In early seventeenth-century England, the presentation innovations shaking up law practice were indexes and marginal cross-references. The first and highly influential law book published in England, Thomas Littleton’s Treatise on Tenures (1482), contained only in-text references to Year Books. Edward Coke’s Institutes of the Laws of England (1628), in contrast, contained copious footnotes, citations, marginal cross-references, and, in the second edition (1630), an index table.
Thumbing through the pages [of Coke’s Institutes] reveals citations to Bracton, Britton, Fleeta, Dyer, Glanville, the Bible, and a host of others, with all the citations to specific sections, folios, or chapters. … Coke’s stretching beyond sources of primary law — the abridgments and Year Books — reveals a broader notion of authority: that legal scholarship, and not simply those charged with issuing rulings or statute by decree or proclamation, has a role in defining what the law is.[1]
Coke’s Institutes helped to make black-letter law more than just the command of the sovereign. Its innovations in indexing and referencing stimulated new practices of legal argument.
Today, audio-visual technology in the courtroom appears to be as important as marginal cross-referencing in Coke’s Institutes. The Skakel case, for example, points to crucial new issues concerning combinations of audio and visual evidence in closing argument. In Scott v. Harris, the U.S. Supreme Court delivered a textual opinion and posted a video. Viewing and thinking about video raises interesting, new legal issues different from those associated with verbal evidence and opinions.
“Technology in the Courtroom: Could it Change the Course of History?” asked the History Society of the District of Columbia Circuit and the D.C. Bar’s Litigation Section in a fascinating event this past Thursday. In the ceremonial courtroom of the E. Barrett Prettyman U.S. Courthouse, the event began with Suzanne M. Woods, St. Albans School, providing interesting historical background on the 1881 trial of Charles Guiteau for the assassination of President James Garfield. As a civil servant, my favorite part of her presentation was her quoting one 1870s-era politician referring to “snivel-service reform.”
David Kendall, Williams & Connolly LLP, then gave an “old school” mock closing argument for the prosecution. He used only words and a prop — a skeleton to show the site of Garfield’s wounds. Drawn closely from trail transcripts, his closing argument declared that Guiteau visited prostitutes, had syphilis, abused his wife, and was a lawyer. The central issue of the case, according to this historic closing argument: “Does the earth belong to the cranks?” Kendall’s closing argument showed that judicial standards for improper argument, while not undergoing any systematic development, have changed greatly since 1881.
James E. Boasberg, Associate Judge, Superior Court of the District of District of Columbia, subsequently delivered a technology-aided, mock closing argument for the prosecution. Judge Boasberg began by associating Lincoln and Garfield, both through verbally presented details of their lives and through projections of an image of Lincoln, and then an image of Garfield. Throughout this mock closing, projected images re-enforced scenes that Judge Boasberg described. Animated paths traced atop a floorplan detailed Guiteau’s attack on Garfield. An animated timeline, in which time marks popped up to punctuate descriptions of events at particular times, gave clarifying structure to facts that otherwise would have been more difficult to connect and comprehend as a whole. Judge Boasberg concluded using side-by-side images of Lincoln and Booth, with horizontal-slide transitions to images of Garfield and Guiteau.
Government prosecutors in 1881 could have used a magic lantern to produce a closing presentation much like that of Judge Boasberg’s. Magic lanterns, great, great grandparents of ELMO projectors, were highly popular in the U.S. late in the nineteenth century. Some of the historic images in Judge Boasberg’s presentation probably appeared on lantern slides in the nineteenth century. Moreover, magic lanterns were capable of producing animations. Legal historians might uncover instances in which magic lanterns were used to project images in trials. Magic lanterns, however, were generally associated with popular entertainment. Images of learning, law books, and belle lettres that infused norms of propriety and dignity probably precluded using projected images in most nineteenth-century courtrooms.
Projection technology isn’t necessarily beneficial. In the panel discussion following the mock closing arguments, Francis D. Carter, Zuckerman Spaeder LLP, noted the dangers of “death by PowerPoint.” Many presenters use PowerPoint to hide themselves. They thus lose the powerful persuasive force of the advocate’s person. Judge Boasberg’s mock closing included only one textually dominated projected image — an image showing two central, verbal points of his argument. He powerfully ended his closing with verbal references to notoriety, Macbeth, and blowing out a killer’s candle. That would not have worked well with projected, textual bullet-points.
Lawyers have to be prepared for technology to fail. Another panelist, James Robertson, Judge, United States District Court for the District of Columbia, observed that Murphy’s Law is alive and well in the courtroom. He noted that men in juries tend to be keen to assist lawyers in getting technology to work. A third panelist, Rosemary M. Collyer, Judge, United States District Court for the District of Columbia, explained that she sends the jury out of her courtroom when presentation technology fails. Carter emphasized that lawyers must have back-up technology ready to use.
Both Judge Boasberg and Judge Robinson noted the difficulty for lawyers of both speaking and changing images effectively. The volunteer from FTI Consulting Trial Services, which helped to put together the visual materials for Judge Boasberg’s presentation, changed the images during that presentation. Judge Robinson recalled a dueling duo of assistants who advanced images on cue during a trial over which he presided. Carter stated that lawyers and presentation assistants need to rehearse repeatedly presentations with coordinated audio-visuals. Audio-visuals move legal rhetoric toward cinematic techniques. These require perceptive construction and presentation practice.
Audio-visuals create difficult challenges for judges. In Judge Boasberg’s mock closing, would accompanying the image of Lincoln with an (audible) hymn be sustainably objectionable? Would using a dissolve rather than a slide in the image transition from Booth to Guiteau be sustainably objectionable? Judge Collyer observed that music, like smells, is emotionally evocative, and that judges need to consider such low-level sensory processing. Judge Collyer also noted that synthetic audio-visuals can be judged on the basis of accuracy in all material respects. That standard works for evidence such as surveillance video combined with verbal transcripts. But for novel combinations of audio and visual evidence used in closing arguments, some other judgment standard is necessary. Carter noted that advocates who use audio-visuals in manipulative or dishonest ways put their credibility at risk to damaging exposé by opposing council. Nonetheless, like any competition, trials need consistent rules. Thinking about technology and trial rules has become interesting and important work for judges and lawyers.
Note:
[1] Paul Douglas Callister (2008), “Books above the Throne: Geopolitical and Technological Factors Exalting Textual Authority in Seventeenth-Century England,” pp. 41, 48. The above paragraph in general is indebted to this work. Callister observes that Coke’s referencing required the dissemination of standardized texts through printing and the book trade.