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)