Virtual Immersive Technology
in Courtroom 21
by Wendy R. Leibowitz
If it is possible to talk of a "tradition" in the context of high-tech trials, then the tradition of tripping over the technology is becoming well- established. On April 6, 2002, at the beginning of United States v. NewLife MedTech, a mock high-tech trial conducted by students at the William and Mary School of Law, a juror tripped on the carpet while walking to her seat in the courtroom as the trial was about to begin. Subsequently, none of the display screens would function. But thanks to the intervention of savvy technologists on hand--the mock trial was held in Courtroom 21, which acts as a showcase for 21st century legal technology and thus happens to have savvy technologists on hand--it was quickly discovered that the juror had inadvertently dislodged a cable. Once that was rectified using the traditional "PIBI" technique ("Plug It Back In"), the trial could proceed.
A similar problem arose during an October 1995 high-tech appellate proceeding, when the U.S. Court of Appeals for the Armed Forces conducted an actual (not mock) appeal broadcast over the Internet. Text, video and audio feeds were supposed to be sent live to remote users logged onto a Web site. The appeal was heard. But it was not seen, as the visual feed did not function during the trial. It was only after the proceedings had concluded that someone discovered that a plug had been kicked out of a wall. The PIBI solution came too late.
As more lawyers try to harness technology to enhance their arguments in court, the technology experiments in Courtroom 21, a joint project between William and Mary and the National Center for State Courts, gain in importance. Though electronic filing was not directly addressed, the absence of boxes of documents, and the ability to manipulate documents on a screen, spoke volumes about the technology's potential.
The mock trial in Williamsburg seemed to indicate that there is good news and bad news in trial technology. The good news is that litigation tools seems to be improving dramatically, becoming both easier to use and more focused on the purpose of all trial technology: presenting information clearly to a judge and jury. The bad news is that Murphy's Law is the highest governing authority in a high-tech courtroom. Anything that can go wrong, will go wrong, at the most inconvenient time and with the greatest number of people watching. The student advocates behaved with composure under pressure. But the number of high-tech breakdowns was troubling.
For attorneys concerned about explaining complicated concepts to a jury or judge, the possibilities the technology presents are tantalizing. But for anyone concerned about a smooth proceeding, not to mention avoiding looking like an incompetent techno-jerk, the lessons absorbed from Courtroom 21 are: Be sure to have your poster board back-up charts handy.
Virtual Immersive Technology
The manslaughter trial in Courtroom 21 concerned a man who had died a month after an operation in which a new stent had been inserted into the patient. Student lawyers had to field allegations that the defendants, manufacturers of the medical device, had altered their product, causing the patient's death. The defense argued that the invention had been inserted incorrectly during the operation.
The most innovative technology--virtual immersive reality, which allowed witnesses to recreate what they saw around the operating table--functioned flawlessly. (It may have helped that a team of technologists familiar with VIR had flown in from the University of California at Santa Barbara to operate the equipment). Each witness testified as to what he or she saw in the operating room, accompanied by graphic, three-dimensional displays of their individual perspective, as in an IMAX film. When the witness, wearing a headset, turned his or her head, the display on large screens changed so that everyone in the courtroom could see exactly what the witness saw.
VIR was infinitely clearer and more detailed than photographs or a chart would have been. The judge repeatedly instructed the jury that the display was not evidence--only the words of the witness were evidence. As in any trial, it is difficult to know to what extent those instructions could bind the jury.
Know Thy Judge
Presiding over this trial in Courtroom 21 was Nancy Gertner, a federal district court judge in Boston with over 25 years as a litigator. She was patient with the many malfunctions of the technology during the proceeding. Even with familiar forms of demonstrative evidence, she said in a post-trial interview, there can be problems. She remembers once misplacing an ordinary exhibit on the counsel's table. "Sometimes the only words a lawyer can say to the jury are, 'Moving right along,'" she recalls.
As a judge, she has seen technology used in patent cases to clearly illustrate concepts that would not be possible without the technology. "It was fabulous," she recalls. "It was technology in the service of advocacy." A British barrister, Jeremy Barnett, chairman of a Leeds-based legal technology company called CourtCom, said he believes that technology can allow lawyers to assert different arguments that they could not assert with the technology. He also pointed to a patent infringement case. He used modern demonstrative displays to illustrate the extent of an alleged infringement between two bottles. The technology allowed the attorneys to slice the bottles in different ways and compare the original with the allegedly infringing invention from every angle on a screen.
But Judge Gertner also sees lawyers become slaves to the technology, hiding behind it, and never looking at the jury. She is particularly disappointed when PowerPoint slides are used during opening statements. "Opening statements are a time for the lawyer to connect with the jury, to look into their eyes," she said. "If a lawyer uses a slide, the jury will be looking at the slide, not at the lawyer." During this trial, the students indeed used basic PowerPoint slides during their opening statements.
Worse, their arguably superfluous slides at first did not display. Some of the technologists present knew why: Apparently, if the PowerPoint slides are already on screen at the counsel table, the screen frequently freezes up when the laptop is unplugged, taken to a different location (the podium in the courtroom) and then plugged in again. The students waited for the technicians to tell them what to do ("Reboot,") and then proceeded. Judge Gertner waited patiently. In the real world, not every judge would be as tolerant of a delay at such a preliminary stage.
The Admissibility of VIR
The judge had already ruled on a motion in limine concerning the use of virtual immersive reality. Students for the prosecution argued that VIR should be excluded because it was unduly prejudicial, and violated both Fed. Rule of Evidence 701, governing the accurate reproduction of the events, and Rule 901, concerning the need to authenticate the evidence. The prosecution argued that unlike a blackboard or a chart, the technology was so new and so realistic that jurors might think it represented what actually happened, rather than the witness's version of what had transpired. Further, the image was so realistic that it would too prejudicial. "It is ironic that the more accurate, or realistic, a display is, the more prejudicial it becomes," noted the judge. A crude drawing on a poster board is admissible, but a more realistic, three-dimensional diagram is not.
Judge Gertner decided that it would be clear to the jury that VIR was a subjective recreation of the event, and she repeatedly instructed the jury that the VIR was not evidence.
Frustratingly, the medical device--the stent--remained a blur to the spectators. The stent was supposedly narrower at one end than at the other, but despite magnifying the device on a projector, the difference was not clearly visible. The surgeon was supposed to be able to look down into the device to see it taper at one end--but this critical vantage point was never shown.
Courtroom 21 went to great lengths and expense to use as many types of technologies as possible, but some of it just plain didn't work. A hologram of the heart of the patient was difficult to understand--it looked like a gray cloud. A drawing with colored pencils, as is used to illustrate medical textbooks, would have been clearer than the blurry hologram. A video feed from a federal district court in Michigan was incompatible with the video technology used by Courtroom 21, and thus the Michigan witness could not testify. A witness testifying remotely from London was able to connect to Courtroom 21, and thus was able to testify, but at first it was difficult to hear her, and the court reporter (using modern voice recognition technology) had difficulty following. An animated drawing broadcast from London came through very distinctly, however.
Some of the basic human problems that plague courtrooms today were very much present. A translator on a speaker phone had difficulty hearing the witness (and understanding her dialect). This, of course, happens in ordinary courtrooms when a Cuban translator has difficulty translating for a Puerto Rican witness. There is little technology can do to help that situation, and the witness's testimony can become incomprehensible. It was illuminating to see that language problem illustrated so graphically in court--language issues plague those toiling in the immigration and poverty law areas, which are generally untouched by modern technology. It was courageous of Courtroom 21 to try to tackle them in open court.
On a much more uplifting note, a hard-of-hearing witness, who read questions on a monitor presented using real-time transcription, and who spoke or typed his replies, was able to testify very smoothly and clearly.
The jurors reported afterwards that they found the document display on their monitors and on the large monitors in the courtroom to be beneficial to their understanding.
But perhaps the greatest use of technology came out of sight of the courtroom. Dawn Hardy, a videographer who sat in the jury room during their deliberations, reported that the jury members were eager to use a plasma screen to recall documentation presented during trial, such as the death certificate listing the cause of death. When arguing whether or not the defendants had complied with FDA laws, they were able to call up the laws on the screen and highlight the critical language.
"However," reports the videographer, "they did not use the document camera or the holographic heart during deliberations. It was on the third point of the verdict, whether the manufacture of the stent was what caused the death, that they became stuck. The jury seemed to feel that although there was sufficient evidence that the defendants had been negligent, the prosecution never proved that the death might not have occurred naturally, since the patient's condition was acute before the operation." Even the best technology can't make up for a deficiency in proof.
The Impact of Technology
According to William and Mary Professor of Law Frederic Lederer, who directs Courtroom 21, a key purpose of the trial was to measure the impact of the technologies on the jury members. Indeed, there were two juries. The first was a jury judging the moot court competition. The second was a "shadow" jury whose members were extensively surveyed about their reactions to the technology. Both the actual jury and the shadow jury acquitted the defendants, by a majority vote. ("They would still be deliberating if we had insisted on a unanimous vote," said Professor Lederer.) Of the many comments on the technology, the most interesting to Professor Lederer was the unanimous preference for the small LCD (liquid crystal display) monitors in the jury box as opposed to a single large screen.
However, the technology can backfire. One juror said he found the PowerPoint presentations to be manipulative emotionally, and turned him off to the evidence presented. "Ultimately, it seemed as though the jury appreciated some pieces of technology during the trial," said videographer Dawn Hardy, "but the sheer volume of unfamiliar technology made it more difficult for them to discern what was important or irrelevant evidence."
Perhaps the only conclusion that can be drawn from the array of technology used was that too much technology can overwhelm a jury. "My own observation," said the videographer who filmed the entire trial, "was that the trial was an important experiment in not only which kinds of technology are effective in trials, but also how much technology a jury can handle without feeling overwhelmed." The judge was tolerant of the technology. But when a witness took the stand in the courtroom- -as opposed to testifying remotely-- the judge said, "You're testifying live? Oh, good," to some laughter.
As courts slowly try to incorporate technology where it is useful, some technologies stand out. The use of imaged documents and photographs eliminated the need for jurors to pass papers among themselves, and saved much time and paper rustling
But some of the demonstrative technologies, such as the ubiquitious PowerPoint slides, were superfluous. The students were poised, skilled advocates--they really did not need the technology to argue their case.
And there's always the possibility that a cable or wire will come unplugged, usually due to human error. Until we upgrade human beings to operate with fewer errors, it will be difficult to use technology in the courtroom with great confidence.