girl ipsa loquitur: 09/19/2004 - 09/26/2004 Email me!

Saturday, September 25, 2004

Cyber-Court ~ New, Thornier Evidence Issues & The Consultants to Go With Them

[Click to read]
Everyone seems to be excited about this new E-Courtroom concept. It's going to speed things up and make life so much easier for everyone... but it presents some evidentiary issues. (Remember, Girl Ipsa is now submerged in law school land where reality only rarely visits and then only to mock me.) For example, who prepares this cyber-evidence? Is it reviewed before its presentation to the jury? And how will we handle the tendency of "self-serving spin"?

In the linked article, Assistant U.S. Attorney Scott Schools says "There are more than 300 pieces of evidence in Basham's case." About three-fourth of the items can be shown to jurors on the video monitors, he said.

I would like to know what these more than 200 pieces of evidence are. What do they show and what are they introduced to prove? Photographs can be misleading. Angles and cropping can put a spin on reality, even without any other special effects. Imagine what you can do if you intend to spin.

Then there is the entirely collateral issue of mistake. (Read "mistake" in sarcastic quotes as in "Oh, sure that was a mistake") Will we have court room cyber-tech guys, employed by the state, to monitor and handle the cyber evidence? Or will each side prepare his own? It reminds me of high school and those AV guys. (Remember? The guys from the Audio-Visual department who were the only ones that could operate a VCR or slide projector?) Since I am being reminded... Here's a story:

Baby Brother, who was not really an AV guy but he had slide projector skills, got involved in a school-wide slide presentation of some sort. He determined (correctly, I can assure you) that the presentation, as intended, was dull and uninteresting. Therefore, he slightly altered the previously prepared slide presentation. He added one little slide to two entire trays of slides. The size of the slide, its percentage of the whole show, was de minimus. Its impact, however, was de maximus. The slide contained a picture of a fat naked woman, performing some sort of gravity defying act on a stripper pole. Prejudicial? You bet.

Now, I don't mean to say that this cyber-court idea will be amenable to these sorts of incursion. I am just not certain that it wont. Once things enter into cyber-space they become far more susceptible to manipulation. Some manipulations (angle & focus) more subtle than others (Oops! How'd that get there??). We've recently seen how infallible cyber-communications within the court can be when the Kobe Bryant trial was derailed by some erroneous e-mailing. Digital information leaking out of the court. Some type of mistake.

A second collateral issue is raised by the nature of evidence presented on a monitor. Regardless of the type of evidence it will all be flat and photographic in cyber-court. People by their nature tend to place more weight on certain things than on others. 'Seeing is believing' after all. I can predict that the manner in which evidence is digitized will become a huge pre-trial issue, perhaps even running into longer trials, by replacing old admission of evidence practices with new and thornier ones.

The old practices didn't seem so problematic to me. However, Schools disagrees. "The greatest timesaving feature is the evidence presentation system with the video monitors, Schools said. Before the system was installed, lawyers had to show evidence to witnesses, then carry it over to jurors, he said. "

At least with this practice we knew that the witness, the judge, opposing counsel and the jury all saw exactly the same thing. Once everybody has their own monitor the cyber-confusion possibility rears its ugly head. Who is to say that the witness is seeing what the jury is seeing what the judge has seen in pre-trial? Yikes!

Every rose has its thorn, kids. This idea looks lovely and fragrant on the outside but I think it's a thorny bloom. We'll just have to wait and see how these issues are resolved if and when they come up.

In the meanwhile this could spawn an entirely new industry: The Digital Evidence Consultant. More consultants do not bode well for the trial process. Consultants never simplify anything.

"To live is so startling it leaves little time for anything else." ~ Emily Dickinson

"Ouch!" ~ Mrs. Palsgraff

Quis Custodiet Ipsos Custodes?

Be sure to read A Criminal Waste of Space
& check out BAD Reporter

Thanks for reading Girl Ipsa