In the courtroom environment, oral presentations are becoming increasingly supplemented and replaced by advancing digital technologies that provide legal practitioners with effective demonstrative capabilities. Improvements in the field of virtual reality (“VR”) are facilitating the creation of immersive environments in which a user’s senses and perceptions of the physical world can be completely replaced with virtual renderings. As courts, lawyers, and experts continue to grapple with evidentiary questions of admissibility posed by evolving technologies in the field of computer-generated evidence (“CGE”), issues posed by the introduction of immersive virtual environments (“IVEs”) into the courtroom have, until recently, remained a largely theoretical discussion.
Though the widespread use of IVEs at trial has not yet occurred, research into the practical applications of these VR technologies in the courtroom is ongoing, with several studies having successfully integrated IVEs into mock scenarios. For example, in 2002, the Courtroom 21 Project (run by William & Mary Law School and the National Center for State Courts) hosted a lab trial in which a witness used an IVE. The issue in the case was whether a patient’s death was the result of the design of a cholesterol-removing stent or a surgeon’s error in implanting it upside down.
Just before two o’clock in the afternoon on October 22, 1991, two high school students, Chedell Williams and Zahra Howard, ascended the steps of the Fern Rock train station in North Philadelphia, planning to take a train back to their homes. Seemingly out of nowhere, two men appeared, blocked the girls’ way up to the station, and demanded Chedell’s earrings. Terrified, the girls bolted in opposite directions. The two men followed Chedell. They soon caught her and tore out her earrings. Then “[o]ne of the men grabbed her, held a silver handgun to her neck, and shot her.” The perpetrators fled. Chedell was pronounced dead within the hour.
Police soon focused their investigation on James Dennis, who lived relatively close to the train station in the Abbotsford Homes projects. Detectives would later explain that they heard rumors that Dennis was involved in the shooting, though they were at that time “unable to identify the source of the rumors.” The detectives obtained preliminary descriptions of the perpetrators from three eyewitnesses. These initial descriptions did not align well with Dennis’s actual appearance. Nonetheless, a few eyewitnesses identified Dennis during subsequent photo lineups, live lineups, and the trial. In presenting the government’s case, the prosecution relied heavily on these eyewitness identifications. Dennis was found guilty of “first-degree murder, robbery, carrying a firearm without a license, criminal conspiracy, and possession of an instrument of a crime.” He was sentenced to death.
The shortcomings of forensic evidence in the criminal justice system are now well known. But most scholarly attention has concentrated on “first-generation” forensic techniques such as hair or pattern analysis, bite marks, firearms, and ballistics. Moreover, most of the attention has centered on the investigative process, specifically the collection and analysis of evidence. This Essay turns the critical lens on scientific evidence in a different direction. It focuses on “second-generation” technologies—such as location tracking, biometrics, digital forensics, and other database-driven techniques, and it scrutinizes the adjudicative system—the “bail to jail” stream—rather than the investigative process. Ultimately, this Essay argues that almost every aspect of the adversarial process, as currently conceived, is ill-suited to ensuring the integrity of high-tech evidence. Specifically, the adversarial model demands individualized rather than collective inquiries, embraces secrecy rather than transparency, and privileges viva voce evidence over other forms of fact-gathering. Furthermore, it heavily depends upon the skill of counsel and in-court confrontation rather than out-of-court oversight and structural reform to address problems related to evidentiary integrity, and adopts rigid rules of finality grounded in part on an assumption that proof is always inconclusive. This Essay concludes that the eighteenth-century model of justice may be ill-suited to twenty-first-century evidence, and offers recommendations for a more reliable factfinding system.
When the body of a deceased woman was found near the Mississippi River close to Baton Rouge in July 2002, DNA retrieved from the crime scene was linked to the murders of two other women in the area, and multiple law enforcement agencies subsequently began an aggressive search for the serial killer. Using witness statements and an FBI profile, the FBI, the Louisiana State Police, and the police and sheriff’s departments of Baton Rouge determined that their suspect was a young white man. After a fourth murder believed to have been committed by the same perpetrator occurred in December 2002, officials intensified their hunt for the killer by spending over one million dollars to collect and test the DNA of some 1200 white men in the area, but they made no matches and consequently had no leads.
In March 2003, the investigators crossed paths with molecular biologist Tony Frudakis of the company DNAPrint Genomics, who claimed that he could ascertain the suspect’s social race by testing the crime scene DNA for 176 specific genetic markers that disclose information about physical traits. Frudakis said that because certain markers are found predominantly in people of African, Indo-European, Native American, or South Asian roots, he could analyze their frequencies and predict the suspect’s ancestry with 99 percent accuracy, and then infer social race from this ancestry finding. Initially skeptical of the science, officials sent Frudakis DNA samples from twenty individuals with known racial designations—and upon blind testing the samples, Frudakis correctly identified the race of each individual.
Even more intriguing were the results of Frudakis’s analysis of the Baton Rouge serial killer’s DNA. Using a test he called DNAWitness, Frudakis concluded that the suspect’s “biogeographical ancestry” was 85 percent Sub-Saharan African and 15 percent Native American, which left, in his words, “no chance that this is a Caucasian. No chance at all.”
Consider the following hypothetical: Two businesses—X, a software company, and Y, a retailer—reach a typical agreement regarding a software license. After extended negotiations, a written, integrated agreement finalizes the deal; it states that X will license software to Y and provide related hosting and technical support services. It does not include, nor did the two parties ever discuss, implementation of the software. Some time after the agreement was made, Y attempts to compel X to implement the software. Y later argues in court that X made fraudulent oral promises that induced Y to sign the written agreement. Y claims that X additionally agreed to provide both a total cost of ownership guarantee, including implementation, and the assistance of its consulting and development personnel to implement the software. Y’s lawyers correctly realize that, in California, the courts have allowed extrinsic evidence of fraudulent promises when those promises are consistent with or independent of the written agreement, notwithstanding the Parol Evidence Rule (“PER”). Thus, while X can present its best argument that the promise to implement the software would directly contradict or vary the terms of the limited licensing contract, the outcome in court is still unpredictable. Unsuspecting X is in danger of being forced to bear a substantial burden for which it never intended to contract.
McLaughlin v. Phillip Morris USA, Inc., has been certified as a nationwide class action on behalf of an estimated 50 million “light” cigarette smokers. Plaintiffs seek more than $280 billion in damages, to be trebled to over $800 billion. In certifying this mass tort, District Judge Jack B. Weinstein announced his plan to completely abandon individualized adjudication in favor of aggregate factual determinations based on evidence from statistical samples. Prior to McLaughlin, at least two federal trial judges had permitted the use of sampled evidence in major consolidated or class action trials, but both included some adjudication of individual claims. In McLaughlin, Judge Weinstein’s plan would entirely eliminate proof of individual class member claims in the face of the overwhelming cost of gathering such evidence from tens of millions of plaintiffs. The central issue in the interlocutory appeal now before the Second Circuit is the legality of Judge Weinstein’s plan to use sampled evidence to determine whether the plaintiff class members relied on representations by the defendants that “light” cigarettes were less harmful than regular cigarettes, and, if so, to determine the aggregate amount of damages.
In this Article, we address and defend Judge Weinstein’s controversial proposal to statistically sample evidence, rather than to obtain evidence on an individualized, case-by-case basis. We endorse his view that statistical sampling combined with other evidence “is a necessary and pragmatic evidentiary approach that reflects full due process in this and many other mass tort cases.”