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Virtual Reality Goes to Court

23/05/2016 12:19 | Updated 23 May 2016

2016 is the year that virtual reality goes mainstream. Facebook's Oculus Rift and HTC's Vive headset have rolled out to rave reviews, and just this week Google has announced its Daydream VR platform. Virtual reality has arrived, and is likely here to stay. But beyond appealing to gamers, what other horizons might there be for VR?

While VR may be most at home in the living room, it could also become an important forensic tool in the courtroom. Forensic scientists often create 3D maps of crime scenes for trials; however, their detailed efforts are usually flattened onto sheets of paper. Seeing a crime scene in two dimensions, or having to visualise it can make it difficult for jurors to spatially understand an environment and how bullets or cars moved through 3D space. Given that people have differing abilities to visualise in three dimensions, VR could help level the playing field by providing everyone same focused and immersive experience.

VR may allow investigators to create a 'forensic holodeck' that replicates a crime scene--perhaps using the recently released GoPro or Nokia VR cameras--and act as an aid for lawyers, judges and jurors that might provide a better idea of how an alleged offence took place. VR may, however, be less helpful for arriving at an objective truth of what occurred. In criminal cases VR could be useful at helping impeach the testimony of unreliable witnesses, testing forensic claims, or even to refresh a witnesses' memory of a particular place and time. For instance, if a witness testifies they saw a man raise a gun with his left hand, using VR it would be possible to render any perspective of an event and determine if they had the vantage point they claim.

While this may be possible, would it actually be useful? Of course, it is common for courts to visit crime scenes when appropriate. Would a virtual crime scene really be preferable? VR should not be used in court to try and recreate objective reality or truth, but rather as a rhetorical tool in the lawyer's toolbox to help demonstrate their version of the truth. Moreover, VR may allow the court to visit scenes where doing so in person is impractical or impossible. This may be necessary in cases where the scene has changed significantly, such as through construction or damage. Furthermore, VR may allow lawyers to recreate the unique environmental conditions of a scene. One benefit to this tailored simulation is that everyone would be able to experience the same conditions. This may be an improvement to on-site visits where different people focus on different objects or become distracted by different things. In some cases, a VR 'visit' may simply be more cost effective solution.

What about the pre-trial phase? VR could be used to familiarise witnesses with the courtroom, or the stresses appearing in court. VR may also help victims of violent or sexual crime feel more comfortable in the courtroom and better able to offer uninhibited testimony. For instance, victims could do practice cross-examinations sitting in a virtual courtroom as opposed to an empty legal office in front of paid law student volunteers who are unrepresentative of a jury in terms of their age, race, or emotional disposition.

The court would need to proactively determine admissibility and content of technical evidence presented before it. This would require new standards for VR evidence, including general technical procedures and protocols, and how a VR recreation should meet them.

However, VR wouldn't necessarily require all new evidentiary rules as in many jurisdictions the rules pertaining to cardboard cutouts, 3D forensic renderings could simply be adapted. VR experts would need to be created to validate a rendering, but in cases where VR camera footage was used they would need to do little more than verify that the footage is a true representation. Because VR could well give rise to a cottage industry of trial consultants and specialist forensic computing companies, third party companies would need to be accredited and standards for their operation enforced. Judges would need to be trained in the admissibility of VR evidence and provide juries with directions as to the verisimilitude and reliability of evidence presented. Particular care would not be exercised to prevent lawyers from presenting strategic, inflammatory or manipulative recreations to the court, but judges already act as a safeguard against this in proceedings. But in many respects VR presents no significant evidentiary obstacles that the legal system has not already faced with things like computer printouts and databases, cell phone tower records, digital images, or internet activity.

VR is at a point where it is ready to be considered for use in the courtroom. While it may take a decade before VR features regularly in legal proceedings, the time is now for licensing bodies, law reform commissions, legal academics and the public to debate whether the technology can be used in ways that are more probative than prejudicial. One thing that cannot be forgotten is that previous technological advances such as telephones, cameras and computers placed pressures on courts to adapt procedural and evidentiary rules. While each of these technologies was dismissed as disruptive or unhelpful for courts, legal systems have adapted to change and have used technology as a means to further the cause of justice, not undermine it. Provided there are sound rules for the use of VR evidence, then the technology shouldn't be dismissed as a gimmick, but investigated as something that could help revolutionise the courtroom. If a picture is worth a thousand words, how much is VR recreation worth?

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