . . Above all [counsel] should not seek to lead the jury away from the issues by drawing irrelevant and inflammatory Conclusions which have a decided tendency to prejudice the jury against the defendant.
Id. at 268 (quoting People v. Ashwal, 39 N.Y.2d 105, 347 N.E.2d 564, 566-67, 383 N.Y.S.2d 204 (N.Y. 1976)).
A non-evidentiary videotape such as SC's Titanic video has substantial potential for such abuse. We see little difference between the use of videotaped Hollywood disaster footage to suggest the impact of a tort and the use of mood music, animated cartoons, or professional actors, costumes, and dramatic props.
Neither counsel has identified a case in which the propriety of a non-evidentiary videotape like SC's has been resolved. We resolve against such usage here. In our view, the videotape was designed to inflame the jurors' emotions, not assist their minds. The enterprise that we engage in is not show business. Upon remand, the Titanic tape may not be used.
XI. CONCLUSION
For the reasons set forth above, we affirm in part, reverse in part, and remand for proceedings consistent with this opinion.
NOEL FIDEL, Presiding Judge
WILLIAM F. GARBARINO, Judge
SHELDON H. WEISBERG, Judge
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