Yesterday, Judge Laura Taylor Swain issued a curious evidentiary decision. In the fraud trial of several aides to Bernie Madoff, the judge ruled that prosecutors will have to Photoshop out a decoration from pictures of Madoff’s office. Lawyers for Daniel Bonventre argued that photos of the decoration, a four-foot statue of a screw, would be unduly prejudicial.

A Ponzi scheme operator flaunting a statue of a giant screw sounds a lot more probative than prejudicial, actually.

In any event, the art is not coming into evidence and is coming out of any pictures of the office. There may not have been a good reason to introduce the piece into evidence, but introducing Photoshop to the legal process creates a whole new wrinkle in the fabric of the “reality” put in front of juries….

The sculpture in question is “The Soft Screw” by Claes Oldenburg. According to reports, Bernie used to love this thing so much he would personally dust it. If that’s not enough to suggest that Madoff had more than a passing fascination with the piece, remember this thing is four feet tall and he put it on his desk. When a knick-knack looms over the office like Shaq, it might not be something we can just ignore as tangential.

Prosecutors even hoped to introduce a witness to testify that Madoff had the sculpture removed just in time for an SEC investigation:

The screw sculpture appeared in photos of Madoff’s desk, and a witness would testify that it was removed during an SEC on-site examination in 2005, prosecutors said. But defense lawyers argued that it was unfair to link a possible symbol of ripping off investors to their clients.

“The issue with this screw is that there is a secondary meaning that the government is going to try to implant with the jury, that it was a kind of inside joke… that was known to some of the defendants here,” said Eric Breslin, the lawyer to Madoff account manager Joann Crupi.

The Soft Screw

The secondary meaning being that Bernie Madoff really enjoyed “lad culture.”

How convenient. But this isn’t the trial of Bernie Madoff and it probably isn’t fair to suggest that a possible ulterior motive for Madoff’s aesthetic tastes should be ascribed to the defendants. That’s a good reason to keep the screw from affirmatively entering the case, but is it a reason for scrubbing it from existence?

Look, I’m all for Rule 403. Keeping unduly prejudicial evidence away from juries is important. However, the introduction of judicially-sanctioned Photoshop as a remedy for prejudicial evidence opens a dangerous can of worms. It’s one thing to keep prejudicial information away from a jury, and another to present an image that purports to represent the totality of a scene with something erased. At the risk of getting too philosophical, a viewer reasonably takes a complete image as a representation of reality, making negative and positive inferences of the scene.

As an example, if a defendant is a Nazi sympathizer and the court rules bars this fact from the trial, the jury has no reason to speculate on the defendant’s political beliefs. A negative inference is removed. But if pictures of the defendant’s home are relevant and all the Nazi paraphernalia is excised — or worse, replaced with something innocuous — the jury is affirmatively given a positive image that doesn’t exist. That’s no good.

This is why so much time and effort has gone into keeping Photoshop and other digital manipulation out of courtrooms. Turning the dubious technology into something ordered from the bench gives the courts frighteningly expansive power to shape reality itself — at least the reality the jury gets to see — in ways that Rule 403 never really contemplated.

Photoshopping this screw is not really significant in the trial of Madoff underlings. But Judge Swain’s decision sets a precedent for Photoshop-as-remedy that can take Rule 403 far afield of its intended purpose and really screw the whole judicial system.

Screw sculpture not allowed as evidence in Madoff aides’ fraud trial [Newsday]
Judge bans ‘screw’ from Madoff trials [NY Post]
Can Juries Really Believe What They See? New Foundational Requirements for the Authentication of Digital Images [Washington University Journal of Law and Policy]

Earlier: Should This Indiscreet Young Lawyer Get A Second Clifford Chance?


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