The Digital Witness

Duncan W. Glaholt

Question #1 : Can a Computer be a Witness?

• A: Yes!

• 1. Automatic Data Collection

• 2. Computer Animation

• 3. Computer Recreations

• Automatic Data Collection

– security pass card and log;

– cellular usage log

– any computer-based record keeping system

• Computer Animation– Computer-created representations to depict

the testimony of a witness– The classic “cut-away view”– E.g. heart valve, operating engine, piping

failure– No estimates, no suppositions, no

extrapolation– Renders evidence into animation

• Computer re-creation

– Computer-created, accurate, mathematically consistent, visual representation of what a reconstruction expert believes happened in a situation;

– e.g. modeling program, fatigue analysis, finite element analysis

Example – Flume Ride

Side Impact Demonstration

Side wall cracking

Maximum Stress Of 60 MPa

Question # 2: Are there limits?

• In the U.S.: Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993)

• Instead of "general acceptance" in the scientific community, the new test requires an independent judicial assessment of reliability.

• In Canada: R. v. J. (J-L.) (2000), 148 C.C.C. (3d) 487 (S.C.C.):

Daubert must be read in light of the specific text of the Federal Rules of Evidence, which differ from our own;

There are a number of factors that could be helpful in evaluating novel science

“(1) whether the theory or technique can be and has been tested.

“(2) whether the theory or technique has been subjected to peer review and publication.

• (3) the known or potential rate of error or the existence of standards; and,

“(4) whether the theory or technique used has been generally accepted.

ReliabilityR. v. Chow (1991), 68 C.C.C. (3d) 190 (Alta. C.A.)

Machine collects data without human Interventione.g. recipient, length of cell phone callsProblem: No human witness available to “prove” business record under oath

Automatic Data Collection

Basis of Admissibility

Distinguishing Characteristics

Category

Demonstrative onlyPossesses no probative valueMerely illustrates effect of otherwise admissible substan-tive evidenceNeeds only evidentiary foundation, threshold low

Meant to be exact graphical representation of complex concept;Not based on estimates, suppositions or extrapolations;No analysis or theory added;e.g. interior of beating heart; splicing, unsplicing of DNA; inside of working engine;Problem: Shows us things no human witness could ever see

Computer Animation

Basis of Admissibility

Distinguishing Characteristics

Category

R. 30.01R. 53R. v. Mohan, [1994] 2 S.C.R. 9(i) relevance(ii) necessity(iii) absence of exclusionary rule(iv) properly qualified expert

Essentially uses computer software to create meticulously accurate, mathematically consistent visual representation of what an expert believes happened in a given situationWUFI analysis (calculates moisture transport in building envelope systems)Q.Q.S. (Quality and Quantity Simulation System / water flow)

Computer Re-Creation

Basis of Admissibility

Distinguishing Characteristics

Category

Problem: This is opinion evidence

pure and simple, meantto be relied upon by

the trier of fact

Prejudice v. Probative ValueRelative Experience of

Trier of Fact

Summary

R. v. Mohan & Rules

“3-D opinion”Computer re-creation

Demonstrative, not probative value

“cut-away view”Computer Animation

Reliability“machine made evidence”

Automatic Data

Collection

Basis of

Admissibility

CharacteristicsCategory

Question # 3: Are we ready?

Electronic Courtroom, 393 University Avenue, Toronto

The electronic courtroom will support:

Digital evidence and argument presentation

Remote video and teleconferencing appearances by counsel, witnesses and interpreters

Simultaneous cross-border hearings

Question # 4: When and How?

Process Matrix

Law of EvidenceCounselPersuasionLitigation

Panel’s Expertise

PanelExposition / Persuasion

Arbitration

Mediator’s Style

GroupExpositionMediation

Timing of Intervention

ProjectDocumen-tation

DRB / Project Neutral

Limiting Factor

DriverGoalProcess

• Does it:

- clarify (score 1)- simplify (score 1)- focus (score 1)

• Total score 1: Scrap it!• Total score 2: Risk it?• Total score 3: Use it!

Tip # 1

Think live theatre:

A few special effects go a long way

Tip # 2

Know your audience:

Research your court and opposing counsel; anticipate and be ready for objections

Tip # 3

Strive for smoothness, rhythm and flow

Tip # 4

Remember: You are spending your client’s money, and your credibility

Question # 5: What is Ed Josiah’s Number?

(516) 802-5732 (direct)

The End

(Ed Josiah’s again is:

(516) 802-5732 direct)