By CaroLea Casas

In trial advocacy classes, law students are often taught to use evidence to tell a story. Adept trial advocates can weave together the threads of a story so that jurors have a vivid sense of the circumstances – vivid enough to make them feel almost as if they were there. This ability is especially important for prosecutors and defense attorneys in the criminal realm, as these lawyers face a higher burden of proof than their civil counterparts.

Technological advances may soon take some of that burden off of the advocate’s shoulders. A recently funded Staffordshire University project led by Dr. Caroline Sturdy Colls is using virtual reality technology to digitally recreate crime scenes. The project seeks to provide tools for prosecutors to show the crime scene in virtual reality to jurors via headsets. Additionally, Durham University PhD researcher Mehzeb Chowdhury has developed MABMAT, a relatively low-cost autonomous robotic imaging system capable of scanning entire crime scenes. Field-testing has been arranged with various law enforcement agencies. Both projects aim to improve on inconsistencies in evidence collection.

These projects can greatly reduce the time between a criminal incident and the collection of data for reconstruction. However, the use of virtual reality software may create new problems, as visually placing a juror at the scene of the crime may exacerbate other inequities of the trial process. Why? Because virtual reality software has value as a persuasive tool. Van Jones, who pointed out that “virtual reality is being referred to as an empathy machine,” has partnered with filmmakers for Project Empathy, an endeavor which uses short, virtual reality films, to share the perspective of families affected by incarceration.

Jones’ point is well taken—virtual reality software is highly personal; it provides an experience that a more simplistic medium cannot. It invokes empathy, because it allows the viewer to take on another’s perception. And if jurors experience a crime scene reconstruction, it is reasonable to expect that they might carry with them their own biases.

For example, during the grand jury proceedings for the Tamir Rice shooting, the officers’ defense team used a virtual reality reconstruction  to demonstrate the officers’ point of view. In a press conference on the grand jury’s failure to indict the two officers involved, the prosecutor described the circumstances surrounding Rice’s death as a “perfect storm of human error.” Mass public outcry suggested that some of that human error was due to inherent biases – but is it possible that the reconstruction played a role in reinforcing or exacerbating those biases?

Writer and designer Kate Mills briefly explored the use of virtual reality in the courtroom in her article, “Can Virtual reality Destroy Partiality In Our Criminal Justice System.” Mills wrote that “[i]t is vitally important for jurors to have a complete and objective picture of the place where the crime was allegedly committed, yet many times jurors are given partial, second- and third-hand information and depictions of what happened at the scene of the crime.” Despite her conviction that reconstructions could create a more objective trial system, Mills ended her article with an open-ended question: whether bias could actually be eliminated in the presentation of evidence. Her inclination, much like my own, is no.

The California Innocence Project (“CIP”) has developed a list of Eyewitness Identification Problems and Procedures, in which the project states that for a witness, “just knowing who the suspect is can be problematic.” In fact, CIP asserts that in some cases, a witness’s brain can automatically fill in the details of an incident with a suspect’s face. Which leads to the question, in a courtroom where the prosecution admits a virtual reality reconstruction from the victim’s point of view, does the juror then take the place of the witness or victim?

The CIP research seems to indicate that in such a case, having a pre-identified suspect on trial as the jury views a reconstruction may subconsciously suggest guilt through that gap-filling inclination. If virtual reality software truly is an “empathy machine,” then the reasonable juror may be swayed by such a presentation on either side. Because of the strain on resources generally available to indigent defense clients, however, parity of presentation may not be realistic in most cases.

The answers to these questions may not be fully attainable until virtual reality demonstratives are actively deployed in courtrooms. As with any technological advances, our legal system will have to catch up once the software is complete. But in the interim, perhaps field-testing, not just with law enforcement, but with mock juries and a variety of mock defendants, would be useful for protecting the rights of the accused before use of virtual reality in the courtroom becomes the norm.

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