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Univ. of South Carolina School of Law

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Tuesday, February 12, 2008

Evidence And Ethics 12: Professor Aronson and Professor McMurtrie's The Use And Misuse Of High-Tech Evidence By Prosecutors: Ethical And Evidentiary Issues

The contribution of University of Washington School of Law Professors Robert Aronson and Jacqueline McMurtrie to the Evidence and Ethics Symposium is their article, The Use and Misuse of High-Tech Evidence by Prosecutors: Ethical and Evidentiary Issues.  The professors lay out their central point in the introduction to their article:  "As technological advances have introduced high-tech evidence into the courtroom, there is an even greater need for evidentiary guidelines to ensure that prosecutors fulfill their duty to do justice and prove guilt upon the basis of sufficient evidence."

In Part I, the authors address three new technologies increasingly being used in courtrooms:  computer-generated animations, simulations, and computer-assisted closing arguments.  With regard to animations, they note that despite courts using a three-pronged analysis for determining their admissibility, some prosecutors continue to submit unacceptable computer animations.  They argue that (1) "[c]omputer animations must be 'carefully scrutinized for proper foundation, relevancy, accuracy, and the potential for undue prejudice' because animations have such 'dramatic power,'" (2) judges should issue cautionary instructions to jurors highlighting the differences between computer animations and other types of evidence, and (3) animations should be excluded when such instructions can't dilute an animations' prejudicial effect.

They next contend that simulations require stricter scrutiny than animations "because they are dependent on scientific principles."  On the matter of computer-assisted closing arguments, they cite two cases where courts were lenient towards the prosecution's use of technology during closing arguments (in one of the cases, an arson case, the prosecutor displayed the elements of arson next to the image of a curtain engulfed in flames).  The professors argue against such leniency, asserting that courts "should take a stronger role in ensuring that prosecutors do not act unethically while making high-tech closing arguments."

Part II then addresses prosecutorial misconduct in the use of DNA evidence, ranging from misrepresentation of the evidentiary value of DNA evidence to prosecutorial resistance to postconviction DNA testing.  On the second count, they note that such resistance can result in the twin evils of prolonging incareceration of an innocent person and preventing identification of the true perpetrator.

In Part III, the professors contend that the use of high-tech evidence is often expensive, meaning that its use "may make it impossible for opposing counsel to counter effectively the animation or closing argument...."  They note that, in response, the Washington Supreme Court recently established the Access to Justice Technology Principles:

"Access to a just result requires access to the justice system. Use of technology in the justice system should serve to promote equal access to justice and to promote the opportunity for equal participation in the justice system for all. Introduction of technology or changes in the use of technology must not reduce access or participation and, whenever possible, shall advance such access and participation."

They argue that, "[a]t a minimum, more courts should establish these kinds of guidelines to ensure that defendants are able to adequately respond to the prosecution's evidence, even if a defendant has few resources."

Finally, in Part IV, Professors Aronson and McMurtrie point out that "[s]ome commentators have suggested that the judiciary consider drafting separate ethical rules for prosecutors that recognize their unique role as ministers of justice."  They support such a separate set of ethical rules but caution that "the solution must depend on the prosecutors themselves," with prosecutors being involved in the creation of these new standards.

I share the concerns raised by Professors Aronson and McMurtrie, as I have indicated in recent posts about computer-generated animations and computer-assisted closing arguments.  In fact, during law school, I conducted a research project where I sent surveys to legal aid attorneys and their most common adversaries, asking about how much technology they used both during trial preparation and at trial.  I was surprised that the gap was less wide then I expected, but it seems to me that the gap is much wider between prosecutors and defense attorneys, making this article all the more important as technology continues to inflitrate the courtroom.

-CM

http://lawprofessors.typepad.com/evidenceprof/2008/02/the-contribut-1.html

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