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Sam Guiberson
Law
Technology News
September 1999
It used to be said that the Devil is in the details, but he's moved: now he's in digital evidence.
THE ADVENT of digitally based demonstrative evidence brings both opportunity and risk for those lawyers adventurous enough to litigate in a wider media bandwidth. Digital animation computer programs now enable the self-taught lawyer to produce courtroom-quality professional demonstrative aids more sophisticated than the most expensive work produced by trained specialists only a few years ago. Where once you had to have experts with multiple doctorates to employ these technologies in court, now any lawyer can do it all.
Beneath the glamour of representing reality through mathematically generated constructs of the computer programmer's art lies a complex matrix of predicate data that either underpin or undermine the reliability of computer-generated evidence. Testing all the assumptions that are cloaked in the ease of use and lifelike qualities of computerized simulations is a demanding task. It requires deconstructing the animated sum into its programmed parts.
With the flexibility and novelty of these new media tools, advocates can find themselves unwittingly producing "computerized" exhibits that draw their authority solely from being digital. Recreations, simulations, and animations are no more "true to life" than the programmed assumptions that control their appearance. How do you confront the evidence if it is so esoteric in its programming that you have no way to reach down to that granular level where it becomes either the truth, or a lie?
Courts and attorneys don't yet know the rules of engagement for deconstructing the digital into its programming parts. To see that digital evidence is really less than the sum of its parts, you have to understand how it's composed. What are the components of the reality which underlie the illusion—the apparent or virtual reality of the computer exhibit? Digital exhibits require a level of scrutiny much more subtle, and in some ways more complex, than other forms of exhibits.
A good example is a computer simulation of a jet plane crash in which there are thousands of useful data points—a rich data environment we can use to model a simulation of what happened to the aircraft. We know the physical reality of the airplane. We have sequentially and electronically preserved every change in attitude and altitude, we have readouts of all its systems along a timeline. In such cases where the technology feeds back its status right until the bitter end, we have a sea of data in which to digitally reconstruct the physical reality that existed when the plane crashed. But, in a less technically rich environment, the data points become few and far between. The input correlating the animation to the real event is more likely to be a series of deductions, rather than data.
In sponsoring digital simulations into evidence there are really two paths. A witness to the events captured by animation may vouch for the way the animation portrays the event she experienced, or an expert may extrapolate an animated series of events from select data points of known facts about how those events took place. The expert applies supposedly rational and reasonable assumptions to span the gap between existing data points, with probabilities that would allow the computer to simulate the unobserved event into virtual reality, relying on only partial data.
To challenge the computer simulation's tenuous relation to the actual event, it is necessary to expose where the assumptions exist in the coding process. Will the kernel of reality upon which the extrapolations are based be large enough to be reliable, or so small that the computer simulation is no more than computer speculation?
How does the computer animator know when to program the car to go sideways? Is the recollection of the parties enough to rely on in a recreation? Do we really believe that people traumatized by an accident can remember the exact rate at which their car turned on the highway?
What we do when animating computer evidence is work backward from a result to create a reenactment in digital media of what happened. Of course, it couldn't be done before. Now it can.
But "what happened" is not nearly as important as what the jury feels when they experience a realistic computer simulation of the case-critical event. The animation portrays a pedestrian being struck down. Bam! That hurts! The juror empathizes with a human-like animated figure being realistically smashed to the pavement by a tanker truck.
The hurt imprint, the empathetic link connecting the flattened victim with the jury, puts into the jurors' brains a message that can't be undone by quibbling with the offering witness about the details of time, ambient light and speed. The advocate cannot confront the imperfections of a sophisticated computer animation by using words alone. No lawyer can stand before the jury and go into denial about the subliminal, visceral impact of animated scenes that have been wired into their psyches by realistic animations.
When jurors deliberate, the computer animation of the accident is how they will remember the reality; the realism of the animation has filled the jurors' void of direct experience with the incident, accident, or crime about which they deliberate. Jurors' imaginations abhor a vacuum, and a computer simulation is a gallon of water in a six-ounce glass.
We can't defeat the subliminal
content of the computer imagery without a competing, equally effective
counter-imagery that subjects the juror to a choice—which animation of the
event is accurate? Without
attacking animated imagery with animated imagery, the less digitally robust
advocate will not prevail. The
litigator who brings the widest bandwidth to the jury will capture their
imaginations by feeding their senses with a realism that computing has only
just begun to paint.
