Technology in the Courtroom:

Smoke & Mirrors B How to Use and Attack

New Forms of Demonstrative Evidence

National Association of Criminal Defense Attorneys

Innovative Advocacy in the Big Easy:

CSI-Style Defenses, Technology & Criminal Litigation

Steven Kalar, Senior Litigator

Federal Public Defender, Northern District of California

San Francisco, CA

Steven_Kalar@fd.org

AIf you at last must have a word to say,

Say neither, in their way,

>It is a deadly magic and accursed,=

Nor >It is blest,@ but only >It is here.=@

Steven Vincent Benet, John Brown=s Body, quoted in Neil Postman, Technopoly, A Surrender of Culture to Technology (1992).

I. Introduction

A. A Mechanized Debate: Technology versus Oration.

B. What is Atechnology in the courtroom?@ There are too many gadgets available to creative attorneys to describe all technology available in the courtroom during our brief presentation. Broadly construed, the term can include sophisticated computer simulations or animations, real-time testimony transcription, or the use of programs such as Trial Director to recover and display digitized documents.

One of the simplest of the new technologies is the projection of images onto a screen to display to the jury. The basic equipment used to create and project these images is relatively inexpensive and simple to use, making this the technology most realistically available to the defender of indigent clients. Perhaps more importantly, it is a technique that has been embraced by the Department of Justice. Many FBI agents are now trained on how to create PowerPoint slideshows, and graphic artists are rumored to be on the full-time staff of several U.S. Attorney offices.

1. Simple projection of images. The technique used by your fourth-grade science teacher has been the traditional display technology found in the courtroom: a simple overhead projector showing pre-prepared transparencies. The modern analogue of this old standby is a Avisual presenter.@ The most common visual presenter is manufactured by Elmo, and is usually called an AElmo.@

a. Advantages: The Elmo captures an image of almost any object that will fit onto its display plate. An important advantage of the Elmo over traditional projectors is that it is unnecessary to pre-prepare Atransparencies.@ Within limits, any object B a document, an apple, a gun B can be placed on the Elmo and instantly shown to the jury. Notably, even opaque images, like writing on heavy-bond paper, will project well. Another advantage is that it is incredibly simple to use: simply place the object on the screen and hit autofocus. Finally, unlike computer displays sent through projectors like the Proxima, you don=t need to scan in documents or photos to use the Elmo.

b. Disadvantages: Semi-translucent documents such as carbon copies do not project well. In addition, the Elmo still requires counsel to keep track of the physical evidence, which can be overwhelming and slow in a heavy-paper case. The machine has bright side lights used to illuminate the objects that it projects. Unfortunately, these lights often shine directly into the eyes of opposing counsel, the jury, or the judge. Finally, most Elmos require a separate projector to project the image captured--adding to costs and to the hassle of lugging and setting-up gear.

Some Elmos or Elmo-like machines, (including one manufactured by Sony), will capture the image of a tangible object and will accept input from a computer for display of slides and presentations. These machines have come down in price, and can be purchased for under $3,000. See http://www.projectorsuperstore.com/.

The low-end Elmo EV-400F runs around $3,200 and the most sophisticated machines can cost over $10,000. Elmos are the projection gear of choice of the United States Attorney=s Office in the Northern District of California.

2. Projection of computer-generated images: Projection of computer-generated images to the jury is becoming increasingly common in criminal trials. Evidentiary issues surrounding the display of these images are discussed in the following sections. Some of the tools used to create and display these images include:

a. Microsoft PowerPoint: In the Northern District of California we have used Microsoft=s APowerpoint@ software and have been pleased with the ease of use and lack of software glitches. We=ve used Powerpoint in five federal trials, sixteen full mock trials, and over two-dozen classroom presentations and have yet to have a presentation problem caused by the software.

(1) PowerPoint 2002 is available on-line for under $229 ($109 upgrade) and is often included in Microsoft Office Suites. See http://www.microsoft.com/office/powerpoint/howtobuy/default.asp#just.

(2) Microsoft mysteriously suggests that PowerPoint will run on a 486 computer with 8 MB of RAM and 25 MB of hard disk space. In reality, the program will promptly melt the innards of such a machine. We have run PowerPoint on a Pentium 100 with 80 MB of RAM and 50 MB of available hard disk space, but s-l-o-w-l-y. To create a slide show with any graphical images, one should ideally have a Pentium 200 MHZ with at least 32 MB of RAM and 80 MB of hard disk space.

b. Corel Presentations: The software company Corel, distributors of Wordperfect, also distribute presentation software imaginatively named, APresentations.@ Defenders who use Wordperfect probably also have the APresentations@ software on their Corel disks.

(1) The Presentations program has been used by defenders in Pennsylvania and Arizona, who report that they are pleased with the software.

c. Scanners: We have had good luck with Hewlett Packard scanners, which are relatively easy to install and use. The last year has seen a real drop in scanner prices, however, and the entry into the market of other reliable scanner manufacturers. Scanners can be had for as low as $99 B but these bargain basement machines should be avoided. A good color scanner with a free suite of supporting software and decent scanning speed will cost between $200-$350. It is often worth it to buy a scanner that will handle .pdf scanning B useful for complex cases where discovery is handled by Adobe Acrobat.

(1) For a thorough evaluation of new scanners, see http://www.pcworld.com/reviews/article/0,aid,109707,00.asp

d. Projectors: To get that persuasive image you=ve created from your computer monitor to that big white screen you=ve placed in front of the jury, you will need a projector. The projectors discussed will themselves permit limited modification of an image B like highlighting, zooming, or spotlighting. In general, however, they just project an image that is generated by another source; typically a computer or VCR. As with scanners, projector prices have tumbled in the last several years while quality and features have increased. The newest generation of projectors are as light as laptop computers and can project clearly in a well-lit courtroom. For an excellent review of the latest projectors and prices, see http://www.pcworld.com/reviews/article/0,aid,109643,00.asp

(1) Proxima: The Proxima is the projector we used to use at the Federal Defender=s office in the Northern District of California. The Proxima UltraLight LS1 was purchased for $5999, but offers the most features of its generation of projectors. Since we bought and used the Proxima, however, many new projectors B such as the Toshiba line B offer higher lumens (brightness of display), with less weight and lower cost.

(2) Kodak: The DP 1100 is the projector of choice for many FPD offices upgrading to newer models. Much brighter and clearer than the Proxima, it costs around $3500 and weighs 8 pounds with cables.

(3) Toshiba: Our office has just upgraded to a Toshiba data projector that has the ability to capture images as well. These high-lumen new combination projectors can be found for under $3,000. See http://www.projectorsuperstore.com/.

II. Evidentiary Overview: Core differences between use of images during presentation of evidence and arguments; roadmap to substantive vs. demonstrative or illustrative evidence.

A. There is relatively little academic discussion of the evidentiary basis for use of demonstrative or illustrative evidence during trial. See Brain & Broderick, Demonstrative Evidence in the Twenty-First Century: How to Get it Admitted.

B. Fundamental issue: Is demonstrative evidence relevant? If not, how do we get away with using it?

1. General proposition: Admission of evidence is committed to the sound discretion of the court. See, e.g., Rogers v. Raymark Indust., 922 F.2d 1426 (9th Cir. 1991); Daily Herald Co. v. Munroe, 838 F.2d 380, 388 (9th Cir. 1988). The same proposition is true for the admission of expert testimony. See Salem v. United States Lines Co., 370 U.S. 31, 35 (1962).

2. Courts have further held that the introduction of demonstrative evidence is similarly committed to the discretion of the court. Wright v. Redman Mobile Homes, 541 F.2d 1096 (5th Cir. 1976) (recognizing court=s ability to exclude inaccurate demonstrative evidence); Lies v. Farrel Lines, 641 F.2d 765 (9th Cir. 1981) (admission of demonstrative evidence largely lies within discretion of trial court).

III. Get It In: Overcoming Evidentiary Hurdles to the Use of Images by the Defense

A. A ASix-Pack:@ Displaying a photo line-up.

1. Analogous to a fingerprint expert or IRS agent using a chart.

a. ACharts, graphs, and diagrams are admissible if they are fairly accurate, if they are judged to be helpful in understanding the matters at issue and if any deficiencies in them are made known to the factfinder.@ Gregory P. Joseph, Federal Practice, Computer Evidence, Nat=l L.J. Mar. 8, 1999 at B6 (col. 1).

(1) See United States v. Gardner, 611 F.2d 770, 776 (9th Cir. 1980) (holding that use of a chart Acontributed to clarity of presentation@ and was therefore admissible under Fed. R. Evid. 611(a)).

b. The test for admissibility of computer-generated demonstrative evidence remains the same as that for traditional exhibits. See, e.g., People v. McHugh, 124 Misc. 2d 559, 560 (Sup. Ct. Bronx. Co. 1984) (AWhether a diagram is hand-drawn or mechanically drawn by a computer is of no importance.@)

(1) See, e.g. Pierce v. State, 1997 Fla. App. Lexis 4947 at *8, *10 (Fla. App. May 7, 1997) (ATo admit a demonstrative exhibit illustrating an expert=s opinion, such as a computer animation, the proponent must establish the foundation requirements necessary to introduce the expert opinion . . . and the computer animation must be a fair and accurate depiction of that which it purports to be.@)

(2) See, e.g., Byrd v. Guess, 137 F.3d 1126 (9th Cir. 1126) (upholding, in appeal of civil rights case, district court=s admission of a computer animation showing shooting of decedent over plaintiff=s challenge that decedent was portrayed as Aa nutty android . . . like someone who is crazed.@)

(3) See, e.g., People v. Hood, 53 Cal. App. 4th 965, 969 (Cal. Ct. App. 1997) (refusing to require California=s Kelly scientific analysis for admission of computer animations in appeal of murder conviction).

c. Computer-created evidence is not cumulative. See, e.g., Louisiana v. Harvey, 649 So. 2d 783, 789 (La. Ct. App. 1995) (A[T]he [computer] animations were not merely cumulative of Dr. McCormick=s testimony, autopsy report, and autopsy pictures. The animations illustrated Dr. McCormick=s version of how the shooting most likely occurred. Thus, they enhanced the jury=s understanding of the autopsy report and pictures as to the direction of the bullets and the position of the shooter.@)

d. Computer-generated evidence does not unfairly prejudice the opponent merely because it is created by a computer. See Ladeburg v. Ray, 508 N.W. 2d 694, 696 (S. Ct. Iowa 1993) (AThe diagrams were merely mechanical diagrams made by a computer and the expert who prepared them was available for cross-examination. Under these circumstances, the trial court was well within its discretion in admitting the drawings into evidence.@)

2. Procedure: admit the underlying document, Adisplay & pray.@

B. A Testimonial Chart: (A chart reflecting corroboration or inconsistencies in witness= testimony).

1. Potentially very effective. Mock jurors responded positively to it; if simple enough, jurors can copy it into their notes.

2. Problems to anticipate: argumentative, cumulative, repeats the testimony, appropriate for argument and not for cross-examination.

3. Unclear whether, if used at trial, a testimonial chart can be admitted into evidence. See United States v. Cox, 633 F.2d 871, 874 (9th Cir. 1980) (stating admission of illustrative evidence may be reversible error, unless defendant can cross-examine witness and a limiting instruction is given.)

IV. Keep It Out: Erecting Evidentiary Hurdles to the Use of Images by the Government: The use of technology to create and display evidence in the courtroom is a relatively recent phenomenon, and evidence law has yet to catch up with this new tool. In this unsettled field there is no shortage of evidentiary questions to lob at an AUSA who--unlike youBhas unlimited access to the latest gadgets and has all the support staff needed to use the gear in court.

1. For a particularly thorough discussion of the limitations and uses of summary charts as demonstrative evidence,