With the host of technological resources at the fingertips of
trial attorneys who can now inexpensively and efficiently guide
juries through dramatic demonstrative aids - such as edited video,
digitally-generated animation, and enhanced imagery - the question
of admissibility of technologically generated chalks and
demonstrative evidence, and the weight such images are given by
judges and juries, remains paramount.
Historically, trial counsel in medical malpractice and personal
injury actions that center on missed radiological findings arrive
at trial with sleeves of original radiology films and a light-box -
the document and the tool of the radiologist. These films, however,
have largely gone the way of the Photostat - films are now nearly
exclusively viewed, produced and disseminated in a digital format
through a computer-aided viewer with computer-aided tools. In such
cases, even slight changes in contrast and brightness can turn
innocuous findings into dramatic (if possibly illusory) evidence of
disease. As such, the admissibility of such images face substantial
new challenges. Not only must attorneys confront issues surrounding
how these images are produced, but also how they were seen by a
radiologist at the time of the alleged negligence, and under what
conditions they were produced or altered as demonstrative aids at
trial. These become central foundational questions.
Computer simulations, when provided in advance of trial, are
admissible after the proper foundation is laid, as described in
Commercial Union v. Boston Edison Co., 412 Mass. 545, 549
(1992) (requiring advance production of computer-generated evidence
as part of evidentiary foundation at trial, and demanding showings
of computer functionality, complete and accurate input, and
community acceptance before admission). While no parallel rule
exists for digital imagery, the notes to the 2010 Mass. Guide
to Evidence sec. 1002, state that the "admission of digital
imagery is within the discretion of the trial judge, provided that
the evidence is accurate, similar enough to circumstances at the
time in dispute to be relevant and helpful to the jury in its
deliberations, and its probative value outweighs any prejudice to
the other party." Notably, the guide cites to the recent Supreme
Judicial Court decision in Renzi v. Paredes, 452 Mass. 38
(2008), as an example of the execution of this principle. Citing
Renzi, the guide cautions that "'[c]oncerns regarding the
completeness or production of an image go to its weight and not its
admissibility." However, in the absence of a clear path to
admissibility; and particularly in light of the Renzi
decision, "admissibility" and "weight" can become a morass and
nearly indistinguishable for the attorneys and courts alike.
In Renzi, plaintiff alleged that the defendant had
failed to properly interpret hard copies of mammography "films,"
which led to plaintiff's delayed diagnosis of breast cancer and
ultimate death. Staff of the plaintiff's expert had digitally
photographed the key mammography films at issue. Plaintiff's
counsel published these copies to the jury in a jury notebook and
projected them on-screen. These digital images were, the
expert testified, both the "substantial equivalent" of the
mammograms and "substantially different" - in that the digital
image showed more "white" than the originals (which could be a
potential indicator of abnormal tissue). In short, a hard copy of
the different-yet-equivalent digital photographs of the key
mammography film were admitted into evidence over the objection of
the defendant, who alleged that the difference in the film was an
enhancement that misrepresented the nature of the film. The trial
court found that, despite differences between the original films
and the enhanced digital images, it was "obvious" that the digital
images were being used as "demonstrative aide" (sic) for
the jury.
Nevertheless, the trial court further instructed the jury as
follows:
"The original mammogram films are
in evidence. You will have them with you in your jury room during
deliberations. In addition to the original mammograms, photographs
have been placed in evidence and you were shown several screen
projections of those mammograms. The photographs and screen
projections are not a substitute for the originals, but were
allowed [in] evidence to assist you in viewing and comparing the
mammograms in question. The Court ruled that they were
admissible as substantial likenesses of the originals. You
will have the originals and the view boxes with you in the jury
room. Although this Court ruled they were admissible, it is up to
you to determine their usefulness to you and what weight, if any,
you attribute to them." (emphasis added)
In upholding the trial court's decision to admit the digital
reproductions of the mammograms and instructions to the jury, the
SJC cautioned that the trial court's instruction - that the images
were "substantial likenesses" of the original mammograms - did not
improperly comment on the weight of the evidence; rather, it was a
product of the defense counsel's attempt to challenge the validity
of the images themselves, ruling that it was "a statement of the
status of the evidence made necessary by the defendants' innuendos
of trickery on the part of the plaintiff."
The implications of Renzi, however, may blur the
distinction between admissibility and weight of digital imagery.
Parties seeking to challenge either the admissibility or the weight
of digitally altered images run the risk of engendering a limiting
instruction such as that upheld in Renzi - one that
appears to, on its face, inexorably intertwine the language of
admissibility - whether or not a judge is content that an image is
a substantial likeness of another sufficient to lay the foundation
for its admissibility - with issues of weight potentially
neutralizing an effective cross-examination that uncovers
alterations during the process of its generation. The New Jersey
Appeals Court, in Rodd v. Raritan Radiologic Associates,
860 A.D. 1003, 1011 (2004) recognized the danger of unfettered
associations that juries might make when computer-enhanced digital
images made of radiology films are admitted with the originals,
noting that, even with a light box view of the originals in hand
for a jury, "the very real danger persisted that the jurors could
not erase from their minds" the altered digital imagery. In
Rodd, moreover, the court held that the use of digital
mammogram images even for mere demonstrative purposes required
advance notice, a showing that the images' probative value
outweighed its prejudicial effect, and testimony by a person with
knowledge of computer processes who can be examined and
cross-examined.
So how does a practitioner address the vagaries of admission or
opposition? If seeking to admit digitally enhanced imagery as
demonstrative aide, counsel should be prepared to support the
foundation through broad-based "process" testimony, such as that
described in Commercial Union, and be prepared to explain
why, and how, a digital image differs from its original. In
opposing an attempt to admit such an image, a party should strongly
challenge the "process" of its development, its potential
prejudicial effect, and perhaps prepare its own expert to opine as
to the methods used to alter the original imagery - with the caveat
that the court, through an admissibility determination, may of its
own initiative counterbalance challenges to process before the
jury.
Anthony Abeln, Esq. is an associate in the
Boston office of Morrison Mahoney LLP. His practice areas
include professional liability defense, hospital and medical law,
product liability, pharmaceutical litgation and commercial
litigation. He can be reached at (617) 737-8885.