By: Molly Codeanne
While virtual reality has not yet reached the courtroom, technology is constantly progressing and permeating new areas of our lives on a regular basis. Virtual Reality (“VR”) has made its way into millions of homes and continues to be used in a plethora of facets in our lives. In some court proceedings, technology could prove to be especially helpful, but the use of VR would likely be detrimental at trial and could endanger the courtroom atmosphere. In light of the grasp technology has on us, it is inevitable that at some point in the future courts may start to lean on VR for support.
To date, VR has exclusively been used in mediations and has not extended into the courtroom. Mediators have had great success using VR to reach settlement agreements and avoid the expense of trial. In particular, these technologies have proven useful in reconstruction of crime scenes and to pointedly display the extent of an individual’s vision loss. A visual litigation strategist pointed to a specific medical malpractice case in which VR was utilized to display the extent to which a child’s vision was compromised. In that case, VR proved to be an emotional and powerful tool. Director of the law library at Capital University Law School, Jenny Wondracek, stated that the use of VR “is growing. We’ve seen it grow by leaps and bounds just in the last few years . . . [s]o I think that it will continue to grow. It wouldn’t surprise me though to see augmented reality or 360 video grow faster while VR is being developed.” VR has a promising future in the realm of mediation and its usefulness will continue to expand beyond vision related cases.
While use of VR appears to provide ample benefits in the context of mediations, there are likely dangers posed by using it in the courtroom setting. Consequently, it will likely be several years before it is actually introduced to the courtroom. Many individuals today naively assume that new technology will provide benefits, with few complications, due to our reliance and everyday familiarity with various kinds of technological devices. Introducing VR into the courtroom, while a potentially promising option down the road, raises many questions with respect to the value of the traditional, centuries-old courtroom atmosphere.
In addition to opening the door to potentially allowing juries to participate remotely, use of VR at trial would interfere with a jury’s ability to consider photographic or video evidence and to observe how witnesses, plaintiffs and defendants react to such evidence. Once a juror straps on a VR headset, the attorney may lose control of exactly what the jurors are seeing. Furthermore, the headset could prove to be a distraction to everyone involved and individuals partaking in the courtroom process would need to become accustomed to its proper use. John Reikes, the CEO of High Impact, a company offering VR services in various fields, including the legal profession, stated that there is a “greater risk that somebody is going to see an angle of the [scene] that somebody else didn’t see.” Finally, depending upon the case, the use of VR technology could expose jurors to traumatic or sensitive experiences.
If VR is introduced to the courtroom, it would be essential to ensure that all parties have equal access to its use. Furthermore, the use of VR would add additional costs to the already pricey courtroom process, which may not be financially feasible for all litigants. If only one side were able to use these technologies, that party would be at an unfair advantage.
In Commonwealth v. Serge, the court held that a computer-generated animation (“CGA”) was admissible so long as it was not inflammatory or prejudicial. Here, the prosecution used a CGA to demonstrate that the defendant, who was accused of killing his wife, tampered with the crime scene to make it look as though he had acted in self-defense. The court recognized that as technology advances, demonstrative evidence evolves, and the law has been flexible in accommodating these developments. However, the court also addressed the dangers such as significant costs and unbalanced advantages. The costs associated with implementing this technology may go beyond what certain defendants could afford. The court has previously denied technology related funds to indigent defendants and has stated there could be no obligation to provide a defendant with the funds required to create their own CGA. The court ultimately concluded that it is for the trial court to determine “relative monetary positions” of the parties when considering whether to admit CGA.
VR, while it may not be useful in the courtroom until sometime in the future, could provide law school students with an immersive learning experience. Schools have begun using VR to allow students to have such experiences beyond their work in the classroom. Use of this technology could introduce law students to the courtroom atmosphere and allow them to gain valuable litigation experience. Additionally, the use of VR would provide law students with the opportunity to host client meetings or engage in other client interactions, providing invaluable exposure to interactions as they prepare to enter the field of law.
When exploring the idea of implementing the use of VR in courtrooms, we must acknowledge that this technology may present issues. VR may at times lack realism, be subject to biases and manipulation, and may present a question of equal access on a case-by-case basis. This is not to say that it will never be helpful in aiding courtroom procedures, however, implementing VR in this setting will require the exercise of extreme caution and, likely, new rules and procedures. While, for now, VR may be more easily utilized in law schools, “VR headsets could eventually become appropriate court attire.”
Student Bio: Molly Codeanne is a second-year day student at Suffolk University Law School. She is a staff writer on the Journal of High Technology Law. Molly received a Bachelor of Arts Degree in Political Science at The College of the Holy Cross.
Disclaimer: The views expressed in this blog are the views of the author alone and do not represent the views of JHTL or Suffolk University Law School.
