Technology Services

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Courtroom 21: The Legal and Practical Implications

Fredric I. Lederer

The last issue of the Bulletin described the courtroom technologies in Courtroom 21, a joint project of the College of William & Mary and the National Center for State Courts (NCSC). This second part of the article will highlight some of the legal and practical implications of courtroom technology and raise some questions for further study.

Video as the court record

Video records are so comprehensive in their scope that they may affect appellate review standards. Trial judges in bench trials are given a presumption of correctness with respect to findings of fact because written trial records do not show appellate judges the demeanor of witnesses and other observations. With video as the court record, this presumption of correctness may no longer be appropriate. Video records of trials preserve more details than written records - including voice inflections and facial gestures. Since appellate judges can see and hear trial testimony, they have the opportunity, like trial judges, to evaluate witness credibility. Even if legal standards do not change, video records could affect appellate results. One study, conducted by the NCSC, Evaluation of Kentucky's Innovative Approach to Making a Videotape Record of Trial Court Proceedings, determined that when using video records in Kentucky, "the Court of Appeals [was] somewhat less inclined to reverse the original factual determinations of the trial court."

Video court records might also improve the performance of attorneys and judges. By preserving matters not now apparent on a written record, such as facial expressions, voice inflections, body gestures, and the like, video records may cause trial participants to be more circumspect in their behavior than at present.

Presentation of evidence

In addition to the usual documentary and real evidence, trial lawyers have long used photographs, charts, diagrams, models, and other forms of demonstrative evidence. Now, modern imaging systems can display sophisticated images at a relatively low cost. Such images may be used for a variety of evidentiary purposes, including merits evidence, demonstrative evidence, and the augmentation of opening statements and closing arguments.

Presenting computer animated tort and crime re-enactments often raises traditional evidentiary problems. Unfair prejudice can be a particular problem when persuasive animations and graphics are used. Federal Rule of Evidence 403, adopted by many states, permits exclusion of evidence when "its probative value is substantially outweighed by the danger of unfair prejudice." Whether presented via roll-in television or, as is the case in Courtroom 21, via built-in computer monitors in front of each juror, one must wonder whether the impact of such evidence differs in some substantial way from that of traditionally presented evidence. A Jurassic Park-quality computer reenactment may have enormous psychological impact.

Some lawyers have always had access to sophisticated aids for closing argument. Recently, in a suit against Price Waterhouse, counsel made their closing argument via a professionally produced videotape that intercut images of a major movie ("A Night to Remember," a movie about the Titanic) with their argument. Does the use of such video enhance the already existing risk that poorer clients and less creative lawyers will be placed at a competitive disadvantage? If so, would the disparity in available presentation tools create an unacceptable risk of unfairness in result? Given the unfortunate fact that disparity of resources and legal talent is a daily aspect of legal life, absent unusual reason we should be hesitant to consider limitations on technology based solely on such disparity. On the other hand, the use of technology-based presentation evidence in criminal prosecutions against indigents might justify special assistance to the defense.

If electronic evidence is presented, presumably the jury should have access to it in the jury deliberation room. What complications will this present?

Remote appearances

Video arraignments are increasing in popularity, and ordinarily should not pose problems given conscientious, ethical lawyers. Yet, there are those who assert that indigent clients are sometimes given only brief and minimal advice and assistance by counsel even under the present system, and that given the opportunity to handle arraignments from the courtroom, some defense counsel may be tempted to "cut corners." This realistic concern requires close judicial scrutiny and periodic re-evaluation to ensure that human fallibility does not moot technological advantage.

Some have voiced concern that remote arraignment may be used only for those who are too poor to obtain early release or those less motivated to appear in person. If true, would this result in a disproportionate percentage of poor and minority defendants appearing remotely? While it is unlikely that video arraignments can be prejudicial in traditional legal terms, public policy concerns of this type have apparently proven sufficient in Minnesota to defer, at least temporarily, implementation of video arraignment pilot sites.

Visitors to Courtroom 21 have eagerly asked if and when court video equipment will be used for remote motions and other types of hearings. Once economical communications lines are available, this will be easily possible. Imagine the productivity gains if lawyers no longer need to travel across a city or county for a ten minute appearance.

Particularly problematical (although tempting) is remote witness appearance at trial, especially in criminal cases. It is clear that the confrontation clause of the sixth amendment does not absolutely guarantee criminal defendants the right to a face-to-face meeting with the witnesses against them at trial. Further, the U.S. Supreme Court has in special circumstances sustained the constitutionality of one-way closed circuit television testimony of child witnesses in child abuse cases. Whether the Court would permit broader use of television is unclear. The Supreme Court has not yet had a case involving a sophisticated two-way multi-frame picture system. Would remote testimony of this type count as the equivalent of a face-to-face meeting, even absent special justification? Would it help if the witness were testifying from another courthouse, complete with proper surroundings and court officers?

Even if the legal questions raised by remote witness testimony are resolved, the human impact of such testimony is unclear. To what extent, if any, would remote testimony be more or less persuasive to a fact-finder than in-court testimony? At present, remote testimony holds the greatest promise for cases in which distant experts would testify. Great savings in money and time would occur if experts could testify from locations nearer to their homes and offices. Should lawyers pragmatically attempt such testimony, even if admissible? Because the question of persuasive impact is so critical, the NCSC and the College of William & Mary have applied for a grant to study this question.

Modern technology holds enormous promise for our courts. We must recognize, however, that technology's utility often depends upon how people will use it. Although we must continue to improve our courts via technology, we must be sensitive to technology's impact and work to recognize and minimize any negative consequences it might have on our system of justice.

Fredric Lederer is a professor of law at the Marshall-Wythe School of Law of the College of William & Mary, Williamsburg, Virginia. In addition to serving as director of Courtroom 21, Professor Lederer teaches evidence, litigation, and criminal procedure. For more information, or supporting authority, contact Fred Lederer, Professor of Law (757) 221-3792.