Virtual Reality: The Future of Expert Testimony?

As many attorneys know firsthand, practicing law can require adapting to new technology. Nowadays, there are a vast number of ways to utilize technology in the courtroom. This can range from artificial intelligence document review software to iPad trial presentation applications. In light of the fast-paced advancements in trial presentation technology, it’s all the more important to stay up-to-date on the latest developments and future trends.

A recent development in trial tech has been in the field of virtual and augmented reality. At trial, these programs can provide the jury with what feels like a real-world experience or simulation of the testimony. Virtual reality can be a particularly helpful aid during expert testimony to explain otherwise complex or foreign information to a jury. Depending upon an expert’s practice area and the factual issues at hand, the implementation of virtual reality during the testimony can be an interesting, novel, and effective tool.

What are Virtual and Augmented Reality?

Virtual reality is the general term used to describe a three-dimensional, computer-generated environment in which the user can interact. In short, virtual reality simulates experiences. It creates a feeling that the user is present and interacting in the environment. Entertainment and gaming has popularized virtual reality. There are headsets on the market (most notably being Facebook’s Oculus Rift) that, when worn, immerses the user into the world of the game. Virtual reality has also been implemented in a number of marketing campaigns. These range from a Mercedes 360-degree driving video to an Expedia virtual reality film promoting travel.

Augmented reality is similar to virtual reality technology in the sense that they both offer the user computer-generated simulations. However, augmented reality differs in that it imposes, or “augments” the user’s real-world environment by mixing computer-generated images into the experience. As one technology expert explains, “[u]nlike virtual reality, which requires you to inhabit an entirely virtual environment, augmented reality uses your existing natural environment and simply overlays virtual information on top of it.”

Like virtual reality, augmented reality is popular in gaming. The most popular example is the Pokemon Go craze. This smartphone game enables players to search for virtual Pokemon that appear on the phone screen at certain real-world locations. Augmented reality is more commonplace than one may think. Location-based GPS monitoring available on the average smartphone implements this technology to map directions and find nearby locations. Considering their growing ubiquity in our everyday lives, it makes sense that virtual and augmented reality can also be used during trial testimony.

Virtual and Augmented Reality Technology: How Can it Help at Trial?

With technological advances, the usefulness for virtual and augmented reality at trial only grows. First and foremost, this technology can physically bring an expert into the courtroom that otherwise might be unable to attend trial. Specifically, augmented reality and holographic technology (often seen at concerts that use 3-D holographic images to create “performances” of musicians who have passed away) allows a witness to be “appear” in the courtroom from another location (viewed by the jury through headsets). The augmented image of the expert can even “take” the witness stand. This technology is also promising for eliciting victim testimony, in which the victim’s live appearance in the courtroom might be too traumatizing.

Video conferencing with an expert at trial is the more common alternative to live testimony. But holographic technology ameliorates the potential adverse effects of not having a witness physically present in the courtroom. During video testimony, witnesses are in a two-dimensional form on a screen. This runs the risk that the jury will misinterpret their verbal and non-verbal cues. An expert’s holographic appearance in the courtroom enhances a jury’s view and comprehension. Such technology can enable an attorney to call an otherwise impossible-to-get expert without sacrificing the credibility issues of video testimony.

Immersing the Jury

Along with placing an expert into the courtroom, virtual reality can also place the jury at the scene. With the use of headsets, juries have a first-hand view of limitless computer-generated locations. A forensic scientist can use a three-dimensional crime scene to explain his findings. Likewise, an accident reconstruction specialist can use three-dimensional location monitoring to recreate the accident in “real-time” in the presence of the jury.

Aiding Medical Experts

Virtual and augmented reality technology is especially promising during medical experts’ testimonies. Medical professionals already use these technologies throughout their training. They offer realistic alternatives to learning about the human body. To bring these technologies into the courtroom during medical expert testimony is the next logical step. The medical school at the University of California, San Francisco utilizes virtual reality headsets that allow medical students to examine computer-generated cadavers and “move” the anatomy without actually touching a human.

One big benefit for the program is its sustainability. Students and instructors can easily reset and redo the virtual examinations. It also avoids the need for real-life cadavers. Plus, it allows for the independent, microscopic-level examination of every single layer of the body without destroying the body. As part of the school’s research pilot, the “[v]irtual reality anatomy allows the learner wearing a headset—and observers viewing monitors—to interact with a virtual patient that is upright, much as they would with an actual patient in a clinic. The virtual patient can be viewed from the top or bottom, and can be moved around to uncover spatial relationships.”

The benefits of this type of software are promising. A virtual representation of a body (which can even be designed to the exact specifications of the real-life subject at hand) allows experts to precisely pinpoint each piece of anatomy as they testify. The three-dimensional models can recreate medical problems, traumas, and injuries. In addition, the modeling can “reverse” the issues by showing the effects of lifestyle changes, medications, or surgical procedures. Depending upon the issues at hand, the possibilities are endless for medical experts utilizing this technology at trial.

Admissibility Considerations

Before electing to use virtual or augmented reality technology at trial, it is important to consider any evidentiary implications that can potentially preclude the expert’s testimony. First, the evidence must be deemed relevant under Rule 401 of the Federal Rules of Evidence (or under state laws that have adopted such a rule). This means it must have a tendency to make a fact more or less probable than without such evidence. Additionally, this fact should be of consequence in determining the action. If relevant, the evidence must not otherwise be excludable under Rule 403. Exclusion under Rule 403 relates to if evidence’s probative value is substantially outweighed by the danger of “unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly cumulative evidence.”

Using Technology Judiciously

In the context of virtual and augmented technology, it’s important to utilize such evidence in a judicious manner. It may be tempting to showcase these programs in an effort to wow the jury with high-tech and unique representations. But the information presented needs to be actually relevant to the facts at hand. Likewise, counsel should consider any potential dangers of exclusion.

This technology offers experts the opportunity to better explain their testimony. However, if utilized incorrectly, it may confuse the jury with sensory overload or needlessly compound (instead of strategically add) onto the testimony. In addition, virtual evidence may be considered unduly prejudicial if its “vividness exceeds its objective probative value.” Since most virtual technology is demonstrative in nature, the evidence should be used to illustrate the expert’s point and complement the testimony. In other words, the expert should control the evidence and not the other way around.

Cross Examination Concerns

This may also create problems during cross examination. The difficulties of cross examining an expert using virtual reality technology can both thwart opposing counsel and threaten the evidence’s admissibility. Cross examination can undoubtedly be troublesome for an attorney. Most lawyers are not familiar with this type of advanced technology. Courts consider virtual reality as demonstrative evidence. This evidence is not substantive. Rather, this evidence offers an illustration of the expert’s testimony. However, dependent upon the program used, it may actually “speak over” the expert. In which case, opposing counsel’s line of questioning would be limited. Though this may seem like a smart strategy for the side offering the virtual reality evidence, it may also backfire. If a judge believes that virtual reality technology unfairly impedes or prejudices the other side, then the evidence will be excluded.

Overall, the future of courtroom technology is ever-evolving. Virtual and augmented technology can be effective tools during expert testimony—with consideration for the above caveats.