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The Increased Use of Forensic Animation Evidence in Court

With the increased use of computer generated imagery (CGI) in movies, people are quickly becoming accustomed to the world of digital animation.  Movies like Shrek and Avatar, and video games like GT5 are blurring the boundaries between real footage and animation.  Digital animation is also making its way into another area of life- the courtroom setting.

Forensic animation evidence is quickly gaining popularity in both civil and criminal trials.  This is basically where the event of a crime or accident is digitally animated in order to present jurors with a representation of what might have happened.  For example, the prosecution may use a digitally created animation scene to trace the path of a bullet, JFK style.  Another common use of forensic animation evidence is in the area of vehicular accident reconstruction.  This requires extensive analysis and application of dynamic physics and mechanics.

Forensic animation was first introduced into courtroom settings as early as 1992.  Since then, more and more lawyers are using animation sequences when presenting their arguments in courts.  The increased use of such evidence has raised many concerns regarding whether animated evidence is admissible in court.  Let’s have a look at some of the pros and cons of forensic animation evidence:

Pros:

  • May help jurors and witnesses to grasp situations and concepts that might be hard to visualize
  • Many people, especially the younger generation, are used to seeing real-life situations rendered in an animated format
  • Forensic animation technology is evolving to become more accurate in terms of physics, graphics, etc.  (thought they’re usually not as visually spectacular as say, the latest Xbox game)
  • May increase an argument’s persuasiveness, as visual images tend to be more long-lasting in a person’s mind than verbal communications

Cons:

  • Animation may be subject to technological bias and manipulation, as courts still need to work out a system for verifying whether a presentation is accurate
  • Many consider forensic animation to be a “figment” of the producer’s imagination
  • Unpredictable factors may be difficult to incorporate into the animation, such as weather conditions, faulty vehicle parts, and the mechanisms of the human body upon impact
  • Motions that are actually physically impossible may be included in the animation

Many of the benefits of forensic animation depend on what the evidence is being used for in trial.  To clarify, there are two basic uses of forensic animation evidence:  “Substantive” animation and “demonstrative” animation.

Substantive animation is where the evidence is used to show how an event may occur based on the laws of physics and other computations.  The animation is basically a visual rendition of a carefully calculated mathematical equation.  On the other hand, demonstrative animation is where the sequence is used simply to show how an event could have happened given the circumstances.  With demonstrative animation, the animator has much more leeway to create a number of possible outcomes.

In my opinion, the use of forensic animation evidence should be limited to substantive animations, wherein the sequences can be proved using scientific and mathematical computations.  As mentioned, visual images tend to “stick” much more in a person’s mind, and showing countless sequences of hypothetical situations to a jury might skew their perception of the facts.

Also, I feel that forensic animation evidence should be limited to the analysis of mechanical systems and non-living objects, such as cars, motorcycles, bullet trajectories, or engineered systems (such as a power plant explosion).  For example, forensic animation has been used in attempts to show how the human body might react to certain forces, like a gun shot wound.  But in my opinion, the human body is too complex and unpredictable to be reduced to a digitally animated sequence.  After all, any animation is still an artist’s rendition of an unknown event.

All that being said, it looks like forensic animation evidence will continue to be used in civil and criminal cases.  In fact, I predict that it will probably become a standard part of the way cases are presented.  Forensic animation will likely become a large part of the legal career field as well, and may include formal courses on the subject.

In the meantime, the evidence should be limited to substantive animations that can be calculated.  Also, forensic animators should be treated like neutral, expert witnesses who can verify what might or might not be possible under the circumstances.  In my opinion, the animation field obviously needs a lot of polishing before it can be fully credible.  And now, back to that Shrek marathon.

Mississippi Supreme Court Upholds Outgoing Governor’s Controversial Pardons

Shortly before leaving office, the outgoing governor of Mississippi, Haley Barbour, issued several pardons of convicted criminals, including four convicted murderers who, as part of a prison work-release program, had worked at the governor’s mansion. The vast majority of states allow their governors to pardon convicted criminals, just like the U.S. Constitution allows the President to pardon people who are convicted of federal crimes (but the President cannot pardon people convicted in state courts of state crimes, where the vast majority of criminal prosecutions take place).

The U.S. Constitution says that the President can pardon anyone convicted of a federal crime. This power exists to give convicted criminals one final avenue of appeal when they have exhausted all the remedies afforded to them by the court system. Because the President does not need to give any reason for his decision to grant or deny a pardon, this theoretically allows the president to act based on his sense of fairness and justice, acting independently of the legal and factual findings of the courts.

Most states follow a similar model. This means that the state governor can pardon any convicted criminal, for any reason whatsoever, or for no reason at all.

Mississippi’s constitution gives its governor this authority, though there are a few minor procedural hurdles that a convict must jump through when submitting a request for a presidential pardon. But the attorney general of Mississippi decided to challenge these pardons in court. And the Mississippi Supreme Court has just upheld the former governor’s pardons.

The attorney general argued that the former governor had not followed a provision in the state constitution which requires any convict applying for a pardon to have a notice published in the county in which their crime took place, at least 30 days before the pardon is effective.

However, the Supreme Court ruled, citing the basic doctrine of separation of powers, that because the power to grant pardons rests entirely with the governor, it is also up to the governor to decide whether or not this constitutional requirement had been satisfied.

In its opinion (PDF), the court’s 6-3 majority took pains to note that they were not ruling on the wisdom or tactfulness of the governor’s decision. Nor were they deciding whether or not the governor is above the law, taking it as a given that he is not.

The court was essentially ruling on its own authority: the question was whether or not it the state’s judicial branch has the authority to intervene in an area that the constitution explicitly assigns to the governor.

I’ll be the first to admit that the former governor’s judgment in issuing some of these pardons was questionable, at best. However, without being an expert on Mississippi state constitutional law, I think I can still say with some confidence that the court made the right decision in this case. Our government is divided into three distinct branches, each of which performs functions essential for governing a free society. By dividing power among three branches of government, no single one can become too powerful, and each acts as a check on the power of the other two. This court in this case found that it did not have the authority to intervene in a matter that’s exclusively reserved to the executive branch of the state government.

Some people are certain to be angered by the court’s decision, and that is perfectly understandable. I can’t imagine the pain that the loved ones of a murder victim must go through. And this controversy almost certainly re-opened those old wounds. Despite the fact that I think the court made the right legal decision, I am not in any way trying to disparage their objections to the actions of the governor, or the anger they must be feeling over the court’s decision.

However, I hope that pundits avoid engaging in knee-jerk accusations of “judicial activism.” Because this is, in fact, the exact opposite of judicial activism – the court declined too intervene in a matter reserved to another branch of government. This court’s decision was actually a textbook example of judicial restraint.

While the criticisms of the governor’s actions may be perfectly valid, and we have every right to express them, I’m glad that the court followed the state constitution in this case. And if the voters and state legislature in Mississippi decide to ensure that this never happens again, they can amend the state constitution to limit the governor’s pardon power.

That’s the beauty of our constitutional system: if enough people are dissatisfied enough with the actions of one branch of government, chances are good that they can fix it.

Report Finds Huge Disparities In Criminal Sentencing

There are very few things in life that are certain.  Gravity keeps us bound to this planet, Breaking Bad is the best show on television, and if you ever decide to commit a drug crime in New York make sure Judge Arthur D. Spatt isn’t presiding over your case.

Just joking, committing any crime is always a bad idea, though according to a new report on judicial sentencing, the worst idea is not shopping for the right judge.  If you haven’t read the report yet, then click on over to it.  It’s a fascinating read showcasing the huge disparity that often occurs in criminal sentencing.  Judge Spatt for example gave an average sentence of 64 months to defendants convicted of a drug crime, whereas the average sentence for the same offense was 24 months.  The report cataloged thousands upon thousands of criminal sentences and came to a conclusion that many in the legal industry were already aware of: criminal sentences aren’t uniform.

In fact, they are far from it.  The study included a pool of 885 judges and the sentences given to over 370,000 defendants.  It ranked court districts by which had the most sentencing disparities.  Though you may be tempted to find out where your court lands in this ranking, don’t be so quick to put much value in it because the study essentially found that they were all pretty bad.  Much like rearranging chairs on the Titanic, rank in this case isn’t going to do much to keep the ship from sinking.

Now I wasn’t singling out Judge Spatt to be mean or anything, but rather I was just using him to make a point.  Most legal lay people aren’t aware of the level of discretion judges have when determining the length of criminal sentences for convicts.  Typically, most laws only set a maximum and minimum sentence for any particular offense; however sentencing guidelines don’t require any uniformity in sentences.  Judges need only consider a number of factors based on the defendant’s criminal history, his or her role in the crime, whether anyone was hurt, and any other factors that would make the crime more or less severe in the eyes of the law.

Furthermore, in terms of reporting, the names of judges aren’t required to be reported along with the sentences they dish out.  The rationale is to prevent judges from being singled out on the basis of their sentences.  It makes sense, since including such information could lead to an uptick in appeals on the basis of unfair sentencing, judges becoming overly scrutinized for their actions thereby further clogging the behemoth that is our country’s criminal justice system, and of course the potential for judge shopping.  The problem is that without such reporting standards, what we get is the current predicament that we’re in now where judges have free reign on sentencing.

But is it really a bad thing that judges are held accountable for their actions?  As it stands today, it’s already very difficult and expensive to appeal, well, any judicial decree.  By keeping this shroud of secrecy on criminal sentencing, defendants are left with little recourse to show bias.  And though we’d all like to think that once a judge dons that black robe they become neutral instruments of the law, history has shown us that reality is far from it.

It’s sort of like dealing with a phone company.  I signed up of a promo phone plan months ago, and the price I was supposed to get has never actually been what I was charged at the end of the month.  And yesterday, after calling in for the tenth time, the company suddenly decided that they should now charge me a higher rate and that any history of my previous price plan was not in my account.  What could I do about it?  The only thing I could do (short of suing) was sweet talk the operator to curry favor despite the fact that they were wrong to begin with.  The reason is because the phone company knows they have resources and time to fight battles that far outstrip yours.  The only solution is to kowtow and hope for the best.

And in essence, this is what’s going on with criminal sentencing today.  Piss off a judge and they can easily give you a higher sentence despite what is typical for your particular offense.

Now, some would say these are criminals and therefore they shouldn’t complain.  As when one does the crime, they must do the time, regardless of the unfairness of it.  That’s an understandable perspective.  However, it’s also unconstitutional under the Eighth Amendment.  Though I’m not saying that what the current sentencing disparity we have in our justice system today is indicative of complete constitutional violation; what I am saying is that without better reporting standards and pushes for uniformity, we will never know what is and isn’t unconstitutional.

Should People With a Traumatic Brain Injury Be Criminally Culpable?

By now you’ve probably heard about the tragic incident in Afghanistan, where an American soldier went off-base, entered private residences, and shot and killed 16 Afghan civilians, and wounded several more. He then turned himself in to U.S. forces, and is currently being held, awaiting charges. Presumably, he will be charged with murder and tried in a court martial.

There’s no question that this soldier’s actions were appalling, and this whole event is unbelievably tragic. Furthermore, it’s likely to further inflame tensions between the U.S. and Afghan governments, and almost certainly puts the lives of other U.S. troops in danger because of reprisal attacks.

I hope that the person responsible for this is tried, and if the evidence is sufficient, he’s convicted and punished to the fullest extent of the law.

Any murder trial is going to be long and complicated, even more so when there are multiple victims. However, it looks as though yet another complication has been introduced into the mix: the Pentagon has just revealed that the suspect in the shooting suffered a traumatic brain injury in 2010, but was declared fit for duty shortly afterwards.

It’s virtually certain that this is going to be an issue in the suspect’s trial, and his defense attorney is pretty much guaranteed to try and use it to his client’s advantage.

I recently blogged about how our improving understanding of traumatic brain injury may have legal implications in other areas – namely, football. We’re coming to learn that seemingly “minor” brain injuries can have very serious long-term consequences, increasing the patient’s likelihood of suffering from depression, dementia, and a host of other mental disorders.

This raises the question of whether or not a traumatic brain injury will become a basis for the insanity defense. In general, the insanity defense requires that the defendant suffers from a “mental disease or defect,” and that their mental illness prevented them from appreciating the wrongful nature of their conduct, or made them unable to conform their conduct to the law. The insanity defense is, by design, incredibly difficult to employ successfully. Only about 1% of criminal defendants even attempt to use the defense and it only succeeds about 25% of the time it’s attempted. So overall, the insanity defense is successful in around one quarter of one percent of criminal cases in the U.S.

And a verdict of not guilty by reason of insanity doesn’t mean the defendant automatically walks free. Just because someone is found to lack their mental faculties to the point that they can’t be held legally culpable for their actions, they may still be a society. Usually, if a person is found not guilty of a violent crime by reason of insanity, they are committed to a mental hospital.

They can be held in a mental hospital as long as they’re deemed to be a threat to society, or to themselves. This means that, in theory, a person who successfully employs the insanity defense may well end up being confined in a mental institution for a longer period of time than they would have spent in prison if they’d been convicted. If you’ve ever seen a movie that depicts someone trying to use the insanity defense, these facts are probably overlooked.

Obviously, it’s far too early to comment on whether or not the suspect in this case qualifies for the insanity defense.

But, there’s no question that mental illnesses that have been linked to traumatic brain injury are going to become issues in more and more criminal cases, particularly with relation to the insanity defense.

As in most high profile cases where the insanity defense is involved, this particular case will probably lead to a public debate over whether or not the insanity defense should even exist, or what form it should take.

I personally believe that it should exist, and that our current standards are fine. If one of the essential elements of imposing criminal liability for someone’s actions is that they acted intentionally, there comes a point where someone suffers from a mental illness so severe that they can’t actually form intent, or understand what they’re doing. In those cases, I think it’s unfair to blame the defendant in the same way you’d blame a criminal who was perfectly sane.

I hope that this tragic case, whatever its ultimate outcome, does not cause us to lose sight of the fact that having an insanity defense is not mutually exclusive with protecting society from dangerous criminals.

Will Whitney Houston’s Doctors Face the Same Fate as Conrad Murray?

After Whitney Houston’s tragic death last week, questions about the circumstances and cause of her death began to swirl almost immediately. For years, Ms. Houston had fought a very public battle with alcoholism and drug addiction, including addiction to drugs that were legally prescribed to her. And now, the doctors who prescribed these medications are beginning to face scrutiny.

And it’s pretty much impossible to escape the superficial parallels between the death of Michael Jackson and Houston’s case.

And as you probably remember, Michael Jackson’s personal doctor, Conrad Murray, was convicted of manslaughter charges, on the theory that he prescribed and administered sedatives to Jackson, on which he overdosed, which caused his death.

So, with Houston’s very public struggles with drug addiction being public knowledge, do the doctors who prescribed her the drugs to which she was addicted bear any moral or legal responsibility for her death?

That’s a tricky question, and as her death is investigated, and more details emerge, the answer may become clearer. However, if any of her doctors face criminal charges or civil lawsuits in connection with her death, it’s likely that the issues will remain far from perfectly clear, either from a moral or legal standpoint.

However, there are a few starting points to look at while speculating on this subject, which might provide some guidance about what’s likely to happen. First of all, we’ll have to await toxicology reports from Houston’s autopsy, which will show what type of drugs she was taking when she died, and the quantities in which she took them.

If it is shown that she overdosed on legal pain medications, combined with alcohol, there will be some serious questions that her doctors will have to answer. This doesn’t mean that any of them are guilty of a crime in connection with Houston’s death, but any thorough investigation will have to look at them.

Because it takes a huge amount of education and training to become a doctor, and because doctors are responsible for the lives of their patients, the medical profession is subject to very tight scrutiny. Doctors owe what is known as a “fiduciary duty” to their patients, which is one of the highest legal duties that one person can have to another. So, if a doctor makes a serious error (and should have known better) in treating a patient, they may be subject to civil liability in the form of a medical malpractice lawsuit, and in the most egregious cases, criminal charges for manslaughter.

This is what happened with Conrad Murray, who is now serving a 4-year sentence in a California prison for manslaughter in connection with the death of Michael Jackson.

So, if it’s shown that Whitney Houston overdosed on medication that her doctors had prescribed to her, should they face criminal charges? Maybe, but definitely not necessarily. After all, it may be shown that Ms. Houston took far more than the prescribed dose, or that she got medication from multiple doctors, each of whom did not know that the others were also prescribing drugs to her. Either of these findings would definitely militate against a finding of criminal liability for either of the doctors – in our criminal justice system, conduct typically has to be very egregious to result in a criminal conviction.

However, her family may still be able to sue the doctors for medical malpractice in a civil claim for medical malpractice. In order to succeed in a medical malpractice claim, they will have to show that her doctor(s) fell below the relevant “standard of care” governing the medical profession. Basically, if it can be shown that one or more of her doctors engaged in conduct that no reasonable doctor with a similar level of education, skill, and experience would have engaged in, under similar circumstances, the doctor would be liable to Ms. Houston’s family for wrongful death and medical malpractice.

I would guess that if she overdosed on drugs the doctors prescribed to her, and they knew that she was abusing these drugs, a judge or jury wouldn’t have much trouble finding liability for medical malpractice.

Obviously, I don’t want to give the impression that I’m trivializing Ms. Houston’s death by speculating about the potential legal issues that surround it. However, the law is involved in nearly every aspect of society – almost every event has some legal consequences. Generally, in order to discuss any event fully, you have to consider the legal angles.



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