Drawing upon neuroscience research on multisensory processing, I suggested that new digital combinations of evidence should be required to be introduced within the evidentiary portion of trials. Here I further consider trial procedure and the actual operation of courts.
Under the proposed rule for digital presentation technologies, counsel would be allowed to present evidence in the media form in which the evidence was introduced, verbally talk about the evidence and verbally combine it in any way to make a case (subject, of course, to existing trial rules), but not, in closing statements, be allowed to use digital technology to combine evidence in new ways. That means that in the Skakel case the digitally combined voice recordings and photographs should not have been allowed in the closing rebuttal because that multimedia presentation was not already introduced in the trial.
In the Skakel case, the defense counsel didn’t object at trial to the multimedia presentation in the prosecution’s closing rebuttal statement. The trial court judge thus had no opportunity to rule on such an objection. On appeal, the defense alleged that the closing multimedia presentation was subliminal messaging and prejudicial. The appeals court ruled, “After viewing the audiovisual presentation, we are not persuaded that there is any reasonable likelihood that the state’s presentation confused the jury or prejudiced the defendant in any way.”
To me, the defense’s claim on appeal of subliminal messaging was silly and it’s claim of prejudice was too generic. At the same time, the appeals court judgment on this point seems to me to be overly emphatic and rationally unsatisfying. It doesn’t provide reasons, but merely states a rather broad judgment. It seems to me uncontroversial that the multmedia presentation strongly communicated that the defendant was guilty. The question, as I see it, is whether the particular technological combination of evidence used in the closing portion of the trial was consistent with the defendant’s right to a fair trial. The appeals court addressed that question with a non-specific judgment about confusion and prejudice. Specifically examining the effects of new technological combinations of evidence and ruling that such combinations of evidence must be introduced within the evidentiary portion of trial would better serve justice.
Moreover, it seems to me a mistake for appeals courts to defer strongly, implicitly or explicitly, to the process of objection and trial-court judgment in considering new technological combinations of evidence in closing arguments. Media technologies are becoming cheaper, more powerful, and more prevalent. Media technology can be powerful tools for making cases. The process of objection and trial-court judgment for defining permissible digital presentations can create significant disparities in actual trail procedures across trial courts. Moreover, trial judges’ rulings on objections aren’t written, so they don’t provide a written, case basis for precedent concerning the use of technology in trials.
A rule that new digital combinations of evidence must be introduced within the evidentiary portion of the trial does more than simply relocate objection and judgment at trial. Not allowing surprising use of new digital combinations of evidence in closing statements better places such combinations within adversarial case-making. If a digital combination of evidence is admitted in evidence, the opposing counsel has the opportunity to introduce alternative digital combinations of evidence. In addition, opposing counsel can prepare to prompt jurors to think about the construction and effects of particular digital combinations of evidence. In other words, they can prompt jurors to augment their low-level, subconscious processing of evidence with conscious reflection on how such evidence is created and how the human body processes it. Knowledge and high-level reasoning can help persons to understand their sub-conscious reactions and to overcome natural biases.
Moreover, trial procedures for types of case (civil or criminal) and jurisdictions (federal, individual states) have specific rules for the introduction of evidence. New digital combinations of evidence could be introduced under these rules. Moreover, institutions that maintain these rules provide low-transaction-cost paths for developing new evidentiary rules for digital combinations of evidence. The Daubert standard for the admissibility of expert witnesses’ testimony, which has evolved operationally both through appellate court decisions and amendments to rules of evidence, provides an example that standards for digital combinations of evidence might follow.
Digital presentation technologies in trials deserves specific, sustained attention. Digital presentation technologies can have important effects on trials. They are not the same as words and hand gestures.
* * * * *
 Supreme Court of the State of Connecticut, State of Connecticut v. Michael Skakel, (SC 16844) (Jan. 24, 2006), p. 74.
 Id. p. 89, ft. 107 states:
We note, finally, that defense counsel raised no objection to the state’s rebuttal presentation. Apparently, defense counsel did not believe that the state’s use of the audiovisual aides was misleading or otherwise inappropriate. Although that fact is by no means dispositive of the defendant’s claim on appeal, as we have explained; see, e.g., State v. Stevenson, supra, 269 Conn. 576; we nevertheless consider that fact in reviewing the merits of an unpreserved claim of prosecutorial misconduct.