1. The Digital Witness Duncan W. Glaholt

2. Question #1 : Can a Computer be a Witness? A: Yes! 1. Automatic Data Collection 2. Computer Animation 3. Computer Recreations

3. Automatic Data Collection –security pass card and log; –cellular usage log –any computer-based record keeping system

4. Computer Animation –Computer-created representations to depict the testimony of a witness –The classic “cut-away view” –E.g. heart valve, operating engine, piping failure –No estimates, no suppositions, no extrapolation –Renders evidence into animation

5. Computer re-creation –Computer-created, accurate, mathematically consistent, visual representation of what a reconstruction expert believes happened in a situation; –e.g. modeling program, fatigue analysis, finite element analysis

6. Example – Flume Ride

7. Side Impact Demonstration

8. Side wall cracking Maximum Stress Of 60 MPa

9. Question # 2: Are there limits? In the U.S.: Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993) Instead of "general acceptance" in the scientific community, the new test requires an independent judicial assessment of reliability.

10. In Canada: R. v. J. (J-L.) (2000), 148 C.C.C. (3d) 487 (S.C.C.): Daubert must be read in light of the specific text of the Federal Rules of Evidence, which differ from our own; There are a number of factors that could be helpful in evaluating novel science

11. “(1) whether the theory or technique can be and has been tested.

12. “(2) whether the theory or technique has been subjected to peer review and publication.

13. (3) the known or potential rate of error or the existence of standards; and,

14. “(4) whether the theory or technique used has been generally accepted.

15.  Reliability  R. v. Chow (1991), 68 C.C.C. (3d) 190 (Alta. C.A.)  Machine collects data without human Intervention  e.g. recipient, length of cell phone calls  Problem: No human witness available to “prove” business record under oath Automatic Data Collection Basis of Admissibility Distinguishing Characteristics Category

16.  Demonstrative only  Possesses no probative value  Merely illustrates effect of otherwise admissible substan- tive evidence  Needs only evidentiary foundation, threshold low  Meant to be exact graphical representation of complex concept;  Not based on estimates, suppositions or extrapolations;  No analysis or theory added;  e.g. interior of beating heart; splicing, unsplicing of DNA; inside of working engine;  Problem: Shows us things no human witness could ever see Computer Animation Basis of Admissibility Distinguishing Characteristics Category

17.  R. 30.01  R. 53  R. v. Mohan, [1994] 2 S.C.R. 9  (i) relevance  (ii) necessity  (iii) absence of exclusionary rule  (iv) properly qualified expert  Essentially uses computer software to create meticulously accurate, mathematically consistent visual representation of what an expert believes happened in a given situation  WUFI analysis (calculates moisture transport in building envelope systems)  Q.Q.S. (Quality and Quantity Simulation System / water flow) Computer Re- Creation Basis of Admissibility Distinguishing Characteristics Category Problem: This is opinion evidence pure and simple, meant to be relied upon by the trier of fact Prejudice v. Probative Value Relative Experience of Trier of Fact

18. Summary R. v. Mohan & Rules “3-D opinion”Computer re- creation Demonstrative, not probative value “cut-away view”Computer Animation Reliability“machine made evidence” Automatic Data Collection Basis of Admissibility CharacteristicsCategory

19. Question # 3: Are we ready? Electronic Courtroom, 393 University Avenue, Toronto

20. The electronic courtroom will support: Digital evidence and argument presentation  Remote video and teleconferencing appearances by counsel, witnesses and interpreters  Simultaneous cross-border hearings

21. Question # 4: When and How?

22. Process Matrix Law of Evidence CounselPersuasionLitigation Panel’s Expertise PanelExposition / Persuasion Arbitration Mediator’s Style GroupExpositionMediation Timing of Intervention ProjectDocumen- tation DRB / Project Neutral Limiting Factor DriverGoalProcess

23. Does it:  - clarify (score 1)  - simplify (score 1)  - focus (score 1) Total score 1: Scrap it! Total score 2: Risk it? Total score 3: Use it!

24. Tip # 1 Think live theatre: A few special effects go a long way

25. Tip # 2 Know your audience: Research your court and opposing counsel; anticipate and be ready for objections

26. Tip # 3 Strive for smoothness, rhythm and flow

27. Tip # 4 Remember: You are spending your client’s money, and your credibility

28. Question # 5: What is Ed Josiah’s Number? (516) 802-5732 (direct)

29. The End (Ed Josiah’s  again is: (516) 802-5732 direct)