Lawyers Weekly
DAs' Modern Trial Tools A Concern To Defense Bar
Prosecutors Use New Computer Graphics
By Wendy L. Pfaffenbach
Published: January 1, 2001
Criminal defense attorneys are worried that they don't have the resources to match cutting-edge multimedia demonstrations which are becoming common courtroom tools for prosecutors.
The Suffolk County District Attorney's Office, for example, recently created a trial graphics unit, which is employing sophisticated technology that allows juries to watch animated presentations of evidence. The graphics go "way beyond" the computer presentations used to date, according to a spokesman for the Suffolk DA's office.
Other prosecutors around the state are reportedly gearing up to make similar use of computer animations.
Suffolk County Assistant District Attorney Brian J. Carney, who heads the unit, said the new technology will help everyone involved in the criminal justice system by elevating how cases are tried. "It's going to help you present better evidence to the judge and jury," Carney remarked. "People should be excited that [this technology] has come down to regular trials."
But criminal defense attorneys are skeptical that the new technology will truly help their clients.
The new form of presentation could "make or break a case," according to Kenneth M. Diesenhof of Boston. "It's very subjective stuff," the criminal defense attorney added. "When we see things, even if it is a videotape, we tend to see it as an actual repetition of what happened, instead of someone's opinion." Diesenhof stressed the importance of defense attorneys learning precisely what the new multimedia presentations will contain, and filing motions to suppress should they find the material overly prejudicial. An additional problem with this type of evidence is that it is created after the crime has occurred, the lawyer added.
Frank P. Craig, a Watertown criminal defense attorney, said that DAs' efforts to improve the presentation of evidence are "commendable ... but it's something the defense has to respond to."
Uneven Playing Field?
Defense attorneys are particularly concerned that public defenders will not have the resources to effectively combat such presentations. If the prosecutors' new multimedia presentations cannot be matched, Craig pointed out, defendants may have a difficult time communicating their version of the facts to the jury.
Indeed, "the first thing that comes to mind is resources," Craig said. But judges will not bar evidence simply because the defense can't afford to create an illustration or hire an expert, the criminal defense lawyer noted.
Boston criminal defense attorney Randy S. Chapman indicated that defense attorneys, especially public defenders, may want to obtain funds of their own. Craig agreed. "Certainly, publicly-financed defense attorneys will make motions to get the funds," Craig said. "There will be pressure on the judges to allow those motions on the basis of fairness." A forensic expert currently costs about $175 an hour, he said, and hiring an expert to refute the prosecution's illustration might cost even more.
But Carney downplayed the concerns of defense attorneys, maintaining that expense to criminal defendants is no reason to bar prosecutors' use of the new technology. "That would be like saying that when cameras came out, if they couldn't get a camera, [photographs] couldn't be used," Carney said. "The bottom line is that we have to represent all our sides as best we can, and we can't stop technology from being involved." Besides, most of the technology needed to create such presentations is readily available and reasonably priced, the ADA said. Carney also said he doubted this technology could solely determine a verdict. "Ultimately, it comes down to the credibility of the evidence and your witnesses," he said.
Better Evidence
According to Carney, prosecutors will use the new technology to create demonstrative evidence.In a recent case where an apartment had been changed significantly after the crime, the unit used the technology to reconstruct the older version of the apartment, according to Carney. The unit will also create presentations to illustrate a witness' testimony, the prosecutor said. Before the creation of the unit, Carney explained, a police officer testifying about a motor vehicle accident would have to reconstruct the accident with graphics -- usually with one showing where the impact occurred and the other showing where the vehicles came to a stop. These older graphics were often difficult for a jury to follow, but the new multimedia presentations will fill in the images between impact and the final resting place of the vehicles, he noted. Criminal defense attorney Steven J. Brooks of Boston agreed that the new technology might help DAs present complicated evidence. Currently, prosecutors can actually hurt their cases by presenting too much technical information, especially DNA evidence, Brooks pointed out.
For instance, Brooks related that in a recent trial involving a hefty amount of complicated DNA evidence, a defense attorney won the case by basically asking the jury if they understood anything they had just heard. Carney further indicated that having a computer in the courtroom also makes evidence more readily available for prosecutors. "If something comes up in court, the evidence is just a click away," Carney remarked. "On occasion, things may arise that you didn't expect. You can have the evidence on the computer [and use it] to impeach or support a witness."
Bells And Whistles?
Certain multimedia presentations could unfairly influence a jury, Brooks suggested, by drawing a jury's attention away from the core facts. "If it's a small part of the case, and it's an enormous graphics presentation, it may swallow some of the case," Brooks said. However, Chapman remarked that "to the extent [the new technology] helps the jury [understand] evidence, it helps both sides." He cautioned, however, that trial judges must carefully scrutinize sophisticated multimedia presentations.
In fact, Craig observed that the new technology will likely be extremely persuasive. "All the books you read on jury presentations recommend visual displays to get your point across," Craig said. "The picture telling 1,000 words is true." In a notable attempted-murder case, for example, the prosecution used a videotape recreation to show the perspective of two women who were thrown off a boat and left to drown, he noted. "It was extremely influential and it was admitted into evidence," Craig remarked. "It was a precedent-setting case for saying that assault and battery could occur by means of water."
Craig said that a multimedia presentation is "subject to speculation and interpretation," which means that the defense would have to hire an expert to refute the illustration, and possibly create their own computer demonstration.
