Fairness questioned as videos air in court

Nassau Judge Jerald Carter got to know the faces of just about everyone involved in a Wantagh Parkway drunken driving crash in the two years the case was in his courtroom: the lawyers on both sides, defendant James Ryan, his parents and those of the victim.

But on the October day when Carter was to hand down Ryan's prison sentence, he was introduced to a new face: that of Matthew Scarpati, the 19-year-old whose death was the reason the case entered his courtroom.

With pop crooner Josh Groban's ballad "You Raise Me Up" playing in the background, Carter was shown a five-minute photo montage of Scarpati's life, starting with pictures of him as a child and ending with photos of friends paying tribute to him after his death.

"I wanted my son to be in the courtroom, and until then, he hadn't been," said Lynn Scarpati, Matthew's mom. "At least James Ryan saw his face."

Carter had agreed before the hearing to sentence Ryan to 9 years in prison -- more than Ryan's defense lawyer wanted, but less than Scarpati's parents sought -- and he honored that promise.

In-court media use on rise

As multimedia presentations and home videos become easier to produce and more ubiquitous, they are also being used in new ways in courtrooms across Long Island and the country.

Victims of crime and their loved ones are increasingly using photo montages and videos at sentencing hearings as part of "victim impact statements" to provide richer portraits of the victimized, lawyers and experts said.

In criminal courts, it is customary for the victim of a crime or his survivors to have an opportunity to tell the judge how the crime has affected their lives.

In civil cases, plaintiffs are using videos -- some costing tens of thousands of dollars to produce -- to show how their daily lives have been changed because of injuries and accidents. And even once-dry legal formalities like wills and prenuptial agreements are jumping to life on-screen, as people video record their wishes for posterity.

"A trial is so much about facts and evidence," said Nassau County prosecutor Michael Walsh. "These videos give the victims a way of participating in the proceedings, when they can otherwise easily be forgotten."

Criticism of videos

But as the use of videos has increased in courtrooms, so has debate about its fairness.

Many criminal-defense lawyers say showing emotional photo montages and videos of a person killed can, without any factual basis, influence a judge's decision about how much time the defendant should spend in prison.

Whether a video is played is up to the judge in the case, who is charged with weighing the factual importance of the video against the possibility that it could unduly prejudice him or her.

In civil cases, some lawyers say it isn't fair, for example, to show a video of a terminally ill plaintiff reading bedtime stories to her young children if, in truth, she spent more time shouting at them in the supermarket.

"My problem with video is not that the victim is speaking; it's that the person who produced the video is speaking," said Garden City defense lawyer Stephen Scaring.

Scaring defended Anthony Raffio, one of the first people on Long Island to have photo montages played at his sentencing in 2006. In that case, in which Raffio pleaded guilty to vehicular manslaughter, Scaring said he did not object to the video simply because the judge had already committed to the amount of prison time he would give his client.

If the judge is undecided, "I would always argue that it's beyond what should be permitted," he said.

Likewise, Carter said he probably would not have allowed a video to be played in Ryan's case if he had still been weighing the sentence.

"It might be inappropriate if my mind were still open," Carter said. "But if I've made a commitment, then I might allow it just so the family will have some sense of closure."

Sentences thrown out

Last year, the New Jersey Supreme Court vacated the 30-year prison sentence of a woman accused of killing her husband, partly because of a heartfelt video that was played about him at sentencing. The 17-minute presentation showed Jimmy Hess, the victim, who several witnesses had testified abused his wife, in 60 photographs and several home movies, accompanied with poems and dramatic music, the court's decision said.

The Texas Court of Criminal Appeals overturned a murder sentence in 2008, citing the video played at sentencing as one of the reasons.

"The punishment phase of a criminal trial is not a memorial service for the victim. What may be entirely appropriate eulogies to celebrate the life and accomplishments of a unique individual are not necessarily admissible in a criminal trial," the appeals court said in its ruling.

Videos made their way into civil courtrooms years before they were used in criminal ones, as early as the 1970s, lawyers and experts said. Plaintiffs' lawyers hired videographers to make "day in the life" videos to show the impact an accident or a medical mistake had on a person's life.

Gradually, lawyers in civil suits used the presentations to illustrate how a terminally ill person is needed by their family, to show a person describing how they want their assets distributed after their death -- even a couple discussing a prenuptial agreement.

'Worth a million dollars'

The videos vary greatly in length and cost, said Gayle Marquette, founder of the Wyoming-based American Guild of Court Videographers. Short ones can be three minutes; long ones, 45.

They can cost $500 to $3,000 per minute, Marquette said. But she said when it comes to making an impact on a jury, videos are worth the money.

"You know how they say a picture is worth 1,000 words?" Marquette said. "We like to say a video is worth a million dollars."

Chris McGrath, a civil lawyer from Garden City, said videos are an invaluable tool for him. As an example, he played a video he used in a recent medical malpractice trial, showing in one clip the plaintiff dancing joyously at a wedding, then in a second clip, being hoisted out of his hospital bed by a medical crane a month later.

"There is no way a lawyer could put something like that into words for a jury," McGrath said. "Many lawyers would try, but it can't be done."

But even in civil courts, defense lawyers say there are limits to what's appropriate.

"We have to ask, is that how this person is every day? Or is that just how it looks in the video?" said Frank Schroeder, a Uniondale lawyer who practices civil defense.

Regardless of where the line should be drawn, lawyers and experts agree that the debate over where videos are appropriate in legal cases will grow, as technology expands.

"It's so simple to have video now on our cellphones and on our laptops," said David Bookstaver, a spokesman for the New York State Courts. "It's part of our culture, and the courts are adapting to that and making good use of it."