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          1            JOHN STRONG:  Well, I'm not sure I can meet

          2  that challenge that my colleague has given me here.  I

          3  fall between schools coming this morning.  I brought a

          4  couple things.

          5            My introduction to this general subject matter

          6  I guess or to the most modern exemplifications of it,

          7  was I was approached a couple years ago by a young

          8  woman, not a law student, and she asked if she could

          9  come and sit in on my evidence class.

         10            And I said:  Well, why and what part?

         11            And she said:  Well, you tell me what part.  I

         12  am -- I'm the vendor's representative of one of -- of a

         13  company out in Massachusetts, that their business is

         14  creating basically computer graphics for use in

         15  litigation and I want to study the parts of the law of

         16  evidence that apply to that.

         17            And so I started thinking about what parts of

         18  the course she could profitably sit in on.  And I said:

         19  Well, I guess you need to take the whole course.

         20  Because there is, as Tom was suggesting, there really is

         21  no part of the law of evidence that at some point

         22  doesn't become implicated by the modern technology.

         23            Well, I got a quid pro quo from her attendance

         24  at class, as she gave me -- she gave me the tape of

         25  their promotional program that they use to sell their




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          1  services.  And I brought it down thinking that we would

          2  project it for you, but Tom, when I got here, he said

          3  these people are all technologically so sophisticated

          4  that they would be bored by seeing this.  So I was done

          5  out of that part of my talk.

          6            And then I said:  Is there -- well, is there a

          7  chalkboard in there?  And he said:  You should know

          8  better than to think there's a chalkboard in the

          9  Courtroom of the Future, we're way beyond that.

         10            So I'll have to try to manage with no props

         11  and aids.

         12            I think, as Gordon has sketched out, the vast

         13  vistas that this subject really encompasses, probably

         14  the most meaningful thing I can say is to recount a

         15  story that is attributed to just it is Justice Oliver

         16  Wendell Holmes, Junior, when he was appointed to the

         17  Supreme Court of the United States.  Probably most of

         18  you know he had served for many years on the Supreme

         19  Court of Massachusetts prior to that time.  It's a

         20  little hard to believe this is Holmes, but he said it of

         21  himself.

         22            He said:  When I was appointed to the Supreme

         23  Court, I was overwhelmed.  When I arrived there to

         24  confront the case load, it was as though I had been

         25  placed in a den of lions, these roaring, roaring beasts

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          1  of subject matters that I had never encountered before,

          2  a roaring lion of federal constitution law and other

          3  very intimidating questions that I had to face.

          4            But he said:  As each of these lions would

          5  confront me, I would summon up my courage and I would

          6  seize the lion by the nape of his neck.  And as I did

          7  so, the skin would rip off, revealing in each of these

          8  cases that it was the same old jackass of the law.

          9            Whatever guard these questions come in, and I

         10  think that probably we are just not capable, given our

         11  human limitations of envisioning what kinds of things

         12  the future may present to us tomorrow, no matter what

         13  form these things come in, the experience to date would

         14  suggest that they will all in one way or another just

         15  present the same old jackass problems of the law.

         16            We have seen, of course, even to this point, a

         17  tremendous technological explosion.  What we will see

         18  tomorrow, impossible to visualize.

         19            But in large part, I think it's fair to say

         20  that today, the basic concepts, evidentiary concepts

         21  that we have and as are fairly fully set forth now in

         22  the federal Rules of Evidence, provide accommodation for

         23  almost anything that can be produced.

         24            Now, taking the graphic simulation and the

         25  tape that I have, if you had not been too sophisticated

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          1  to see it, demonstrates basically the use of a graphic

          2  simulation in aid of the trial of a case in which a

          3  bicyclist collided with a semi-truck, semi-trailer, much

          4  to the detriment of the bicyclist, and basically enables

          5  the jury to see this occurrence in a form recreated,

          6  recreated on the computer monitor.

          7            Okay.  The first thing I think in any kind of

          8  evidentiary inquiry, and I try to stress this with past

          9  students, as well as present ones, the first thing you

         10  have to look at is:  What are you trying to do with it?

         11  What is the purpose of presenting this thing?

         12            As Tom has said, the labels aren't so

         13  important as an understanding of what is being attempted

         14  to be done with this.  And the computer graphic provides

         15  something of a microcosm or a case in point.  And I'll

         16  just very briefly suggest the essential analogues that

         17  that kind of evidence has raised and then maybe make a

         18  couple of remarks about some things that seem to me to

         19  be very important in the overall future of computer and

         20  other high tech types of evidence.

         21            With these computer graphics, basically three,

         22  I think, purposes that they have been utilized to serve.

         23  Tom mentioned the pedagogical device.  This is a

         24  classification of evidence more or less common

         25  sensically recognized around the country, though more

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          1  formally in some jurisdictions than others; simply a

          2  recognition of the fact that information can be

          3  communicated more effectively by pictures in many

          4  instances than words.

          5            For a long time in court, we have allowed

          6  witnesses to simply draw sketches or to draw little

          7  pictures on the blackboard.  It's no big deal.  It

          8  doesn't require any kind of formal foundation.  Some

          9  courts refer to that as a pedagogical device.

         10            Those things generally don't attain to the

         11  status of formal evidence, and that means they don't go

         12  with the jury to the jury room or get any of the other

         13  benefits that usually attach to admitted exhibits.

         14            That is a possible classification for what

         15  we're talking about here, but really not a very

         16  important or meaningful one for the reasons Gordon was

         17  talking about.  This stuff is expensive and anybody that

         18  is going to put the money into it to generate it, at

         19  least at this point in time, is not going, I think, to

         20  be satisfied with having it classed as a mere aid.  They

         21  want it as evidence and they want the full benefit of

         22  that classification.

         23            Okay.  Two other general purposes which the

         24  graphic can serve.  In a way, it's very analogous, as

         25  maybe Tom was suggesting, to some earlier types of

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          1  evidence.  We know the motion picture, and in fact even

          2  the still photograph, had difficulties in their early

          3  going until somebody figured out a very simple

          4  evidentiary theory upon which they can be admitted.  And

          5  this theory applies or potentially applies to many types

          6  of computer graphics.

          7            And the theory is this:  That the picture up

          8  there is merely a representation of what this witness is

          9  testifying to under oath.

         10            The evidence is really what the witness is

         11  saying, it's exemplified in this picture, but our

         12  primary -- our primary reliance in terms of its accuracy

         13  is the oath of the witness.

         14            And if you introduce something on that theory,

         15  you can save a tremendous amount of trouble in terms of

         16  your evidentiary foundation because you can finesse all

         17  this business.  As with the photographs in the early

         18  going, the courts said:  We have to have the

         19  photographer in here, we have to find out whether any

         20  tricks were played with this whole process, we're

         21  suspicious of it.  Eventually, we came to the point

         22  where the witness was allowed to say:  I'm telling you

         23  what I saw.  I'm under oath while I'm telling you that,

         24  and here's a picture of it.  That is it.

         25            Now, if that is the essence, and I would

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          1  suggest that graphic simulations of an event on occasion

          2  will be nothing more than that, simply re-creations of

          3  what the witness saw, and the witness, either a lay

          4  witness, which will be rather unusual, or an expert

          5  witness, which will be more common, I suspect, says:

          6  This is a graphic rendition of what I am telling you

          7  here in words and I vouch for its accuracy through my

          8  oath.  That is a -- that is an easy, effective

          9  evidentiary foundation which is going to, I think, work

         10  adequately for many types of evidence in this category.

         11            Now, there is a distinction to be drawn.  And

         12  as Tom mentioned, the terminology about this is not very

         13  well standardized.  But there is a distinction to be

         14  drawn between instances in which the evidence simply is

         15  a re-affirmation, you might say, or an exemplification

         16  in another form of what the witness is saying on the

         17  stand, and those instances in which the process by which

         18  the evidence is being created is adding something to

         19  what the witness is saying.

         20            Is something else being contributed here?  Is

         21  the process by which the graphic has been created, is

         22  that in itself a contribution?  And you have a somewhat

         23  different evidentiary situation at that point.

         24            This comes to verge upon what would typically

         25  be called scientific evidence.  Is there something here

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          1  in the process by which the evidence is being created

          2  which is an item that needs to be inquired into?

          3            And has been very much bruited in the

          4  evidentiary journals and circles recently, of course,

          5  scientific evidence has become a very hot topic, given

          6  the Supreme Court's fairly recent decision.  In that

          7  instance, of course, the foundation becomes extremely

          8  much, much more demanding, extremely complex and

          9  requires the validation of the process by which the --

         10  by which the evidence was created.

         11            So those are some of the conventional pigeon

         12  holes in which that particular type of high tech

         13  evidence has been slotted or can be slotted.

         14            As I say, I think the most critical factor in

         15  analyzing which evidentiary category something goes in

         16  is always to ask first exactly what purpose is being

         17  sought to be served.

         18            Now, a couple of -- just a couple of short

         19  comments, I guess, in the interests of the big picture.

         20  This is one particular microcosm of this type of

         21  evidence, but I think its's only the harbinger of much

         22  more to come in the future.

         23            What can you say hopefully about the way

         24  courts are going to receive this type of thing and what

         25  are going to be some of the immediate problems?

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          1            If you look at the past, which Tom has traced

          2  out, what you see typically in the way of the judicial

          3  reaction to this sort of advance is, the initial period

          4  is one of great suspicion.  When presented with

          5  something new, the courts typically react initially by

          6  requiring a very thorough examination of the provenales,

          7  you might say.  What is this thing?  They don't like the

          8  black box.  They want to have it unpackaged and

          9  explained.

         10            Frequently, it turns out that that is not a

         11  worthwhile process to repeat.  That certainly has been

         12  demonstrated in the case of photography, and computer

         13  generated records and many other types of high tech

         14  evidence.  It wasn't worth the trouble.

         15            That initial period is followed by a period of

         16  perhaps overly naive acceptance of whatever the

         17  technique or application is.  Oh, yes.  Well, we're

         18  familiar with that, we will take it.  Despite the fact

         19  that there may be some dangers lurking there that were

         20  not fully recognized.

         21            Now, in terms of where we are in the evolution

         22  of evidence law, I think Tom would agree, and probably

         23  most people in the area would agree, that today what

         24  we're seeing is a much greater concentration of

         25  evidentiary questions in the trial courts.

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          1            Of course, trial courts have always had a

          2  great deal of discretion in areas such as the one we're

          3  talking about here.  But that is becoming even more

          4  significant today and I think what we will see in this

          5  area is quite a lot of difference in the rate of

          6  acceptance by various courts.

          7            The other thing that that means is that the

          8  person you need to convince either to admit or exclude

          9  today is the trial judge.  The old idea that you were

         10  trying the case with an eye ultimately to an eventual

         11  appeal is really, I think, an unrealistic expectation in

         12  many.

         13            So it's trial judges who are going to control

         14  this.  And they're going to accept this type of thing at

         15  very differential rates.  And the practical lesson that

         16  that suggests for the lawyers, of course, is you need to

         17  know that trial judge and that person's particular

         18  inclinations, perhaps eccentricities, that trial judges

         19  may be said to -- I've known some trial judges that I

         20  would say had some eccentricities, but you need to know

         21  those particularly in order to be able to mount the best

         22  type of presentation for the best case for

         23  admissibility.

         24            The other thing that I would expect and which

         25  seems to me to be a very distinct problem is another

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          1  thing that Gordon alluded to earlier and that is the

          2  cost.

          3            A lot of this stuff is extremely, extremely

          4  expensive and will probably continue to be so.  And I

          5  would like to give just one little example of this.

          6            Taking the type of graphic simulation that I

          7  have suggested, created at great cost and offered on the

          8  basis that it is merely illustrative of the testimony

          9  that an expert witness has given, it's striking to me

         10  that what you have here is something very, very similar

         11  in the problems had it raises to the now pretty much

         12  discarded, discredited hypothetical question.

         13            The expert coming in, in order to lend his or

         14  her expertise to the jury and the resolution of this

         15  problem, utilizes a lot of assumptions which are the

         16  expert and the old hypothetical question, put together

         17  in a scenario and came out with some conclusion.  You're

         18  really doing the same thing with the computer graphic in

         19  many instances.

         20            You think back, if you're old enough, to

         21  remember the era of the hypothetical question and all of

         22  the problems that that thing used to induce.

         23            How accurate is this?  Has the expert utilized

         24  all of the relevant factors that might bear upon this?

         25  Has the expert used one version?  Would the expert's

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          1  conclusion be different if we substituted fact C for

          2  fact B?

          3            Those very same questions, many of them are

          4  going to be the critical questions for the opponent in

          5  attacking or questioning the computer graphic now.  In

          6  the old hypothetical question situation, that was a

          7  relatively inexpensive process, the cross-examiner got

          8  pretty good doing that pretty quickly.

          9            In this context, it's not going to be so

         10  inexpensive at all.  In fact, you might say, how would

         11  you -- for example, in the old hypothetical question,

         12  what the cross-examiner would typically say would be

         13  this:  Dr. So-and-So, you've assumed that the patient's

         14  temperature was fluctuating from 99.8 to 104.  What if

         15  we assume that the plaintiff's temperature was constant

         16  at 99 degrees?  Would your answer to this question be

         17  the same?  And the expert could answer yes or no.

         18            How would you accomplish that same purpose

         19  effectively with a computer graphic which is going to

         20  have also assumed facts in it?  How are you going to

         21  counter that?

         22            The only really effective way to counter that

         23  would be to make your own, with the substituted

         24  assumptions of fact incorporated in the graphic.

         25            But of course, what we have in our

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          1  evidentiary -- we do not have any kind of equity between

          2  parties.  Now we have had really in terms of resources.

          3  This is something that the laws of evidence have not

          4  really concerned itself with to any great extent, only

          5  very marginally.

          6            I think the new technology is going to pose a

          7  real challenge to the law of evidence from the

          8  standpoint of bringing into much more heightened

          9  visibility the consequences of the differential

         10  financial status of the contending parties.

         11            Thank you.

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