Category: Evidence

Demonstrative EvidenceEvidenceExpert Witnesslegaltech

3D Printed Demonstrative Evidence: Expert Witness & Lawyer Insights

Additive manufacturing, also 3D printing, is revolutionizing the creation and development of products. According to Oxford Dictionaries online, 3D printing is defined as, “The action or process of making a physical object from a three-dimensional digital model, typically by laying down many thin layers of a material in succession.” Essentially, you’re making a computer generated three-dimensional solid object.

Are you wondering what type of solids objects one could make? Here are just a few items I’ve found from searching the Internet: bottle openers, sun glass holders, wheelchair ramps, fighter jet parts, concept cars, guns, prosthetic limbs,  jewelry, medical devices, and more.

For our purposes, some of the most interesting uses of 3D printing come in the forms of demonstrative evidence, such as crime-scene reconstruction, accident reconstruction, anatomical recreations for medical malpractice, and product recreations for in product liability cases.  I am certain we will see more uses as the technology progresses, but these seem to be the stand out items in the legal community at present.

3D Printing and the Law:

For a little background, I’ve pulled together some examples of 3D printing uses and their interaction with the law.

An article from 3Dprint.com, discusses a Canadian firm who creates 3D demonstrative models for criminal, medical malpractice, and personal injury cases. The article explains the 3D printed evidence provides a different visual and persuasion experience for jurors. It improves juror memories where verbal or written presentations may fail. A representative for the company featured in the article claims, “the credibility and memory bias problems inherent in courtroom proceedings can be overcome with visual aids.” The company further cited some of their own experiences, “such as 3D printing a broken spine from x-ray data in order to graphically reveal the severity of the injury or using a 3D, PDF image to show the degeneration of a hip in a medical malpractice case as ideal uses for their technology.”

There are other legal issues related to additive manufacturing. For example, if you have access to a 3D printer and you want a Mickey Mouse toy for your kids, what keeps you from creating your own? What if you want to create a bunch of Mickey Mouse toys and sell them to local retail establishments? According to this article from Intellectual Property Watch, you can do just that.  “3D printing technology makes it easy to copy and reproduce products – even if they are protected by a patent, trademark or copyright. It is as simple as downloading a computer-aided design (CAD) file, which can instruct the printer to reproduce a 3D object. CAD files are digital, meaning they can be shared across the internet, just like movies and music.” This article elaborates on the risks to intellectual property:

“The commercialisation of 3D printing – with an increase in small scale manufacturers – makes policing IP complex. Each printed copy of an invention represents the loss of a potential sale to its patent holder. As the manufacturer is ultimately the end user, it is harder to prove infringement. To sue, the patent owner would need to be aware that a manufacturer is using a 3D printer to reproduce their patented invention – a tall order given that 3D printers are increasingly common in households and small businesses.”

Certainly, this is a concern for those who are regularly creating patented and trademarked products.

Law enforcement is another area where 3D printing seems to receive significant news coverage. It seems police are using the technology to recreate crime scenes and even construct printed skeletal reconstructions for unidentified victims. In an article on PoliceOne, I discovered an effort by Maryland State Police to identify a homicide victim whose body was discovered after significant decomposition. Here is the process described on PoliceOne:

“By using 3D printing technology, scientists could create a replica of the skull, enabling police experts to render a facial likeness of the victim, which could lead to an identification… From a 3D printed model, experts can examine the bone structure to predict how facial muscles and skin would lay on the skull… With a rendering of the victim’s facial likeness, investigators hope for someone to come forward and identify the body.”

In an article from the National Post, I found that the Royal Canadian Mounted Police (RCMP) are using 3D printing technology to reconstruct automobile accidents. The article which came out early this year just after the RCMP purchased their first 3D printer explained, “The printer would be used by the B.C. RCMP’s integrated collision analysis and reconstruction service (ICARS), which specializes in forensic reconstruction of collisions that cause serious injury or death. It would be used in conjunction with the unit’s existing 3D scanning technology, which it uses to create digital images of accidents.”

The above descriptions of 3D printing in the legal community are just a few examples. I wanted to give you a taste of the different areas of law being impacted by 3D printing.

Now, how about we get some input from an expert witness using the technology? Someone with experience related to 3D printed demonstrative evidence.

Marc Glickstein, MD, FACR – Medical Demonstrative Evidence Expert Witness

Dr. Marc Glickstein, is a partner in a large private practice radiology group, on the senior medical staff of 8 area hospitals, and an assistant clinical professor of Radiology at University of Connecticut School of Medicine. With his medical background and experience in photography, Dr. Glickstein specializes in providing medical demonstrative evidence to attorneys in personal injury and medical malpractice cases. You can learn more about Dr. Glickstein by visiting his website: medivence.com.

I posed several questions to Dr. Glickstein. Even with all of his experience, he has only used 3D printed evidence in two trials. This is not surprising given how few cases make it to trial these days. Nevertheless, the technology is impressive and is likely to be used more frequently in the future. Here are the questions and answers:

Nick: How long have you been working with 3D printed evidence?

Dr. Glickstein: 3 years.

Nick: What are the most common types of 3D printed evidence that you see in litigation?

Dr. Glickstein: 3D is best for depicting fractures although it can also be used to show tumors, birth defects, post operative complications (generally orthopedic).

Nick: Do you find 3D models to be more compelling evidence than other demonstrations?

Dr. Glickstein: Yes, because they can be viewed in real-time and the jurors can actually hold the model in their hand and have tactile as well as visual input which makes the experience more real and memorable.  It can also be more visually compelling to see the abnormality in 3 dimensions.

Nick: What types of 3D printed evidence have you used to assist in your expert analysis?

Dr. Glickstein: It has been limited to cases of bone fracture at this point but there is no reason why other types of modeling such as tumor modeling could not be used.

Nick: Can you share any examples of 3D printed demonstrations that were critical to the outcome of a case?

Dr. Glickstein: The photos I gave you (see below) were used to illustrate the severe nature of the spinal vertebral fracture and clearly showed the jury that there was significant spinal compression.  They clearly understood this but the verdict went to the opposing side for other reasons, too detailed and arcane to present here.

spinal-fracture-1.JPG

spinal-fracture-2.JPG

Nick: In my mind, I’m thinking 3D printed models are going to be incredibly expensive. Can you give us an idea of costs for 3D printed evidence?

Dr. Glickstein: 3D is expensive and that is the main hurdle. Many attorneys do not appreciate the compelling nature of such modeling and the costs can be dissuasive. The materials alone can run $1-2000 and that does not take into account the time needed to work out the display. This also does not factor in the costs of the 3D printers which are usually rented on a per click basis by a company that does the modeling, and high quality 3D printers can cost over $100k. A model can cost between $2500-4000 for the final product.

Nick: As an example, how long would it take to create a 3D printed model of a human heart?

Dr. Glickstein: It really does not matter whether one is making a model of a fracture or the heart…the time is similar and in general it should take a couple of weeks for me to create a model from time of receipt of the images to delivery of the finished product.

Nick: Anything else you think the legal community should know about 3D printed evidence that I have not asked…

Dr. Glickstein: 3D modeling quality is dependent on the parameters used in the original imaging, which must be of high enough resolution to enable high quality reconstructions in 3D, just as is the case in 2D or digital 3D reconstructions.  If a study is not of high enough resolution, it is not going to enable one to generate an acceptable rendition.  A radiologist can make that determination upon viewing the study itself.

There you have it. Direct from the expert who has used 3D models in litigation. The costs dissuade consistent use of this demonstrative evidence. However, this will not always be the case. As the technology progresses, costs will decrease, making 3D models will be less cost prohibitive. With the potential to show a jury the extent of an injury and allow them to hold a perfectly scaled replica, I predict the demonstrative models will be commonplace.

For greater insight on the future of this evidence, I reached out to one of the most tech savvy lawyers I know.

Morris Lilienthal, Esq. – Huntsville Alabama Wrongful Death and Personal Injury Attorney

Morris Lilienthal is a civil trial lawyer with more than 14 years of experience in wrongful death, personal injury, and product liability matters. He practices in Huntsville, Alabama with Martinson & Beason, PC. Morris is also the host of the TheMoShow, where he interviews local and statewide leaders, sharing stories of their business, public, and charitable endeavors. Prior to law school, he attended Maryville College in Tennessee where he played offensive tackle on the football team. The same competitive nature that helped Morris excel on the field helps him in his representation of injury victims today.

I know a lot of lawyers and I reached out to a bunch of them. It may be no surprise that none of them have yet used 3D printed demonstrative evidence in trial. Although, most of them knew of lawyers who had. This area of demonstrative evidence is growing and we’re sure to see it in the future. I asked Morris some questions about the potential use of 3D printed models at trial. Here they are:

Nick: Have you used 3D printed demonstrative evidence in litigation?

Morris: I have not used 3D printed models yet.

Nick: Would you find it helpful to present a 3D model to jurors to show the extent of an injury?

Morris: Yes, I think a 3D model would be very helpful in trial.  Anytime you put the jury in a position where they can visualize what’s occurred the case goes from just something that’s abstract to real life.  The jury gets a real understanding of what injury the plaintiff suffered and can then understand how the injury may impact them. As the saying goes a picture speaks a thousand words.

Nick: Do you think it would be good for jurors to be able to hold and analyze an exact replica of an injury (skeletal damage, damaged organ, traumatic brain injury)?

Morris: Yes.  Again it allows the jury to understand how the accident at issue caused the injury and how the injury impacts the plaintiff.

Nick: Besides current costs, is there a reason you might avoid using 3D printed demonstrative evidence?

Morris: Authentication by the doctor.  Before the model is able to be introduced into evidence you will have to get the doctor to validate its a true representation of the plaintiff’s injury.  This, can be done by sending the doctor the model prior to his/her testimony for authentication. However if the model is not accurate it will have to be made.

Nick: Are there any other items you think lawyers should take into consideration before using 3D printed evidence?

Morris: Just make sure the jury understands this is the exact injury the plaintiff suffered and that it’s not a model.

As this evidence is more commonly used, we will bring you more insights and suggestions from the experts and lawyers using the evidence at trial. Keep an eye out for the 3D printed demonstrative models. If they have not yet, they will be coming to a courtroom near you!

 

 

 

Criminal JusticeEvidenceExpert Witness

Golden State Killer, Part 3: Defense Concerns about Tainted Memories

“Few rights are more important than a right to a fair trial.” According to this article, in The Mercury News, these words were spoken in court last week by attorney David Lynch, defense counsel for James Joseph DeAngelo, the alleged Golden State Killer. Mr Lynch is right. His words are of the utmost importance. So important, in fact, we spend significant time in law school learning criminal justice and rights of the accused. As I recall, there were at least two courses dedicated to the subject entirely: Criminal Law and Criminal Procedure. Other courses are substantially related to the topic, i.e., Evidence and Constitutional Law.

Even for the worst criminals accused of the most heinous crimes, we have to offer a fair trial. It should remain a priority for a civil society. I, for one, would rather a guilty person go free than an innocent person be imprisoned. I feel the readers pulling away from me at this point. You may be asking, “How can you say that about the Golden State Killer? Have you read about his crimes?” Yes, I have, and I understand the emotions tied to convicting him. In fact, if Mr. DeAngelo has committed the crimes he’s accused of, I want him convicted. However, I want him to have a fair trial and I expect the prosecution to prove their case. That’s the law and it should be followed. If proper procedures are followed, it also avoids the case being overturned on appeal.

For our purposes, David Lynch provided an even more interesting statement in court last week. Mr. Lynch said, “When you have an old memory, it can be tainted if you get new information.” The Mercury News elaborated on his concern:

“Lynch estimated 16,000 articles were written about the Golden State Killer online, including more than 100 by the local Sacramento newspaper within two weeks of DeAngelo’s arrest. He said releasing information could affect witnesses’ memories and hurt the jury selection process.”

Based on my experience working with expert witnesses, I know there are immense concerns about matters such as eyewitness identification and witness memory. I mention the two together because memory can impact identification.

In the Golden State Killer matter, we have no publicly available information of an eyewitness identification (no reporting about photo identification or line-ups). Nevertheless, we do have many eyewitnesses to the crimes (including over 40 rape victims). As such, Mr. Lynch is probably concerned about other memories associated with the crimes. Such as physical attributes, physical description, verbal interactions, time of day, weather, residential layout, and more. Defense counsel doesn’t want new information released to the potential jury pool, victims, and other witnesses that might create false memories about which they may later testify.

Allyson Kacmarski – Criminal Defense Lawyer – Wilkes Barre, PA

To help our readers understand the concerns of David Lynch, I thought it was important to get some further input on memory concerns from a practicing defense attorney, so I reached out to a friend who practices criminal defense in Pennsylvania.

Allyson L. Kacmarski is a former public defender and former Assistant District Attorney who is now in private practice in Wilkes Barre, PA. Her firm is a full-service criminal defense and family law office serving clients in Wilkes-Barre, Luzerne County, and throughout northeastern Pennsylvania. Allyson does some spectacular work connecting and educating clients via her Instagram account. You can learn more about her practice by visiting attorneyallyson.com.

I posed some questions to Allyson and she provided some very detailed answers regarding her concerns about witness memories.

Nick: From a criminal defense perspective, what concerns would you have about information impacting witness memories?

Ms. Kacmarski: I like to believe that a witness’ memory is best right after the crime occurs. Think about this in your own life. When you tell a friend a story, the story has more details when you share this story within hours or days of the incident occurring, rather than months or years. Allowing an alleged victim or witness to read newspaper articles or portions of police reports can definitely impact the way a person recalls the incident. It’s always a cause for concern when a witness testifies at trial to details that were not contained in the original statement to the police. The question becomes, where did the witness get this “new” information from? Was it the newspaper? Maybe it was during witness prep with the police who are now providing information to the witness by asking questions that this witness did not know the answer to originally. Most people want to help the police and “catch the killer,” so there is definitely an innate pressure to agree with the police when they asked leading questions such as, “isn’t this the gun that the suspect had?” A person may say, “Oh, yes” even if he/she doesn’t remember because he/she doesn’t want to make the police mad or blow the case and let the killer go free. When you hear something enough, anyone can start to believe it is real and true, even if it’s not.

Nick: Does the defense attorney for the Golden State Killer have a valid concern about “tainted” memories?

Ms. Kacmarski: Yes, but this concern applies to any criminal case, not just the Golden State Killer. The pressure is always on in any case for a witness to testify successfully to facts that will show the Defendant is guilty of the crime as charged. For example, in criminal cases involving the testimony of a child, the court may have a taint hearing to determine if the child’s memory has been compromised by outside influences, such as a parent flat-out telling the child what to say or maybe it’s bad questioning or suggestive questioning by an interviewer that affects the child’s memory. The point is, whether it’s reading details in a newspaper article, talking to the police about the case during an interview, or even a witness discussing the incident with family or friends, taint could always occur. Providing a witness with information and details that he/she did not initially disclose to the police, can always lead to a defense attorney questioning how accurate the witness’ memory truly is.

Nick: In your experience, are witness memories reliable?

Ms. Kacmarski: Maybe yes… Maybe no. For me, reliability can be influenced by outside factors. For example, a witness may distinctly remember all the details of an event because it was unique or odd or something stood out that he/she would never forget. Maybe it’s something about the way a person spoke, or looked, or acted or dressed that made the incident not only memorable, but ingrained in the witness’ brain. I also think the length of time a witness interacts with a person can affect the memory. If the interaction is short, say seconds or minutes, how many details will a witness be able to recall when he/she has very little time to observe the other person. Speaking of interaction, things like a gun being present and used during an incident can greatly impact the reliability of a witness’ memory. Often times, the witness is so focused on the gun, he/she may not remember anything else about the incident.

Nick: With no current reports of eyewitness identification, what types of memories might defense counsel be concerned about tainting? (i.e. times, dates, physical attributes of the suspect, weather, physical layouts of a residence).

Ms. Kacmarski: My biggest concern as to taint would be the physical appearance of the suspect. Without someone describing the height/weight, skin color and complexion, even hair color, the identity of the suspect is unknown. In the Golden State Killer, the news has reported it was the DNA that led to the arrest. Once he was arrested, the Golden State Killer has been all over the news. It is very easy for a witness to see this guy in the news and say, “yes, that is him, I remember that face.” If the original statement fails to detail the suspect’s face or some outstanding facial characteristic, the concern is now the news has tainted the identification of this witness.

Nick: With a case of this magnitude (crimes across the state) would you be worried about the heavy press coverage impacting witness memories?

Ms. Kacmarski: Heavy press coverage can always impact a case. First, let me just say this, and no offense to the news community. But what you read in the newspaper is not always what really took place. I can say from my own personal experience because I have read articles “quoting” statements I made during a trial and guess what … I didn’t say it or it was taken completely out of context. The point is, when people read something in the newspaper he/she thinks it is 100% true. Since we can’t stop a witness from reading the newspaper, or should I say searching the internet, we can’t control how reading a statement from the police, containing information from various witnesses all combined, as well as details about evidence collected can cause the memory of a witness to “change.” And let’s just say, seeing the picture of a person in handcuffs, in prison garb, being escorted by the police, can do a lot to a person’s memory as to who he/she believes the “killer” is. Seeing a person’s face and image enough times, when he/she is in police custody, can taint the person’s memory as to physical appearance and details, especially if this takes place prior to the police showing the witness a photo line-up.

Nick: Can you provide any examples from your own practice about faulty witness memories?

Ms. Kacmarski: Examples of faulty witness memories:

  • In an attempted homicide case, a victim, who was shot in the back of the head, testified that he/she remembered what the gun looked like and then he/she described the gun to the jury. I asked the victim, “How do you know what the gun looked like, if you were lying face down on the ground?” The victim said, “Because the police told me about the gun.” I immediately asked “what?” The victim said “he/she couldn’t remember details of the incident, specifically the gun, so he/she asked the police and the police told him/her.”
  • Right after a crime happened, the police arrive and within approximately 2 hours of the crime occurring, the police interview a witness who says, “I saw a man walking down the street with a tan coat and a gun.” Approximately 11 months later, after TV and newspaper articles, the witness tells the police when he/she is served with a subpoena for trial, “Oh yeah, that guy I saw, he is my neighbor and we have talked before this.” Fast-forward to trial, the witness says, his/her next door neighbor told him/her that “the guy lives across the street” and by the way, there was no talking, just a “Hi.”

Nick: Is there any other information you would like to provide about witness memories in regards to criminal defense matters?

Ms. Kacmarski: When looking at a witness’s memory of an incident, I like to look at all the surrounding factors that can impact the memory.  In my opinion, things like the lighting, the time of day, was there a weapon involved, was the person under the influence of drugs and/or alcohol at the time of the incident, all count and can impact how a witness remembers an event.  How about this: Does a person wear contacts or glasses and did he/she have them on during the incident? Looking at these factors, just to name a few, are key and can ultimately allow the defense to pick apart a witness’ statement show whether there has been taint.

Now that we know a little more about the concerns of defense counsel when dealing with witness memories, let’s hear from an expert about the reliability of such memories!

 

What do the experts have to say?

Now that you know the concerns of defense counsel in the Golden State Killer case, you may be wondering about the science behind tainted memories. If so, you’ll have to wait for another post on the subject in the near future. One of our members, a forensic psychology expert witness, is busy answering a litany of questions on the topic. As a primer, you may wish to read these articles on the related topic of faulty eyewitness identification.