BY DON KEENAN
Seeing is believing. A picture is worth a thousand words. These time honored maximums resonate in the courtroom and become more powerful than the words of even the best advocate. In virtually every case, the trial lawyer is required to prove the current damages, the impact on the plaintiff’s life and the damages during their life expectancy.
Juries usually have no problem ascertaining the current damages because they are able to physically see the plaintiff and assess the impact of the accident on their life. As a child advocate attorney, I have found that the most difficult part of damages is ascertaining what they will be in the future, especially when a child’s lifespan can exceed 70 years past the date of the trial. Until now, those 70 years of damages would have been established solely through my words and those of the witnesses in the case. Fortunately, developing forensic technology gives us a new tool.
Over my 30 plus years of trial law I have seen the dramatic evolution of demonstrative evidence to include day in the life films, compelling medical illustrations and other forms of illustrative evidence. Yet, until now, there has not been a form of demonstrative evidence to show damage in the future. This new technology is called forensic art. Be mindful that it will be attacked in its infancy in the courtroom just like life films and medical illustrations were at their beginning as well.
Forensic art had its genesis in the field of anthropology when scientists, who uncovered ancient bones of both humans and animals, developed technology to put form and lifelike appearance to these remains so that we could visualize what ancient man and beast looked like thousands of years ago.
Shortly thereafter law enforcement embraced forensic art to apprehend criminals and to aid in the search for missing persons. Most Americans have seen shows like “America’s Most Wanted” where the bad guy has escaped and evaded capture for many years. The audience sees photographs at the criminal at the time of the arrest some 10, 15, 25 or even 50 years ago but the most compelling forensic art shows the audience what the criminal would look like today thanks to the science of age progression.
Likewise, most Americans have seen age progression art attempting to assist in the location of a kidnap victim many years earlier. Forensic art not only tells us what the victim looked like at the time of their kidnapping but can also tell us what the victim looks like today.
The average American has already embraced the validity of age progression and its usefulness. Therefore the admissibility of forensic art and age progression should not be difficult by the Courts.
Unfortunately, there has not been any appellate decision admitting or denying forensic age progression in civil cases. There have been a number of trial court rulings all in favor of the plaintiff but none reaching appellate scrutiny.
Now, lets look at several types of cases where the use of age progression helped us to illustrate long-term damages. The first is the medical negligence injury often referred to as shoulder dystocia and the second area will be wrongful death cases.
THE INJURY/DAMAGE CASE
A dystocia case is one that arises from improper delivery techniques by an obstetrician during childbirth. In these cases, the obstetrician does not employ proper procedures, pulls too hard on the child’s neck and ruptures the nerve network in the child’s neck and shoulders. Thankfully, there are some injuries that resolve in time; however, those injuries that reach the litigation level are permanent and often result in severe restriction of extremity movement or no movement at all.
In the past when I have tried these cases we have presented the child, usually between ages five and eight, in the courtroom. The pediatric neurologist performs a range of motion test before the jury to demonstrate the current limitation of movement. The future limitation is simply verbalized and there is no question that this damage will continue throughout the lifetime of the child.
While the child in their early years is cute and cuddly, it is difficult to verbalize such injuries when the child becomes a teenager, a young adult, middle-aged and elderly. The following are several examples of how forensic age progression is the “one picture worth a 1,000 words.
Click to enlarge
Each of the above cases were submitted to multiple focus groups and the impact is nothing short of compelling. Many jurors report that they simply did not grasp the magnitude of the damage until they saw the child’s face as a young woman, middle-aged and in their advanced years.
THE WRONGFUL DEATH CASE
The second case we often use age progression is the wrongful death case. Obviously the date of death is frozen in time and it is easy to collect the family photographs of the holiday time together, last birthday and other photographs and videotapes immediately preceding the death. But once again, without age progression forensic art, we can only use words to talk about the loss in the future. In the wrongful death case, survivorship states we simply must verbalize the absence of the deceased over the remainder of their lifetime and the loss to their love ones. In the “value of life” states we talk about what the person’s life is like, their pleasures, their happiness for the remainder of their life expectancy. However, the proof is only words until forensic age progression is used. The first case is the wrongful death of a 50-year-old husband and father that died at the hands of a negligent trucking company. To the left you see the photograph of the family during their last holiday season. To the right you see what the holiday in the year 2025 would look like had the deceased lived until age 75.
Click to enlarge
UNUSUAL CASE
The most unique case we used age progression as in the case of Candace Smith. Candace was a severely obese teenager whose quality of life and self-esteem was poor. She visited the website of a gastric weight reduction surgeon that contained a calculator where Candace could type in her current weight, hit a button and see her projected new weight assuming she hired the doctor to do the surgery.
The doctor, while performing good surgical technique, failed to provide proper post surgical care. Candace developed seepage and an infection and because she did not receive appropriate post operative care, Candace died.
I expected that the defense at the mediation would be the value of Candace’s life would not be much due to her poor health condition and obesity. However, the defense overlooked the fact that it was Candace’s choice to undergo the surgery, to avoid the fact that the surgery would have reduced her weight thus avoiding high blood pressure, diabetes and sleep apnea in the future. Remarkably, those positive health benefits were stated on the doctor’s website. We used the very weight calculation that the defendant doctor put in his website to produce age progression picture below which shows Candace at the exact weight the doctor stated would be her weight a year and a half after the surgery.
Clearly the age progression motivated a substantial outcome at mediation but the age progression photograph also yielded another affect. While I had never doubted the accuracy of age progression, it was not until the deceased mother pulled from her wallet a rumpled photograph of her mother (Candace’s grandmother) that I truly understood the power of forensic art. Before my eyes was a photograph of the grandmother as a young woman, which was identical to the age progression drawing produced by the expert.
Click to enlarge
Had the surgery been done correctly the following depicts Candice life transition.
Click to enlarge
USE COMMON BACKGROUNDS
The type of background you use in your age progression is very important. I usually like to use the very universal background or something that is easy for the jury to look at and put themselves in a similar setting and having their own personal experiences in. For example, the background below in Snyder case during the holiday in front of the family fireplace.
Click to enlarge
Focus groups have told us that when they see such a background they immediately think of their last holiday, who was there, what was the highlight was or what their favorite holiday memory. Whatever it is, you can guarantee they are going to think of their own experience first and then connect to your client. They become linked by a common experience.
Virtually everyone has been to either Disney World or Disneyland and has a photo memento from their trip. The photo is normally taken in the exact same place — you guessed it: right in front of the Magic Kingdom castle. I once represented an Asian woman, whose husband had been killed in South Carolina, who had a photograph of her and her husband at the Magic Kingdom. When I showed that picture during trial the jury smiled because it made them reflect on the last time they had been to the Magic Kingdom and their own fond memories of the place.
Thus, consider using the generic holiday time or the universal Disney experience. I’ve also used local venues like parks, stadiums or mountains because they also emit a familiar feel. Last year we had a case in northeast Arkansas where you can find some of the best fishing in the world – if you don’t believe me, go. My 28‑year-old deceased client was a addicted fisherman who kept five or six poles in the back of his pickup truck at all time in case he had a spare minute to hit the water and follow his passion. While he forensic art below effectively shows of course his age progression into the elderly years, it is equally important that he’s next to his favorite fishing spot. Every single member of the jury – man, woman, young and old – immediately knew precisely this spot at the fishing hole. Below, you see a virtual representation of what my client would have looked like at age 35, age 50 and age 75, respectively.
Click to enlarge
WHERE TO FIND THE EXPERT:
What expert produces forensic art? Over the years there has developed the science of forensic art. Virtually all law enforcement agencies, including the FBI, CIA and NSA, have a staff member that is qualified forensic art and routinely does age progression. In the above-referenced agencies, there are number of education programs, continuing education programs and in-service training that train forensic artists.
The forensic artist we use in our cases pending in the south was procured by one phone call to my friend, the medical examiner of the State of Georgia. My simple question was, “Who does the State of Georgia hire when they need to do an age progression?” That person currently does all of the age progression of our cases in the south and his connection to the State of Georgia is central to his credibility as an expert. While you can hire medical illustrators or others to do forensic art it would be my strong recommendation your choice is someone who is routinely used by law enforcement and who has a track record of authenticity. True forensic artists can point to many kidnapping cases where age progression sketches have helped to solve a kidnapping case from many years earlier.
Since we have cases pending around the country, we generally use an age progression expert who works in that specific area of the country and is used by local law enforcement.
THE ADMISSIBILITY
Anticipating an attack on the admissibility of such evidence, I would strongly recommend that you secure a detailed affidavit from the forensic artist setting for the detail of experience and most importantly track record. We have likewise developed a “prove up” set of questions for the authenticity hearing. Please consult the footnoted law, in full, for further information.
USE IN MEDIATION
At present, the most powerful use age progression for my firm has been in the mediation settling. Virtually every experienced mediator who has seen the age progression art has informed how compelling the art was in concluded the case. Of course, the defense will put on the “strong face” and claim that age progression forensic art will never be admitted into evidence. Down deep, however, they are deathly afraid of this new tool of proof.
THE FUTURE
Twenty-five years from now someone reading this article will ask, “Why was this written?” Clearly, the time has come to use this new tool of proof, but we need to employ only the best of experts in doing so. Pick the cases for introduction, make the strongest of arguments and build a firm foundation so that forensic art in the coming years will be as accepted as day in the life films and medical illustration.
BOTTOM-LINE: A picture is worth a thousand words. Use forensic age progression art.
Footnote 1/.
Two areas bear consideration regarding the admission of forensic art as demonstrative evidence. The first of these is the issue of admissibility in and of itself. The second is given the admissibility of the exhibit, what foundation must be laid to authenticate the exhibit. As to first issue, the age progression drawing should theoretically not be treated any differently that any other piece of demonstrative evidence. Demonstrative evidence is generally offered for the purpose of illustration and clarification.[1] The age progression drawing should be admissible into evidence so long as it means the requirement that it is sufficiently illustrative of relevant testimony to be of a potential help to the trier of fact.[2] In discussing the development of demonstrative evidence or demonstrative aids, one commentator has stated: “Unlike real evidence, the availability of which will frequently depend upon circumstances beyond counsel’s control, opportunities for the use of the types of demonstrative evidence here considered are limited only by counsel’s ability to generate them.”[3] Thus, the initial evidentiary threshold regarding admissibility is not particularly high. Lastly, the age progression drawing may be offered for purposes of illustration only. When offered for this purpose, the evidence admittedly has no probative value in determining a substantive issue in the case, but is relevant because of the assistance it provides to the trier of fact in understanding other evidence which has been admitted, whether testimonial or documentary.[4]
The second issue is laying a proper foundation for admission. This may involve a two step process. This involves first qualifying the forensic artist as an expert on the basis of the artist’s knowledge, skill, training, education, or experience, so that the Court is satisfied that the artist in fact has the necessary skill, training and scientific knowledge to depict what a given individual will look like in the future. Upon satisfying that qualification, there need only be a witness able to testify that the age progression drawing is a fair and accurate representation of what it purports to depict, e.g., the effects of aging on a child with a brachial plexus injury. As McCormick notes, testimony of this kind should be sufficient to satisfy the foundational requirements of Rule 901(b) (1).[5] That second area of testimony may come from any number of witnesses depend upon what is being depicted in the drawing. In the brachial plexus injury example above, it may come from a physiatrist, occupational or physical therapist or other professional who has experience in working with individuals who have the characteristics or history similar to that depicted in the drawing.
[1] Corpus Juris Secundum, Evidence, § 789.
[2] 29 AmJur 2d § 935
[3] McCormick on Evidence, 6th Edition, § 214
[4] McCormick, supra
[5] McCormick, supra
