MATHIAS, J.
Dr. Schraut examined Arlton’s eye and observed that part of his retina near the scar was swollen. Dr. Schraut believed this area to be a recurrence of the CNV, which would require further laser surgery. To confirm his diagnosis, Dr. Schraut ordered a fluorescein angiogram, a process in which a fluorescent dye was injected into Arlton’s blood. An angiogram technician then took a series of photographs of Arlton’s retina as the dye passed through the blood vessels in his retina. The results of the angiogram were recorded in a series of photos showing the amount of time that had passed since the dye was injected into the blood. The initial angiogram photos taken in September of 2002 revealed that Arlton’s CNV was not recurring. However, subsequent angiogram photos taken in October 2002 did indicate that Arlton’s CNV had recurred.
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. . . Dr. Schraut’s medical records for Arlton, which were admitted by stipulation of the parties, contained the three angiograms performed on September 24, 2002, October 31, 2002, and November 27, 2002. For each of the angiograms, nine digital images were recorded. Each juror was provided with a color copy of all of the angiogram photos in an exhibit binder. The nine images from each angiogram were printed on a single sheet of 8½″ x 11″ paper. . . . .
Also admitted, without objection, were three CD-ROM discs containing digital images of the angiograms. Specifically, each disc contained nine digital images that comprised each of the angiograms. The images on the discs were the same as the images that were admitted as part of the stipulated medical records, but were digitally recorded as high-resolution TIFF images. [Footnote omitted.] During the testimony from Dr. Schraut, Dr. Goldberg, and other witnesses, both parties showed the jury enlarged photos of the angiograms using a projector and a screen.
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During the third day of the trial, Arlton’s counsel asked the trial court how the jury would be able to access the digital information on the admitted CD-ROM discs, offering to provide the jury with a laptop computer if needed. The Medical Care Providers’ counsel replied that they were concerned that the jury would “start doing their own enlargements and focuses,” which he opined would be “outside the boundaries.” . . . The trial court then stated, “We have not made arrangements for that in the past. And we don’t have the facilities to do it. I think if it were a situation where I felt it was absolutely necessary I could bring the jury back in here in open court and . . . do something in the courtroom but I’m real cool to that idea.” . . . .
After the parties had presented their evidence, Arlton tendered a jury instruction which read: “If, after the jury retires for deliberation, the jury would like to review the digital evidence that has been submitted, the jury may request the bailiff to conduct them into court for examination of the digital evidence.” . . . The trial court took the matter under advisement, but ultimately never gave the tendered instruction to the jury. On May 14, 2009, the jury returned a verdict in favor of Dr. Schraut and the LRC.
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Arlton next claims that the trial court abused its discretion by not providing the jury with the means of accessing the digital images on the CD-ROM discs that were admitted into evidence without objection. Both parties agree as to the following standard of review:
[T]he trial court should consider three factors in deciding whether to permit the jury to take a copy of the exhibits into the jury room. Those factors are: (1) whether the material will aid the jury in a proper consideration of the case; (2) whether any party will be unduly prejudiced by submission of the material; and (3) whether the material may be subjected to improper use by the jury. The same standard applies regardless of whether the exhibits are sent before or during deliberations.
Goodrich v. Ind. Mich. Power Co., 783 N.E.2d 793, 798 (Ind. Ct. App. 2003) (citations omitted).
Arlton claims that the digital images would have materially aided the jury because they depicted his retinal scar in a more detailed manner than did the smaller, printed copies that the jury was allowed to view during deliberations. He also claims that allowing the jury to access the digital image files would not have unduly prejudiced Dr. Schraut because the CD-ROM discs had already been admitted into evidence without objection and the jury was allowed to access the other admitted evidence during the deliberations. Thus, Arlton argues that the only evidence the jury was not allowed to access during deliberations were the digital images on the CD-ROM discs. Similarly, Arlton claims that the digital images would not have been subject to any improper use because the jury already had unlimited access to the much smaller, printed versions of the angiogram images.
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Although our research has revealed no Indiana case directly on point, a similar issue was considered by the court in United States v. Rose, 522 F.3d 710 (6th Cir. 2008). There, CD-ROM discs containing audio files were admitted into evidence, but the files could only be accessed by means of a computer, not a standard audio CD player. During deliberations, the jury asked to listen to the audio files, and was allowed to do so in the courtroom because the trial court was concerned about giving the jurors access to a computer during deliberations. Id. at 714. Later, the jury asked if it could have access to the audio files in the jury room, and the trial court had its staff transfer the audio files to a standard audio CD that could be played on a stereo in the jury room. Id. On appeal, the defendant claimed this was error because the jury was allowed to access CDs that were not admitted into evidence. The court held:
The use of CDs was simply a practical solution to the technical challenge of enabling the jury to play the digital recordings. As we have said in response to objections to the presence of tape players in the jury room, “[a]n audio exhibit should not be relegated to muteness because it can be perused only through the use of a tape player.” The same principle holds true for digitally recorded audio exhibits.
Id. at 715 (citations omitted). We agree. The jury here should not have been precluded from accessing the digital exhibits that were admitted without objection.
We recognize that giving the jury access to a computer could raise unintended issues, such as who needs to provide the computer or whether the jury could misuse the computer to access extraneous information. We do not presume to set forth one all-encompassing rule regarding providing the jury access to digital evidence. The solutions could be as simple as what was done in Rose, i.e., transforming the evidence into a medium that is accessible without a computer. Or the court or parties could provide the jury with a “clean” computer, i.e., one that contains no other information and which has no ability to access the Internet. See, e.g., United States v. Jackson, 2008 WL 5384571 (S.D. Ill. 2008) (court permitted its director of information technology to take a computer, which had no internet access and could only be used to view the admitted digital evidence, into the jury room and show the jury how it could be used to access the evidence).
Ideally, these issues should be dealt with well before deliberations begin, even before trial, so that the trial court does not have to scramble just before deliberations trying to find a way to let the jury access admitted digital evidence. But whatever solution is agreed upon or decided upon is better than admitting digital evidence, and then giving the jurors no means of accessing it. Digital evidence should not be “relegated to muteness.”5 [5 Indiana’s talented trial attorneys and trial judges can work together to solve this issue through anticipatory motions in limine during discovery, or as discovery closes, and well before trial. As they do so, it is important not to interpret our discussion and opinion as a requirement that courts and their counties immediately purchase expensive technology to make digital evidence accessible to jurors. As stated above, transformation of digital evidence by the parties, their attorneys, or digital experts into a DVD format playable on a simple television with attached DVD player may well be all that is required in most instances. It will always be the responsibility of the parties’ attorneys to ensure that the digital evidence at issue “works” on the court’s equipment available to the jury or to provide appropriate equipment for the jury’s use, subject to review by the court and objection by opposing counsel. As courts and counties upgrade their technology, in many instances, the technology being replaced can be repurposed to the limited jury room uses discussed here.] Rose, 522 F.3d at 715.
Lastly, Arlton claims that the trial court erred in refusing to give his tendered jury instruction informing the jury that, if they so desired, they could review the digital images that had been admitted into evidence by instructing the bailiff, whereupon they could view the images in the courtroom. . . . .
Arlton claims that his tendered instruction was proper because it does correctly state the law. We agree. As explained in Stokes, a trial court may properly give the jury access to evidence before deliberations and allow them to view it in open court. 801 N.E.2d at 1270; see also Sturma, 683 N.E.2d at 610 (holding that it was proper for the jury to view videotape evidence, after deliberations began, in open court where the trial court could monitor the use of the videotape). [Footnote omitted.]
Arlton also claims that his tendered instruction was supported by the evidence in the record because the CD-ROM discs containing the digital images were admitted into evidence and some of the digital images were projected onto a screen during the witnesses’ testimony. Again, we agree. Not only had the digital images already been admitted without objection, the images of Arlton’s retina were key evidence in proving or disproving Arlton’s claim of negligence.
Lastly, Arlton argues that there were no other jury instructions covering this area. This is true. Although the jury was instructed that it could ask questions of the trial court, they were also told that “The Court often is not allowed to answer your questions except by re-reading all the jury instructions.” . . . . The jury was never informed that they could have access to the digital images if they so desired. In short, we must conclude that the trial court abused its discretion in refusing to give Arlton’s tendered instruction.
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We acknowledge that many of the angiogram images at issue were projected onto a screen in the courtroom during trial. These images came from the digital images on the CD-ROM discs already admitted into evidence. But because the jury had no equipment to view the digital images, the only angiogram images available to the jury during deliberations were the much smaller, printed pages of images containing nine images per page. We cannot say that the enlarged images were truly cumulative of the digital images as they were presented at trial and admitted into evidence. Lastly, the jury was not even informed that they could, if they so desired, view the source digital images in open court. For all of these reasons, we conclude that the trial court’s evidentiary and instructional rulings constitute reversible error because the end result of these decisions was to deny the jury access to evidence which “directly implicated the heart of the matter the jury was asked to decide[.]”Armstrong, 871 N.E.2d at 297; Walker, 808 N.E.2d at 102. We therefore reverse the judgment of the trial court and remand this cause for a new trial consistent with this opinion.
BAKER, C.J., and NAJAM, J., concur.