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THWARTING OR HEIGHTENING FUNDAMENTAL FAIRNESS?THE JURY TRIAL IN CYBERSPACE
Erica S. ChengInternet & Society SeminarAdvisor: Jonathan ZittrainThird Year Paper Draft
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THWARTING OR HEIGHTENING FUNDAMENTAL FAIRNESS?THE JURY TRIAL IN CYBERSPACE
Twelve strangers without special skill or training are called upon to exercise their sense of justice and draw on their most astute perceptions of people. Each jury in its own way represents the best and worst of us as a society.
-- Seymour Wishman, ANATOMY OF A JURY: THE SYSTEM OF A TRIAL, 1986.
The jury has the power to bring in a verdict in the teeth of both law and facts.
-- Holmes, J., Horning v. District of Columbia, 224 U.S. 135, 138 (1920)
The life of the law has not been logic; it has been experience. The felt necessities of the time, the prevalent moral and political theories, intuitions of public policy, avowed or unconscious, even the prejudices which judges share with their fellow-men, have had a good deal more to do than the syllogism in determining the rules by which men should be governed.
-- Oliver Wendell Holmes, THE COMMON LAW, 1881, p. 5.
The jury trial has been intertwined in the American legal
process throughout our country's history. The idea of a jury of one's
peers, deciding their fellow man's fate, has been embedded in our
current court system. The jury system brings together twelve jurors,
selected without merit-type qualifications of education or training for
service, given absolute power, without accountability, to acquit with
only the requirement that they deliberate until all are in total
agreement.1 Despite the beauty of this mini-democracy, where each
man's opinion counts just as much as the next, the jury system has 1 These characteristics are typical of jury trials although some district court systems allow six jury member trials, and other jurisdictions do not require that the jury’s verdict be unanimous.
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endured much criticism for its lack of efficiency and fairness. In stark
contrast to the long history and tradition of the jury trial, for little
more than the past decade, the scope of the American landscape has
been changed by the increasing burgeoning of technology into every
part of our lives. Cyberspace has become mainstream in many
aspects of society;2 could its benefits be transferred to the arena of
jury trials in the legal world?
In this paper, I will examine the feasibility of holding jury trials
in cyberspace in addressing the goals of efficiency and fairness that
the jury process was aimed to accomplish. Does a jury trial
conducted in cyberspace fulfill the fundamental rights of justice and
due process it was designed for? I will lay out the goals, purposes
and criticisms of the current jury system, detail how the jury trial
would be transferred to cyberspace, and analyze the limitations and
benefits of holding jury trials in cyberspace (using the Jury Trial in
Cyberspace on-line course as a model). In addition, I will elucidate
the perspectives of those most experienced with the jury system --
litigators and judges -- in exploring how they view the jury trial
changing with technology. Finally, I will investigate how the code of
cyberspace can assist and hinder the jury process through the
opportunities and limitations of cyberspace interaction and suggest
possible ways in which a jury trial or portions of the judicial process
could be performed in cyberspace.
2 Add cites regarding cyberspace’s impact on society: i.e., holiday e-commerce sales, brokerage, education, etc.
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The jury trial adversarial process was designed to ensure both
fairness and efficiency. The rules governing the jury process were
aimed to ensure that the defendant receives the fairest trial possible.
In addition, many scholars believe that in order to accomplish
efficiency goals, the best way to uncover the truth is through the
adversarial process. The right to a jury trial is embedded in our
Constitution. The Sixth Amendment guarantees "the right to a speedy
and public trial, by an impartial jury of the state and district wherein
the crime shall have been committed."3 In combination with the Fifth
and Seventh Amendments, the Sixth Amendment guarantees the right
to a jury trial for all criminal cases and in all civil suits exceeding
twenty dollars.4
As we move into the 21st century, and courtrooms and the legal
process are becoming more and more technologically advanced,5 the
idea of holding a jury trial in cyberspace seems less distant and more
appealing. How would one translate the proceedings of a jury trial
into cyberspace? The beauty of cyberspace lies in its ability to
connect many together quickly and efficiently.6 Would the fairness
and efficiency goals of a jury trial be accomplished in the venue of
cyberspace?
Conducting jury trials in cyberspace would most likely entail
having jury members being notified of jury duty through e-mail, being
questioned in a voir dire process either through an on-line chat 3 Sixth Amendment. U.S. Constitution4 V, VI, VII Amendment, U.S. Constitution.5 Technologically advanced courtrooms like Boston.6 Add quote from Professor Zittrain.
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process or by filling out a jury questionnaire, and participating in the
jury trial from the comforts of their own home by having video
streaming of the trial enter their individual terminals. Each day, the
trial's proceedings could be taped and put onto the trial's web site so
that the participants could download the day's proceedings and watch
them at their own leisure. They would deliberate through on-line chat
with their fellow jurors at a scheduled time after the trial's
proceedings were over.
In the following sections, I will describe how various elements
of the jury trial would be altered and affected in cyberspace.
I. VOIR DIRE
The jury trial is often referred to as a "jury of one's peers."7 The
selection of jury participants has evolved through the years to
culminate today in a system in which voter registration lists are used
to create a jury pool to ensure that minorities and women are
included in juries. This process of drawing from the community is
used to protect the rights of the accused. Many consider the jury
selection process to be one of the most important aspects of the jury
trial. As stated by Judge Atkins in his editorial on the jury voir dire, "I
believe strongly in the jury system. It is such an integral part of our
judicial procedure that we must, in the selection process, place
primary emphasis on the main object of jury assignment -- the
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rendering of a fair and impartial verdict based solely on the evidence
and law."8
The voir dire process was designed to guarantee each
defendant's right to a fair and impartial jury. In this pretrial process,
the judge will dismiss anyone whose beliefs and biases will interfere
with their duties as a juror.9 Lawyers do not choose the members of
the jury, but they can eliminate prospective jurors by using "for
cause" (based on a potential jury member's knowledge of the case or
inability to follow the law) and "peremptory" (for any or no reason)
challenges. The functions of the voir dire include detecting the
unpredictable juror, ascertaining backgrounds of specific jurors to see
which lines of reasoning they would be most receptive to,
predisposing the jurors to certain lines and questioning, and
imparting information.10 The counsel questions the potential jurors in
order to probe for hidden prejudices; they ask questions about their
background, prior knowledge of the case, and opinions on relevant
issues. As stated in Rosales-Lopez v. United States, "Without an
adequate voir dire the trial judge's responsibility to remove
prospective jurors who will not be able impartially to follow the
court's instructions and evaluate the evidence cannot be fulfilled."11
8 Atkins, Jury Voir Dire: The Judge's Perspective, 2 Litigation, Winter 1976, at 19, 50.9 Valerie P. and Neil Vidmar, JUDGING THE JURY, 1986, p. 31.10 Margaret C. Roberts, Trial Psychology: Communication and Persuasion in the Courtroom, 141-143 (1987).11 Rosales-Lopez v. United States, 451 U.S. 182, 188, 68 L. Ed. 2d 22, 101 S. Ct. 1629 (1981).
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How is a fair voir dire to be conducted in cyberspace? In
cyberspace, the voir dire process would most likely be accomplished
through either a questionnaire or through an on-line chat process.
Using a questionnaire format, potential jury participants would fill
out a jury survey in order to participate. The benefits of this format
are that the potential juror can answer the questionnaire on his or her
own time without having to go to a specific location. In addition,
instead of just 40 jurors participating in the selection process, a
significantly larger portion may be screened easily. The problems
with this process are plentiful. Since no direct questioning by lawyers
takes place, jurors will be able to lie more easily through the written
answering of questions. The attorneys will not be able to personally
detect any prejudices and biases of the jurors. Additionally, jurors
who are interested may already have predetermined viewpoints and
prejudices, which they will be able to hide more easily than through
direct questioning.
Using the on-line chat process, the trial attorneys can screen
potential jurors by questioning them through an on-line chat process.
This alternative does not seem as feasible as the questionnaire
because it does not save time and may not be as convenient. Each set
of lawyers must be present on-line while questioning jurors. Jurors
can still lie more easily through written answering of questions than
through direct questioning (since the attorneys cannot see juror
expressions or body language). Again, the benefit of this process
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would lie in the flexibility of the method: jurors can answer
questionnaire from home without having to go to a specific location.
In addition, the defendant has the constitutional right to be
present during jury selection,12 which may pose problems in the jury
trial conducted in cyberspace. Defendants will not be able to observe
jury selection since participants will be able to fill out the
questionnaire or be screened at home on their own time. If jury
participants fill out a demographic survey in order to participate, the
defendant will obviously not be present.
II. REPRESENTATIVENESS OF JURY PARTICIPANTS
Conducting the jury trial in cyberspace could also alleviate one
of the major criticisms of the process: that the jury participants come
from a small percentage of the population. Many commentators have
attacked the non-representativeness of the jury pool and the actual
jury participants. As Christie Davies wrote in her article, "Trial by
Jury Should be Abolished," the lack of jury qualification based on
property and education can lead to somewhat intellectually dull
jurors.13 Paul Grossman echoes this belief in the intellectually-
challenged juror, advising fellow litigators, “Always remember that
the jury has the mentality of an average 11- to 14- year-old. Use
simple terminology. Try to avoid complicated statistical offerings.
12 Gomez v. United States, 490 U.S. 858, 873, 104 L.Ed. 2d 923, 109 S. Ct. 2237 (1989).13 Davies, Christie, "Trial by Jury Should be Abolished," The Jury System (1997)
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Try to offer as few exhibits as possible. If you have access to a 11- to
14- year-old child, try out your theories of a case on them.”14
Currently, the jury pool contains a disproportionate number of senior
and less well-off jury participants. Despite the system’s attempts, the
jury does not represent an accurate cross-section of the American
population.
The jury trial conducted in cyberspace may result in a better
cross-section of the general population participating as jurors since
people would be more likely to participate in cyberspace. People
could participate from the comfort of their own home and observe the
day's proceedings at their own leisure. Thus, through this increased
convenience, they would be less likely to duck jury duty.
However, while more of the general population may be
convinced to participate in jury trials instead of avoiding jury duty,
the jury may still not be representative of the general population.
While it is more convenient for people to watch the day's proceedings
from their own computers at their own leisure, people must still log
on at the same time to deliberate. Thus, the flexibility of the jury
process becomes somewhat diminished and less appealing.
Another major obstacle to the increased representativeness of
the jury pool in cyberspace is the existence of technological haves and
have-nots.
If cyberspace trials were to become the norm, computer and internet
access would be required for participation. Both economic class and
14 Paul Grossman, “Thoughts on Jury Trial,” 520 PLI/Lit 383, 386 (1994).
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education, for all in the general population would not know how to use
the internet, would come into the process. Instead of voter
registration forms, internet know-how and computer ownership would
become requirements or practical necessities at least.
III. JUROR’S ROLE
The juror's role in the jury trial process is an interesting one.
While they passively observe the courtroom proceedings, they have
full autonomy in deciding the verdict of the case. The jurors listen
silently to testimony, pass in and out of the courtroom when told, and
if obedient, avoid any discussion of the case until the case is no longer
pending. As they hear the evidence, they evaluate and weigh the
testimony of the various witnesses. As stated by Cornelius Callahan,
jurors are almost always instructed, "You are the sole judges of the
credibility of the witnesses and of the weight to be given to the
testimony of each of them. In determining the credit to be given any
witness you may take into account his ability and opportunity to
observe, his memory, his manner while testifying, any interest, bias,
or prejudice he may have, and the reasonableness of his testimony
considered in the light of all the evidence of the case."15 The jurors’
role in cyberspace would become even more passive in cyberspace
since they would not even be present in the courtroom. Transferring
the jury trial to cyberspace would also lessen the gravity of the task 15 Cornelius P. Callahan, THE SEARCH FOR TRUTH: AN INTRODUCTION TO THE JURY TRIAL PROCESS (1997), viii.
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set before the jurors. As almost every judge admonishes the jury
before they begin deliberations, "Ladies and gentlemen, you are the
final determiners of the facts," the jurors have a weighty task before
them in deciding to some extent (if not completely), the fate of their
fellow man. The formality and special proceedings of a real-space
courtroom where all participants are in one place are essential in
imparting the gravity of the jury's task to the jurors.16 If jurors watch
the trial proceedings from their own home on a terminal screen, the
trial will likely lose some of the seriousness attached with their duties
as jurors. While viewing the proceedings from home may be
convenient, many distractions will impede the attention the juror will
pay to the court's events. Children or household duties may interfere
with the careful watching and listening of the day's proceedings.
IV. JURY DELIBERATIONS
Jury deliberations are often conducted in a black box since they
are completely closed off to outside observers. The jury deliberations
begin with the selection of a foreperson. Typically, the foreperson
that emerges is a white male with a college degree or postgraduate
work, in a high-status occupation, and with previous jury service.
Interestingly, he or she is often the first person nominated.17 While
real jury deliberations are closed off to any outside observers,
researchers have often simulated mock jury deliberations to glean the 16 Interview with William Lee, Hale & Dorr, December 1, 1998.17
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interactions that take place. Generally, juries employ polling methods
to see where jury stands both at the beginning and end of jury
deliberations.18 The amount of participation in group discussion and
deliberations seems to depend on personality characteristics.
Typically, men and those who have attained higher education speak
more. Scholars hold different beliefs regarding the effect of jury
deliberations on the verdict of the trial. Some people believe that
deliberations should be compared to the development of exposed film:
"It brings out the picture, but the outcome is predetermined."
From one perspective, the deliberation process could be one of
the most problematic areas for the cyberspace jury trial process.
Many problems exist with on-line deliberations since obvious
differences exist between on-line deliberations and face-to-face
deliberations. Various cyberspace venues could be utilized for the
jury deliberations. In electronic chat rooms, the jurors would log into
the internet to an on-line discussion area, where they would type in
their comments for the other jurors to read and respond to. While
this is the most cost-efficient and likely of cyberspace alternatives,
many limitations exist with this venue. In this type of deliberation
setting, jurors cannot display the extent of their feelings as well.19
Jurors will not be able to sway their jurors as emotionally with
rhetoric. In addition, people may tend to think about their comments
1819 In real space, jurors can raise their voice, pound their fists, or use hand gesticulations to accentuate their feelings. In cyberspace chat rooms, emotions can only be displayed USING CAPS, **asterisks**, or parentheticals (displaying various emotions or actions).
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more before typing them in. The sheer nature of typing in comments
could possibly bring in the element of educational restriction, for
writing and reading skills come more into play. If a juror is unable to
read or write quickly, he or she may not be able or inclined to keep up
with discussions. Juror attention span during deliberations will also
probably lessen since people will not feel as accountable in paying
attention if others are not directly watching them. In addition, in
cyberspace, jurors will lose accountability for their knowledge.
The most effective way to simulate real-space jury deliberations
in cyberspace is through the usage of video streaming technology,
where participants would be able to see the expressions of their
fellow jurors. This type of deliberation setting would ensure that all
the jurors took their roles seriously and in good faith.
On the other hand, on-line deliberations in which personalities
and rhetoric take a lesser role may actually be beneficial to the jury
process. Jury deliberations in cyberspace may become more
inherently fair. Perhaps jurors would concentrate more on the actual
evidence presented in the trial. They would be moved and convinced
by the impact of facts and arguments and no longer be as swayed by
personality conflicts and affinities among the jurors (personality
conflicts, tendency to follow natural leaders, etc.). On-line discussion
may be better due to a less emotional, more decision-making based on
facts than emotions.
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V. EXAMINATION OF EVIDENCE
Another drawback of cyberspace is that the actual examination
of physical evidence is not possible in cyberspace. While jurors will
be able to see the evidence, they will not be able to personally handle
it. This disadvantage could be crucial in criminal cases where the
attorney claims that the small-proportioned defendant was not able to
use the bulky murder weapon in the crime because of sheer size. The
physical handling of the evidence could lead the jurors one way or the
other.
VI. INTERACTIONS WITH THE JUDGE
The manner in which the judge presides over a jury trial
changes in cyberspace also. While questions by jurors are usually not
allowed in the courtroom, they are left to the discretion of the judge.
In cyberspace, if jurors have questions, they would most likely e-mail
them to the judge, who would then respond to them by e-mail.
Otherwise, they could talk directly through face-to-face internet
telephony. In addition, the jury should see the interactions and tone
of communications between the judge and the attorneys live in a
courtroom.20
VII. INTERACTIONS WITH THE ATTORNEYS
20 Interview with William Lee, Hale & Dorr, December 1, 1998.
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Many of the potential enhancements to fairness of jury trials in
cyberspace lie in criticisms of the jury trial process itself. Many
critics claim that the personalities and reputation of the lawyers
themselves often play too large a part in the jury's final verdict. In
cyberspace, juries will be less influenced by the personalities and
magnetism of the lawyers' presentation since they will not be able to
interact on any level with the lawyers. They are just purely passive
observers.
One of the most salient problems with conducting jury trials in
cyberspace will be the difficulty in judging the credibility of those
involved with the process. Jurors have to judge for themselves the
believability of those before them in forming their own opinions about
a case. In the courtroom, jurors are asked to judge whether the
testimony of witnesses before them are credible and reliable and
match up with the rest of the evidence presented in the case. In
addition, jurors also make judgments about the credibility of the
lawyers before them. Litigators often speak about the rapport or
antagonisms that develop during a jury trial. They often state that
they know when they have lost a case when a juror who always looked
them straight in the eye refuses to meet his gaze when the verdict is
impending.
This type of interaction and judgment of credibility will be more
difficult for jurors in the cyberspace forum. William Lee, head of the
litigation department at Hale & Dorr, stated that he believes the
observational readings of emotional reactions and body language that
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goes on between the lawyer and the jury, the lawyer and the judge,
and the judge and the jury are essential to the adversarial process.21
He pointed out that in conducting a witness examination or cross-
examination, the lawyer focuses just as much on the jury's reaction to
the witness's testimony as the testimony itself. He stated that when
you see jurors rolling their eyes or shaking their heads, it's time to
pull that witness off the stand. In cyberspace, the jury trial would
lose this type of interaction between the jury and the attorney. The
attorney in cyberspace would proceed just as if he was conducting a
deposition, asking all of his questions without regard to what the
jury's perception and reaction to this examination is.
VIII. JURY MISCONDUCT
In the current system, judges remove jurors for jury incapacity
or misconduct. Generally, jurors are not allowed to discuss the case
with anyone including each other until they retire to deliberations.
Jury misconduct may lessen in the realm of cyberspace. In
cyberspace, jury members would be less impelled to discuss details of
case with each other; they would not have as much occasion to
engage in small talk, and they may have less incentive to discuss the
case details over e-mail than in person. They also will not be affected
by prejudicial behavior by the public in the courtroom – the public’s
disruptive behavior which may prejudice the jury against your client
21 Interview with William Lee on December 1, 1998.
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may violate the client's due process rights as well as the Sixth
Amendment right to be tried by an impartial jury.
On the other hand, jury misconduct may be more likely in jury
trials in cyberspace on the aspect of discussions with others not
involved in the case. If jurors do decide to discuss case before
deliberations, it will be very difficult to monitor and enforce rule of no
communications before deliberations for many reasons. First, the
very nature of watching the trial proceedings from home may
encourage jurors to speak about the case more freely with family
members and friends. Also, during deliberations, it will be even more
difficult to keep jurors from discussing the case with anyone else
outside of the other jurors since jurors will not be sequestered
IX. COSTS OF CYBERSPACE JURY TRIALS
The problem with conducting jury trials in cyberspace could be
the greater costs incurred without necessarily matching benefits. The
trial would have to be videotaped from several different angles. A
judge would still have to preside, so the number of cases on his or her
docket would essentially remain the same. Court personnel would
still be needed.
X. CODE REQUIREMENTS/PRECAUTIONS IN CYBERSPACE
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If cyberspace were implemented, there may have to be
alterations and special precautions taken in the adversarial process.
Technological code problems may come into play. Jury deliberations
now are kept private to the complete extent possible with a jury being
sequestered and guarded for security purposes. One could imagine in
cases which have captured national attention such as the O.J.
Simpson case, the privacy of jury deliberations may be undermined
through the talents of hackers.22 In on-line deliberations, hackers or
those actively concerned with the deliberations (newspaper
journalists, etc.) may break into the code/security of the deliberations
and tarnish the authenticity of the communications (from
impersonating jurors to releasing status of deliberations). While one
could argue that technological code is generally quite sound,
measures would need to be taken to ensure the authenticity of juror
identities and preserve the privacy of deliberations.
In addition, administering jury trials in cyberspace would
require great forethought in developing the appropriate code and
technological input.
XI. UTILIZING CYBERSPACE IN THE JUDICIAL PROCESS
While it does not seem like the jury trial would translate well
into cyberspace due to the special nature of the jury trial, other
methods exist in which the efficiencies of cyberspace may help the
22 A "hacker" is defined as a .
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judicial process. These instances could be through the grand jury
investigation process, arraignments, and the efficient delivery of
overseas witness testimony.
More discussion regarding group decision-making in
cyberspace: arbitration, mediation, cyber-community norms in
sysopdom.
ALTERNATIVE DISPUTE RESOLUTION AND CYBERSPACE
Descriptions of developments from Christine Lepera, New Areas in
ADR, 770 Pli/Comm 709, January 1998.
The Virtual Magistrate (http://vmag.vcil.org) a self-contained, on-
line arbitration system initially restricted to disputes between users of
on-line systems, systems operators and those who claim to be harmed
by wrongful messages, postings or files, e.g., whether it would be
reasonable for a system operator to delete or restrict access to
content on the basis that it violates intellectual property rights,
defamation, deceptive trade practices, and invasion of privacy.
Virtual Magistrate was developed to demonstrate that on-line
technology can be put to work to resolve Internet disputes quickly in a
cost efficient, accessible manner. Long term goals of the project
include extending the process to other classes of cases and the
possibility of creating an industry wide protocol to resolve disputes
through ADR.
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Launched in March 1996, Virtual Magistrate is a joint venture of
the Cyberspace Law Institute, the AAA, the National Center for
Automated Information Research and the Villanova Center for
Information and Policy. Once a case is accepted after review by AAA,
a single arbitrator ("magistrate") is appointed by random selection
from a pool of available magistrates. The arbitrators, who are not
required to be attorneys, are chosen on the basis of their expertise in
on-line technology. All communications, including the filing of briefs
and the award of the magistrate, take place via e-mail. Private e-mail
can be arranged at the discretion of the magistrate, but all
correspondence will probably be preserved for the file, raising
confidentiality issues. Each case is assigned a docket number,
protected by the use of a password system; once the arbitration is
completed, however, the docket becomes available to the public. The
goal of the Virtual Magistrate project is to resolve all disputes within
three business days of submission.
On-line Ombuds Office (http://www.ombuds.org/): on-line
mediation system, operating similarly to the traditional
omsbudsperson, that will handle any dispute arising from on-line
activity; mediation is conducted by e-mail and telephone and the
"ombuds office" exists on Cyberspace on the World Wide Web. The
program was envisioned to make use of discussion groups and
emerging videoconferencing technology.
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OTHER ISSUES TO DEAL WITH
Arguments for and against videotaped testimony.
Videotaped depositions (even well-executed ones are never quite as
good as real depositions).
Editing Option
The real video option allows the court to edits the videotape to
eliminate sidebar conferences, references to inadmissible evidence,
and trial motions.
i. Must consider effect of viewing over video rather than live
ii. Must consider passive role on verdicts and perception of jury
service
iii. Effects of production quality of real video
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