Courtrooms Enter Video Age as Use of Taped Evidence in Trials Increases : Justice: Judges and lawyers say a picture is worth a thousand words. But some say well-edited videos can misrepresent situations. And some legal experts fear juries may give undue weight to a video presentation.

In 1937, Josephine Heiman sued the Market Street Railway Co. for damages after she was hit by a streetcar in San Francisco. In her lawsuit, she claimed she had suffered devastating injuries and was left incapacitated by the incident.

But when the case came to trial, lawyers for the railway showed a film that purported to show Heiman going about her normal activities shortly after the accident. Influenced by the film, jurors in the case gave the woman a far lower financial award than she had sought.

That case demonstrated to lawyers the potential of moving pictures to support or contradict the testimony of witnesses in jury trials. But the high cost of making a film for use in court generally restricted the practice to wealthy parties involved in high-stakes cases.

The development of low-cost video technology, however, has leveled the legal playing field. Now, numerous lawyers regularly use videos to help them make their cases. Videos reconstructing accidents, demonstrating allegedly faulty products and depicting a typical “day in the life” of a plaintiff have become common in California civil trials, including cases in the San Fernando Valley.

Videos were used recently, for example, in civil trials involving a paralyzed woman who was raped in a North Hollywood nursing home, a man injured in a Castaic Lake accident and an Encino woman collecting damages against the manufacturer of the Dalkon Shield. And lawyers plan to use videos in court in the case of a Simi Valley student hit by a car while crossing the street.

Sometimes videos are praised for helping jurors draw their own conclusions about a person, place or event without having to rely on witnesses’ descriptions.

“Video makes it possible for someone, even on a limited budget, to come into court and show the court what is happening somewhere,” said San Fernando Superior Court Judge David Schacter.

“It’s the old saying, a picture is worth a thousand words,” said Van Nuys Superior Court Judge Thomas Schneider.

Yet judges and lawyers say the recent cases in the Valley indicate that slick, well-edited videos can misrepresent situations by taking scenes out of context. And some legal experts fear juries may give undue weight to a video presentation.

“We don’t have a sense that jurors are able to critically analyze television in the same way that they do a live person,” said UCLA law school professor Paul Bergman, who teaches trial advocacy.

“A lawyer will have to become almost like a film critic,” Bergman said. “He will have to think about the other side’s videotape and how to counter that.”

In a recent trial in San Fernando Superior Court, San Diego-based attorney David Brennan saw first-hand how easily raw video footage can be slanted to make a point.

Brennan was defending Seacrest, the manufacturer of a motorized recreational water vehicle known as a wetbike, against a $15-million claim by a man who sustained major brain damage and other injuries in a 1982 collision between his wetbike and a motorboat on Castaic Lake. Richard S. Brownstein, the plaintiff, contended that the collision occurred because the wetbike was unstable and uncontrollable.

During the trial, Brownstein’s attorney showed a seven-minute video of a naval safety expert riding a wetbike. On the tape, the wetbike jumped out of the water several times as it crossed boat wakes.

Brennan called his own expert witness to analyze the tape. The expert said that a single sequence during which the rider shook the bike to make it unstable had been edited into the tape at several points. Brennan also subpoenaed the plaintiff’s unedited footage and played it in court.

“We demanded the entire film that he had taken. When they viewed the totality of the film, they said, ‘This is baloney.’ They saw that he was perfectly capable of controlling the bike,” Brennan said.

The jury eventually ruled that the wetbike manufacturer was not liable for causing Brownstein’s accident.

“Video is a powerful tool in the courts, but it can be manipulated pretty easily. Properly used, it can demonstrate truth to the jury. Unfortunately, you can do a variety of things to demonstrate something you are trying to prove, even if it isn’t true,” Brennan said.

Other legal experts say that a particularly emotional video depicting a plaintiff’s suffering may impair a jury’s ability to rationally consider the facts of a case, as perhaps occurred in the case of Andree Nerpel.

Nerpel, a severely brain-damaged woman, was raped and impregnated at the Laurelwood nursing home, and her family sued the North Hollywood facility for damages. The jury awarded her $7.5 million, but Judge David M. Schacter set aside the award because he said there was “not one shred of evidence” that the nursing home was negligent in caring for their patient.

During the trial, Nerpel’s attorney played a video of Nerpel as she lay helplessly in bed, semi-paralyzed and unable to speak as a result of injuries incurred in a 1969 automobile accident. The video showed her lifting her hand to grab her grandmother’s hand, putting her hands behind her head and becoming agitated when a stranger came into the room.

Richard B. Castle, the lawyer who represented the nursing home, said the videotape “clouded the issues” for the jurors, whose decision was based “purely on emotion.”

Still, Schacter and Castle agree the video had a place in the court.

“She was the plaintiff in this case, and she had no other way to get here. The jury had a right to see that,” Schacter said.

Lawyers and legal video specialists admit that “day in the life” videos, which show the injuries sustained by a plaintiff in a civil suit, are designed to appeal to jurors’ emotions. But, they said, it is important for jurors to understand exactly how a plaintiff’s life has been affected by the accident.

“It’s a documentary,” said legal video producer Peter Meilen.

Meilen recently filmed 14-year-old Jennifer Joyce, who was in a coma for 22 days after she was hit by a car last May while crossing a street behind Sequoia Junior High School in Simi Valley.

Joyce’s family is suing the city and the Simi Valley Unified School District for negligence for leaving the school’s back gate open, allowing the students to cross the street unsupervised.

To dramatize how Joyce’s life has been altered since the accident, Meilen filmed her as she attended three hours of speech, occupational and physical therapy.

When Joyce banged her head on the table in frustration at her inability to follow the simplest of commands during her occupational therapy session, Meilen captured the moment. The hours of tape would eventually be cut to 35 minutes to be presented in court, but he said he thought that scene would stay.

In response to criticism that such videos can be skewed with skillful editing, Meilen said: “We do try to select what we feel are the more poignant moments, but I am not creating anything other than what’s there. We don’t ask her to do anything different than she does in a normal day. We don’t stage anything.”

Concerns about the potential for abuse of videos as evidence in trials are not new. They were voiced initially nearly 50 years ago, shortly after the California Supreme Court ruled that movies could be shown in court. The issue came to the court when Josephine Heiman appealed the use of the movie in her case against the Market Street Railway.

The court ruled that there was no reason to bar moving pictures from being introduced as evidence in court, noting that movies are just a series of still photographs and that still photographs had long been accepted as admissible in court.

Three years later, however, a state appellate court warned judges that “moving pictures should be received as evidence with caution.”

“The modern art of photography and the devices of an ingenious director frequently produces results which may be quite deceiving. . . . Telescopic lenses, ingenious setting of the stage, the elimination of unfavorable portions of the film, the angle from which a picture is taken, and the genius of the director may tend to create misleading impressions,” the decision stated.

To prevent abuses, judges scrutinize the footage before the juries see it, to be sure a video does not misrepresent the events of the case in which it is introduced. If it does, a judge will rule the film inadmissible.

Videos are also used, without controversy, to save time and money by recording the testimony of distant experts and witnesses.

When hundreds of women across the country sued the manufacturer of the Dalkon Shield, A.H. Robbins, the videotape deposition of Howard Tuttle became a cornerstone of many of their cases.

Tuttle was the former staff attorney for the company, and in his deposition, he testified that he had been ordered to shred company documents showing that Robbins had early indications of the dangers of the shield.

“Dalkon Shield cases were tried all over the U.S. The video was shown all over the place,” said Jeff Holl, a San Francisco-based attorney who represented many women in their claims against the Robbins company.

Among those Holl represented was an Encino woman who sued A.H. Robbins in Van Nuys Superior Court and eventually was awarded $165,000. Judge Thomas Schneider, who heard the case, said the Tuttle tape lasted several hours and was critical to proving that the Robbins company had been negligent.

In the pre-video era, his testimony would have been read to jurors from a transcript of a deposition taken earlier. But judges say jurors are likely to pay more attention to a deposition on video and can better evaluate the testimony.

In a video, “you can see the person talking, and the impact is better,” Schneider said. “If someone licks their lips, that might be a sign of nervousness that you would never pick up in a written deposition.”

In July, 1987, legislators, recognizing the advantages of such testimony, amended the California Code of Civil Procedure so lawyers no longer needed special permission to introduce videotape depositions. The code was also changed to allow videos of experts to be used, even if the expert witness is available to testify in person.

But it is a judge in Sandusky, Ohio, who has realized the full potential of using videos to save time. Since 1971, more than 300 civil trials in the Erie County Court of Common Pleas--the equivalent of California’s Superior Court--have been conducted completely on video.

In these trials, all the evidence is prerecorded, then edited by the judge, who removes any inadmissible testimony and the questions that prompted that testimony.

After selecting a jury, the lawyers make their opening statements live, then jurors watch a videotape of the evidence while the judge retires to his chambers to edit the testimony for the next trial.

Common Pleas Judge James McCrystal, who initiated the video trials, said they are one-third faster than trials with live witnesses. He also said they are fairer, because jurors do not hear evidence that is later ruled inadmissible.

“You can’t ignore what you have already heard. As the old saying goes, you can’t unring a bell,” McCrystal said.

During a videotaped trial, jurors never have to sit around while attorneys argue in chambers with the judge about admissible evidence, and the jurors are not influenced by attorneys’ outbursts.

“We have polled more than 800 jurors. Most of them feel that they do a better job when the trial is on tape,” he said.

McCrystal hopes videotaped trials will become the norm in the future. He travels around the country promoting the idea, but he said many attorneys are reluctant to try it because they enjoy “performing live” in front of a jury.

“The idea of losing center stage scares them to death,” he said.