Visual Evidence, Argument & Persuasion

What is the proper place of pictures & visual images in trials? Should their use be tolerated? Should their use be encouraged? Why (not)?

Is picture-thinking inferior to word-thinking? Superior?

Can substitutes for colors and contrast be given to blind people?

What are the implications of the growing use of visual materials in trials for the selection of blind people as jurors or judges?

Are some graphs mathematics or logic in disguise? If so, what follows?

Are images and pictures important or useful because they add drama to trial stories? Is it good to have dramatic stories in trials? Why (not)? Is it sufficient to say, "Trial lawyers think they gain an advantage by telling or peddling dramatic, or heart-wrenching, stories?" (Answer: No. But trial lawyers' attitudes and beliefs are pertinent to the future of the moving image in the courtroom.)

Gregory P. Joseph, Modern Visual Evidence (2003)

Jennifer L. Mnookin, The Image of Truth: Photographic Evidence and the Power of Analogy, 10 Yale J. L. & Human. 1, 17 (1998)

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P. Tillers, Picturing Factual Inference in Legal Settings (2005)

Paul Carrington, Virtual Civil Litigation: A Visit to John Bunyan's Celestial City, 98 Colum. L. Rev. 1516 (1998)

Christopher J. Buccafusco, Gaining/Losing Perspective on the Law, or Keeping Visual Evidence in Perspective, 58 U. Miami L. Rev. 609 (2004) (footnotes omitted):

The same anxiety about reliability and verisimilitude that troubled the legal community of the late-nineteenth century has resurfaced in the current debate over the application of digital visual technology. In his article Virtual Civil Litigation: A Visit to John Bunyan's Celestial City, Paul Carrington speculates, "When [computer] technology is fully deployed, almost nothing we now know about civil procedure will be true." He predicts the day when digital image creation and storage will make the traditional courtroom trial obsolete. Due to the ease of use and low cost of digital technology, all evidence and testimony will be recorded and edited digitally, and the jury will simply view a movie presentation, rather than sit through a trial. Although he admits such changes may result in a diminution in spontaneity and interpersonal contact, he claims that these losses will be more than offset by the savings in money, time, and convenience. Interestingly, Carrington suggests that viewing evidence on the "cool screen" will actually decrease the misleading aspects of demeanor evidence that occur with live testimony. Furthermore, evidentiary issues and objections can be raised in pretrial conferences, thus reducing the amount of time the jury will be empanelled, and since the tapes can be screened and edited in advance, there need be no concern that the jury will accidentally be exposed to prejudicial information. Finally, Carrington claims that "virtual review" will be easier and more effective because the appellate court will have complete access to the trial that was presented to the jury. In his conception, then, digital litigation and computer-generated evidence offer a variety of solutions to problems that have faced the legal system throughout its history. The new technological means provide greater access to the truth because they make it more directly available and more readily understandable.

Opposing the technocrats, but no less certain of the great change that computer technology will bring, are those who fear its use. While Luddites may be too strong a name for them, this group is alarmed by many of the same aspects of digital technology that make it popular for Carrington. Whereas Carrington champions digital imagery for its ability to present visual data in a clear and non-prejudicial manner, many others are concerned about the inherent tendency of the "spectacle" to overload and distract jurors into believing whatever is presented. While Carrington values digital technology for its editorial simplicity, the others worry that digital imagery is too easily manipulable.

These two issues of persuasiveness and manipulability are present through much of the discourse of the anxious scholars. One commentator suggests that "juries are especially prone to believe evidence that is presented visually, regardless of its veracity ... [and] juries may discard common sense when confronted with computer evidence, and instead accept as proven fact whatever the computer proposes as the calculated result of the outcome." This argument takes the willing suspension of disbelief normally associated with the movie-going experience to its extreme. Presumably overwhelmed by the "awesome" visual spectacle, the writer fears that jurors will accept unquestioned any evidence presented on a television monitor.

While authors such as these argue that digital visual evidence must be closely monitored because of its inherent persuasiveness, they also believe that the issue of trial fairness is further complicated by the manipulability of digital images. Digital technology does not rely on a "direct" chemical process whereby the image is fixed in tangible form. As a result, the technology produces no "original" to which other images can be compared, and, consequently, there is an inherent risk that all computer-created images have been "always already" manipulated, making them necessarily untrustworthy.

One writer even goes so far as to suggest that computer technology "may have a negative impact on the soul of the law." Although these writers have varying levels of faith regarding the judicial system's ability to draft appropriate rules for admitting computer-generated evidence, they share a common concern about digital technology's potential to unduly prejudice jurors.

Steven Pinker, "The Mind's Eye," How the Mind Works 211-298 (1997)