Saturday, December 17, 2005

Picture-Thinking and Word-Thinking in Trials: Neo-Luddites in the Legal Academy

As a group, teachers of the law of evidence and procedure are probably not very knowledgeable about the use of computer-generated images in trials. As a group, law students seem to have more interest about matters of this sort:
Christopher J. Buccafusco, Gaining/Losing Perspective on the Law, or Keeping Visual Evidence in Perspective, 58 U. Miami L. Rev. 609, -- n.8 (2004):
Most of the scholarship in this area [use of digital media as evidence] has come from law students in law review notes. See, e.g., id.; John Selbak, Comment, Digital Litigation: The Prejudicial Effects of Computer-Generated Animation in the Courtroom, 9 High Tech. L. J. 337 (1994); Elan E. Weinreb, Note, 'Counselor, Proceed With Caution': The Use of Integrated Evidence Presentation Systems and Computer-Generated Evidence in the Courtroom, 23 Cardozo L. Rev. 393 (2001); Jill Witkowski, Note, Can Juries Really Believe What They See? New Foundational Requirements for the Authentication of Digital Images, 10 Wash. U. J.L. & Pol'y 267 (2002).
The difference between law teachers and their students may be generational. But law professors' lack of interest in and, sometimes, antipathy to the study of evidentiary use of digital images may reflect a professional academic prejudice (or preference), a prejudice in favor of the word. Many law teachers are interested in digital technology as a form of intellectual property, but this subject is very different from the use of images, whether in the classroom or the courtroom, as a means of communication.

I am skeptical that the legal profession as a whole is hostile to picture-thinking: to judge by actions, practicing lawyers -- including trial lawyers -- stand ready to embrace any technology that serves their self-oriented interests. (A hefty book for trial lawyers about visual evidence has been in the market for decades. See Gregory P. Joseph, MODERN VISUAL EVIDENCE (2003)(perhaps not the most recent edition).) It does not follow that judges are as receptive to digital images as trial lawyers are.

Not all law teachers are uninterested in the use of visual images in trials. Professor Jennifer, Mnookin, now at UCLA Law School, is perhaps the most prominent exception. See, e.g., Jennifer L. Mnookin, The Image of Truth: Photographic Evidence and the Power of Analogy, 10 Yale J. L. & Human. 1, 17 (1998). A more surprising -- and therefore more interesting -- exception is a prominent old-timer: Professor Paul Carrington of Duke University School of Law. See Paul Carrington, Virtual Civil Litigation: A Visit to John Bunyan's Celestial City, 98 Colum. L. Rev. 1516 (1998).

  • A few other law teachers with some interest in the use of visual images in trials are listed at Blog: Picturing Argument from & about Evidence in the 21st Century: A Conference (Dec. 3, 2005).
  • Some law teachers and other observers may be interested in the use of images in trials primarily because they are interested in the cultural significance of this use. However, as a weathered (wizened?) epistemologist and student of the law of evidence, I am mainly interested in the impact of images on the accuracy of factual proof. However, being philosophically inclined, I am acutely aware that it is difficult (and perhaps even unwise) to completely separate questions of knowledge from questions of value. Mainly I just want to announce that this blog does not presage my return to neo-Hegelian jargon or the use of words such as "decentered."

    Sidelight: my course in Advanced Evidence may take a gander at visual evidence and persuasion, but the extent to which this happens depends almost entirely on the preferences of the student members of this seminar. See also the nascent Visual Evidence, Argument & Persuasion Page.

    A merry and joyous Christmas to one and all!

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