Commission on Law & Technology
|Working Group||Courtroom Technology|
|Topic||Leading Practices and Considerations|
|Date of Draft||May 22, 2014|
|Applicable DLRPC (Rules)||1.1; 3.2; 3.3; 3.4; 3.5;|
|Applicable DRE||102; 106; 401; 402; 403; 611; 901; 1001; 1002; 1003; 1006;|
|Summary||This paper provides an overview and summary of leading practices and practical considerations presented to a Delaware lawyer seeking to employ technological tools in a courtroom. Applicable rules from the Delaware Lawyers Rules of Professional Conduct ("DLRPC") and the Delaware Rules of Evidence ("DRE") are reviewed and discussed. This paper is intended to provide a general overview and approach to courtroom technology. It should be read in light of other Leading Practices that address particular technology applications or issues.|
Disclaimer: The purpose of this leading practice is to provide the Delaware Bench & Bar with an understanding of an appropriate manner in which this technology may be used. There may be more appropriate uses; and the leading practice discussed might not be appropriate for a specific purpose. It is up to the individual to use well-reasoned judgment in making that decision. The Commission is not responsible for the consequences of the decision-making process.
Leading Practices and Considerations
The television show "CSI: Crime Scene Investigation" debuted in the fall of 2000 and introduced viewers to the various forensic tools and technologies employed in our judicial system. Evidence is collected, analyzed and interpreted and a forensically sound determination is made by the conclusion of the one-hour program. Since its introduction, countless articles have been written and a descriptive phrase was coined - "the CSI effect" - to describe the impact that this program, and other similar shows that followed, have had on factfinders - judge and jury - in the American justice system. In response to this effect - whether real or perceived - advocates employ technological tools to present evidence with the goal of best persuading factfinders. This paper details the applicable ethical standards for using courtroom technology and provides the reader some general evidentiary considerations.
- Advocates must be mindful of the Delaware Lawyers' Rules of Professional Conduct ("DLRPC") when assessing whether and how to employ courtroom technology.
General competence is required of Delaware lawyers when assessing any of the topics presented by this Commission. 1 "Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation." 2 "Competent handling of a particular matter includes . . . use of methods and procedures meeting the standards of competent practitioners." 3 Moreover, lawyers are expected to maintain competence by keeping "abreast of changes in the law and its practice, including the benefits and risks associated with relevant technology." 4 Thus, it is incumbent upon litigators to become familiar with technological tools, understand the benefits and risks of using this technology in courtroom presentations, and reach an educated conclusion to use, or not use, such tools in a given case.
Delaware lawyers are also expected to "make reasonable efforts to expedite litigation consistent with the interests of the client." 5 This rule addresses the impact of dilatory practices on the administration of justice and cautions against unnecessary delay and postponement. 6 Employing existing trial technology will enable a practitioner to substantially reduce unnecessary delay and, in the process, more effectively convey a client's position to the factfinder. In fact, the Federal Judicial Center publication, Effective Use of Courtroom Technology: A Judge's Guide to Pretrial & Trial, noted that several lawyers and judges reported "that use of the most common evidence-display equipment can save trial time (some estimate 30% or more) compared to traditional methods, primarily because all exhibits are maintained electronically and can be called up instantaneously, and real-time reporting decreases the amount of time spent referring back in the record." 7
The use of trial technology allows advocates to creatively present and argue their cases to a factinder. While this can be quite useful, the attorney must be mindful of their obligation of "candor to the tribunal." 8 Rule 3.3 "sets forth the special duties of lawyers as officers of the court to avoid conduct that undermines the integrity of the adjudicative process." 9 A lawyer's "obligation to present the client's case with persuasive force" must, necessarily, be balanced by their "duty of candor to the tribunal." 10 Similarly, attorneys are flatly prohibited from "falsify[ing] evidence," 11 and may not:
In trial, allude to any matter that the lawyer does not reasonably believe is relevant or that will not be supported by admissible evidence, assert personal knowledge of facts in issue except when testifying as a witness, or state a personal opinion as to the justness of a cause, the credibility of a witness, the culpability of a civil litigant or the guilt or innocence of an accused. 12
Courtroom technology, especially software such as PowerPoint or Keynote used in argument, allow a lawyer to create compelling presentations based upon evidence expected to be admitted (opening statement) or which has been admitted at trial (closing argument). To be sure, logical inferences may be drawn from the evidence; however, great care must be taken to ensure that the creative process does not overemphasize, mislead, or misstate trial evidence. 13
- Advocates must be mindful of the Delaware Uniform Rules of Evidence ("DRE") when assessing whether and how to employ courtroom technology.
When dealing with any evidence, a Delaware lawyer should have a good understanding of the applicable rules of evidence. The Delaware Uniform Rules of Evidence are to be "construed to secure fairness in administration, elimination of unjustifiable expense and delay and promotion of growth and development of the law of evidence to the end that the truth may be ascertained and proceedings justly determined." 14 To this end, while digital evidence, like many other forms of evidence, is susceptible to alteration or falsification, "the existing Rules of Evidence provide an appropriate framework for determining admissibility." 15 Proffered evidence must be relevant 16 and its probative value must not be "substantially outweighed by the danger of unfair prejudice, confusion of the issues or misleading the jury, or by considerations of undue delay, waste of time, or needles presentation of cumulative evidence." 17
Of course, the Judge, as gatekeeper, must be satisfied that the evidence is, in fact, what its proponent claims it to be. "When a proponent seeks to admit [digital] evidence, he or she may use any form of verification available under Rule 901 - including witness testimony, corroborative circumstances, distinctive characteristics, or descriptions and explanations of the technical process or system that generated the evidence in question - to authenticate the [digital evidence]." 18 Thus, while digital evidence may be admissible, the advocate must spend some time assessing the manner by which the evidence will be properly authenticated to the satisfaction of the Trial Judge.
Digital evidence presents a final, equally important, issue: when the "evidence" is something that was created by, and wholly maintained within, a computer, how is it admitted at trial. The drafters of the rules of evidence foresaw this conundrum and provided clear guidance. "'Writings' and 'recordings' consist of letters, words, sounds or numbers or their equivalent, set down by handwriting, typewriting, printing, photostating, photographing, magnetic impulse, mechanical or electronic recording, or other form of data compilation." 19 Moreover, "[i]f data are stored in a computer or similar device, any printout or other output readable by sight, shown to reflect the data accurately, is an 'original.'" 20
- Evidence should be designated as real or demonstrative and treated accordingly.
There are a variety of different software applications and hardware configurations that may be employed to present "digital evidence" at trial. While this paper does not endorse any particular tools, the user - lawyer advocate - must have an understanding of what it is they are presenting to the factfinder. To this end, it is important to distinguish real and demonstrative evidence.
"There are three basic types of evidence that are admitted into court: (1) testimonial evidence; (2) documentary evidence; and (3) demonstrative evidence." 21 Testimonial and documentary evidence may be considered "real" evidence as, by its very existence, it tends to prove or disprove a particular fact of consequence. Demonstrative evidence, however, is "tendered for the purpose of rendering other evidence more comprehensible to the trier of fact." 22 "[A] physical object that does not have a direct part in the incident at issue and is only being used to help explain or illustrate to the trier of fact the verbal testimony of a witness or other evidence is considered to be demonstrative evidence." 23
The use of demonstrative evidence is looked on favorably by the courts because it allows the trier of fact to have the best possible understanding of the matters before it. However, the same human factor that makes demonstrative evidence valuable - that people learn and understand better what they see, rather than what they hear - also makes it possible for parties to abuse the use of demonstrative evidence by giving a dramatic effect or undue or misleading emphasis to some issue, at the expense of others. Thus, in ruling upon the admissibility of demonstrative evidence, the trial court must be ever watchful to prevent or eliminate that abuse. 24
- A proper record must be made when using courtroom technology.
Evidence must be made part of the record. If you are using presentation software to display evidence (documents, photographs, video, audio, etc.) remember that, once admitted, some physical version of the evidence must be admitted. Documents and photographs may be printed, but some thought should be given to the size and quality of the printed material; remember, the factfinder will be working from what is submitted as evidence, not your presentation. Video and audio evidence present a different set of challenges; you must make sure that the "version" you submit as evidence is in a format compatible with the player available to the factfinder.
- Develop and use a "Courtroom Technology" checklist.
Once you have committed to employing courtroom technology to enhance your presentation, you must be mindful of the more practical planning required. A well crafted and rehearsed presentation will have no value if you neglected to consider the need for a particular cable or adapter to link your equipment to the courtroom system. To this end, the following non-exclusive checklist is recommended:
- Spell Check: Eliminate any spelling and typographical errors.
- Have a backup plan: Have a plan to enable you to continue if a technical glitch is encountered.
- Equipment: Make sure you have all of the equipment to make the necessary connections between your equipment and the courtroom resources. If you are using a presentation "clicker," make sure you have at least one spare battery.
- Meet with designated court personnel in advance: Schedule a time to meet with technology specialists to determine the capabilities of the courtroom and whether any special equipment will be needed.
- Conduct a "dry run:" Schedule a time to run through your presentation(s) to ensure that the software and hardware work as planned.
- Trial Exhibits & Court Exhibits: Have all "real" evidence prepared to be submitted as a Trial Exhibit and a copy of any presentation available for the Court to be received as a Court Exhibit. 25
1. DLRPC 1.1. See Commonwealth v. Serge, 896 A.2d 1170, 1176 (Pa. 2006) ("Society has become increasingly dependent upon computers in business and in our personal lives. With each technological advancement, the practice of law becomes more sophisticated and, commensurate with this progress, the legal system must adapt.")
12. DLRPC 3.4(e). Rules 3.3 and 3.4 must be read together with Rule 3.5 which prohibits a lawyer from seeking to influence factfinders - judge or jury - "by means prohibited by law," and from "engag[ing] in conduct that is degrading to a tribunal." DLRPC 3.5.
13. As a related example, while a prosecutor may argue that the facts presented support the conclusion that the defendant is guilty, the display of a defendant's photo contemporaneously with the word "Guilty" is generally perceived as an expression of personal opinion and may lead to reversal. See, e.g., In re Glasmann, 286 P.3d 673 (Wash. 2012); Watters v. State, 313 P.3d 243 (Nev. 2013).
25. Most presentation software allows for presenter notes to be associated with each slide. These notes are viewable by the presenter, but not by the audience. These notes should not be included with the version submitted as a Court Exhibit.