Tuesday, March 29, 2011
Article Of Interest: Carrie Leonetti & Jeremy Bailenson's High-Tech View: The Use of Immersive Virtual Environments in Jury Trials
Last year, I posted an entry about Andrew M. Perlman's The Legal Ethics of Metadata Mining, in which Professor Perlman concluded that "[t]he best approach to metadata mining is to analogize it to the review of inadvertently disclosed documents more generally [because] [t]he two issues are conceptually indistinguishable." I agreed with Professor Perlman's analysis of the issue and found that courts should should similarly analogize compelled forensic imaging to the compelled disclosure of documents covered by attorney-client privilege when the adverse party claims that they are subject to the crime-fraud exception.
In their recent article, High-Tech View: The Use of Immersive Virtual Environments in Jury Trials, 93 Marq. L. Rev. 1073 (2010), Carrie Leonetti, an Assistant Professor at the University of Oregon School of Law, and Jeremy Bailenson, an Associate Professor of Communication at Stanford University, make a similar argument with regard to immersive-virtual environment (IVE) evidence. Specifically, they claim that IVE evidence is analogous to other representative media and should be treated the same as its predecessors. As the authors note:
The portrayal of scene evidence has followed a somewhat linear progression: live viewing, drawings, black-and-white photographs, color photographs, video recording, and, now, VR simulation. There is no reason why IVE technology should be subjected to any different or more strenuous threshold for admissibility than any other representational medium representational medium.
Here's how they get there:First of all, what exactly is IVE? As the authors note,
An IVE is an artificial, interactive, computer-created scene or “world” within which a user can immerse herself. IVEs combine high-resolution, stereoscopic projection and three-dimensional computer graphics to create a complete sense of presence in a virtual environment. IVEs consist of immersion in an artificial environment in which the users feel just as perceptually surrounded as they do in "reality." IVEs produce a simulated yet interactive reality in real time, which can support spatialized sound and virtual touch. In an IVE, a participant's awareness of physical self is diminished or lost by being surrounded in the engrossing total artificial environment. Common examples of IVEs are certain computer games, training programs such as flight and driving simulators, and immersive and interactive art installations.
The authors later note that "there has simply never been anything like [IVE evidence] done in a jury trial before," but they then point out that "permitting trial jurors to enter an IVE is not without precedent." Instead,
Juries are often permitted to visit the scenes of crimes and accidents in the middle of trial, subject to the discretion of the trial judge, even when the scenes that the juries view are no longer in the same state that they were in at the time of the events in question. Generally, the scene has been altered through the process of crime scene investigation and preservation, accident reconstruction, or merely the passage of time. It has been cleaned up, and crucial evidence has been removed for laboratory analysis....Nonetheless, despite these distortions, the common law recognizes that the probative value of an on-site view of the scene outweighs the potential unfair prejudice or jury confusion that may result from an imperfect facsimile of the scene and leaves to argument by the parties the weight that the jury should place on the imperfections. Juries have been permitted to view a scene by going to the scene of the crime or accident and investigating it themselves, if doing so would aid them in reaching a correct result, as long as the scene remains in a substantially similar condition as it was in at the time of the alleged crime or accident.
Indeed, "[a] few courts have permitted jury views that were 'interactive' in nature, such as a California court allowing jurors to observe a demonstration of the functioning of a streetcar's door and a court in West Virginia allowing jurors to view a power saw in operation. The authors then go on to argue that
If anything, an IVE created to simulate the scene of a crime or accident so that the jury can virtually view it would be a more accurate way to reconstruct the scene as it was at the time of the events in question, since the IVE could simulate the time of day, presence of the physical evidence, and so on, in a way that the actual scene, stripped of much of its material evidence prior to jury viewing, could not. Perhaps the greatest danger presented by a live view of a crime or accident scene is the risk that extraneous, irrelevant, or unfairly prejudicial information would reach the jury, either in the form of communication or comments by one of those present at the scene, or inappropriate sights seen by jurors. Because IVEs can be designed with "gaze-directed" steering techniques and "locked" fields of view, which prevent lateral head movements, they can restrict jurors to a literal "three-dimensional tour" of the scene, ensuring that each juror gets the exact same optic flow as any other, as opposed to a live scene view, where each juror can look anywhere that she wants in the scene, and not all jurors leave having viewed the same scene.
I think that this is a great point, and it speaks directly to my post yesterday about a juror's unauthorized visit to a crime scene and the defendant's claim that the lighting conditions might have been different at the time of the visit than at the time of the crime. With IVE evidence, litigants reduce the possibility that jurors make judgments based upon viewing an altered crime scene, a growing concern in the era of the Google mistrial. It is easy to imagine that jurors increasingly are using Google Street View to view crime scenes to disastrous results, and IVE evidence can correct these misimpressions.
The authors also place VRE at the (current) end of a linear progression, leading to the block quote in the introduction to this post. According to the authors,
One of the original rationales for the admissibility of crime scene photographs into evidence was that they were an improved but functional equivalent of a crime scene viewing by the jury. The case of Mardoff v. State is an example. Mardoff was convicted of the murder of his wife by stabbing her twenty times in bed. On appeal, Mardoff challenged the introduction into evidence of gruesome photographs of his dead wife, with the weapon still embedded in her body. In the photographs she appeared as she did when she was discovered by the police when they entered the crime scene on the night of the murder: propped up against the wall between the foot of the bed and a bookcase standing nearby. Four of the photographs were taken of the room in which the murder was committed and the body found before the body was moved, and the fifth was taken without any rearrangement of any of the objects in the room except that the body had been lifted from the wall, exposing the hilt of a Chinese dagger protruding from the victim's back, to show how the weapon that caused the death had been plunged into the victim's back and left there. Rejecting Mardoff's challenge, the Florida Supreme Court explained:
The value of a pictorial representation of the scene of a crime is obvious. From the very nature of the crime of homicide it is not possible for the trial jury to view the premises before physical appearance of the scene is changed by removal of the victim's body. It is common knowledge that the descriptions given by witnesses, however conscientious, who have observed the body of a murdered person and the surroundings will vary often to a surprising degree. No better way has so far been devised to show the scene of a homicide than a photograph taken before the body of the deceased and the objects near or around it have been disturbed.
The admissibility of such evidence must be determined by the trial judge after an inquiry as to whether the objects appearing in the picture are in the same position as when the crime was discovered to preclude fabrication of testimony, for a picture of the reconstruction of the crime would be harmful in the same degree that the true representation would be helpful to the jury in comprehending the real conditions of the place where the crime was committed.
This rationale seems equally, if not more, applicable to the use of VR technology to simulate immersive scenes for juries.
I agree with the authors and strongly recommend the article to readers. I asked Professor Leonetti what led her to write the article, and she responded:
On my end, I originally wanted to take on the project as a law-reform project, to answer the question of what changes would have to be made in the rules of evidence to permit a jury to enter an IVE. As I started to ponder that question, I realized that no changes would be necessary, which I thought was a publication-worthy insight in itself. As I started to research the history of the rules about authenticity, etc., I was stricken by IVE's place on the historical continuum -- from sketches to black/white photos to color photos to digital photos/video to computer animations/simulations -- and realized that my instinctive resistance to the admissibility of IVE evidence came from the same place from which the opponents (who now look pretty out of touch in retrospect, I think) of the use of those then-new technologies in court drew theirs. So, in addition to being interested in the technical aspects of how a party (or a court or an expert) could use an IVE with a jury, I became interested in the larger epistemological issues about what the rules of evidence are supposed to do and how they fit with new technologies.
(Professor Bailenson has now sent me this useful link to a news story showing some footage from the use of VR simulation evidence at the annual "tech trial" put on by Professor Fred Lederer at the William and Mary Law School)