Breaking NewsLaw.com and associated brands will be offline for scheduled maintenance Friday Feb. 26 9 PM US EST to Saturday Feb. 27 6 AM EST. We apologize for the inconvenience.

 
X

Thank you for sharing!

Your article was successfully shared with the contacts you provided.
In the 1957 film “12 Angry Men,” a jury’s deliberations turn into heated arguments. Eleven of the jurors see an open-and-shut case of murder. But the 12th, played by actor Henry Fonda, disagrees and leads the others through a long, complicated, and spellbinding process of re-enacting the crime in the jury room. The Fonda character asks another juror to time him as he walks 45 feet, mimicking the slow pace of the elderly witness who claimed to cover that distance in 15 seconds. Fonda eventually makes the others see that the prosecution’s eyewitnesses are not credible, and the jury acquits. The film is a lesson in the power of visualization. Yet as good as Henry Fonda was at re-enacting events, computers are better. The justification for computers in the courtroom sprang from the same desire to eliminate heavy lifting that spawned the resort to electronic document management in pretrial. Indeed, computer presentations at trial are often justified because they expedite the formerly time-consuming task of introducing documentary evidence. Judges now may issue pretrial orders that allow exhibits to be introduced electronically, subject to objection. No longer does the lawyer need to take an exhibit on the long, circuitous journey from briefcase, to opposing counsel, to judge, to witness, to court reporter, and to jury. Instead, at first mention of plaintiff’s Exhibit 2, the document can appear on a large monitor for all in the courtroom to see or on individual displays in front of judge and jury. Professor Fredric Lederer of William and Mary Law School in Williamsburg, Va., an expert on electronic courtrooms and director of Courtroom 21, a demonstration project by William and Mary and the National Center for State Courts, estimates that electronic presentation of evidence shortens an exhibit-heavy trial by as much as 30 percent. Moreover, he observes that documentary evidence comes and goes so quickly when presented in this way that the trial acquires a fast, no-nonsense pace that keeps the jury focused on the facts, rather than the procedure. Yet computer technology is intruding much further into the courtroom. To help federal judges understand what is coming, the Federal Judicial Center, the research and education organization for the federal courts, recently released a comprehensive guide to courtroom technology, “Effective Use of Courtroom Technology: A Judge’s Guide to Pretrial and Trial.” The National Institute for Trial Advocacy, which collaborated on the guide, offers a lawyer’s edition. Courtroom technology not only expedites proceedings, but also changes many other parts of a trial — for example, the way witnesses are impeached. Should a witness alter his testimony between deposition and trial, counsel in an electronic courtroom can question him about his prior inconsistent statement while projecting relevant portions of the transcript from the deposition on a monitor. If the deposition was videotaped, the lawyer can have witness, judge, and jury watch a video of the prior testimony along with the transcript. This multimedia impeachment often has an emotionally powerful effect. To the jury, the witness appears two-faced, saying contradictory things simultaneously. The visual images can be so powerful that the jury may ignore the fact that the deposition took place earlier and that there might be less malevolent explanations for inconsistent testimony, such as changed or refreshed memory. Lawyers also stir up emotions in the courtroom by using presentation software, such as Microsoft’s PowerPoint, in their opening and closing arguments. In closing argument, the advocate can remind the jury about the key evidence and testimony and show it with a fast-paced, multimedia presentation that can also highlight his main points. PAINTING A PICTURE Still, none of this courtroom technology matches the decisive potential of computer animations and simulations. Computer technology can do remarkable things in transforming a collection of facts into pictures for the jury. Animations and simulations are the equivalent of testimony from expert witnesses who, after consulting the physical evidence and reviewing eyewitness testimony about an automobile accident, for example, give their opinions about how the accident happened. Using the same evidence and testimony, animation experts program a computer to show the jury what the accident looked like. In this way, computers can simplify difficult concepts for the jury, such as how metal beams fatigue and break under stress or how a manufacturing process works. Some notable uses of simulations include showing how a jet airliner clipped the tops of trees on takeoff, how gas leaking from a building dispersed through a sewer before violently exploding, and how a small fire started in a room of a hotel and spread to engulf the building. The advantages of using computer technologies to help juries visualize the facts in certain types of cases are clear. “12 Angry Men” would have been a much shorter film — but not as provocative — if a computer, instead of Henry Fonda, were used to re-enact the positions and movements of victim, defendant, and witnesses at the time of the murder. Where is this increasingly sophisticated courtroom technology leading, and what will be its impact on the justice system? The closing argument in a recent murder trial shows how an advocate can skillfully use relatively simple technology such as PowerPoint to present his case visually. The prosecution’s case was strong, but circumstantial. So, in summation, the prosecutor discussed the key exhibits and simultaneously projected them on a screen for the jury to see. He concluded by projecting a picture of the defendant, which was in evidence, and ticked off the incriminating facts one by one, pointing an accusing finger at the defendant each time. As the prosecutor recited a fact, it appeared on the screen with an arrow pointing to the defendant’s picture. When the prosecutor finished his argument, the picture of the defendant was surrounded by circumstantial facts that pointed literally to him. The defendant was convicted, although an observer said that it was not a close case and that the PowerPoint presentation was not decisive. Our intuitive sense that computer presentations will have greater impact on juries than traditional presentations finds scientific support. In “Absolute PowerPoint” in the May 28, 2001, issue of The New Yorker, Ian Parker recounts an experiment conducted by researchers at Arizona State University. Three groups of volunteers were chosen to rate a fictional high-school football player based on his statistics. The statistics were shown to the first group as raw numbers, to the second group as bar graphs, and to the third group as animated bar graphs in PowerPoint. Not surprisingly, the volunteers shown the graphs in PowerPoint rated the player significantly higher than those who saw the same information as numbers or motionless graphs on paper. But if technology as simple and commonplace as PowerPoint can be decisive, computer animations and simulations would seem to be more so. In a paper entitled “The Effects of Computer Animation on Mock Jurors’ Decision Making” (February 2001), Meghan Dunn of the Federal Judicial Center reviewed experiments with simulations in two mock trials — one about an automobile accident; another about an airplane accident. Verdicts in the automobile case were not significantly affected by whether the jury saw diagrams on paper or computer simulations, but verdicts in the airplane case were. When both sides used only diagrams of the airplane accident, 39 percent of the jurors found for the plaintiff. However, when the plaintiff presented a computer simulation of the accident and the defendant used only diagrams, 68 percent of the jurors sided with the plaintiff. Dunn hypothesized that the simulation of the aircraft accident was decisive, whereas that of the automobile accident was not. Jurors, she surmised, could visualize the automobile accident without the simulation, but had trouble visualizing the aircraft accident from diagrams. The general rule in courts in the United States is that the admissibility of demonstrative evidence, such as diagrams, animations, and simulations, is determined by asking whether they are accurate and whether they are prejudicial. But computer presentations raise additional concerns. The few scientific studies conducted on the use of computer technology in the courtroom suggest that it will be decisive, at least in some cases. If so, one result may be a kind of computer arms race in the courtroom. Each side, if they can afford it, will want to bring in more and more sophisticated technology. Juries will be treated to multimedia presentations and trials could look more like “Star Wars” or “Jurassic Park” than “12 Angry Men.” The case-by-case approach of the law may not be well-suited for determining how far to go in letting technology into the courtroom. Trial judges are not likely to object to technologies that promise to expedite the trial and to which no party to the lawsuit objects. Besides, once the technology takes hold, how can judges disallow technological presentations that appear both accurate and unbiased. And what about a digital divide in the courtroom. The party with a deep pocket will use technology to literally paint the jury a picture while his adversary must make do with mere words. Even more disturbing are questions about whether arcane computer technology can be trusted, whether presentations may be subtly used to manipulate juries, and whether judges have the training to pass on these matters. The article “Fresh Evidence Casts Doubt on Simulations,” in the April 21, 2001, issue of Computer Weekly, concerns the fatal crash of a Chinook helicopter in 1994 flown by the British military and illustrates how untrustworthy simulations can be. At the accident hearing in 1996, counsel for the Ministry of Defense said “the Boeing simulation of the accident should be treated as ‘hard fact.’ ” However, the article continued, when the same simulation software was used later to analyze a Chinook accident in the United States, it was determined that both simulations may have been “ based on an incorrect assumption.” Professor Lederer, a proponent of technology in the courtroom, concedes that these concerns, while legitimate, should not be exaggerated. He points out that technology can be used to bring juries closer to reality. Judge Roger Strand, a senior judge on the U.S. District Court for the District of Arizona with firsthand experience with technology in the courtroom and a member of the U.S. Judicial Conference’s Committee on Automation and Technology, agrees: “Courtroom technology is remarkably beneficial to the justice system. It helps the lawyer communicate facts to the fact-finder; it is a more effective way to communicate.” Yet he also notes that presentation software, animations, and simulations can be “so powerful and compelling that they will carry the day.” He believes counsel should have leeway with presentations but would not permit one that is so dramatic that it exceeds fair bounds. Still, there is a sense of unease about how courtroom technology may change the legal system. One is inclined to ask how big the camel is before it is allowed to poke its nose under the tent. Ever since the English legal system abandoned trial by fire and trial by battle (the latter of which was a lawful way of settling disputes in England until the early 19th century), the notion of a trial has been to have human beings, pieces of paper, and physical evidence brought before a jury in a courtroom. This was the technological environment in which the common law evolved. Replacing it with one in which the jury essentially watches television is a radical change. It may be a change for the better, just as trial by fact was better than trial by fire. However, computer technology is not simply an evolution in the way disputes are resolved. It is revolutionary, and its use warrants more study. As an artist, the pointillist Georges Seurat painted his “A Sunday on La Grande Jatte” not as a camera would see it but rather as he wanted it seen. Litigation too is an art. The litigator wants to show the past, not necessarily as it actually was, but rather as he wants the jury to see it. Today, for better or for worse, computer technology is the state of the art. Washington, D.C., lawyer James H. Johnston may be contacted at [email protected].

This content has been archived. It is available through our partners, LexisNexis® and Bloomberg Law.

To view this content, please continue to their sites.

Not a Lexis Advance® Subscriber?
Subscribe Now

Not a Bloomberg Law Subscriber?
Subscribe Now

Why am I seeing this?

LexisNexis® and Bloomberg Law are third party online distributors of the broad collection of current and archived versions of ALM's legal news publications. LexisNexis® and Bloomberg Law customers are able to access and use ALM's content, including content from the National Law Journal, The American Lawyer, Legaltech News, The New York Law Journal, and Corporate Counsel, as well as other sources of legal information.

For questions call 1-877-256-2472 or contact us at [email protected]

 
 

ALM Legal Publication Newsletters

Sign Up Today and Never Miss Another Story.

As part of your digital membership, you can sign up for an unlimited number of a wide range of complimentary newsletters. Visit your My Account page to make your selections. Get the timely legal news and critical analysis you cannot afford to miss. Tailored just for you. In your inbox. Every day.

Copyright © 2021 ALM Media Properties, LLC. All Rights Reserved.