Herzfeld & Rubin, P.C.- Publications

Products Liability Computer-Generated 'Pedagogical' Devices: Admissible or Not? By Michael Hoenig - New York Law Journal - Monday, November 8, 2004	Print article

In March 1993, our New York Law Journal column, "Computer Simulations and Other Weapons,"¹ discussed the interface of modern technology and litigation proceedings, surveying new computer-generated marvels, admissibility issues and applicable case law.

Seven years later, our NYLJ article, "'Gatekeeping' Reliability of Computer Simulations,"² revisited the issue of computer-generated evidence, focusing particularly on the Daubert revolution whereby reliability of expert testimony, when challenged, has to be substantiated in accordance with certain admissibility factors. We reviewed pertinent case law involving demonstrative techniques such as computer animations, reconstructions and simulations, among others.

Space-Age Litigation Weaponry

The inexorable pace of technology has resulted in a dazzling blitz of demonstrative evidence tactics in which computer-aided mechanisms, visual displays and speedily created, easily modified charts and graphics are available. This presents the trial bench and bar with an enormous challenge to assist juries and, yet, strive to be fair to litigants to avoid misrepresentations and to comply with established evidentiary practices. Legal writings on these subjects have mushroomed, offering more- or less-experienced attorneys and judges guidelines or hints on how best to advocate or oppose use of the new, space-age, laser-like litigation weaponry.³ Web-site resources also exist, such as U.S. District Court Web sites, which reveal the varied courtroom technology available in certain courts. Features may include such items as video conferencing, TV monitors, VCRs, DVDs, document cameras, portable video display carts, laptop connections, projection systems, automatic projection screens, ELMO (electronic mail operator), DEPS (digital evidence presentation system), light pens, color video printer, slide projector, technology-ready counsel tables, lectern, judge's touch panel, Shadowbox and others.⁴ Consultant Web sites also abound.⁵

As more lawyers, jurors and judges gain facility with computers and the rich array of software proved to be helpful in litigation, lawyers who do not adapt may find themselves becoming proverbial dinosaurs. There is a real danger of being left behind as the technology frontier advances so rapidly. Indeed, there may be gross inequities when one side's legal team is armed to the teeth with computer-generated weapons and the other stumbles and bumbles around with old-hat demonstrative techniques, much to the chagrin of youngish "X" and "Y" jurors enthusiastically receptive to the modern visual formats. There also may be inequities, not only in counsel's embrace of the new technology, but also the availability of litigants' resources to foot the rising costs. The new technology can exacerbate our notions of trying to provide a level playing field.

• Computer Simulations.
Then there are the evidentiary considerations and possible "prejudice" factors. Looking solely to the use of so-called computer animations or simulations, for example, there likely will be different questions when the animations are mere "graphic representations," i.e., illustrative of testimony presented at trial, as opposed to "substantive presentations," where the visual technique provides actual bases for the testimony being offered.⁶ As to the latter, admissibility factors may include proper computer function; the completeness, accuracy and adequate disclosure to the opponent of inputs and underlying equations; and general acceptance of the computer program in the community of scientists to which it pertains. Obviously, the reliability of the expert using the program can be in issue. Prejudice factors include the array of considerations a judge must weigh under Federal Evidence Rule 403. The advent of digital cameras, as with computer-generated techniques, raises the potential for manipulation and misrepresentation. These are formidable challenges for bench and bar to understand and meet, let alone master.

The approach of courts to the new frontier has been somewhat cautious. Now, however, a thoughtful opinion by Senior District Judge Jack B. Weinstein of the U.S. District Court for the Eastern District of New York, issued in August, seems to urge "full speed ahead" — at least as to the admissibility of computer-generated demonstrative exhibits or techniques referred to as "pedagogical devices." Judge Weinstein is confident that judges can control against abuses or inequities in resources, can level playing fields and, by allowing judges and jurors to consider these "demonstratives," can assist in finding the truth. The new decision is Verizon Directories Corp. v. Yellow Book USA Inc.⁷ where plaintiff, a publisher of a "yellow pages" directory, claimed its competitor used false or misleading representations in advertising and other marketing activities.

This was a proceeding leading to a bench trial in which both sides presented almost all exhibits in computer-generated formats as well as in hard copy. Dubious about the admissibility of the many computer-oriented pedagogical devices, or demonstratives, both sides stipulated to their use and their admission into evidence if the judge so ruled. This caused Judge Weinstein to examine the issue of admissibility of the pedagogicals. Even though the liability phase was to be a bench trial, Judge Weinstein left no doubt that his remarks about embracing the new technology were not confined to bench trials. Indeed, if there were liability, a jury would determine damages and "[i]t would seem sensible to allow a jury . . . to be assisted by the same pedagogical devices the court relied upon in determining liability."⁸

Pedagogical Categories

At the outset, Judge Weinstein identifies and defines four categories of computer-generated exhibits:

(1) "static images" (common in courtrooms, such as tables, graphs, maps and diagrams);

(2) "animations" (moving pictures in which static images are shown in rapid succession to create the illusion of motion);

(3) "simulations" or "re-creations" (detailed and realistic depictions which, in the opinion of the creator, simulate the nature of the events); and

(4) "computer models" (compilation of mathematical formulae and expressions integrated into a sophisticated program or series of programs which, then, are translated into graphics explicating the results).

A fifth category, said the court, should be identified: "enhanced images," a classification somewhere between static images and animations. While the enhanced image is for the most part static, it can be manipulated by highlighting, enlarging particular areas, presenting side-by-side, split-screen images, printed commentary or transcript moving in tandem with the image and/or audio. This enhanced imagery can use different colors to emphasize or differentiate messages. The parties can enlarge, modify, illuminate or use other special effects to emphasize a point. The Verizon case concerned primarily this fifth type, enhanced images. The judge, witness, court reporter and lawyers have computer monitors at their respective stations and there is a large screen in the courtroom. The static images are then manipulated as needed. The opinion then describes the use of the exhibits, "bates-numbering" and preservation of the evidence.⁹

Judge Weinstein's Reasoning

Are these pedagogicals admissible? If not, should they be? Judge Weinstein examines the law. The general current practice is to exclude these demonstratives as evidence. Courts have recognized them as useful trial aids but it is a "common view" that such pedagogical devices "are not evidence themselves, but are used merely to aid the jury in its understanding of the evidence that has already been admitted."¹⁰ Typically, the use of such demonstrative material is governed by Federal Evidence Rule 611(a): "The court shall exercise reasonable control over the mode and order of . . . presenting evidence so as to (1) make the . . . presentation effective for the ascertainment of truth . . . ."

Highlights

Although most circuits refuse to treat pedagogical devices as evidence, Judge Weinstein found occasional sanction for admitting pedagogical devices as evidence. The balance of his opinion is a forcefully advocative, articulate and visionary statement as to why theory and practice should support admission of pedagogicals into evidence.¹¹ Here we briefly survey only some of the highlights. The opinion itself should be read, for it is a road map for those counsel or judges who will support admission generally or in specific litigation.

The purpose of a trial is to reveal the relevant real-world facts and to draw inferences leading to proof or disproof of operative elements of a cause of action. At its core it is a teaching/learning process. Forensic courtroom teaching is produced from a variety of sources of knowledge that the jurors independently have and that the trier brings to them. While the Verizon case is relatively simple, the methods of proof involve complicated statistical data and expert testimony.

The technology revolution has strengthened the ability of courts to seek truth. Pedagogical aids should generally be admitted as evidence, subject to Rule 403 determinations and more stringent control in jury trials, because they "can be helpful to the court's understanding of the complex and voluminous amount of evidence presented." Inequities in resources (e.g., avoiding an uneven technological playing field) can be monitored under Evidence Rule 403. The suggestion that "trials are turning into legal smoke-and-mirror laser-light shows, lacking real substance, has no merit where the court exercises appropriate control."¹² Moreover, because of intensive and growing experiences with computer and digital technology, laypersons are increasingly immune to confusion. The danger of jurors overvaluing such proof, therefore, is slight. The use of technology "is not inconsistent with calm deliberations based on material properly vetted for the courtroom."13

Preservation of a record on pedagogicals for appellate courts presents some challenge since, already over-burdened, the courts of appeal may not have the time to fully review computer-generated and other pedagogical evidence. And, in jury trials, a judge must be "particularly careful" to avoid interjection of material an appellate court may believe to contain unacceptable hearsay or prejudicial matter. There may also be some ability to manipulate the viewer's subconscious (of which a court may be unaware) such as the use of certain colors to emphasize certain text (e.g., red is an "attention-getter," use it for important facts; blue is a "pleasing color," present the client in blues and greens).

There may be other areas involving the heightened power of audiovisual evidence in which increased judicial sensitivity or vigilance is needed. For example, showing deposition testimony in color, revealing vivid body language, pauses and verbal emphases may elicit a different reaction from a viewer than mere reading of a typed transcript. When all is said and done, however, Judge Weinstein concludes that abuse or prejudice potential is controllable by informed, sensitive judging. In the main, "[i]ncreased flexibility in the use of educational devices will probably result in courtroom findings more consonant with truth and law." At the least, Judge Weinstein has fired a high-munitions, visionary shot across the bow of a heretofore cautious judiciary reluctant to admit pedagogical devices as evidence. Taking his cue from advancing technology, he foresees that: "The day may soon come when jurors routinely have individual computers or computer monitors in the jury room."¹⁴ Make way for "Star Wars" in the courtroom.

Michael Hoenig is a member of Herzfeld & Rubin

Endnotes:________________________________________________________________________________________________________

1. Hoenig, New York Law Journal, March 8, 1993, p. 3. Past articles are available from the NYLJ's Web site and also from LEXIS and Westlaw.

2. Hoenig, NYLJ, July 10, 2000, p. 3.

3. E.g., J. Peter Coll Jr., "Use of Demonstrative Evidence During Trial," in 2 Preparing For and Trying the Civil Lawsuit, chapt. 17, pp. 830-871 (N.Y. State Bar Ass'n 2004; N.A. Goldberg, J.P. Freedenberg, eds.); M.A. Ponterio, "Modern Techniques in Demonstrative Evidence," in Products Liability in New York: Strategy and Practice, chapt. 17, pp. 586-599 (N.Y. State Bar Ass'n 1997; 2002 Supp.; N.A. Goldberg, ed.); S.C. Malguarnera, "Accident Reconstruction and Demonstrative Evidence: New Techniques and Developments," in Products Liability in New York: Strategy and Practice, chapt. 18, pp. 602-621 (N.Y. State Bar Ass'n 1997; 2002 Supp.; N.A. Goldberg, ed.); F. Galves, "Where The Not-so-Wild Things Are: Computers in the Courtroom, Federal Rules of Evidence, And the Need for Institutional Reform and More Judicial Acceptance," 13 Harv. J. Law & Tech. 161 (Winter 2000); Richard P. Campbell, "Admissibility of Test Films, Videotapes, And Computer-Generated Evidence," 32 ABA, The Brief, No. 4, pp. 13-22 (Summer 2003; Tort Trial and Insurance Practice Section ["TIPS"]); S.C. Marks, "The Admissibility and Use of Demonstrative Aids," 32 ABA, The Brief, No. 4, pp. 24-29 (Summer 2003; TIPS); M.W. Bennett, "High Tech Justice: A View From the Federal Bench on Courtroom Technology," 30 ABA, Litigation, No. 2, pp. 3-6 (Winter 2004) (Chief Judge U.S.D.C. N.D. Iowa); A.B. Parker, "Demonstrative Exhibits on a Budget," 30 ABA, Litigation, No. 2, pp. 22-28 (Winter 2004); C. Ball, "Cross-Examining the Computer Forensics Expert," ATLA, Trial, pp. 78-81 (July 2004); R. Simmons & J.D. Lounsbery, "Admissibility of Computer-Animated Reenactments in Federal Courts," ATLA, Trial (Sept. 1994).

4. See e.g., Northern District of Iowa Chief Judge Mark W. Bennett's invitation in Litigation, supra n.3, at p. 6: "A virtual tour of all the high-tech courtrooms in the U..S. District Court for the Northern District of Iowa is available on the court's Web site, www.iand.uscourts.gov , click 'View all Courtrooms for the Northern District.' A comparison of the technology complements of the various courtrooms is available by clicking 'Northern District of Iowa Courtrooms.' "

5. See e.g., Craig Ball, "Computer Forensics for Lawyers Who Can't Set the Clock on their VCR," at www.craigball.com/Computer-Forensics-for-Lawyers-20030901.pdf (cited at C. Ball, Trial, supra n. 3, at p. 81 n. 3).

6. See Coll, supra n. 3, at pp. 863-869.

7. 331 FSupp2d 136 (EDNY 2004).

8. Id. at 139.
9. Id. at 138-139.
10. Id. at 139 (quoting from and citing case law and treatise).
11. Id. at 140-144.
12. Id. at 142.
13. Id. at 143.
14. Id. at 142.