Criminal Justice Section
Criminal Justice Magazine
Volume 19 Number 1
Digital Juries versus Digital Lawyers
By Andrew E. Taslitz
Andrew E. Taslitz is a professor of law at the Howard University School of Law in Washington, D.C. He is also the chair of the Criminal Justice magazine editorial board, a member of the Criminal Justice Section Council, and the special editor of this symposium issue. He is a coauthor of the evidence text, Evidence Law and Practice (2d ed. forthcoming 2004), and the criminal procedure text, Constitutional Criminal Procedure (2d ed. 2003), and has authored numerous articles in these areas, including pieces on electronic surveillance and digital evidence.
Digital evidence is the subject of this Criminal Justice magazine symposium. Some traditionalists prefer the term "electronic evidence," arguing that "digits" are human fingers and toes. It is the term "digital evidence," however, that is in vogue. The term means evidence stored by, generated by, or presented by high technology, primarily computers.
The broad public use of computers, personal digital assistants, wireless Internet technology, and e-mail means that every sort of crime, "from harassment to homicide, from drug dealing to securities fraud," increasingly involves digital evidence. (See The National Center for Forensic Science, Digital Evidence in the Courtroom: A Guide for Preparing Digital Evidence for Courtroom Presentation, Master Draft Document 5 & n.2 (revised March 12, 2003) [hereinafter Digital Evidence Guide].) Additionally, the increasing size and complexity of major criminal trials, the rapid pace of technological change, and the rise of the high-tech courtroom ensure an ever-expanding use of digital evidence in the investigation and trial of suspected offenders. Every lawyer must, therefore, know how to find evidence hidden in the bowels of computer networks and how to make multimedia presentations at trial.
The modern trial lawyer must know about computer technology all that is needed to persuade juries. The trial lawyer's three broad tasks are investigation, suppression, and presentation: find persuasive evidence; suppress what is harmful while admitting what is helpful; and grip the jury's attention by powerful trial theater. Computer technology has, however, changed the way that juries think, the legal categories for suppression, and the means for finding the smoking gun. But suppression and investigation are mere tools to reach the jury. The digital jury is the heart and soul of the digital trial. It is, therefore, with the jury that this symposium introduction begins, moving next to address the tools of suppression and investigation, and concluding with a guide for getting up to speed in the new high-tech trial world.
Changing concepts of relevance and probative value
To understand the difference between pre-and post-high- technology juries, it helps to begin with describing old and new ways of lawyering. The familiar West Digest system illustrates these distinctions.
Westlaw, trial strategy, and the old library culture
The West Digest system embodies what some commentators call the "old library culture" in which information is organized in "a hierarchy of broader and broader classes, each including the narrower ones beneath it." (See Hubert L. Dreyfus, On the Internet 10 (2001).) The West hierarchy is reflected in its system of keynotes, indices, and synopses that organize American law. The digest, incorporated into the modern Westlaw computer research system, is still the preeminent system for indexing case law. (See Richard Delgado & Jean Stefancic, Failed Revolutions: Social Reform and the Limits of Legal Imagination 44 (1994).) Yet the words West chooses to use or not in its indices and how they are arranged alter the arguments that lawyers raise.
For example, West long used the categories of "race discrimination" and "sex discrimination," but lacked a category combining both. (See id. at 46.) The result, some commentators have argued, encouraged attorneys to file discrimination suits based on only one of these concepts.This choice made it hard for a black woman denied a promotion not because she was black, or a woman, but because she was both to recover damages. (See id. at 46.) In criminal law, similarly, West organizes categories that prod lawyers to think along certain sorts of hierarchical pathways. It is, therefore, hard to find entries on race-switching jury instructions, subconscious mens rea, and other cutting edge criminal law concepts.
Computer-based legal research, such as via Westlaw, has moderated but not eliminated these problems. Westlaw searches are word-based. The courts may use different words than do laypeople or attorneys unfamiliar with a particular question. New legal concepts and theories will simply be absent from the database or take much time to worm their way into the case law. Other times, word-based searches may result in voluminous matches that make it impractical for lawyers looking for new conceptual needles to find them in the cyber-haystack. (See id. at 46-47.)
Just as West's hierarchical system organizes precedent at the cost of limiting creative thinking, so does the training and natural inclination of criminal trial lawyers promote conservative, linear approaches to presenting evidence. Lawyers present exhibits one at a time through "foundational" witnesses. They organize their cases to prove the "elements" identified through standard legal research. This sort of organizational logic is important in planning cases and convincing judges. Yet anyone who has sat through a complex, document-heavy case can attest to the dull, stultifying presentations that are common. Jurors at such trials can do nothing but see the task of assimilating the information as a painful, if necessary, job.
At the same time, however, many jurors have been taught starting in elementary school to aspire to linear thinking. Departing too far from their training might result in juror confusion. To be forced to choose between boredom and clarity, however, seems like no real choice at all.
The new hyperlinked culture
Younger or more computer-literate jurors create a different headache for trial lawyers. These jurors embrace a flexible, creative, but nearly chaotic "hyperlinked culture." (See Dreyfus, supra, at 10-23.) On the Web, each element of information may be linked to other elements via a hyperlink "for any reason that happens to occur to whomever is making the link." (Id. at 8; see id. at 8-10.) There are no hierarchies setting the agenda. (See id. at 12.)
In this new world, the user is interested less in collecting what is significant than in connecting to as much information as possible. (Id. at 11.) Playful "surfing," overly broad searches, and free-form associations matter more than achieving preconceived goals. (See id. at 11.) Web-surfers "embrace proliferating information" as a goal in itself because "surprise and wonder is more important than meaning and usefulness." (Id. at 12.) Jurors willing to see connections based on free-form association may have trouble assigning evidence the probative value it deserves.
Indeed, the members of hyperlinked culture may be ill suited to the extended concentration on one task that the criminal trial requires. Neuroscience researchers recognize that "our brain literally changes its organization and function to accommodate the abundance of stimulation forced on it by the modern world" via television, cell phones, e-mail, and the computer. (Richard Restak, M.D., The New Brain: How the Modern Age Is Rewiring Your Mind 38 (2003).) The result, conclude these neuroscientists, is an epidemic of attention deficit disorder, " 'the official brain syndrome of the information age.' " (Id. at 45 (quoting cyberspace critic Evan Schwartz).) Explains one neuroscientist, "Many personality characteristics we formerly labeled as dysfunctional, such as hyperactivity, impulsiveness, and easy distractibility, are now almost the norm." (Id. at 45.) Neuroscientists increasingly see attention deficits not so much as "disorders" but as a "distinctive type of brain organization" that may increasingly come to dominate our society. (Id. at 45-46.) Those having this "new brain" may require some degree of simultaneous exposure to multiple information sources to maintain the minimal concentration needed for learning. Says one researcher, "blocking out sounds can hurt. Today's younger generation has become accustomed to cacophony. Street sounds, the screeching of brakes, trucks changing gears, and the wails of ambulances are their norm. For these people, silence can actually be disconcerting because it's too unusual." (Id. at 46 (quoting Sam Horn, Concentrate: Get Focused and Pay Attention-When Life Is Filled with Pressures, Distractions, and Multiple Priorities (2001).)
Unfortunately, exposing new-brainers to the varied cacophony of information that holds their attention harms their comprehension. Multiple studies reveal that rapid thinking and multitasking frequently reduce information recall and understanding. Indeed, most forms of information overload harm learning. (See Restak, supra, at 47.) New brainers find it increasingly difficult to be "mindful in the moment." (Id. at 47, quoting Peter A. Tun & Arthur Wingfield, Slow But Sure in an Age of "Make It Quick".) Because of new technologies, "the demarcation between here and elsewhere has become blurred," so we can be here talking to a friend over coffee while simultaneously being elsewhere by scanning e-mail on our Palm Pilot. (See Restak, supra, at 52.) This sort of inability to live in the moment, jumping from one person to another, one experience to another, can make it harder to hold and understand deep personal relationships. That difficulty can, in turn, weaken the empathy needed to judge others. (See id. at 47-52.) Furthermore, contrary to multitaskers' beliefs, they are less effective and efficient at accomplishing their goals than are those who can live in the moment. (See id. at 55-59.)
In short, new-brained jurors have short attention spans, are easily bored, and resist understanding others' feelings and thoughts, such as the plight of a criminal defendant or the victim. Yet the very sorts of techniques that hold their attention harm their ability to understand and recall trial testimony. Even worse, they wrongly believe that they do these things well, reducing their motivation to change.
Fusing the best of the old and new cultures
Paradoxically, the solution to these problems may lie in the computers that give rise to them. Digital technology can combine the clarity of library culture and the energy of hyperlinked culture. One leading digital evidence commentator has so effectively summarized its value for the jury that he is worth quoting extensively:
Research indicates that visual information aids juries in three specific ways. . . . The first is that information must be imaginable to be believed, which means that it must prompt sensory imagery. Oral testimony using abstract, technical, or nebulous terms, such as "a flat test body connected to the second end portions of said blades so as to be suspended from the fixed part . . ." is not . . . the most concrete explanatory language and therefore usually fails to convey sufficient information to the jury.
The second way visual information aids juries is proximity. Proximity indicates . . . how many mental steps the jury must take to understand the information being presented. The same information perceived visually is more easily believed and has a greater impact than when gathered from an indirect, second-hand source-the words of another-because visual information is direct (an actual image) instead of indirect and abstract (words (step #1) used to create a mental image (step #2) in the mind of the jury).
Finally, visual information is easier for the human mind to remember. Research has indicated that picture recall is significantly better than either word or sentence recall. . . . Using visual information is not illegitimate manipulation of the jury; instead, it is merely getting them to do their legitimate function better-remembering what happened at trial in order to render the best verdict possible.
(Fred Galves, Where the Not-So-Wild Things Are: Computers in the Courtroom, the Federal Rules of Evidence and the Need for Institutional Reform and More Judicial Acceptance, 3 Harv. J. L. & Tech. 161, 188-89 (2000) [hereinafter Wild Things].)
Digital presentation methods also aid lawyers, not merely jurors, in organizing complex cases. Lawyers facing a vast body of data may have problems quickly accessing and presenting relevant information. Modern digital presentation methods, however, enable lawyers to create their own systems that are tailored to the needs of a specific case. Such systems enable a lawyer to rapidly find relevant document portions, deposition testimony, and photographs for cross-examination. Next, he or she can quickly organize the evidence for presentation in the clearest, most persuasive fashion. The digital system is flexible, allowing for instant changes as the trial unfolds and easy response to new tactics. Digital systems help the lawyer to fuse the organizational clarity of the library culture with the speed and creativity of hyperlinked culture and, studies have shown, thereby dramatically to shorten the length of trials. Shorter trials and better-informed and engaged jurors are a bargain worth the costs of learning to master the new technologies.
Storytelling in the new legal matrix
Though many jurors aspire to the hierarchical thinking of the library culture, they also render verdicts based on the rules for telling a good tale. Juries are interested in the characters of the trial players as if they were in a television miniseries. They turn the evidence into tales consistent with their own life experiences and sense of a story that "rings true." Indeed, they make sense out of massive, often dull trial information by looking for story themes that explain the evidence commonsensically. These themes work subconsciously, giving them emotional power.
Digital trial techniques, properly regulated by the trial judge, can legitimately appeal to the jurors' subconscious in ways that open their eyes to "the truth" (or at least to your client's plausible version of the truth). They can especially aid good storytelling where: (1) there are "dynamic factors" that may be difficult to explain verbally; (2) jurors need to feel the "real time" of an event, as in a homicide self-defense claim in a struggle over a gun; (3) physical re-creation of the crime is impractical; (4) the event is too complex to be understood by verbal descriptions alone; or (5) other presentation methods are too primitive to yield a complete understanding, "for example, a video may not allow viewing from a different perspective to enable the jury to perceive events happening simultaneously," beyond the camera's eye, "but animation might do so quite effectively." (See Galves, Wild Things, supra, at 192-93.) Digital techniques can help to counter juror biases by presenting counter information having emotional and logical persuasive power. Doing so, in turn, requires holding the jurors' interest, something more likely achieved via the presentation techniques that jurors are most familiar with in their everyday lives:
A simple reason to use CGEs [computer-generated exhibits] in advocacy, then, is their ability to grab a jury's attention more firmly, and for a longer period of time, than conventional static exhibits or mere words. This also may be attributable to . . . the human mind's rapid reception of visual stimuli, such as television. An attorney can either ignore the fact that jurors get most of their information from television (sight and hearing) rather than just the spoken word (hearing) or even the written word (sight), or the attorney can choose to connect with the jurors in a way that the juror is comfortable and in a manner that the juror is accustomed to before ever stepping into a courtroom.
(Galves, Wild Things, supra, at 191.)
For example, in the Michael Skakel trial for the murder of Martha Moxley, discussed in detail later in this symposium, the instant accessibility of photographs, diagrams, and other visual aids allowed prosecutors to tell a seamless story without long interruptions while locating and properly presenting exhibits. Areas in a photograph or diagram could be highlighted, zoomed in on, or enlarged as a witness described places or events. Two photographs could instantly be compared at once on a split screen.
In one instance, in which the precise layout of the Moxley home was critical to assessing the credibility of the defendant's version of events, the entire Moxley home exterior could be presented, then separately compared to the interior layout of each of the home's three floors, one-by-one, as needed to illustrate the testimony. When Martha Moxley's mother testified about her dead daughter, prosecutors displayed a photograph of the 15-year-old Martha, who was holding schoolbooks on the screen, so that jurors could know the person about whom the witness spoke. When expert witnesses testified, photographs appeared on the screen tracking the testimony to illustrate each item of evidence as the expert analyzed it. Diagrams and photographs of evidence were likewise magnified to clarify the significance of certain details and to enhance their emotional impact.
Even the ordinarily painfully dull exercise of reading into evidence a lengthy transcript of the probable cause hearing testimony of a witness who died before trial was enlivened by electronic techniques. As the testimony was read aloud, "the words flashed upon the screen. The words spoken by each of the different participants at the hearing [the witness, the judge, and the attorneys] . . . were displayed using a different colored font, so the jury could easily distinguish the speaker's identities while listening to the information being read." In this way, the jury's attention remained focused on testimony that proved crucial to the prosecution's strategy.
Prosecutors followed a similar strategy in presenting a 32-minute segment of an audiotaped conversation Michael Skakel had about his life with ghostwriter, Richard Hoffman. Prosecutors digitized the audiotape so that, as they played it for the jury, a transcript of his words "appeared on the large courtroom screen, in black text on a white background," enabling jurors to absorb critical information through multiple sensory modalities (hearing and seeing) and to follow Skakel's words more easily than if they had to turn transcript pages."
Furthermore, because all the electronic exhibits had been admitted into evidence, prosecutors were able to call up relevant audio and video segments during closing arguments. This enabled prosecutors to tell a powerful story, supported by evidence presented in gripping fashion, in a way that cardboard evidence charts of the old school, or even the linear, preset presentation style of PowerPoint, would not have allowed (PowerPoint essentially displays the equivalent of slides presented in a predetermined order).
As the articles to come will make clear, digital techniques can be abused, so traditional evidentiary safeguards in the form of motions in limine matter. But just because digital evidence appeals to the emotions and to the subconscious is not alone a valid reason for objecting to the new techniques, as several of the symposium authors will explain. To the contrary, such appeals may often offer an opportunity to promote fairer, sounder verdicts.
Digital discovery and trial preparation
Of course, counsel can tell a digital trial story only with evidence of which he or she is aware. Counsel must, therefore, master digital discovery before mastering digital trials.
Much of the modern world, indeed, has an entirely digital existence, making understanding the cyber-world key. E-mails exist originally only as computer data, as do most text-based documents, including legal briefs and memoranda, accounting records, and business plans. These digital records can enter the real world, but only by our clicking the "print" button on a computer screen. Likewise, hard, paper documents can be scanned, and then stored in the computer world, taking on a digitized life. Hard copies or originals can, however, easily be destroyed (shredded or torched). But the same is not quite as true of digital data. As one of the pieces in this symposium will explain, "deleting" files and even deleting "trash" does not necessarily eliminate all digital traces of a document. (See, e.g., Mary Kay Brown and Paul D. Wiener, Digital Dangers: A Primer on Electronic Evidence in the Wake of Enron, 30 Litigation 24, 25 (Fall 2003) ("In fact, deleted documents may often be recovered in whole or in fragments. . . . Even files that have been deleted and overwritten, however, may sometimes be found in other places on a computer's hard drive-known as free space and slack space-and can be the source of relevant evidence.").) Sometimes the only version of a record surviving is a digital one, and investigators must know how to retrieve these written records, and lawyers must know how the investigators do so.
Investigators and counsel ignorant of digital trace evidence will not be alert to ways of detecting fraud or tampering. They will lack detailed knowledge of the sources of information on which the digital records were based; on how those records were stored, maintained, retrieved, and summarized; or what the records mean. Without such knowledge, counsel cannot overcome hearsay, expert opinion, best evidence rule, and other complex evidentiary objections to all of, or a portion of, a computer record. Investigators and counsel must also know how to find evidence hidden on computers and how to prove the accuracy of recovered data and to maintain a chain of custody. There is no way of getting around it: formal and informal discovery and investigation in the modern digital trial can be done properly only by lawyers who know how computers work and must be done in a fashion that minimizes claims of tampering at trial. Moreover, a lawyer's ability to frame comprehensible evidentiary objections to purely digital evidence (once it is found), or to respond to such evidence, likewise demands computer literacy. One author has explained the need for digital knowledge to find and interpret information central to the trial story this way:
Computer files often contain hidden or embedded information. Some programs can "undo" a deleted portion of a document or even show all prior versions of a document. There may be hidden columns on spreadsheets that do not show up on the printed version, but will be revealed electronically. Some e-mail programs have a "bcc" file that appears electronically on the sender's version, but not on the intended recipient's version. In this instance, if you have only the hard copy from the receiver's end, you will never know that others were party to the communication.
Computer files also contain what is known as "metadata." Metadata consists of information that characterizes data. In essence, metadata answers questions of who, what, when, where, why, and how about the data being documented. With respect to electronic surveillance, metadata reveals, among other things, when files were created, modified, and deleted and what user name is associated with those tasks. It is metadata that provides the blueprint of a backdated document or reveals a party's improper attempts to delete relevant information immediately after receiving notification of a lawsuit [or criminal complaint or indictment].
In the digital world, a "paper file" tells only half (or less) of the story. The other half is contained in electronically stored formats. This unique feature of electronic evidence, combined with the proliferation of its use, has a dramatic impact on the litigation process.
(Brown and Weiner, supra, at 25.)
The cyber-Constitution and suppression motions
Finding and downloading digital evidence may also involve Fourth Amendment searches and seizures and may implicate a complex array of statutes governing electronic surveillance. I will not survey these legal issues here, as they are discussed in some detail in several of the pieces to come. It is important to remember, however, that the intersection of law and technology creates enormous pressure to modify or completely rethink legal concepts that served society well in the predigital world but no longer do so. Advocates must, therefore, be deeply familiar with cutting-edge case law and with novel theories on how to adapt traditional concepts like "reasonable expectations of privacy" and "probable cause" for the digital age. They must become conversant in "Digital Law."
Here is one illustration to make the point. In March 2001, the judges of the Ninth Circuit Court of Appeals learned that their computers had been monitored by the Administrative Office of the United States Courts (AO). (See Andrew E. Taslitz, The Fourth Amendment in the Twenty-First Century: Technology, Privacy, and Human Emotions, L. & Contemp. Probs. 125, 128-29 (2003) (recounting Judge Kozinski's tale and offering supporting citations).)The AO's goal had been to discourage activities unrelated to the judiciary's work, like listening to music or surfing the Web for pornography. In May, the Ninth Circuit judges, outraged by this surveillance, blocked the system that allowed the monitoring of their computers. The judicial rebellion was led by Judge Alexander Kozinski, whose family had escaped from Communist-controlled Romania when he was 11 years old. In being subjected to computer monitoring, Judge Kozinski was reminded of his childhood in a totalitarian regime. "I know what it's like to be always on your guard," he explained in an interview. "Everything you say or do will be judged or reported, and you'll have to explain yourself for things that are really innocent." Though Judge Kozinski apparently maintains otherwise, there is strong reason to believe that the Ninth Circuit judiciary is not entitled to protection against this surveillance under current interpretations of the Fourth Amendment.
Indeed, to read most United States Supreme Court case law under the Fourth Amendment, one would be hard pressed to see any mention or other indication that the Court understands the indignation felt by people like Judge Kozinski. The Court generally, though not always, conceives of privacy as a cognitively driven issue, divorced from human emotion. The Fourth Amendment only protects "reasonable" expectations of privacy. What is determined to be "reasonable," however, is partly dependent on a fair assessment of the probabilities of being observed. Who did the observing, by what means, for what purposes, and for how long are factors that usually (but not always) will not matter if the risk of observation is significant.
The computers used by Judge Kozinski and the Ninth Circuit were not owned by them and were located at a place of employment run by the administrative arm of the national judiciary. Though their physical persons were not being watched, the judges felt the collection and dissemination of information about their computer usage was invasive, crossing personal boundaries not meant to be crossed. Yet the AO was in much the same position as a private employer monitoring the work of its employees. Employees use the employer's property, and the employer must ensure that its workers are serving the efficient achievement of organizational goals. Current constitutional law precedent can be read as viewing such surveillance as not impinging on any "legitimate" privacy expectations of the "employees."
Judge Kozinski and the Ninth Circuit judges were, however, not cowed by prevailing interpretation of precedent-choosing to interpret that precedent creatively-nor necessarily by the current analytical framework for resolving Fourth Amendment questions. Judge Kozinski similarly stood ready with a host of creative statutory arguments too detailed to review here. Ultimately, however, no court needed to rule on these legal theories. Under pressure from the Ninth Circuit and negative media coverage of the monitoring, the AO did eventually back down. Judge Kozinski's persistence, creativity, and multipronged strategy (combining law, politics, and media coverage) for combating electronic surveillance should be a model for digital age advocates.
Getting up to speed
It is easy to preach. But how do precedent-obsessed, backward-looking, math-and-techno-phobic lawyers (most of us) learn the new ways? The new trial lawyer must be a technician, able to use the software and equipment, but also a sort of film producer, able to present digital evidence in a clear, gripping fashion portraying a persuasive, sensible narrative. The new lawyer must be both engineer and artist. The two roles are so intimately connected that the lawyer cannot sever them. Lawyers who hire a computer techie to do the technical work, but do not understand the software and hardware basics themselves, will lack the tools and vision for using the new technology to its greatest effect.
Fortunately, a number of materials are entering the market that can be used in law school courses, CLEs, and in-house training programs. The National Institute for Trial Advocacy (NITA), in particular, has taken the lead in this area. One of its texts, Easy Tech: Cases and Materials on Courtroom Technology (2001)), coauthored by Frank D. Rothschild, Deanne C. Siemer, and Anthony J. Bocchino, covers using the most common, basic, and inexpensive evidence presentation technologies: the document camera and projector; the laptop computer and projector; and the telestrator (a special sort of pen or illustrator). Mastering these techniques, which are sufficient for most trials, enables the lawyer more easily later to learn more advanced technologies for complex cases.
Easy-Tech contains three small case files, including one criminal case, State v. Lawrence. Exercises cover direct and cross-examination and opening and closing statements. The exercises also require the lawyer to work with transcript excerpts, videotaped depositions, physical evidence, and illustrative aids.
The hard copy text is complemented by a CD-ROM containing PowerPoint slide shows, digital copies of exhibits, and video clips to be used in doing each of the exercises. The text contains a miniature guide for how to use CD-ROMs for the uninitiated. The text also stresses how differing case theories can require differing presentation strategies. "Everything lawyers use as exhibits," the authors note, "photos, documents, lists, quotes, transcripts, video clips, maps, diagrams, drawings, timelines, graphs, relationship charts, spreadsheets, organizational charts-can now be created, ordered, animated, and projected with surprising ease, and at a fraction of the cost of older methods." (Id. at 2.) These new techniques also require opposing lawyers, however, to be more attentive to visual than to just oral testimonial cues for objections. Thus, the authors explain, "[j]ust as the advocate needs to know what to listen for when the stream of information is oral, he or she needs to know what to look for when the information is delivered visually." (Id. at 2.) Accordingly, Easy-Tech also provides guidelines for spotting and handling digital evidentiary issues.
The authors summarize the advantages of digital presentation technologies over more traditional ones this way:
The laptop computer solved most of the problems inherent in older methods. The blackboard presents a near impossibility of adequately preserving for the record every action. Hand drawn flip charts are sometimes hard to read and favor the lawyer with good handwriting and an eye for perspective in drawing. A computer provides clear type and elegant design capabilities. Document blowups and photographic enlargements are time-consuming and expensive to create; and once completed, they cannot be changed. A computer can produce blowups and enlargements virtually cost-free with the flexibility to change at any time.
The lightweight, high-powered digital projectors also solved a principal problem with earlier technology. Slide projectors and overhead projectors require dimming of the lights in the courtroom. Newer digital projectors that take images from a computer have the projection strength to work well in full daylight.
(Id. at 3.)
The authors conclude by next summarizing the affirmative advantages of the new technologies and why lawyers must master them:
A lawyer with a laptop can walk up, plug in, and the display monitors or screens all light up with presentations driven by the computer. When this happens, the advocate with the technology-enhanced displays often has a significant advantage in holding jurors' attention and creating a faster understanding of the facts, themes, and images that drive the case. This also means that advocates, perhaps not as oratorically gifted as their opponents but armed with this technology, can level the playing field of persuasion. The images on the screen speak for themselves.
Courtroom visuals help the finder of fact to grasp the overall theme, absorb the important details of the case, and learn the relationships among facts far more readily than can be accomplished by speech alone. When people listen to a trial lawyer explain something new, they try to picture it in their minds. Using a visual display ensures that listeners will have a good opportunity to form the same mental pictures of the facts as the lawyer has. Visuals motivate people to pay more attention, and they make understanding easier. For a well-prepared lawyer, the advantage gained by adding visual displays is almost always substantial, no matter what kind of case is being litigated. If your opponent uses visuals effectively, that is an advantage you cannot afford to give away.
(Id. at 3.)
Easy-Tech is but one excellent illustration of the growing number of new training tools available, but its authors nicely capture the urgency of learning to use digital presentation techniques. There are also tools available focusing on specific technologies, and a host of outstanding law review articles addressing particular admissibility problems in great depth, as well as handy miniguides and checklists. (See, e.g., Diane C. Siemer, Frank D. Rothschild, Edward R. Stain, And Samuel H. Solomon, PowerPoint for Litigators: How to Create Effective Illustrative Aids and Demonstrative Exhibits for Trial, Mediation, Arbitration, and Appeal (2000) (specific technique with CD-ROM); Galves, Wild Things, supra (evidentiary issues); Deanne C. Siemer and Frank D. Rothschild, Argument Slides (2003) (specific technique of creating electronic displays).) A sample bibliography of texts, articles, Web sites, and law school courses of particular interest to practitioners follows this introduction.
What is to come
I do not want to steal this symposium authors' thunder, so I will here give the briefest of summaries of what is to come. Each article will address one or all of the trial lawyer's three tasks-investigation, suppression, and presentation-in the digital context.
Brian Carney and Neal Feigenson's Visual Persuasion in the Michael Skakel Trial paints a convincing picture of a prosecutor's team winning a difficult case in part because of their superior mastery (as compared with the defense) of digital presentation technologies. Prosecutors were able to do this because they worked with visual communication consultants to "design a customized, comprehensive visual toolbox on CD-ROM that included over one hundred photographs (crime scenes and autopsy), documents, diagrams, and digitized audio and video." The toolbox was fully interactive, making all evidence instantly available through a combination of a "hierarchical menu system and a system of hyperlinked buttons." The prosecutors were deeply involved in the system's design to ensure that it met trial needs for easy access and persuasive power. Audio supplemented the visuals. The authors also address how they respond to evidentiary challenges to the use of the techniques in the Skakel trial and offer some practical lessons for advocates.
Fred and Christine Galves's piece has a self-explanatory title: Ensuring the Admissibility of Electronic Evidence and Enhancing Its Probative Value at Trial. The authors offer advice to investigators on ways to discover and obtain digital evidence that will indeed be admissible at trial. They explain how to find deleted and "erased" information; how to fend off tampering claims and maintain chains of custody; and how to avoid or defeat suppression motions based on constitutional or statutory grounds. They further explain how knowledge of proper investigation procedures correspondingly helps lawyers to craft or challenge admissibility objections at trial. Finally, they detail how The Gulf Coast Computer Forensics Laboratory works, offering it as a model for future digital forensic labs to train digital forensic examiners and practicing lawyers.
James Adams's piece, Suppression of Evidence Gained by Government Surveillance of Computers, takes his readers on a tour of the constitutional and statutory grounds for suppressing evidence obtained by computer surveillance. Adams addresses differences among searching hard drives, monitoring e-mail and Internet exchanges, and business versus home searches. He explores the complexities of encryption programs, Carnivore, key-logger systems for obtaining passwords, and recovery of deleted data. He covers issues raised under the Fourth Amendment, the Wiretap Act, the PATRIOT Act, and related statutes, while reviewing leading case law relevant to this area. In short, he provides a concise guide to suppression motion grounds in a fashion accessible to the most computer illiterate of readers.
Samuel Guiberson's contribution is an essay urging lawyers to break free of their pre-high-tech visions of trial planning. "Subliminal persuasion," argues Guiberson, must be part of trial preparation. Guiberson's emphasis is on the artistry of digital trial lawyering. Multimedia presentations capture attention by their variety and must not be used "like a tuba with one note." The same message must come across but in multiple ways and without losing the value of the sense of touch embraced in publishing to the jury old-time physical exhibits. Correspondingly, emotional impressions created by one medium must not clash with those of another, as would be the case, for example, if an audio recording the terror and chaos of persons trapped in a fire were juxtaposed with the image of the gutted building. A gutted building is a sad sight, but it is also a static one that contradicts the anxiety built by the sense of impending doom conveyed by the screams on the audio. Computer recreations, Guiberson argues, are another musical voice in the trial symphony, for "[n]o lawyer can stand before jurors in denial about the subliminal, visceral impact of animated scenes once they have been wired into their psyches by realistic animations." The power of one animation, he says, can only be opposed by another. Elaborating on these themes, and using as illustration famous digital trials that he personally tried, Guiberson urges trial lawyers to orchestrate "a second narrative stream of digital data in which to frame and reinforce oral testimony."
The symposium opens with Fredric I. Lederer's Courtroom Technology: For Trial Lawyers, the Future Is Now. Lederer created and directs William and Mary Law School's Courtroom 21 Project. Lederer explains how that project uses the latest courtroom technology to train law students, judges, and practicing lawyers in high-technology presentation techniques. He offers an overview of the technical options available, the admissibility and sufficiency issues, the costs and benefits, and the availability of related technologies for use at pre-and post-trial stages of the criminal process, including remote communications, assistive technology, and jury deliberation and appeals technologies. He concludes with a comment on an aspect of the ABA's recent forays concerning the adequacy of training in this area:
The last decade's work has convinced those of us in the Courtroom 21 Project that courtroom technology is an extraordinary help to most trial lawyers. It is far from perfect, and wise counsel often must know when not to use it as well as when to employ it. We anticipate that technology will become a routine part of most lawyers' trial work. Yet, surprisingly "the most frequently cited reason for not receiving training in courtroom technologies is that it is not necessary." (2002 ABA Technology Resource Center Survey Report at xiv (2002).) We do not agree.
Already, William & Mary Law School requires every second-year law student to be instructed in the basic use of courtroom technology, and offers those interested in trial work a technology-augmented trial advocacy course. Judges frequently report that their biggest complaint in the area of courtroom technology is not with the technology, but counsel's inability to use it effectively.
After reading this symposium issue of Criminal Justice, it is our hope that many of our Section members will take advantage of training opportunities so that the judges before whom they practice will no longer have the cause for complaint about lawyer ignorance of which Professor Lederer wrote.
Digital Evidence Bibliography
Code-Based Evidence Issues
1. Fred Galves, Where the Not-So-Wild Things Are: Computers in the Courtroom, the Federal Rules of Evidence, and the Need for Institutional Reform and More Judicial Acceptance, 3 Harv. J. L. & Tech. 161 (2000).
2. The National Center for Forensic Science, Digital Evidence in the Courtroom: A Guide for Preparing Digital Evidence for Courtroom Presentation, Master Draft Document 5 & n.2 (revised March 12, 2003).
3. Mary Kay Brown and Paul D. Wiener, Digital Dangers: A Primer on Electronic Evidence in the Wake of Enron, 30 Litigation 24 (Fall 2003).
Constitutional and Statutory Grounds for Suppression
4. James A. Adams & Daniel D. Blinka, Electronic Surveillance: Commentaries and Statutes (2003).
5. Searches and Seizures: Terrorism, Surveillance, and Special Statutory Powers, in Andrew E. Taslitz & Margaret L. Paris, Constitutional Criminal Procedure 461-522 (2d ed. 2003).
Digital Investigation and Discovery: Practical Hints
6. Joe Anastasi, The New Forensics: Investigating Corporate Fraud and the Theft of Intellectual Property (2003) (using the stories of how real-world, high-tech cases were investigated to teach basic principles of digital investigation).
Getting Up-to-Speed on Using Digital Technologies: Written Materials and CD-ROMs
7. Frank D. Rothschild, Deanne C. Siemer & Anthony J. Bochino, Easy-Tech: Cases and Materials on Courtroom Technology (2001).
8. Diane C. Siemer, Frank D. Rothschild, Edward R. Stain, and Samuel H. Solomon, Powerpoint for Litigators: How to Create Effective Illustrative Aid and Demonstrative Exhibits for Trial, Mediation, and Appeal (2000).
9. Deanne C. Siemer and Frank Rothschild, Argument Slides (2003).
Getting Up-to-Speed on Using Digital Technologies: Law School Institutes and Training Centers, Law School Courses, and Helpful Websites
10. High-Tech Julian Dixon Courtroom and Advocacy Center of the Southwestern University Law School, www.swlaw.edu/campus/dixoncourtroom.html
This new high-tech courtroom will be available to serve the legal profession and the community as well as aiding in educating law students in digital technologies. The courtroom includes a multimedia and Web-based evidence presentation system; an audio-visual system encompassing remote conferencing capabilities that accommodate multiple participants, even in judicial chambers; individual monitors and large-screen displays for attorneys, judges, jurors, and observers; an automated court reporting system; foreign language interpretation; technologies to assist the handicapped; state-of-the-art acoustic balancing and sound systems; and a technology augmented jury deliberation room designed according to research guidelines funded through the State Justice Institute.
This is the latest high-tech training courtroom; earlier ones, including the Courtroom 21 Project at William and Mary School of Law in Virginia, the National Judicial College in Reno, Nevada, and the U.S. District Court in Phoenix, Arizona, used ExhibitOne as the equipment vendor.