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Bar News - January 21, 2005 Computer Animations as Demonstrative Evidence: A Recent Superior Court Ruling By: Ralph F. Holmes In a jury trial of a birth injury case in August 2004, we sought to introduce as a demonstrative exhibit a computer animation that had been prepared in consultation with our obstetric and neurology experts. The animation consisted of four "tutorials" on important scientific issues in the case and an animated display of the actual fetal heart tracing. With appropriate depictions of the baby in the womb and cellular and arterial structures, the tutorials explained the following fundamental topics in the case:
The fetal heart monitor portion of the animation depicted the actual graph from this delivery with notations reflecting the worrisome features as found by our experts. This screen is an example of a computer illustration in a birth injury case. It describes how a "fetal heart strip" depicts both the fetal heart rate (top graph) and labor contractions (bottom graph). This information is obtained ultrasonically by a sensor on a belt worn by the mother on her abdomen. The Defendants opposed the introduction of the exhibit on a variety of grounds, including that the admissibility of the animation should be treated as an out-of-court experiment and that the animated fetal heart monitor graph was misleading in that it moved at a speed and was configured slightly different from the original. At the end of the fourth day of trial, the Court overruled the objections and found that the animation could be admitted. By that time, however, we had already presented the witnesses through whom we had intended to introduce this evidence. Although we decided not to use the animation at that late date in the trial, I pass on our legal research on the issue of admissibility of such evidence, which unquestionably can be invaluable in educating and persuading a jury. An animation is not an "experiment." As the Court stated in People v. McHugh, 124 Misc.2d 559, 476 N.Y.S.2d 721, 722 (Sup. Ct. 1984): A computer is not a gimmick and the court should not be shy about its use, when proper. Computers are simply mechanical tools - receiving information and acting on instructions at lightning speed. When the results are useful, they should be accepted, when confusing, they should be rejected. What is important is that the presentation be relevant . . . that it fairly and accurately reflect the oral testimony offered and that it be an aid to the jury's understanding of the issue. Id. In our case, we contended that, even if the exhibit was erroneously considered to be an "experiment," it would still be admissible under Hanson v. N.H. Pre-Mix Concrete, Inc., 110 N.H. 377, 380 (1970) ("Perfect identity between experimental and actual conditions is neither attainable nor required. Dissimilarities affect the weight of the evidence not admissibility.") (quoting Ramseyer v. General Motors Corporation, 417 F.2d 859, 864 (8th Cir.1969)). The court in Pierce v. State, 718 So.2d 806 (Fla. App. 4. Dist. 1998), upheld the admission of an animation to illustrate the testimony of an expert. The trial court determined that the proffered computer animation was 'merely a device or means to express an expert's opinion.' Additionally, the trial judge concluded that in this context, the video exhibit was a new form of expression, not a scientific or experimental test (such as a DNA test or a blood-spattering analysis) and therefore was not subject to the test of Frye v. United States, 293 F. 1013, 1014 (D.C.Cir. 1923). Thus, the animation was permitted to be used during the expert's testimony at trial for the purpose of aiding the jurors in understanding the complex issues and illustrating the opinions of the expert witness, Detective Babcock. However, because it was rule inadmissible as substantive evidence, it was not permitted to be taken to the jury room during deliberations. Id. at 808 (emphasis added). In upholding the admission of the evidence on appeal, the court held: [W]e find there was no undue emphasis placed upon the computer animation videotape, which was shown to the jury for a total of approximately six minutes during the course of an eleven-day trial. The judge appropriately explained to the jury that the videotape was being used only to illustrate the expert's opinion. Cross-examination was permitted, and the record demonstrates it was made clear to the jury that if the information entered into the computer was inaccurate, then the computer animation itself was inaccurate. Id. at 810 (emphasis added). Similarly, in Constans v. Choctow Trans., 712 So.2d 885 (La. App. 1997), the court upheld the admission of an animation to illustrate an expert's opinion notwithstanding objections, like those we faced, that it failed to show events in "real time." The court stated: The expert explained that the tape was an animation not a simulation and was not done in real time. Effectively, the animation was no different than if the expert had created a series of many diagrams and explained that, 'First the vehicles were here, then they were here, and finally, here.' The creation of the video and its limitations were explained in great detail under cross-examination for the benefit of the jury. It was made completely clear that this computer animation was not the result of computer calculations recreating the accident, but was instead a series of pictures illustrating the opinion of the expert rather than having him draw his own diagrams to illustrate his points. To put it another way, it was made abundantly clear to the jury that the video did not represent computer support and confirmation of the expert's opinion, but was merely a means of illustrating the opinion of the expert. The animation was more of a labor saving device than anything else. In essence, it saved the expert the trouble of drawing his own diagrams by hand. It was clearly explained to the jury that the vehicles were shown in the animation at locations specified by the expert just as if he had drawn them in arbitrarily, rather than necessarily being shown where the law of physical science would indicate that they should be. The jury was also informed that the animation was not done in real time. Id. at 900-01 (emphasis added); see also Cleveland v. Bryant, 236 Ga. App. 459, 512 S.E.2d 360 (1999); Tillis Trucking v. Moses, 748 So.2d 874 (Ala. 1999). Although there are other authorities that take a more skeptical view of animations, the above cases illustrate the view taken by our Superior Court in this case in which the Court ruled an animation admissible. |
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