The Volokh Conspiracy
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From Snyder v. Scranton Hospital Co., decided Thursday by Judge Terrence R. Nealon, Judge (Pa. Ct. Comm. Pl.)
Plaintiffs' motion … in this malpractice action … seeks leave of court to project plaintiffs' children and grandchildren via the Zoom videoconferencing platform on monitors and screens in the courtroom during the opening statements and closing arguments "in order to introduce all of them to the jury," to "allow [them] to observe opening and closing statements," and to enable "the jury to see and understand that Plaintiffs' family is close knit and supportive." Defendants oppose that request on the grounds that it "serves no legitimate evidentiary purpose," is "intended to inflame the jury from the outset of trial," and will "divert the jury's attention away from the facts and circumstances and instead engender improper sympathy." …
[Under the COVID social distancing rules, t]he jury's use of the gallery for seating deprives the public of its ability to attend trials in-person in Courtroom No. 1. To satisfy the constitutional requirements of public access to trials, special audio and video technology has been installed to transmit the proceedings into adjacent Courtroom No. 4 where they may be viewed on large mobile screens by socially distanced family members, friends, and members of the public…. [T]he jurors are advised during the opening instructions of the various measures taken to ensure their health and safety, including their socially-distanced location in the gallery which is customarily used by the parties' family and friends, and members of the public. Jurors are also informed that those individuals are able to view the proceedings on screens located in Courtroom No. 4, and that the jurors should not draw any conclusions or inferences from the fact that those individuals are not present in Courtroom No. 1.
[Plaintiffs seek] court approval "to project Plaintiffs' five children and several grandchildren on the video monitors and screens in the courtroom, via Zoom and without sound, during opening statements and closing statements." Plaintiffs submit that they "intend to do this in lieu of having all of the family members in the first row of the gallery as Plaintiffs' J counsel normally would in order to introduce all of them to the jury, and allow Plaintiffs' family to observe opening and closing statements."). They assert that "a large part of Plaintiffs' damages is the effect of [the male plaintiff's] inability to interact with his family members in the same fashion" due to his injury, and that their Zoom request will enable "the jury to see and understand that Plaintiffs' family is close knit and supportive of their father and grandfather."
Defendants counter that "Plaintiffs' request will produce no admissible evidence and will instead and improperly engender juror sympathy for the Plaintiffs before the first piece of evidence is ever introduced." They argue "that the virtual appearance of Plaintiffs' family members during opening and closing statements is improperly meant to constitute part of Plaintiffs' damages evidence," and "that Plaintiffs improperly confuse a video projection of Plaintiffs' family members during opening and closing statements for properly admissible evidence of Plaintiffs' damages in this case." Noting that "Plaintiffs are free to elicit testimony regarding the same during the trial itself," defendants maintain "that Plaintiffs' request serves no legitimate evidentiary purpose," is "intended to inflame the jury from the outset of trial," and will "divert the jury's attention away from the facts and circumstances at issue."
Based upon plaintiffs' proffered reasons for seeking to display their family members "via Zoom during opening and closing statements," their … request would create more problems than it would solve. If plaintiffs wish "to introduce" their family members to the jury, they may call them as witnesses at trial, or, if appropriate, seek to offer into evidence a day-in-the-life film featuring the male plaintiff's "inability to interact with his family members in the same fashion as he did before his arm was rendered useless." …
To the extent that plaintiffs seek to display their family members on the courtroom screens and monitors as proof that plaintiffs' "family is close knit and supportive of their father and grandfather," their requested ACT use would constitute improper opening statement and closing argument. Although the right to present an opening statement and closing argument in a civil case is part of the constitutional right to be represented by an attorney, the trial court is vested with the discretion "to regulate addresses by counsel to the jury." Our Supreme Court has stated that "'[t]he purpose of an opening statement is to apprise the jury how the case will develop, its background and what will be attempted to be proved; but it is not evidence."' "A party is entitled to argue the evidence during closing arguments, including all logical inferences," but "this latitude does not include discussion of facts not in evidence which are prejudicial to the opposing party." …
While it is true that "[i]n appropriate cases, counsel is permitted to use visual aids during opening and closing statements to assist the jury in understanding the evidence," the continuous display of plaintiffs' family members on the screen and monitors in the courtroom would not be a proper use of demonstrative evidence under the circumstances. The constant image of plaintiffs' family members, particularly younger grandchildren who may be more restless during extended opening statements and closing arguments, could serve as a distraction for the jurors and interfere with their ability to focus on the remarks and arguments by counsel….