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The Digital Witness

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.

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The Digital Witness

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  1. The Digital Witness Duncan W. Glaholt

  2. Question #1 : Can a Computer be a Witness? • A: Yes! • 1. Automatic Data Collection • 2. Computer Animation • 3. Computer Recreations

  3. Automatic Data Collection • security pass card and log; • cellular usage log • any computer-based record keeping system

  4. 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

  5. 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

  6. Example – Flume Ride

  7. Side Impact Demonstration

  8. Side wall cracking Maximum Stress Of 60 MPa

  9. 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.

  10. 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

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

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

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

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

  15. Category Distinguishing Characteristics Basis of Admissibility Automatic Data Collection • Machine collects data without human Intervention • e.g. recipient, length of cell phone calls • Problem: No human witness available to “prove” business record under oath • Reliability • R. v. Chow (1991), 68 C.C.C. (3d) 190 (Alta. C.A.)

  16. Category Distinguishing Characteristics Basis of Admissibility Computer Animation • 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 • Demonstrative only • Possesses no probative value • Merely illustrates effect of otherwise admissible substan-tive evidence • Needs only evidentiary foundation, threshold low

  17. Category Basis of Admissibility Distinguishing Characteristics Computer Re-Creation • Essentially uses computer software to create meticulously accurate, mathematically consistent visual representation of what an expert believes happened in a given situation • WUFI analysis (calculates moisture transport in building envelope systems) • Q.Q.S. (Quality and Quantity Simulation System / water flow) • R. 30.01 • R. 53 • R. v. Mohan, [1994] 2 S.C.R. 9 • (i) relevance • (ii) necessity • (iii) absence of exclusionary rule • (iv) properly qualified expert Problem: This is opinion evidence pure and simple, meant to be relied upon by the trier of fact Relative Experience of Trier of Fact Prejudice v. Probative Value

  18. Summary Category Characteristics Basis of Admissibility Automatic Data Collection “machine made evidence” Reliability Computer Animation “cut-away view” Demonstrative, not probative value Computer re-creation “3-D opinion” R. v. Mohan & Rules

  19. Question # 3: Are we ready? Electronic Courtroom, 393 University Avenue, Toronto

  20. The electronic courtroom will support: Digital evidence and argument presentation • Remote video and teleconferencing appearances by counsel, witnesses and interpreters • Simultaneous cross-border hearings

  21. Question # 4: When and How?

  22. Process Matrix Process Goal Driver Limiting Factor DRB / Project Neutral Documen-tation Project Timing of Intervention Mediation Exposition Group Mediator’s Style Arbitration Exposition / Persuasion Panel Panel’s Expertise Litigation Persuasion Counsel Law of Evidence

  23. 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!

  24. Tip # 1 Think live theatre: A few special effects go a long way

  25. Tip # 2 Know your audience: Research your court and opposing counsel; anticipate and be ready for objections

  26. Tip # 3 Strive for smoothness, rhythm and flow

  27. Tip # 4 Remember: You are spending your client’s money, and your credibility

  28. Question # 5: What is Ed Josiah’s Number? (516) 802-5732 (direct)

  29. The End(Ed Josiah’s  again is: (516) 802-5732 direct)

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