For the
presentation during this portion of the seminar, the presenters will use PowerPoint
presentations that have been used in actual trials or mediations. Specific
names of individuals and other information have been redacted 0r deleted from
the presentation to preserve privacy and confidentiality.
During the course
of the presentations, the presenters will use these PowerPoint presentations to
demonstrate the following key points about the effective use of Exhibits and courtroom
technology regardless of whether you are in the big city or the country
courtroom:
A. Overcoming Fear
and Using Your Imagination While Confronting Technology
·
Become
Familiar with Available Courtroom Technology
·
Hiring
outside experts to Handle the Technology for You
·
Staying
Within your Technological Level of Confidence and Comfort Zone
·
Do
Not Be Afraid to Ask for Help
·
Attend
Seminars
·
Experiment
and Practice before Trial as you would with any other aspect of trial
presentation
B. Preparing for
the Digital Trial
1. Digital Case Storage and Organization
2. Authentication of Documents
3. Documents/Exhibit Organization
4. Preparing the Courtroom and Conditioning
the Jury
5. Blending Technology Use into Your
Presentation for Seamless Delivery
C. Choosing the
Right Method and Form of Exhibit
1. Physical Versus Image
1. Actual Versus Demonstrative
2. Budget, Setting, Venue, Subject Matter
3. Order of Proof
4. Presenters Style and Preferences
5. Comfort Level With Technology
D. Does Each of
Your Exhibits Pass the 8-Point Test?
1. Clear
2. Legible
3. Authenticated
4. Relevant
5. Admissible
6. Probative Value is Outweighed by
Prejudicial Effect
7. Interesting
8. Consistent with the Theme of Your Case
E. What Can
Opposing Counsel Do with the Evidence I Introduce?
·
Determine
Whether You Are Required to Provide A Copy of What You Are Doing in Advance
·
Are
You Willing to Give the Other Side Your Opening Statement/Theory of the Case
before Trial?
·
Dealing
with Motions in Limine to Challenge Evidence Presented with Courtroom
Technology.
F. Video
Depositions (Prior Testimony)
1. Advantages and Pitfalls
2. When to Use
3. Rule of Completeness
4. Objections
5. Fairness
In addition, the
presenter will provide a “hands on” demonstration the process for creating and
editing images of exhibits and excerpts of video depositions so that they can be
used in presentations at trials or mediations using software commonly available
from court reporters and others sources.
Introduction
There has been a
proliferation of use of technology in the courtroom in the past 20 years. It is
now commonplace for attorneys to use videotaped depositions, Trial Director,
PowerPoint, ELMOS, computer generated evidence (CGE) and other devices. The
state and federal courts around the country have labored to keep up with
technological advances and to incorporate those advances into the courtroom
setting. A law review article described the efforts in the federal court system
to accommodate technology.
The
Judicial Conference of the United States has taken several actions to encourage
the use of technology in the federal court system. Most notably, in March 1999,
the Judicial Conference approved the recommendation of its Committee on Automation
and Technology to endorse the use of certain technologies in the courtroom and:
subject
to the availability of funds and priorities set by the Committee, urge that (a)
courtroom technologies [including video evidence presentation systems,
videoconferencing systems, and electronic methods of taking the record] be
considered as necessary and integral parts of courtrooms undergoing
construction or major renovation; and (b) the same courtroom technologies be
retrofitted into existing courtrooms or those undergoing tenant alterations as
appropriate.
Wiggins, Elizabeth C., What We Need to Know about the Effects of
Courtroom Technology, 12 Wm. & Mary Bill Rts. J. 731, 731-32 (2004).
As part of the
efforts to update the federal court system, the Conference surveyed the federal
district courts about use of technology in the various districts. Ninety out of
ninety-four districts responded and the survey revealed the following:
94
percent of district courts have access to an evidence camera; 66 percent to a
digital projector and a projection screen; 93 percent to wiring to connect
laptop computers; 57 percent to monitor built into the jury box; 77 percent to
monitors located outside the jury box; 89 percent to a monitor at the bench; 88
percent to a monitor at the witness stand, at counsel table or at the lectern;
77 percent to monitors or screens targeted at the audience; 80 percent to a
color video printer; 91 percent to annotation equipment; 95 percent to a sound
reinforcement system; 92 percent to a telephone or infrared interpreting
system; 92 percent to a kill switch and control system; 81 percent to an
integrated lectern; 93 percent to audio-conferencing equipment; 85 percent to
videoconferencing equipment; 81 percent to real-time software for use by court reporters;
74 percent to a real-time transcript viewer annotation system; and 66 percent
to digital audio recording.
Wiggins, supra, at 733. This survey was conducted in 2002 and certainly the
technological adaptations in the federal court system have continued since.
While many stale
court systems are lagging behind the adaptations to Federal courts, many of the
state courtrooms have been renovated or “retrofitted” in technology friendly
ways and that progress will only continue. The most important point here is
that not only do our judges accept the use of technology at trial, they-like
jurors-have reached the point where it is expected.
It is the visual
technology that has experienced the most explosive growth in the courtroom
setting. Only 25 years ago trial lawyers were limited to showing enlargements
of still photographs, simple day in the lite films or enlargements of documents
pasted to poster hoard. New video depositions are synched with the transcript
of the deposition which is displayed simultaneously on screen along with
exhibits to the deposition; computers generate animations and simulations of
events crucial to a lawsuit; documents are displayed in screen through a
computer and, through an accomplished computer operator, can be enlarged, highlighted
and manipulated in any fashion before the jury’s eyes; opening statements and
closing arguments seem to be made universally in concert with PowerPoint
presentations which include embedded video clips.
Studies reveal
that presentations to a jury are far more effective in terms of retention of
the information by the jury if the information provided orally is supplemented
or reinforced with visual information. According to a trial consultant' and
social psychologist:
Humans
are visual and verbal learners; we learn by both seeing and hearing. Neuropsychologists
believe that one third of the human brain is devoted to vision and visual
memory. A visual presentation enables the lawyer to communicate a greater
amount of information more efficiently and effectively. Visual stimuli enable
jurors to retain more data with greater accuracy for a longer period of time.
Research shows that visual communication alone is more effective than verbal communication
alone and verbal communication coupled with visual communication is the most
effective.
Kuehn, Patricia F., J.D., M.A.,
Maximizing Your Persuasiveness: Effective
Computer Generated Exhibits, DCBA. Brief, Journal of the DuPage County Bar
Association, October 1999, available at http:iiww.dcba.org/brief (follow “DCBA Brief’ hyperlink; then the “Back Issues-Vol. 12 1999-00” hyperlink).
A recent study by
another jury consulting group reveals a potential “disconnect” between lawyers
and the audience – the jury – in terms of appreciation of how we learn. 1n 2003
to 2006 the group ‘Animators at Law’ surveyed 387 practicing attorneys and
1,657 non-attorneys to determine dominant learning styles. Three categories of learning styles were
identified and discussed: visual, auditory, and kinesthetic (feeling). The
results of the study revealed the need for lawyers to understand the
differences between themselves and members of the jury in terms of learning.
The
differences in learning and communication styles between attorneys and
non-attorneys are surprisingly significant. Based on the results of the study,
a typical twelve-person jury would likely be composed of 7 “visual” jurors, 3
“feeling” jurors and only 2 “hearing” jurors. Practicing attorneys, on the
other hand, were shown to be far less likely (less than half) to be visual in
nature and were 10 percent more likely to be hearing/speaking-dominant. When
combined with the tendency of most lawyers to use the courtroom for only
communication through speech (i.e., “hearing” communication), this juror attorney
communication gap is exponentially inflated.
Lopez, Kenneth J., J.D., Seeing Eye to Eye with a Jury, http://www.a2lc.com/trial-consulting-press-A2L-Consulting/entertainment-law-journal---seeing-is-believing/. The astute trial attorney will recognize that
technology in the court room presents her with the opportunity to maximize her
teaching to – and therefore her persuasion of – that majority of jurors who are
non-“hearing” learners.
Given the
advantages of using visual aids to effectively communicate with the jury, we
can expect the technological boom in the courtroom to continue. Recognizing the
potential benefits of technology in the courtroom, what parameters have the
courts set for using this technology for demonstrative purposes or the introduction
of evidence?
Use of Depositions at Trial
The practice of audiovisual
recording of significant depositions in civil cases involving any substantial
sums of money is so commonplace as to be almost ubiquitous. The Rules of Civil
Procedure in most states and in the federal courts have been amended lo make
provision for video recorded depositions. Fed. R. Civ. P. (3) Method of
Recording reads as follows:
(A)
Method Stored in the Notice. The
party who notices the deposition must state '1n the notice the method for
recording the testimony. Unless the
court orders otherwise, testimony may be recorded by audio, audiovisual, or
stenographic means. The party bears the recording costs. Any party may
arrange to transcribe a deposition.
(B)
Additional Method. With prior notice to the deponent and other
parties, any party may designate another method for recording the testimony in
addition to that specified in the original notice. That party bears the
expense of the record or transcript unless the court orders otherwise.
Fed. R. Civ. P. 30(b)(3) (emphasis added).
While the Federal
Rules allow the parties to make visual recordings of depositions as a matter of
course, the Rules of states may vary. For example, Ala. R. Civ. P. 30(b)(4) requires
that the notice include “the reason why such recording is necessary' or desirable
. . ." Ala. R. Civ. P. 30(b)(4). That Rule also requires that the
deposition “be conducted in a manner to replicate, to the extent feasible, the
presentation of evidence at a trial.” Id.
The Committee Comments to that Rule offer guidance as to the “manner” in which
the deposition should be conducted:
Unless
physically incapacitated, the witness should be seated at a table or in a
witness box, except when reviewing or presenting demonstrative materials for
which a change in position
is
needed. To the extent practicable, the deposition should be conducted in a
neutral setting, against a solid background, with only such lighting as is
required for accurate video recording. Lighting, camera angle, lens setting,
and field of view should be changed only as necessary to record accurately
natural body movements of the witness or to portray exhibits and materials used
during the deposition. Unless circumstances require otherwise, the camera angle
should be level with the witness’s head.
Committee Comments to Amendment to
Rule 30 Effective August 1, 2004, Ala. R. Civ. P. 30.
Those same
Committee Comments include the following: “[O]nly the deponent and
demonstrative material used during the deposition should be shown on the
videotape, unless any participant desires that an additional camera be focused
on the attorney asking the questions, in which case that should be done . . . The
court shall have the discretion as to whether and how the second videotape may
be used.” Committee Comments to Amendment to Rule 3U Effective August 1, 2004,
Ala. R. Civ. P. 30. The use of a second camera can sometimes offer significant
advantages. When notice of a video recorded deposition is received, defense
counsel should consider whether there are tactical advantages to use of a
second camera.
While the practice
of displaying audiovisual recordings as substantive evidence at trial is well
established, not so is the use of these depositions, or enlargements of
transcripts of depositions, during opening statements, closing arguments or as
a method of impeachment during cross-examination. Use of an audio visual clip
from a deposition in opening statement or closing argument can be a powerful
tool to highlight a particularly significant bit of testimony from the witness.
Another method of highlighting this testimony is to project portions of the
deposition transcript onto a screen for the jury’s observation through a
computer program such as Trial Director. This has the added benefit of allowing
the lawyer to read the testimony to the jury and place the emphasis on those
words that she so chooses. A typical objection to such use of depositions is
that it inappropriately highlights a small part of the testimony of one witness
over other testimony and that it takes testimony out of context. As with most
evidentiary rulings, the decision as to whether to allow or forbid the use of
deposition in openings and closings is a discretionary call by the trial court.
See, e.g., Waterman v. Lanferrnan,
707 NW. 2d 337 (Iowa App. 2005).
When impeaching a
witness on cross-examination with his or her prior testimony, the effectiveness
of that impeachment is tar more effective it the jury can see the inconsistent
testimony for themselves. The use of computerized programs such as Trial
Director allows the lawyer to call up pages from depositions instantly so that
the and the witness read together the inconsistent prior testimony. The use of
a deposition in this manner is again within the discretion of the trial court.
Computer Generated Evidence
Computer Generated
Evidence (CGE) is becoming more and more frequently seen in the courtroom.
While its acceptance among courts is expanding, defense counsel should be
familiar with the requirements for use of CGE at trial as well as potential
traps if an opponent’s CGE is allowed to be used at trial without close
examination and possible objection. One
commentator divides CGE into two types: animation and simulations.
CGE
takes two main forms, animations and simulations. Computer animation is a
powerful method of creating a continuous series of Computer generated images or
pictures. Like commercial animation, each image in the series is altered
slightly frame by frame and their recorded in rapid succession in order to
mimic actual movement. A computer animation is a producer’s version of a
witness’ testimony that may result in a helpful illustration of the testimony. Animations should not necessarily be accepted
as the unquestionable truth, however, because the reliability of the animation
is completely dependent upon the experts testimony and credibility. Animations
can be used in two ways: l) a witness on the stand can present a conclusion and
use the animation to illustrate the findings, or 2) the animation may simply
illustrate factual testimony.
The
second form of CGE is a computer simulation. In essence, with this form, the
computers data codes and resulting output become the witness. A computer
simulation construction has three steps. First, variable sets representing the
coordinates of objects present at the scene are inputted. Next, the information
is processed and synthesized to calculate the motion of each object involved in
the incident. Finally, the information inputted yields output in the form of a visual
presentation that conforms to the laws of science and physics. Once a computer
simulation is verified by an expert as being scientifically sound and based on
scientific knowledge and physical laws, [it] should demonstrate not what
‘might’ have happened or what ‘could’ have happened, but what actually did
happen.
Fiedler, Betsy S., Note, Are Your Eyes Deceiving You?: The Evidentiary
Crisis Regarding the Admissibility of Computer Generated Evidence, 48 N.Y.
L. Sch. L. Rev. 295, 296~9S (EGGS/2004) (internal footnotes and quotations
excluded) (alteration in original).
As between these
categories, “animations” require significantly less foundation than do
“simulations” Animations are used during the course of testimony by an expert
to supplement the expert's testimony. Those animations must meet the
requirements, in federal court, of relevancy (Fed. R. Evid. 401) and
authenticity (Fed. R. Evid. 901), and that the probative value is not
substantially outweighed by the danger of unfair prejudice, confusion or
misleading of the jury (FED. R. Evin. 403). Bach of these requirements is
typically met if the expert through whom the animation is demonstrated lays the
proper foundation that the animation is a faith«
ful reproduction of the object,
thing or event being depicted. See, e.g.,
Cleveland v. Bryant, 512 S.E.2d. 360, 362 (Ga. Cl. App. 1999). Under such circumstances
the animation should be used only during the testimony of the expert and would
not, of course, be available to the jury deliberations.
Video
animation adds a new and powerful evidentiary tool to the trial scene. McCormick’s
work on evidence observes that with respect to one party’s staged reproduction
of facts “not only is the danger that the jury may confuse art with reality
particularly great, but the impressions generated by the evidence may prove
particularly difficult to limit ...” Because of its dramatic power, trial
judges should carefully and meticulously examine proposed animation evidence
for proper foundation, relevancy and the potential for undue prejudice.
Normally, the trial judge should review the video outside of the jury’s
hearing. Courts in appropriate circumstances may permit demonstrative use of
audio or visual presentations which may assist the jury.
Robinson
v. Missouri Pacific Railroad Co., 16 P. 3d 1033, 1088 (10th Cir. 1994).
Simulations, must
meet the far more stringent requirements of Fed. R. Evid. 702 and the
requirements of Daubert because the simulation
is substantive evidence and, in a sense, becomes the expert. Satisfaction of
these requirements may be achieved through testimony of a computer expert as to
the procedure undertaken to produce the simulation including: “that (1) the
computer equipment is accepted in the field as competent and was in good
working order; (2) qualified computer operators were employed; (3) proper
procedures were followed regarding the input and output of information; (4) a
reliable software program was used; [5) the equipment functioned correctly; and
(6) the exhibit being employed identified the output shown to the jury.” Fiedler, supra,
at 301.[1]
Because of the
potential impact of CGE on a jury, any CGE offered by an opponent should be
studied carefully with the assistance of a computer expert to ensure that the
animation or simulation does not employ techniques such as a particular choice
of colors or color combinations to unfairly enhance the “message” intended by
the proponent. Additionally, because repetitive viewings of an animation or
simulation can work on the audience in much the same way that repetitive
showings of a short commercial, defense counsel should guard against repetitive
showings of an animation or simulation to the jury.
Digitally Enhanced Images
A digitally enhanced image is much
more than a simple enlargement of a photograph. It is “improvement of a digital
image. A digitally enhanced image can be used, for example, to remove shadows
that “cloud” a photograph or to enhance the image of fingerprints to reveal
points of similarity that might otherwise be overlooked. Digital enhancement
can be a useful tool, but it can also be a misleading one. If you are the
proponent of a. digitally enhanced image, it is important that the process of
the enhancement be well documented and that a qualified witness he called to
testify to that enhancement process and the science behind it. On the other
hand, if your opponent wishes to offer a digitally enhanced photograph into
evidence, you must be "on the lookout”. Any time an image is listed as a
potential trial exhibit, you should inquire as to whether the image was digitally
enhanced if there is any such possibility. If there is enhancement, you should
determine exactly what was enhanced, how it was enhanced and who did the
enhancement. Depending on what you learn, follow up may be needed in terms of
consultation with your own technology expert, depositions of those involved in
the enhancement, etc.
Of course, any
time you propose to use an enhanced image at trial, it is necessary to disclose
at the earliest opportunity the fact of the enhancement and exactly what has
been enhanced so as to avoid any possibility of an accusation of submitting
misleading evidence.
Edward J. Imwinkelried
has provided an excellent checklist for laying the foundation, or objecting, t0
the foundation, of a digitally enhanced image:
·
The witness
is an expert in digital photography. He or she describes image enhancement
technology, including both the creation of a digital image consisting of pixels
and the computer manipulation of the pixels.
·
In
general, both parts of the process are valid.
·
There
has been adequate research the application of image enhancement technology involved
in the case.
·
The
research resulted in the development of computer software For this application.
·
At a
given time and place, the witness received a film photograph.
·
The
witness followed proper procedure in digitizing the photograph.
·
The
witness also followed correct procedure in using computer software to enhance
the film photograph.
·
The
witness recognizes the exhibit as the photograph that was produced when he or
she used the software to enhance the photograph.
Imwinkeiried, Edward J., Can this Photo be Trusted?, 41 TRIAL 48,
54 (October 2005).
Conclusion
In summary,
technology in the court room is no longer a something special to be reserved
for only a few trials. It is a tool that
judges and juries now expect to be employed in any trial. More importantly,
technology provides the trial lawyer with opportunities to effectively educate
and persuade jurors in ways not possible even a few years ago. While the type
of technology used at trial will vary depending on factors such as type of
trial, issues being tried, logistics, etc., it is incumbent on all defense
attorneys to carefully consider and use that technology which best fits her
trial.
[1] For
a detailed discussion of admissibility requirements and objections to
admissibility of CGE, see Butera,
Karen D., Note, Seeing is Believing: A
Practitioners Guide to the Admissibility Of Demonstrative Computer Evidence,
46 CLEV. ST. L. REV. 51](1998).