The Unofficial Rules of Evidence
In most law schools, Evidence is a required course. After completing it, every student can outline the basic requirements of admissibility; namely, the proffered material must be: relevant, fair and accurate, not violate public policy, and meet basic foundational requirements. Years later when actually trying a case, many of these former law students are shocked to learn that there is another variable affecting admissibility—a variable never discussed in any Evidence text that I have ever seen. Specifically, a judge’s willingness to let a lawyer use a particular piece of evidence is sometimes affected by the technology the lawyer chooses to display material in court.
In order to examine this assertion, we need to start by creating what I call the technology continuum. As shown in the accompanying illustration, this continuum very roughly ranks the various methods of displaying trial material in increasing relative order of sophistication or technology. At the bottom of this continuum are spontaneously produced graphics (such as drawings on newsprint paper or on blackboards); moving up, there are commercially pre-prepared exhibit boards; up a bit more are exhibits displayed electronically; higher still are models and two-dimensional animations; finally, at the top are three-dimensional animations or whatever else is state-of-the-art at the time you read this article.
While I do not know of any formal rule to this effect, I have observed over the course of several hundred trials that the farther up the technology continuum (i.e., the more sophisticated your display methods become), the more carefully the judge will examine the content of your message, the more strictly she will apply the rules of evidence, and the more willing she will be to grant objections against your being able to use the material.
I suspect that the level of judicial scrutiny increases as you go up the technology continuum because judges intuitively understand that as technology becomes more sophisticated, the greater the chances are that you can influence the jury with smoke and mirrors rather than substance and, as such, the greater the opportunity for possible attorney/witness mischief.
My suspicions were confirmed during a dinner that I had with a judge whom I very much respect. During that meal, the conversation turned to various blockbuster movies and the special effects that are used in them. I mentioned that one of the technologies that Hollywood was using was something called motion capture (“mo-cap,” if you want to sound like you are in the know). With motion capture, the movie director can put an actor in a special suit on which there are scores of sensors. These sensors allow a computer to record exact movement of the actor and generate raw data from which other computers can generate amazingly accurate, lifelike animations.
After discussing the technology, I began waxing poetically (or at least I initially thought so) about how motion capture might be used to illustrate witness testimony and how much I was looking forward to being able to use it in court either as substantive evidence or for illustrative purposes. My dinner companion thought for a few moments, considered my hypothetical plans, and rightfully tempered my unabashed enthusiasm by making two important observations.
The judge’s first observation (which, while it was specifically addressed to motion capture, could be equally applicable to anything judges informally refer to as “high technology”) confirmed my belief that technology at the top of the technology continuum is likely to result in increased judicial scrutiny. As the judge pointed out:
Cutting-edge technology puts a lot of pressure on
the side offering it, the side opposing it, and the
judge ruling on whether such material is usable in
court. This pressure does not mean that there is
anything wrong with the technology. In fact, if
anything, the opposite is the case; the pressure
comes from the fact that the technology is so
powerful. If you are going to use the technology to
create substantive evidence, I am going to feel
pressure to make sure that your exhibit is
admissible and I will feel a certain need to make
absolutely sure that you “dot every i and cross
every t” in your laying the foundation to show me
that it is.
The second point that the judge made was about using cutting-edge technology to display material for “illustrative purposes only.” He noted:
Ironically, I think that using such technology for
illustrative purposes potentially puts you in an even
more difficult spot than using it as evidence. I probably
would not feel comfortable saying, “OK, folks, what you are
about to see is extremely realistic and looks an awful lot like
how the events took place, but it is not evidence, it is merely an
illustration.” The technology you are describing [motion capture]
is going to create material so visually powerful and realistic
that I am afraid that no matter what kind of limiting
instruction I give, the jurors are not going to see the graphic
as being “merely illustrative.” Every single one of them is
going to disregard my instructions and assume that what
you are showing them is evidence—that what they are seeing is
the way it must have happened. Given this fact, I would be
tempted to exercise my discretion and tell you that
if you only want to illustrate a point that is fine, but you should
probably use one of a dozen less powerful and potentially less
prejudicial ways to do so. That way, you can still get your point
across to the jury, but I will feel a whole lot more comfortable
with the way you are doing it.
For many experienced trial lawyers, this second observation may be even more troubling than the first. To understand why, you need to remember that there is a difference between evidence and material only being offered for illustrative purposes. Material admitted into evidence becomes part of the formal trial record and is taken into deliberations by the jurors. Illustrative material has none of these advantages; instead it is supposed to (as its name implies) illustrate or help explain the evidence.
In many ways, illustrative material has always provided a safety net for a trial lawyer. Many are taught that if they cannot get a graphic admitted into evidence, they can probably still use the graphic by claiming that it is being offered “not as evidence, but merely for illustrative purposes.”
“Not so for some high tech graphics,” says my friend the judge. “Such material may be so powerful that I am not going to let you sneak such information into trial by way of claiming, ‘it is merely illustrative material.’”
Let me clarify that the judge was not condemning a trial lawyer’s use of such technology. In fact, any reader who dismisses the judge as merely a technophobe does so at his or her own risk—because I think the judge is expressing a concern common to many members of the judiciary. He understood that increasingly sophisticated technology has it benefits and, as he had in the past, he would continue to welcome such technology in his courtroom.
Instead, what the judge was doing was confirming an observation that I have made about using display methods from the top of the technology continuum. As I previously noted, using such high technology will likely result in increased scrutiny by the court. Make sure that any benefit that you get from using sophisticated technology to present such persuasion tools is worth this extra hassle. Said differently, are you getting a sufficiently large persuasive impact for the procedural hassle? If the answer is “Yes”—and it very often is—then keep going with your plan. If the answer is “No,” consider whether there is an equally effective way to present this type of illustrative material using a less complicated technology, thereby avoiding the evidentiary hassles associated with this increased scrutiny.
By way of an example of this last point, we were retained by a defendant in a high-profile criminal case where there was strong evidence showing that it was not physically or anatomically possible for the assault to have occurred in the way alleged by the victim. One of the methods we initially considered using to prove this fact was motion capture technology, similar to what I have described earlier.
In the abstract, motion capture technology would have been perfect for the purpose we intended to use it. In the abstract, it all sounded good, but there was one problem. No case is ever actually tried in the abstract. This case was being tried in a real courtroom, with real rules of evidence, and real well-established burdens of proof.
The first mistake that I made in considering using this elaborate technology was acting like my client had to prove something—the fact was, he did not. In a criminal case, the prosecutor has to prove everything and has to do so “beyond a reasonable doubt.” The defendant does not need to prove anything. All defense counsel must do is to create a reasonable doubt. And, that is exactly the strategy our client, the defense counsel, wanted to adopt. He wanted to put the prosecutor to her proof; he wanted the prosecutor to be the one who had to struggle with the uphill battle of getting evidence admitted and used in court.
Consequently, our client wisely declined to present evidence using equipment from the uppermost end of the technology continuum. Why? Because he realized that any party offering such material as substantive evidence from the high-end of the technology continuum was voluntarily taking on a substantial evidentiary burden and that burden might not be worth it, particularly for the defendant. To be able to use the technology, our client would have had to be ready to call one and possibly two expert witnesses to describe how the technology worked, its high degree of accuracy, what was done in this case, etc. Taking on this additional evidentiary burden was completely antithetical to our client’s overall strategy of making the prosecutor to prove up the case.
So, our client made a very wise decision. Instead of using motion capture, he used a much lower form of technology (a blackboard and chalk) to roughly sketch out what he was claiming. In short, he got all of the persuasive impact without the major procedural or evidentiary hassle and the defendant was found not guilty.
This article appeared in the May 2005 edition of LJN’s Legal Tech Newsletter.
Appeared in LJN's Legal Tech Newsletter
April 30, 2005