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Criminal Justice Magazine
Spring 2004
Volume 19 Number 1

DIGITAL MEDIA AS EVIDENCE AND EVIDENCE AS MEDIA

By Sam Guiberson

Sam Guiberson is a Houston-based defense counsel and consulting attorney in cases involving recorded evidence and electronic surveillance, the use of technology in litigation, and digital information tactics. He can be reached at guiberson@guiberson.com.

Try as some may, there is no insulating trial advocacy from the changes our culture's emersion in electronic media have brought in the ways we receive, process and retain information. Today, our world is media-rich, multichannel, and sensorial. We get sounds, moving images, words, and still pictures in a cyclorama of subliminal persuasion, entertainment, and information.

Trial lawyers' courtroom advocacy must take into account pattern changes in the ways nearly every American man, woman, and child now acquires information. Almost all of the media content we take in passively, as jurors receive evidence in court, comes from many layered sources such as television in which words are embedded in sound, graphics, and video. In an era of relentless and universal multimedia messaging, words hardly ever stand alone.

We can't demand juries listen to our words if they don't swim in the broader media bandwidth to which today's jurors most commonly give their attention. The power of spoken language and the guidance of the written word aren't to be disregarded, but they shouldn't be considered the exclusive format for effective courtroom communication. We should revamp the conventionally narrow scope of what we think of as legitimate trial advocacy and recognize that even the most skilled oral advocate needs to be equally skillful in communicating with a jury in digital audio, video, and graphics images-the three other legs of the 21st century information table of content.

There is no tradition in legal education that prepares us for this new modality of multilevel, multimedia communication that has become second nature to the postliterate world. We lawyers draw a total blank when confronted with the challenge of being articulate in a broader media bandwidth. This lack of familiarity with media is often painfully obvious as lawyers struggle in court with the simplest video presentation or tape cassette playback, acting as if starting and stopping these newfangled gizmos, VCRs, DVDs, IPods and the like, is as alien to a lawyer's sensibilities as tickling the writhing stomach of a venomous snake. We are well past the point when technical proficiency is considered unsuitable to the professional status of lawyers. With technological incompetence, jurors are no longer amused.

There is growing impatience with multimedia illiteracy because digital technology has brought media virtuosity into the homes of every computer toting young adult in America, with substantial trickle-up to their parents. How silly is it to an XGen juror that a trial lawyer can't play a QuickTime movie on a laptop without the aid of a few paralegals and a computer consultant? Only a few years ago, a lawyer did require a team of expensive specialists to employ these technologies in court. Now those expertise-intensive technologies are consumer grade products that put digital audio and video, as well as computer graphics and animation, well within reach of every trial lawyer in terms of price and simplicity of use. Consumer digital media products, digital cameras, video, and software turn every desktop computer into a movie studio or a professional graphic design boutique. With such cost and complexity restraints removed, any lawyer who is uncomfortable with presenting evidence in digital video, digital audio, and digital images in court runs the risk of looking foolish or, in the minds of young jurors, suffering a worse fate-looking old.

There are more frequent opportunities for lawyers to look foolish with trial media these days. As digital media become commonplace in ordinary citizens' households and in law enforcement agencies, digital evidence generated by home entertainment products is appearing in courtrooms as trial exhibits with increasing frequency. It's not uncommon now to have videos of police beating suspects or wives driving cars over their husbands; surveillance tapes of grainy figures committing all sorts of felonies; the inadvertent recordings of accidents, robberies, and murders; news footage; compromising recorded interviews and public statements; as well as scenes from feature-length films that troubled teenagers cite as inspiration enough to skin the neighbor's kitty. Added to all this is the more usual onslaught of federal and state tape recordings in undercover cases and wiretaps, recently bulked up by the steroid of terrorism investigations. What used to be "film at eleven" is now "digital video 24/7," and the increasing prominence of media evidence and the weight jurors bestow upon it will continue to shift the scales of courtroom advocacy towards trial counsel who are multimedia literate.

Just as it is for the family with a new digital still or video camera, there are more opportunities for lawyers to present evocative media content having a jury impact far in excess of a lawyer's monotonal description of the unrecorded event. Seldom in the past did trial lawyers make it their practice to consider how several digital media could energize their cases. Few lawyers understand when and how to employ digital presentations of forensic findings, homemade videos, crime scene reenactments, video surveillance, multimedia PowerPoint presentations, 360-degree perspectives of a key location in a QuickTime Cubic VR "jury view." or even the live remote video questioning of an extraterritorial or home-bound witness. Strategic choice of media has now become a trial tactic.

The fact that multimedia advocacy is now within the reach of every trial lawyer brings us opportunities and also brings us risks. Lawyers misunderstand digital media when they assume that its influence with juries is derived just from being entertaining and computer driven. Its influence is drawn from the harmonic effect on perception and retention of information that flows from stimulating the mind with changing input from many senses, each alternatively primary and then secondary, all repeating and thereby reinforcing, a common message.

Trial lawyers must use good judgment in finding a natural equilibrium for when to make a point with a spoken word, a moving picture or an audio recording. The art of making an argument with a digital vocabulary requires lawyers to learn how to "conjugate" media for maximum effect. But just as there are orators with the gifts of Winston Churchill, there are also orators who sound like Daffy Duck. Just because we use digital media to complement words in expressing ourselves won't make a Winston out of a Daffy. As it has always been with oral advocacy, there is a certain artistry in media-based arguments that lawyers have to either possess as a natural gift or acquire by practice.

There are some basic precepts that can help with making decisions about how to speak in a digital chorus rather than a cacophony of digital media voices.

Remember, it's many media, but not any media. The key to using many media in trial is balance, timing, and selectivity. Never use audio, video, or a screen presentation as if it were a tuba with one note. No matter how novel computer exhibits or presentations may be, a juror will tire of too much of any one media. A key to acquiring and holding a jury is to mix the same message in different media, so that there is a stimulus that encourages attention and promotes retention.

An example of a layered media strategy is the recent murder trial of millionaire defendant Robert Durst in Galveston, Texas. As described by Chip Lewis, one of the defense counsel, the circumstances of the case offered an unusual set of elements. Robert Durst would testify at trial that he acted in self-defense. There were no trial witnesses other than the defendant to describe the circumstances of the incident leading to a neighbor's death. There was also no state's evidence that could describe the actual commission of the offense. The jurors would have to visualize in their own minds the actions of the accused in order to determine a verdict. Defense counsel prepared two aids to give the jury more concrete visual reference points to the defendant's narrative of events leading up the killing. One was a computer animation depicting the defendant's recollection of the fatal interaction between himself and his neighbor. The other was a scale model of the interior spaces of the defendant's apartment. The concept was to use both exhibits in tandem, each reinforcing the other, and both adding visual and physical points of reference corresponding to the defendant's words from the witness stand. Although the computer animation was not admitted, the defense team clearly placed value on simultaneously describing the same scene in words, digital animation, and by means of a three-dimensional model. The Durst defense team recognized that trial lawyers should not only state their main points repeatedly, but also repeat the same points in many media.

Sometimes, the greatest stimulus in an all-digital trial, when jurors have become acclimated to seeing exhibits on a video or projection screen, is to employ the "media" of touch. The physical contact with a key exhibit that reinforces its special importance as evidence creates a foreground of physical contact against a background of digital presentation. In a large white-collar criminal prosecution in Alabama, U.S. v. Goldin, all defense (and most of the government's) transcripts, exhibits, and audio plays were digitally presented. A single, typed receipt established the essential message of the defense. To amplify the jury's perception of its importance, those of us representing members of the Goldin family asked that upon admission, it be passed hand to hand from one juror to another. Placing a single piece of paper in the foreground by switching from observing digital media to touching a physical object was a unique jury experience in the context of that trial. The effect was full jury focus on the contents of a single page of paper that would otherwise have been a routinely received exhibit.

Along with knowing when to use digital media, there is also knowing when not to use too many media formats at the same time. Sometimes, using two media formats neutralizes the impact of both. In the Oklahoma City bombing trial of Timothy McVeigh, the government's most psychologically gripping evidence was the recording of the bombing itself made during the course of a proceeding only a block away. Because it so powerfully conveyed the impact upon the people subjected to the immediate effects of the explosion, the government rightly led off its case by playing this exhibit, intending to set the tone for the entire prosecution.

When the recording was played, the jury could witness the confusion, panic, and shock that followed the explosion, mirroring what must have been experienced in the Murrah Federal Building. Along with the recording, prosecutors also presented a picture of the building in which the recording was made. The building was pristine and well maintained in the photo taken on a sunny and pleasant day in Oklahoma City. The aural and the visual presentations to the jury were out of sync. The orderly stability of the visual image and the disturbing drama portrayed in the audio were sending a mixed message that lessened the profound emotional effect of the audio.

The prosecution had been well intended; it wanted to give the jury a physical location to associate with what it heard. Although logically appropriate, the combination was not emotionally appropriate, in that the minds of the jurors were being directed away from their own internal visualization of the horrors of the collapsing walls, panic, and chaos the audio described by the placid photo of a small, pleasant, and intact building. The eyes should never be made to work against the ears and neither should ever work against the human imagination.

Hearing without seeing evokes our imaginations to fill the visual void, to visualize what is being heard and, in this instance, allow the listener to experience the suffering, the shock, and the chaos of that horrific moment much more deeply than would be possible when the sounds heard are framed in a photograph of an intact building. The presence of a photograph attached an image, a framework, to the sounds, instead of allowing the listener's imagination to "see" what is being heard. A stronger framework of empathy is created when the imagination is reinforced rather than contradicted by the media exhibit.

Even when we are dealing with media evidence that "documents" an occurrence of something relevant to the trial's outcome, bringing the juror's imagination into play is the litigator's greatest aid in establishing a perception of the recorded event in the juror's mind. Because we are multisensory, the "reality" of one event conveyed in one medium leaves the mind to augment that single spoke of perception with speculation about other spokes of sensory input, in order to form a complete wheel of perception about that event. It takes the imagination of counsel to find the words, pictures, and sounds that the jurors' imaginations can seize upon to inform them about the "gestalt," the unique emotional context the sound and imagery create when they are combined.

One example of lawyers using video to create a gestalt occurred during the sentencing phase of United States v. McVeigh. Video clips of Gulf War action from television news specials found in McVeigh's possession were selected to convey the trauma that McVeigh experienced in desert combat. They were juxtaposed against the audio and video clips of Branch Davidians begging local police to intervene while under attack from ATF agents. A song about the loss of children in the Waco conflagration that was found among McVeigh's possessions was also included. Without language other than testimony giving context to the events on video, the metamessage in the media was that McVeigh had brought himself to a psychological condition in which government violence against civilians justified civilian violence against the government. Through the use of these evocative videos, the abject psychosis and gruesome futility of dealing death as a retribution for killing could be emotionally conveyed as a parallel and equally valid argument against the death penalty and, in so doing, possibly lay a foundation for a life sentence.

Not only does digital media "capture" events with convincing immediacy in ways that occurred less frequently before digital photography and video were so universal, but it can also be used to "recreate" the events of which there is no direct visual or aural evidence.

Animated computer evidence works backward from a known outcome to create a virtual computer-generated "reenactment" of what happened. Whether or not the animation is accurate when created from reverse extrapolation that applies an inevitably small set of data points is a question for another day, but "what really happened" is often not as decisive as what the jury feels when it experiences a realistic computer simulation of the case-critical event. Imagine an animation portraying a pedestrian being struck down by a hit-and-run driver. Bam! The juror empathizes with the human-like animated figure being realistically dashed to the pavement by a tanker truck. There is no abstract analytical tabulation of whether the angle of attack corresponded to the autopsy findings. There is only one visceral reaction to that visual input and it is "That hurt!"

The "hurt" imprint-the empathetic link connecting the smashed animated victim to the jurors' own sensations-communicates a message that can't be undone by cross-examining a witness about the details of time, light levels, and vehicular speed. The advocate cannot counteract a sophisticated computer animation by using words alone nor ignore the subliminal, visceral impact of animated scenes once they have been wired into the jurors' psyches by realistic digital animations.

When jurors deliberate, the computer animation of the accident is how they will measure the reality; the realism of the animation has filled the jurors' void of direct experience with the accident or crime about which they deliberate. Jurors' imaginations abhor a vacuum, and a computer simulation has the information intensity of a gallon of water being poured into a six-ounce glass.

We can't overcome the subliminal content of the computer imagery without sponsoring a rival, equally effective counter-imagery that subjects the juror to a choice: which animation of the event is more consistent with the evidence that exists outside the animated realm? Without attacking animated imagery with animated imagery, the less digitally articulate advocate may have too much to overcome. The litigator who brings the most powerful and the most diverse media messages to the jurors will capture their imaginations by feeding their senses with a physical and emotional realism that digital technology has only just begun to portray.

Evidence as media

As trial counsel begin to attend to the digital media that diversify jurors' sensory experience with trial evidence, the presentation of document exhibits is likely to become more uniform. Courtrooms equipped with digital presentation equipment are becoming standardized in most metropolitan state and federal courtrooms. The mere presence of this equipment encourages its use, and the time and labor efficiencies of presenting trial documents to the jury as digital images are making digitally imaged trial exhibits the modern court standard.

As a jury begins to receive a steady diet of content from the courtroom screens, this source becomes a second channel of input, coequal to the witness stand that the jury will look to for a continuous "feed." The expectation of receiving a steady media supply from the courtroom monitors presents trial lawyers with a new set of demands for a continuing stream of visual information for jurors to process in parallel with testimony given by witnesses.

Lawyers are familiar with the benefits of creating a narrative through the sequence of witnesses, each building upon the last with his or her respective part of the defense or prosecution version of events. But with the emergence of digital presentation technology, the trial attorney is presented with the need for a second narrative, a parallel presentation through the monitors or on screen that harmonizes with the oral testimonial narrative. To leave empty the "TV" screen from which the jury is conditioned to receive reliable and stimulating information is like a television network broadcasting dead air. The audience will lose interest or, worse yet, switch allegiance to the other network (or trial attorney) providing more engaging content. The consequence of conceding to your opponent the high ground of an open multimedia channel to the jury, broadcasting continuously throughout the trial, is risky at best; at the least, it is a lost opportunity for persuasion.

Every lawyer with ambitions to win a case now and then is presently confronted with a new parallelism in trial preparation. Where once we focused on how oral testimony would be received, what objections could be lodged, and how successive witnesses' testimony could be orchestrated to achieve the greatest persuasive effect, we must now coordinate and balance a second narrative stream of digital media in which to frame and reinforce oral testimony. The two narratives must interlock, in the sense that digital presentations must be prepared beforehand and witnesses prepared to relate to the digital exhibits complementary to their testimony. The result is that lawyers must conduct interactive trials, where audio, video, and images engage witnesses' oral testimony with well-orchestrated synchrony.

The consequence of the ongoing evolution of our media-centric popular culture and the many technological changes that bring so much more media production capacity within easy reach is a higher standard for what trial advocacy can be. Not all lawyers will reach for it, but every jury will expect it, and the cost of ignoring these expectations will be a difficult price to meet on the strength of oratory alone.

In fact, this is a good turn for trial advocacy to take. We litigators have been narrow-minded and somewhat condescending in our estimation of what resources juries benefit from as they attend to and interpret evidence. That digital technology now makes possible a richer, more diverse and more engaging presentation of trial evidence can only serve justice if juries are now better served in many media.


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