Manufacturing evidence for trial: the prejudicial implications of videotaped crime scene reenactments.

• Author: Hennes, David B.

INTRODUCTION

When the Mitchell brothers partied, they partied hard. The brothers, Artie and Jim, were renowned for their pornographic film and theater empire.(1) Although the Mitchells were notorious for their carousing together, Jim had become increasingly distraught over his brother's drug and alcohol habit, worried that it was threatening their extensive business dealings.(2) Thus, when porn-king Artic Mitchell's bullet-ridden body was found in the bedroom of his California home, it came as little surprise to those who knew them that Artie's older brother Jim was arrested near Artie's home while trying to draw a concealed rifle on the responding officer.(3)

The events that actually transpired inside the Mitchell house that night remain a mystery. Jim claimed that the killing was accidental(4) and that he could not recall any of the events surrounding the shooting.(5) Armed with circumstantial evidence, ballistics reports, and the opinions of the Mitchells' friends, prosecutors set out to piece together the events leading to the death of one of California's most notorious citizens.(6)

At about the same time that Jim Mitchell took the life of his brother and business partner, another fatal incident involving conflicting factual accounts occurred on the opposite side of the country. Officer Gary Spath of the Teaneck, New Jersey, police department was called to the William Cullen Bryant School to investigate reports of a youth brandishing a gun.(7) Upon arriving at the scene, Officer Spath encountered a sixteen-year-old black youth named Phillip Pannell.(8)

The subsequent confrontation between Spath and Pannell ignited a heated conflict in the previously harmonious, racially diverse community.(9) Neither side disputed the events leading up to the fatal encounter. Following Spath's arrival on the scene, a short chase on foot ensued.(10) Spath then fired two shots, one of which struck Pannell in the back, fatally wounding him.(11) Upon subsequent investigation, the loaded handgun that precipitated the deadly engagement was found in Pannell's pocket.(12)

In the aftermath of the shooting, the accounts of what prompted Spath's decision to fire at Pannell sharply diverged. Prosecutors indicted Spath on charges of reckless manslaughter, claiming that Pannell had his hands raised in surrender when the fatal shot was fired.(13) Spath denied the charges, and countered that he fired in self-defense, believing that Pannell was reaching for the concealed firearm while "turning toward him in a threatening gesture."(14)

As so often happens in criminal trials, the prosecution and defense in both People v. Mitchell(15) and New Jersey v. Spath(16) presented conflicting versions describing the factual scenario leading up to the fatal events.(17) In order to obtain a conviction, prosecutors in both cases were faced with the daunting prospect of piecing together the exact circumstances of the killings based on conflicting evidence and testimony.(18) To accomplish this task and to prove guilt beyond a reasonable doubt,(19) prosecutors in both cases commissioned the production of videotaped reenactments(20) to illustrate their version of the facts.(21)

Prior to the admission of the videotaped reenactments in the Mitchell and Spath cases, the use of such reenactments in criminal trials was largely rejected by state courts.(22) The Mitchell and Spath evidentiary rulings, which granted the prosecutions' requests to present the reenactments to the jury,(23) signify the beginnings of a significant shift in judicial philosophy concerning the admission of videotaped crime scene reenactments.(24) In light of the recent judicial acceptance of reenactments in these two nationally publicized cases and the rapid development rate of computer and video technology, one commentator predicted that "[c]riminal trials are on the verge of a technological revolution that will allow lawyers to transform experts" dry, verbal testimony into dynamic, TV-like shows that can mentally transport jurors to crime scenes and play out for them an advocate's version of events.(25)

This Comment argues that the use of videotaped reenactments of crime scenes prejudices the rights of criminal defendants under the balancing test of Rule 403 of the Federal Rules of Evidence by compelling the trier of fact to commit inferential error.(26) Though relatively instinctive in nature, the logic utilized by those courts that have rejected the use of videotaped reenactments(27) is correct in assessing the prejudicial nature and effect of reenactments on juror deliberations in criminal trials. The admission of videotaped reenactments by the trial courts in Spath and Mitchell, therefore, should be treated as anomalies in judicial reasoning by future courts confronting the issue. Part I of this Comment articulates the differences between demonstrative and real evidence and details the treatment various forms of videotaped evidence have received in both civil and criminal trials. Part I concludes by briefly outlining the purported advantages of using demonstrative evidence at trial.

Part II begins by examining the use of videotaped reenactments in civil trials. This Part then categorizes the reasoning employed by courts when confronted with a civil reenactment and the potential dangers that this form of evidence presents to litigants. The first half of Part II sets forth several generalizations regarding the use and acceptance of videotaped evidence at trial and shows how, as compared to other forms of videotaped evidence, civil and criminal reenactments have been subject to a heightened level of judicial scrutiny. The remainder of this Part examines in detail how courts have treated reenactments in criminal trials and suggests that advances in computer and video technology make it increasingly likely that this form of evidence will continue to appear with greater frequency at trial in the future. Finally, Part II outlines the logic that various state courts have employed when confronted with crime scene reenactments in an attempt to categorize the dominant rationale driving their exclusion.

Part III discusses Rule 403 of the Federal Rules of Evidence and presents the evidentiary basis for excluding prejudicial evidence under the Federal Rules. This Part articulates the philosophy underlying the Federal Rules and examines the impact of decisions under the Federal Rules on the "law" of evidence. Part III then turns specifically to Rule 403 and attempts to craft a definition of "unfair prejudice," concluding that unfair prejudice is best defined as occurring when evidence is employed that causes the trier of fact to commit inferential error. Through an examination of judgmental heuristics, this Part then attempts to determine which cognitive processes subsequently cause inferential error. The cognitive utilization of judgmental heuristics--both the availability heuristic and the representative heuristic--is then applied to the viewing of a videotaped reenactment by the trier of fact. The Comment concludes that the prosecution's use of videotaped crime scene reenactments unfairly prejudices criminal defendants.

1. DEMONSTRATIVE EVIDENCE AND THE USE OF VIDEO AT TRIAL

   1. Demonstrative Versus Real Evidence

      Demonstrative evidence, defined as "any display that is principally used to illustrate or explain other testimonial, documentary, or real proof,"(28) plays a central and valuable role in both civil" and criminal trials.(30) It Comes in many forms and types, varying from mundane documentary evidence to visually stimulating demonstrations.(31) Classifying all evidence that is considered "visual" as demonstrative, however, can be misleading.(32)

      A further distinction must be made between purely demonstrative evidence and real evidence. Real evidence "provides the trier of fact with an opportunity to draw a relevant firsthand sense impression" and "involves production of an object which usually . . . had a direct or indirect part in the incident."(33) Purely demonstrative evidence, on the other hand, is derivative in nature, as it "only illustrates or clarifies other substantive evidence."(34) Thus, real testimony. Illustrative evidence has no probative force beyond that which is lent to evidence, possessing independent probative value,(35) may be carried with the jury into deliberations. Demonstrative evidence, with no independent probative value, may not enter the jury room.

      Crime scene reenactments, which are postlitigation creations, are purely demonstrative evidence, carrying no independent probative value.(36) One commentator points out that the evidential weight of demonstrative evidence is weak because it is "self-conscious evidence that comes into existence after the event, through the self-help of the litigants, their lawyers, and their graphics consultants."(37)

   2. Videotaped Evidence as Demonstrative Evidence

      Many types of demonstrative evidence have gained wide acceptance in the courtroom.(38) Videotaped evidence, a form of demonstrative evidence, has received significant acceptance in many forms as well.(39) In civil trials, videotaped evidence has been used to demonstrate scientific experiments or principles,(40) to depict the scene of an area in dispute,(41) to portray a "day in the life" of an accident victim,(42) to demonstrate a litigation theory,(43) to record depositions,(44) and to reconstruct the occurrence of an accident.(45)

      Videotaped evidence has extensive applicability in criminal trials as well, although frequently courts subject its use to an enhanced standard of review. In criminal cases, "evidentiary concerns often have constitutional impact, and courts generally tend to be more strict in insuring accuracy, avoiding confusion, and requiring advance disclosure of the evidence."(46) Videotaped evidence has been utilized to record police lineups,(47) criminal confessions,(48) police surveillance work,(49) arrests of drunk drivers,(50) and crime scene...