Today, the Indiana Court of Appeals has overturned a jury verdict because the trial court did not provide the jury with the ability to review digital evidence that had been admitted, without objection, on a CD-ROM during its deliberations in
, 936 N.E.2d 831 (Ind. Ct. App. 2010), Case No. 79A02-0906-CV-541. This is likely to be an important case governing how cases are tried and evidence is presented to a jury in the future and is one that all litigators should become familiar with.
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In
Arlton, the plaintiff was diagnosed with an eye condition that, if left untreated, can cause significant loss of vision and, ultimately, blindness. Laser surgery could treat the condition, but left a scar that caused a blind spot. The plaintiff was first treated for this condition in 1987 and, again, in 1989. The plaintiff noticed no problems until 2002, when he was referred to a doctor for treatment. During the laser surgery, something happened (exactly what is in dispute), which caused the plaintiff to have a black, wedge-shaped spot in the center of his vision. The plaintiff's dark spot never went away and, eventually, another doctor concluded that this spot was caused by the doctor having placed a new laser burn spot within the area of the plaintiff's pre-existing scar. The plaintiff then proceeded to institute a medical malpractice action against the doctor and the clinic where he practiced.
At trial, the plaintiff's medical records, which contained angiograms from before and the surgery, were admitted by stipulation. For each of the angiograms, nine digital images were recorded. Each juror was provided with a color copy of all of the angiogram photos in an exhibit binder. The nine images from each angiogram were printed on a single sheet of 8½" x 11" paper. Also admitted, without objection, were three CD-ROM discs containing these same images of the angiograms in digital form. During the testimony from various witnesses, both parties showed the jury enlarged photos of the angiograms using a projector and a screen.
The plaintiff also offered into evidence six separate copies of the digital images from the discs that he had personally enlarged and printed. The plaintiff testified that the printouts were simple enlargements of the digital photos on the previously-admitted CD-ROM discs and that he did not modify the photos in any way other than "zooming" in on specific portions. The defendants objected to the admission of these images, and the trial court sustained the objection.
During the third day of the trial, plaintiff's counsel asked the trial court how the jury would be able to access the digital information on the admitted CD-ROM discs, offering to provide the jury with a laptop computer if needed. The trial court sustained the defendants' objection to providing the jury with a computer. It also refused to give a jury instruction informing the jury that it could request the bailiff to conduct it into court for examination of the digital evidence. The jury found for the defendants and the plaintiff appealed.
On appeal, the Court first held that the trial court abused its discretion when it excluded the enlargements because
Evid. R. 1003 generally allows for the admission of duplicates and
Evid. R. 1001's definition of "duplicate" includes enlargements. Because there was no genuine question as to the authenticity of the original or the enlargements, "the trial court's decision to exclude the enlargements was clearly against the logic and effect of the facts and circumstances before the court and therefore an abuse of discretion."
The Court next addressed the jury's access to the digital evidence during deliberations. The Court found no Indiana case directly on point and looked to the Sixth Circuit's decision in
United States v. Rose, 522 F.3d 710 (6th Cir. 2008), for guidance. Based on the reasoning discussed in that case, the Court held that the jury should have been allowed to view the files on the CD-ROM during deliberations.
The jury here should not have been precluded from accessing the digital exhibits that were admitted without objection.
We recognize that giving the jury access to a computer could raise unintended issues, such as who needs to provide the computer or whether the jury could misuse the computer to access extraneous information. We do not presume to set forth one all-encompassing rule regarding providing the jury access to digital evidence. The solutions could be as simple as what was done in Rose, i.e., transforming the evidence into a medium that is accessible without a computer. Or the court or parties could provide the jury with a "clean" computer, i.e., one that contains no other information and which has no ability to access the Internet.
Ideally, these issues should be dealt with well before deliberations begin, even before trial, so that the trial court does not have to scramble just before deliberations trying to find a way to let the jury access admitted digital evidence. But whatever solution is agreed upon or decided upon is better than admitting digital evidence, and then giving the jurors no means of accessing it. Digital evidence should not be "relegated to muteness."
In a rather lengthy footnote, the Court then described the responsibilities of counsel and the court in more detail.
Indiana's talented trial attorneys and trial judges can work together to solve this issue through anticipatory motions in limine during discovery, or as discovery closes, and well before trial. As they do so, it is important not to interpret our discussion and opinion as a requirement that courts and their counties immediately purchase expensive technology to make digital evidence accessible to jurors. As stated above, transformation of digital evidence by the parties, their attorneys, or digital experts into a DVD format playable on a simple television with attached DVD player may well be all that is required in most instances. It will always be the responsibility of the parties' attorneys to ensure that the digital evidence at issue "works" on the court's equipment available to the jury or to provide appropriate equipment for the jury's use, subject to review by the court and objection by opposing counsel. As courts and counties upgrade their technology, in many instances, the technology being replaced can be repurposed to the limited jury room uses discussed here.
The Court then held that the trial court erred in not granting the requested jury instruction and that all of these issues constituted reversible error.
The issues this case raised are likely to become more acute as lawyers become more accustomed to dealing with digital, rather than physical, evidence. The Court is clear that the responsibility for dealing with these issues is on the lawyers litigating the case -- particularly the lawyer seeking to admit the digital evidence. However, the Court's reversal of this jury verdict is just as clear -- if counsel presents the trial court with a reasonable solution to the issues posed by the introduction of digital evidence, then the trial court should accept that solution.
