1
1 THOMAS MAUET: John and I represent the low
2 tech alternative to what is going on here. Right?
3 Let me go back 25 years ago. I was a new
4 county attorney and I was assigned to try a case in
5 front of a judge known in Chicago as Louie the Grape.
6 There were reasons why Louie was called the
7 Grape. You can invent additional ones of your own.
8 Some said it referred to the size of the brain, others
9 said it referred to what was in it. Anyway, he was
10 known as Louie the Grape.
11 And in Chicago, the way you become a judge is
12 a little different than here. In Chicago, if you were a
13 faithful Democrat for half the millennium, then in your
14 declining years you would be blessed, they would give
15 you a robe, you would ascend the bench and dispense
16 justice.
17 In Louie's case this was a problem because
18 Louie had spent his entire life as a ward committeeman
19 for the democratic party trying to smooth things over
20 and he was constitutionally incapable of ruling on
21 things.
22 What would happen, as somebody would say
23 "Objection" and Louie would have this panicked look on
24 his face, and then usually there would be this
25 interminable silence and the lawyers would look at each
2
1 other and somehow things would go on.
2 One day I was asking a witness some question,
3 you know, Mr. Woods, would you tell us so and so. The
4 other lawyer, who is a former county attorney, a friend
5 of mine, said: Objection.
6 Louie again froze as he always did. Silence
7 ensued. Jurors slowly started waking up. But nothing
8 happened. Nothing.
9 And you know how people can communicate
10 without saying words. The other lawyer, the guy's name
11 was Joe, and I looked at each other and a little
12 imperceptible smile went on his face: We're going to
13 wait the bastard out. And we did.
14 It just got quieter and quieter and nothing
15 happened. And Joe and I were smiling at each other and
16 Louie is up there panic stricken.
17 Finally, since nothing was going, he said:
18 Counsel approach the bench. So we dutifully trotted up
19 there. He said pointed to me and said: You. Are you
20 going to withdraw that question? No, your Honor.
21 He turned to Joe and said: You. Are you
22 going to withdraw the objection? No, your Honor.
23 Then Louie said the words I'll never forget.
24 He said: You know, you guys, I want you to know
25 something. You guys are putting me right in the middle
CALABRO REPORTING SERVICES
3
1 of this one.
2 That was Louie the Grape.
3 Which leads us to our today's topic, that is
4 the admissibility of stuff. When you object, when you
5 offer evidence, what happens and what John and I are
6 going to talk about is admissibility of computer
7 generated stuff.
8 Now, let's go back to the beginning of the
9 century and draw an analog from the way things were back
10 then, because our basic theme is: It takes a long time
11 for judges to figure out how to deal with new stuff.
12 It's 1910, the first recorded time when a
13 photograph was offered in evidence. Nobody had ever
14 offered a photograph. Sure they had been around since
15 the Civil War, but they never showed up in court.
16 And for years, people were required to talk
17 about photography as a science and talk about the camera
18 that was used to take this photograph and witness after
19 witness would march in to qualify and stuff and finally
20 the photo would be admitted.
21 Right after World War I, the first X-rays were
22 offered. What did have you to do to get them in
23 evidence? People would wander in the court and talk
24 about the science of X-rays, talk about the particular
25 machine, so forth and so on. Finally it would be
CALABRO REPORTING SERVICES
4
1 admitted into evidence. A little later, movies
2 occurred.
3 Know what happened? When all this new stuff
4 showed up in courts, courts slowly, extremely slowly
5 started dealing with admissibility issues. And it took
6 years to deal with them and reach any sort of consensus.
7 In the case of photography, X-rays, movies,
8 demonstrative exhibits, in the '70s, there was still no
9 consensus in the American courts on how one dealt with
10 this stuff.
11 I started practicing 25 years ago. In
12 Illinois, in 1970, you could not offer into evidence
13 demonstrative exhibits. Yeah, you could use them in
14 court in conjunction with a witness, but since they
15 weren't real they weren't admissible. Diagrams that
16 weren't to scale were illustrative, but they weren't
17 real, you couldn't get them in evidence.
18 After 60 years of dealing with basic things,
19 like photographs, X-rays, movies, diagrams, charts,
20 American jurisprudence hadn't reached any consensus on
21 how to deal with them. And the bad news is, that's kind
22 of the historical underpinning for what's happened
23 today.
24 When you look at the cases dealing with
25 computer generated movies, animations, whatever you want
CALABRO REPORTING SERVICES
5
1 to call them, simulation, re-enactments, there's a
2 hodgepodge of stuff out there, none of which deals with
3 admissibility issues in a very systematic and logical
4 way.
5 The first time that a computer generated
6 animation was offered in evidence that I'm aware of was
7 in 1984 in New York. It's been 11 years, and you know
8 what is extremely interesting about it? There is a
9 dearth of good case law, there is a dearth of good
10 articles dealing with the admissibility of the stuff
11 that many of you spend your lives creating.
12 John and I put together a summary of some of
13 the cases, which -- I don't know where, Woody, maybe you
14 want to put that outside afterwards we can circulate
15 it -- Mike Arkfeld was helpful in contributing. What we
16 found surprising when John and I started looking into
17 the admissibility of computer generated stuff is the
18 little consensus there is on that.
19 Let me give you some idea of the confusion in
20 the area, and then when John gets up and talks, he'll
21 throw a little clarity on perhaps a logical sequential
22 way to look at admissibility issues.
23 First, terminology. When you do legal
24 research on admissibility of this kind of technology,
25 the first thing that hits you is the variety of
CALABRO REPORTING SERVICES
6
1 terminology that applies to the stuff and then to the
2 courtroom application of it.
3 For instance, you see some courts talking
4 about graphics. Why? Because they were generated by a
5 computer.
6 And then the courts slipped into thinking
7 well, since it was a graphic generator by a computer,
8 somehow a kind of computer foundation has to be created
9 for it. Not very helpful.
10 Lots of cases, lots of commentators talk about
11 animations. In courtroom cases, if you plug animation
12 into your electronic database and do research on it,
13 animation will kick up the most surprising variety of
14 things. Animation means one thing to one person,
15 another thing to another.
16 The term simulation pops up. How does a
17 simulation differ from an animation? Well, in some
18 people's minds it does, in other people's minds it
19 doesn't make any difference.
20 Re-enactments, a computer generated model.
21 The first thing that strikes you is that you
22 have to be careful about what you're talking about and
23 the problem with the labels is that the courts tend to
24 use labels as magic wands to determine what the proper
25 foundation for things is, rather than analyzing it in a
CALABRO REPORTING SERVICES
7
1 more logical way. But the terminology is confusing.
2 The court end of things hasn't helped either.
3 You get the terminology, is it merely illustrative? Or
4 is it substantive?
5 Once again, a lot of times when you look at
6 case law, those kinds of labels really don't inform.
7 They become convenient pigeon holes and they serve
8 really as an alternative to logical thinking about
9 admissibility issues in this new technology.
10 You see lots of court decisions talk about
11 it's merely illustrative of scientific principles and
12 then one set of standards applies to that.
13 But if somewhere along the line you cross the
14 magic threshold and now we're over in the: It's a
15 re-enactment or it's a re-creation, a different set of
16 rules apply. Once again, the labels seem to take magic
17 and very often it gets in the way of logical thinking.
18 You see many decisions talk about things being
19 just an aid or a pedagogical advice, whatever that
20 means, as an adjunct to expert testimony versus it being
21 quote substantive evidence in its own right.
22 Once again, courts tend to like to put labels
23 on things as a substitute for logical thinking.
24 And the problem is, what one court calls
25 substantive, another court calls illustrative. What one
CALABRO REPORTING SERVICES
8
1 court calls a re-enactment, another court will say it's
2 just an aid to the jury to understand scientific
3 principles.
4 Our suggestion is that these kind of labels
5 that get kicked around really should not be a substitute
6 for just common sense thinking under the Rules of
7 Evidence.
8 There are really five areas where the courts
9 talk about admissibility issues that apply here. The
10 relevance area, the hearsay area, the foundation area,
11 foundation for exhibits generally, the expert rules
12 area, and finally, if you're in the criminal law area,
13 you have to add a fifth category, that is confrontation
14 clause area when you're dealing with admissibility of
15 things in the criminal area when offered by the
16 prosecution against the defense.
17 So what John and I thought we would do is
18 serve up just a standard kind of computer generated
19 thing, and John is going to talk about what makes sense
20 to think about when we're dealing with admissibility,
21 getting away from magic labels and thinking sensibly
22 about it.
23 John.
24
25
CALABRO REPORTING SERVICES