purple motes

In early seventeenth-century England, the presentation innovations shaking up law practice were indexes and marginal cross-references.  The first and highly influential law book published in England, Thomas Littleton's Treatise on Tenures (1482), contained only in-text references to Year Books.   Edward Coke's Institutes of the Laws of England (1628), in contrast, contained copious footnotes, citations, marginal cross-references, and, in the second edition (1630), an index table.

Thumbing through the pages [of Coke's Institutes] reveals citations to Bracton, Britton, Fleeta, Dyer, Glanville, the Bible, and a host of others, with all the citations to specific sections, folios, or chapters. ... Coke's stretching beyond sources of primary law -- the abridgments and Year Books -- reveals a broader notion of authority: that legal scholarship, and not simply those charged with issuing rulings or statute by decree or proclamation, has a role in defining what the law is.[1]

Coke's Institutes helped to make black-letter law more than just the command of the sovereign.  Its innovations in indexing and referencing stimulated new practices of legal argument.

Today, audio-visual technology in the courtroom appears to be as important as marginal cross-referencing in Coke's Institutes.  The Skakel case, for example, points to crucial new issues concerning combinations of audio and visual evidence in closing argument.   In Scott v. Harris, the U.S. Supreme Court delivered a textual opinion and posted a video.  Viewing and thinking about video raises interesting, new legal issues different from those associated with verbal evidence and opinions.

"Technology in the Courtroom: Could it Change the Course of History?" asked the History Society of the District of Columbia Circuit and the D.C. Bar's Litigation Section in a fascinating event this past Thursday.   In the ceremonial courtroom of the E. Barrett Prettyman U.S. Courthouse, the event began with Suzanne M. Woods, St. Albans School, providing interesting historical background on the 1881 trial of Charles Guiteau for the assassination of President James Garfield.  As a civil servant, my favorite part of her presentation was her quoting one 1870s-era politician referring to "snivel-service reform."

David Kendall, Williams & Connolly LLP, then gave an "old school" mock closing argument for the prosecution.  He used only words and a prop -- a skeleton to show the site of Garfield's wounds.  Drawn closely from trail transcripts, his closing argument declared that Guiteau visited prostitutes, had syphilis, abused his wife, and was a lawyer.  The central issue of the case, according to this historic closing argument: "Does the earth belong to the cranks?"  Kendall's closing argument showed that judicial standards for improper argument, while not undergoing any systematic development, have changed greatly since 1881.

James E. Boasberg, Associate Judge, Superior Court of the District of District of Columbia, subsequently delivered a technology-aided,  mock closing argument for the prosecution.  Judge Boasberg began by associating Lincoln and Garfield, both through verbally presented details of their lives and through projections of an image of Lincoln, and then an image of Garfield.  Throughout this mock closing, projected images re-enforced scenes that Judge Boasberg described.  Animated paths traced atop a floorplan detailed Guiteau's attack on Garfield.  An animated timeline, in which time marks popped up to punctuate descriptions of events at particular times, gave clarifying structure to facts that otherwise would have been more difficult to connect and comprehend as a whole.  Judge Boasberg concluded using side-by-side images of Lincoln and Booth, with horizontal-slide transitions to images of Garfield and Guiteau.

Government prosecutors in 1881 could have used a magic lantern to produce a closing presentation much like that of Judge Boasberg's.  Magic lanterns, great, great grandparents of ELMO projectors, were highly popular in the U.S. late in the nineteenth century.  Some of the historic images in Judge Boasberg's presentation probably appeared on lantern slides in the nineteenth century.  Moreover, magic lanterns were capable of producing animations. Legal historians might uncover instances in which magic lanterns were used to project images in trials.  Magic lanterns, however, were generally associated with popular entertainment.  Images of learning, law books, and belle lettres that infused norms of propriety and dignity probably precluded using projected images in most nineteenth-century courtrooms.

Projection technology isn't necessarily beneficial.  In the panel discussion following the mock closing arguments, Francis D. Carter, Zuckerman Spaeder LLP, noted the dangers of "death by PowerPoint."  Many presenters use PowerPoint to hide themselves.  They thus lose the powerful persuasive force of the advocate's person.  Judge Boasberg's mock closing included only one textually dominated projected image  -- an image showing two central, verbal points of his argument.  He powerfully ended his closing with verbal references to notoriety, Macbeth, and blowing out a killer's candle.  That would not have worked well with projected, textual bullet-points.

Lawyers have to be prepared for technology to fail.  Another panelist, James Robertson, Judge, United States District Court for the District of Columbia, observed that Murphy's Law is alive and well in the courtroom.  He noted that men in juries tend to be keen to assist lawyers in getting technology to work.  A third panelist, Rosemary M. Collyer, Judge, United States District Court for the District of Columbia, explained that she sends the jury out of her courtroom when presentation technology fails.  Carter emphasized that lawyers must have back-up technology ready to use.

Both Judge Boasberg and Judge Robinson noted the difficulty for lawyers of both speaking and changing  images effectively.  The volunteer from FTI Consulting Trial Services, which helped to put together the visual materials for Judge Boasberg's presentation, changed the images during that presentation.  Judge Robinson recalled a dueling duo of assistants who advanced images on cue during a trial over which he presided.  Carter stated that lawyers and presentation assistants need to rehearse repeatedly presentations with coordinated audio-visuals.  Audio-visuals move legal rhetoric toward cinematic techniques.  These require perceptive construction and presentation practice.

Audio-visuals create difficult challenges for judges.  In Judge Boasberg's mock closing, would accompanying the image of Lincoln with an (audible) hymn be sustainably objectionable?  Would using a dissolve rather than a slide in the image transition from Booth to Guiteau be sustainably objectionable?  Judge Collyer observed that music, like smells, is emotionally evocative, and that judges need to consider such low-level sensory processing.  Judge Collyer also noted that synthetic audio-visuals can be judged on the basis of accuracy in all material respects.  That standard works for evidence such as surveillance video combined with verbal transcripts.  But for novel combinations of audio and visual evidence used in closing arguments, some other judgment standard is necessary.  Carter noted that advocates who use audio-visuals in manipulative or dishonest ways put their credibility at risk to damaging  exposé by opposing council.  Nonetheless, like any competition, trials need consistent rules.  Thinking about technology and trial rules has become interesting and important work for judges and lawyers.

Note:

[1] Paul Douglas Callister (2008), "Books above the Throne: Geopolitical and Technological Factors Exalting Textual Authority in Seventeenth-Century England," pp. 41, 48.   The above paragraph in general is indebted to this work.  Callister observes that Coke's referencing required the dissemination of standardized texts through printing and the book trade.

Offer Comments

Digital multimedia presentations can powerfully affect legal trials. Consider the Skakel trial:

During the Connecticut District Attorney's closing argument in the trial of Michael Skakel for the murder, twenty-seven years before, of fifteen-year-old Martha Moxley, jurors heard and read Skakel's own words [which appeared] on the screen before them. And in the instant that Skakel admitted to feeling a sense of "panic" when he saw Martha Moxley's mother on the morning after the killing, there on the very same screen appeared the image of Martha Moxley's lifeless body, just as it was found at the scene of the murder. ... The picture of Martha's battered lifeless form immediately explains the implicit meaning of his words. The viewer instantly makes the connection: immediately upon being reminded that morning of the night before, Skakel must have recalled with horror what he had done.[1]

Digital technology and the human body work together to combine words and images. The result in this case was probably a strong physiological reaction involving both neurons and hormones: muscle tension, brain activity constructing a casual sequence, increased heart rate, and other bodily effects typically associated with horror.

Digital technology and the human body together annihilated time. The image was recorded in 1975, on the day after the murder. Skakel's words were recorded in 1997, while Skakel was speaking to a ghostwriter in an early stage of producing a book. The words and the image were combined in 2002, in a digital presentation shown for the first time in the prosecution's closing rebuttal statement.

Associating Skakel's words with different images might have produced a rather different sense. Skakel recalled in 1997 that, in 1975, on the night before Moxley was murdered, he had been drinking alcohol, and that he had decided to get a kiss from Martha, who he said liked him. The closing multimedia presentation included Skakel, who was then 15 years old, saying, "I woke up to [Mrs.] Moxley saying, "Michael, have, have you seen Martha?" It also included Skakel subsequently saying, "I was like, 'Oh my God, did they see me last night? And I'm like, 'I don't know,' I'm like, and I remember just having a feeling of panic." [2] If these words had been combined with images of underage drinking, drunken sleep, and being wakened by a mother's fearful face, rather than images of an alive and smiling girl and then her freshly murdered body, the jury might have had some reasonable doubt that Skakel's recollection of panic meant guilt of her murder.[3]

A prosecutor's fundamental public responsibility is to work to serve justice. When a prosecutor believes that a jury acting justly under law could find a defendant guilty beyond a reasonable doubt, the prosecutor's responsibility is to make, as convincingly as she can, the case of guilt to the jury. The prosecutor's job is not to make the defense's case.

A prosecutor, however, should not introduce, and should not be allowed to introduce, new evidence during closing statements. The images that prosecutor presented in his closing rebuttal statement were in evidence, as was the audio of Skakel's words. The technological combination of words and images that the prosecutor deployed in his closing rebuttal had not been introduced in evidence. Lawyers have always been permitted to arrange freely in verbal closing statements evidence introduced in the trial. Are technological combinations of words and images new evidence?

In a feature article in Criminal Justice magazine, the president of the consulting firm that designed the presentation and a law professor stated that the use of the multimedia presentation was "completely fair and appropriate." These authors stated:

While the crime scene images may very well have increased jurors' sympathy toward the Moxleys and their resentment toward Skakel, and while those images, precisely timed with Skakel's words, probably increased their conviction that Skakel was guilty of murder, using this kind of visual rhetoric, instead of words alone, to help the jurors understand the evidence is legally appropriate.[4]

According to these authors, the multimedia presentation merely provided better technology for an authorized form of closing rebuttal statement:

Indeed, Jonathan Benedict [the prosecutor] unquestionably could have played the same portions of the audiotape during closing and held up before the jury the same photographs of the murder victim, even enlarged and mounted on posterboard, that he used in the multimedia display. The only difference is that the interactive multimedia system allowed Benedict to juxtapose words and images more smoothly, preventing the jurors from being distracted from the content of his argument: that Michael Skakel was guilty of murdering Martha Moxley.[5]

More precise timing of image-word co-occurrence, in this view, is merely an external technology for furthering jurors' understanding.

New digital technologies used in trials can create bodily effects that might be best judged as new evidence that juries must seek to understand. The human body combines words and images from pre-conscious neural processing to high-level processing. For example, recent evidence indicates that multisensory processing occurs very early in the main auditory pathway. Recent work in neuroscience indicates:

low-level multisensory interactions are characterized by a high degree of temporal precision. For example, during audiovisual vocalization processing in auditory cortex, the sign of the integration appeared to be dependent on the timing between the initial mouth movement and the onset of the auditory component of the vocal signal. The longer the time interval between the initial mouth movement and the onset of the voice, the greater the likelihood of observing response suppression. By contrast, a short time interval leads to enhanced responses. [6]

Digital technology that precisely times the co-occurrence of words and images produces meaningfully different neural processing than does older technology that much less precisely combines words and images. Eliminating jurors' bodily activities other than processing in prefrontal cortex ("rational deliberation") is not physiologically realistic. Respect for physiological realism suggests that technology that produces significant, new subjective effects should be considered within the evidentiary portion of the trial.

"Subliminal messaging" does not provide a scientifically reasonable concept for judging the use of visual persuasion technology in court. Stimulating sub-conscious processing of highly prejudicial, case-irrelevant material clearly is an unfair legal tactic. However, sensory processing below the level of consciousness occurs normally and continually in a living human body. Subliminal messaging implicitly conveys a false model of how the human sensory system works.[7]

New visual persuasion technologies can produce powerful effects at low-levels of sensory processing. Opposing parties at trial need to have the opportunity to prompt jurors to bring these low-level effects to high-level processing. Such a requirement would give reasonable meaning to full and fair deliberation that includes new multisensory presentations.

Notes:

[1] Sherwin, Richard K. (2007), "A Manifesto for Visual Legal Realism", p. 10; also published in Loyola of Los Angeles Law Review, vol. 40, 2007. The presentation occurred in the prosecution's closing rebuttal. Note the discrepancy in the textual description of the presentation timing. In the quoted text, the second sentence indicates that the image cut occurred when Skakel acknowledged panic. The fourth sentence suggest that the image cut occurred with reference to "last night". Consider as well Carney, Brian and Neal Feigenson (2004), "Visual Persuasion in the Michael Skakel Trial: Enhancing Advocacy through Interactive Media Presentations," Criminal Justice, v. 19 n. 1. Carney at the time of publication was the president of the firm that created the interactive media presentation for the Skakel trial. That article offers the following textual description:

[Screen 2] "I was like 'Oh my God, did they see me last night?' And I'm like 'I don't know,' I'm like, and I remember just having a feeling of panic." [Photograph #2 of the corpse of Martha Moxley is shown]

That description is not sufficient to identify precisely when the image cut occurred. The text of the opinion of Supreme Court of Connecticut, ruling on appeal, suggests that the image cut occurred after the audio of Skakel's sentence ending in the word "panic." See State of Connecticut v. Michael Skakel (2006) (SC 16844), p. 73. It seems to me that the effect would have been largest if the cut occurred on the initial sound of the word "panic". Perhaps the text of Supreme Court ruling did not attempt to describe the presentation to that timing resolution. However, as noted above, precisely specified image timing is an important distinguishing feature of a digital multimedia presentation. For more information about the Skakel case, see considerable original analysis at TalkLeft.

[2] The quotes are as reported in State v. Skakel (2006) p. 89, ft. 105. The first quote differs slightly and insignificantly from that given in Carney and Feigenson (2004).

[3] The Supreme Court appellate opinion, State v. Skakel (2006) p. 89 ft. 105, states: "The defendant claims that when he stated ‘‘Oh my God, did they see me last night?’’ he was referring to whether they had seen him masturbating." The defendant did not testify at the trial. The defense's brief noted the prosecution's audiovisual presentation omitted a section of Skakel's words relating to masturbation. See Brief of the Defendant-Appellant, pp 78-9, ft. 80. The transcript section that the defense cited does not clearly indicate that a new perception that someone had seen him masturbating was the cause of Skakel's panic. The full transcript is consistent with the reasons for panic described above. They would also probably make a more effective defense-counsel visual presentation than one of Skakel masturbating.

Insightful voices in the blogsphere (Simple Justice, Norm Pattis, a public defender) suggest that Skakel had ineffective assistance of council. Perhaps the above is additional evidence of poor representation.

[4] From Carney and Feigenson (2004). Criminal Justice is a magazine that the Criminal Justice Section of the American Bar Association publishes. The quoted phrase "completely fair and appropriate" comes from this source, which stated: "Because Benedict's presentation was directly and closely connected to the evidence, his visual argument was completely fair and appropriate."

[5] From Carney and Feigenson (2004).

[6] Ghazanfar, Asif A. and Charles E. Schroeder, "Is neocortex essentially multisensory?" Trends in Cognitive Sciences, v. 10, n. 6 (June 2006) p. 284; the quoted text omits endnote and figure references.

[7] In State v. Skakel, Brief of the Defendant-Appellant, p. 79 accused the prosecution of conveying subliminal messages to the jury with its multimedia presentation in its closing rebuttal statement. Carney and Feigenson (2004) assert in contrast:

No subliminal content was concealed in the Skakel prosecution team's audiovisual presentation. All of the images, audio, and text that the prosecution put before the jurors in closing argument were properly admitted into evidence. ... The multimedia system allowed prosecutors to present images and audio already in evidence so clearly and so memorably that their impact on the jurors was profound.

These arguments show no appreciation for how human sensory processing actually works.

4 Comments

In a sample of 275 U.S. public library systems in 2005, the circulation of audio books recorded on cassette tape was 1.3 times the circulation of audio books recorded on CDs.[1] As late as 2005, many audio book borrowers apparently owned audio cassette players. For music albums, the last year that cassette tape sales exceeded CD sales was 1991.[2]

In 2006, the ratio of DVD rentals to video cassette rentals was 115. In 2006, 86% of TV households had a DVD player, and 84% had a VCR.[3]

Many persons apparently keep media technology long after new technology has superseded it. That's not a good omen for the U.S. digital television (DTV) transition.

Notes:

[1] Calculated from data in Molyneux, Robert E. (2007) "Transitions: Library Circulation and Digital Formats," in The Bowker Annual 2007: Library and Book Trade Almanac, pp.402-6.

[2] See data in 2000 10-year Music Consumer Trends Chart, RIAA 2000 Consumer Profile.

[3] See U.S. Entertainment Industry: 2006 Market Statistics, pp. 27-28.

4 Comments

All the runners were tracked in real-time:

Get split times and finish information instantly on a pager, text messaging number or e-mail. This free service is a great way for spectators to cheer for their runner (or runners) and be there to meet them for the celebration at the finish line. Live split locations will be at the 5mile, 10 mile, 13.1 mile, 15 mile, 20 mile, 23.5 mile and the finish points.

Tents with notebook computers offered race spectators access to the service. The laptop interface presented not just split times, places, and pace, but also a graphical course map with a symbol indicating the runners estimated current position. I would guess that this was a must-have service for many fans who vigorously cheered their special runners.

After the race, RunPix generated runner-specific data graphs off the underlying runner-times database.

AT&T at&t offered free phone call to anywhere in the world on about 10 portable phones. Spectators didn’t seem to be using the phones much, but runners who had finished the marathon later crowded the phones. I would guess that a lot of persons didn’t want to carry a cell phone while running the marathon. They probably used the at&t phones to contact friends and family lost in the huge crowd at the event.

Free photos were offered in surprising ways. Tylenol (pain reliever) would take your picture and print out a small copy for you on a Tylenol ad card. The ad card included instructions for accessing a larger copy of the photo on the web (try batch # TYVA 11, photo # 0115). You could access the photo after filling out a short (six question) survey about your use of pain relievers. Saturn (car company) was also doing free photos. The Saturn photographers handed out a small plastic bar-coded card with a code for accessing your picture online (try photo id# A9HA4 4PRT3). Saturn offered no immediate print-out of the photo. Both the Tylenol and Saturn service asked for name and email address to access the photos on the web. The Tylenol service allowed browsing of other persons’ photos, while the Saturn service did not.

CNN featured some retro-tech in its CNN=Politics display. They erected a paper-based graffiti board as well as a refrigerator-magnet board. They also provide round paper button templates where you could fill in “I’m Pro (blank)” or “I’m Anti (blank).” You could stick these on the refrigerator board. CNN also had a machine that could make a button for you on the spot. My sense is that the CNN approach was unsuccessful. Perhaps the crowd at “the people’s marathon” was too parochial and lacked the political sophistication that CNN offers.

Offer Comments

Communications companies seeking to create value should take this innovation seriously.

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