Effective Use of Courtroom Technology: a Judge’S Guide to Pretrial and Trial
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Effective Use of Courtroom Technology: A Judge’s Guide to Pretrial and Trial This Federal Judicial Center publication was undertaken in further- ance of the Center’s statutory mission to develop and conduct edu- cation programs for judges and judicial branch employees. The views expressed are those of the authors. On matters of policy, the Center speaks only through its Board. Contents Acknowledgments, ix Address for comments, xii Preface, xiii Part I. Courtroom technology: an overview, 1 Three levels of technology, 2 Level One technologies, 6 Evidence camera, 6 Laptop computer with retrieval and presentation software, 8 Monitors outside the jury box, 10 Digital projector and projection screen, 11 Annotation equipment, 13 Color video printer, 15 Audio system, 15 Telephone interpreting system, 16 System controls, 17 Legacy equipment, 18 Level Two technologies, 20 Small monitors built into the jury box, 21 Electronic whiteboard, 22 Integrated lectern, 24 Videoconference equipment, 24 Real-time reporting, 29 Digital audio reporting, 32 Internet connections, 34 Level Three technologies, 35 IPIX displays, 35 Virtual reality displays, 36 Holograms, 36 Large-scale video, 37 iii Effective Use of Courtroom Technology: A Judge’s Guide to Pretrial & Trial Common problems, 38 Discovery issues, 39 Pretrial issues, 40 Trial issues, 41 Summary of experience to date, 43 Court-provided equipment vs. lawyer-provided equipment, 44 Mandatory use vs. optional use, 44 Court control vs. lawyer control of equipment, 45 Criminal vs. civil proceedings, 46 Appearance of the courtroom, 47 Cost considerations, 49 A level playing field, 50 Juror perceptions, 51 Efficiency for the court, 53 Faster pace for the lawyers, 54 Effects of technology failures, 55 Guidance from the rules, 56 Part II: Discovery, 61 General problems in discovery involving technology, 62 Discovery of documents, 64 Requiring parties to exchange documents in digital format, 64 Cost issues, 70 Format issues, 73 Compression issues, 75 Resolution issues, 76 Sharing expenses, 77 Alteration of documents as they become digital files, 80 Discovery of photographs, 82 Requiring parties to exchange photographs in digital format, 83 iv Effective Use of Courtroom Technology: A Judge’s Guide to Pretrial & Trial Cost issues, 84 Format issues, 84 Compression issues, 86 Resolution issues, 88 Alteration of photographs as they become digital files, 89 Discovery of video, 90 Requiring parties to exchange video in digital format, 91 Format issues, 91 Compression issues, 91 Synchronization of deposition video to digitized text, 92 Alteration of digital video as it is created, 93 Digital format materials, 93 Cost issues, 95 Alteration of digital format materials during discovery, 96 Internet discovery repositories, 97 Part III: Pretrial, 99 Disclosure by the parties, 100 Disclosure as to equipment, 100 Disclosure as to software, 103 Disclosure as to exhibits, 105 Disclosure of digital alteration of documents, 106 Disclosure of digital alteration of photographs, 107 Disclosure of digital alteration of video, 112 Disclosure as to animations, 113 Equipment issues, 115 Shared use of equipment, 115 Shared use of equipment operators, 117 Practice with the equipment, 118 Making the record, 120 Evidentiary exhibits and illustrative aids, 120 Numbering exhibits, 123 Pre-marking exhibits, 127 v Effective Use of Courtroom Technology: A Judge’s Guide to Pretrial & Trial Videoconferencing for pretrial matters, 129 Other uses of technology by the court during pretrial, 132 Visual displays during pretrial proceedings, 132 Pretrial educational materials, 134 Expert assistance in analyzing complex technology or visual displays, 134 Part IV. Trial, 137 Preliminary matters, 138 Representations about equipment and testing, 138 Identification of operators, 141 Backup in case of equipment failure, 141 Jury selection issues, 142 Visual acuity, 143 Color blindness, 143 Hearing impairment, 144 Tolerance for television, 145 Preliminary jury instructions, 146 Orientation for jurors on the equipment, 146 Jury instructions on the screen, 149 Opening statements, 153 Use of bullet-point slides, 154 Preview of graphics with motion or sound, 156 Preview of static graphics, 157 Real-time reporting, 164 Judge monitor vs. participant monitors, 164 Untranslates, 165 Basic service uses, 166 Enhanced service uses, 166 Transcript uses, 167 Cost sharing, 168 Videoconferencing witness testimony, 168 Use of illustrative aids during trial, 174 Direct examination, 174 vi Effective Use of Courtroom Technology: A Judge’s Guide to Pretrial & Trial Cross-examination, 178 Delivery of copies, 179 Record copies, 180 Objections to evidentiary exhibits, 180 Evidence shown electronically vs. evidence that is electronic in nature, 181 Completeness objection, 182 Unfairness objection, 187 Objections to illustrative aids, 192 Unfairness objection, 192 Leading objection, 199 Argumentative objection, 200 Narrative testimony objection, 201 Assuming facts not in evidence objection, 201 Foundation (unsupported opinion) objection, 202 Lay opinion objection, 204 Objections to digitally altered photographs, 204 Objections to computer animations, 205 Closing argument, 209 Final jury instructions, 211 Jury review of computer-generated materials, 212 Posttrial briefs, 214 Computer-generated illustrations in briefs, 214 Digital format briefs, 215 Appendix A: More details about using the equipment, 217 Appendix B: Federal courts with courtroom technology, 287 Appendix C: Local rules with respect to courtroom technology, 293 Appendix D: Sample pretrial order provisions, 297 Appendix E: Helpful resources, 302 Bibliography, 303 Glossary, 315 Index, 334 How to Use the CD, 356 vii Acknowledgments This book is a joint project of the Federal Judicial Center and the National Institute for Trial Advocacy. The project was commissioned by Hon. Fern Smith (N.D. Cal.), director, Federal Judicial Center. The book was written by the National Institute for Trial Advocacy. Re- search and collection of source materials was done by the Federal Judicial Center. Both organizations reviewed and edited the manu- script and worked on the design of the book and its cover. The Federal Judicial Center assembled an advisory committee for this project. Its members are Hon. Jon O. Newman (Ct. App. 2d Cir.); Hon. Paul J. Barbadoro (D. N.H.); Hon. Frank W. Bullock, Jr. (M.D. N.C.); Hon. Edward C. Prado (W.D. Tex.); Hon. James M. Rosenbaum (D. Minn.); Hon. Roger G. Strand (D. Ariz.); Hon. Donald E. Walter (W.D. La.); Hon. Samuel G. Wilson (W.D. Va.); Hon. Larry E. Kelly (Bankruptcy Court, W.D. Tex.); Prof. Stephen P. Saltzburg, George Washington University Law School, Washington, D.C.; J. Ric Gass, Kravit, Gass, Hovel & Leitner, Milwaukee, Wis.; and Gregory P. Jo- seph, Fried Frank, Harris, Shriver & Jacobson, New York, N.Y. FJC staff members Dr. Elizabeth Wiggins and Dr. Meghan Dunn coordinated the project, reviewed and edited the manuscript, and integrated the work of the advisory committee. David Marshall and Deborah Von Drak supervised the production of the book. Russell R. Wheeler and Kenneth J. Withers reviewed and commented on the manuscript, and Shannon Wheatman helped compile background information. The National Institute for Trial Advocacy’s work on this project was directed by Deanne C. Siemer. NITA’s editorial board members are Prof. Kenneth S. Broun, chair, University of North Carolina Law School, Chapel Hill, N.C.; Joseph R. Bankoff, King & Spaulding, At- lanta, Ga.; Prof. Jo Ann Harris, Pace University School of Law, White Plains, N.Y.; James J. Brosnahan, Morrison & Foerster, San Francisco, Cal.; Deanne C. Siemer, Wilsie Co. LLC, Washington, D.C. NITA’s ix Effective Use of Courtroom Technology: A Judge’s Guide to Pretrial & Trial editor-in-chief is Prof. Anthony J. Bocchino, Temple University Law School. The NITA program directors, faculty, and others who contributed are Hon. Ann C. Williams (Ct. App. 7th Cir.); Hon. Jim R. Carrigan (D. Colo., ret.); Hon. Richard M. Markus (8th Cir. Ct. App. Ohio, ret.); Hon. Frank D. Rothschild (Haw. State Court, 5th Judicial Dis- trict); Prof. Paul J. Zwier, University of Tennessee, Knoxville, Tenn.; Prof. Frederick C. Moss, Southern Methodist University Law School, Dallas, Tex.; Donald H. Beskind, Twiggs, Abrams, Strickland & Trehy, Raleigh, N.C.; Mark L. Austrian, Collier Shannon Scott, Washington, D.C.; Robert J. Wayne, Seattle, Wash.; Howard P. Willens, Wilsie Co. LLC, Washington, D.C.; Prof. Peter Hoffman, University of Nebraska Law School, Lincoln, Neb.; and Lee R. Marks, Greenberg Traurig, LLP, Tysons Corners, Va. NITA’s editorial supervisor Barbara Van Holsbeke edited the manuscript. Brenda Faith worked on the glos- sary. NITA was assisted in this project by DOAR Communications, Inc., Lynbrook, N.Y., and its CEO Samuel H. Solomon whose insights, experience, and contributions to NITA’s teaching materials, courses, and instructional methods in courtroom technology have been in- valuable. DOAR staff prepared most of the graphics for this book, reviewed and commented on the manuscript, and gave time gener- ously over the past year to make the project a success. NITA was also assisted by the Video Bureau LLC, New York, N.Y., and its CEO David Brenner who provided their white paper, sample protocol, and other information on courtroom videoconferencing; and by Fredric I. Lederer, chancellor professor of law at the Marshall-Wythe School of Law of the College of William and Mary in Williamsburg, Va., who is the director of the Courtroom 21 project and