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Demonstrative Evidence in the New Electronic Reality
By R. Craig Smith and Lish Whitson
THE IMPACT OF “NEW MEDIA” AND TECHNOLOGY ON INFORMATION DELIVERY,
PROCESSING AND APPLICATION IN LITIGATION
It is through understanding and improving
the methodology of trial practice
that we can best hope to make our justice system
more effective, reliable and fair.
The world of trial law is changing exponentially as consumer technologies become more readily and economically adaptable to the process of information delivery in the courtroom. A trial may be the ultimate challenge in the art of persuasion, and while the rules may not have changed much, the dynamics of the courtroom and the expectations and information processing preferences of today’s jurors are dramatically different than in years past.
Ours is an age of “New Media,” a time when everything is highly visual and fast paced; when our eyes, more than our ears, govern our decisions; where attention spans are short and external pressures and influences myriad. The willingness and ability to adapt to the new information-age realities will be increasingly important to trial lawyers who, in an adversarial setting, must effectively communicate the information that fact finders need to reach the favorable verdict decisions that are sought. Gregory P. Joseph, in his treatise “Modern Visual Evidence,” (Law Journal Press), observed:
Conventional wisdom teaches that the lengthy, convoluted and the often confusing presentation of complicated facts critical to the case is generally unavoidable in the effort to make a record that will withstand attack. He goes on to say, however, “This conventional wisdom is largely wrong. Liberalized rules of evidence facilitate the use of various sorts of modern visual evidence that afford the opportunity to package much prolonged and tedious evidence into concise, visual (or audiovisual) formats far more agreeable to judge or jury, to pack more evidence into less courtroom time and to do so without excessive cost.”
In an effort to better understand the more commonly accepted presentation tools and methodologies available to trial lawyers, and their application to the presentation of evidence in the courtroom, this discussion will address two general areas: (1) State and Federal Court Authority and recent developments; and (2) Presentation strategies and methodologies.
- State and Federal Court Authority
Recent trends in Federal acceptance and application of technology in the courtroom.
Policy makers for the federal courts, in the spring of 1998, endorsed the use of new technologies in the courtroom, including, but not limited to hi-tech presentation systems and devices that can display many different types of evidence, such as digital photographs, documents, designed graphics and other visual enhancements designed to aid jurors in understanding what is presented and to shorten the time required to try cases. As a result of this endorsement, and federal funding, old courtrooms began almost immediately undergoing renovation and new courtrooms subsequently built were equipped with the latest in presentation technology hard-wired in. Elizabeth C. Wiggins, JD, PhD, and a senior research association at the Federal Judicial Center (FJC) at the time stated, “the landscape of the federal courts has changed dramatically, from a setting that looks like what you’d expect to see on a re-run of ‘Perry Mason’ to one that looks more like a high-tech conference presentation.”
Eventually, and more quickly than then anticipated, this technology has become a very real and vital part of trial work in the federal court system. In many federal courthouses, such as the new facility in Seattle, the use of such technology is not only encouraged, but in some instances mandated by judges to expedite and render more efficient the trial process. The message is clear: understanding and effectively using technology, or not, is no longer an option.
Definitions
Best Evidence.
Evidence Rule 1004: The original is not required, and other evidence of the contents of a writing, recording, or photograph is admissible if:
- Original Lost or Destroyed. All originals are lost or have been destroyed, unless the proponent lost or destroyed them in bad faith; or
- Original Not Obtainable. No original can be obtained by any available judicial process or procedure; or
- Original in Possession of Opponent. At a time when an original was under the control of the party against whom offered, that party was put on notice, by the pleadings or otherwise, that the contents would be a subject of proof at the hearing, and that party does not produce the original at the hearing; or
- Collateral Matters. The writing, recording, or photograph is not closely related to a controlling issue.
“The best evidence rule provides that the original is not required and other evidence of the contents of a writing, recording, or photograph is admissible if all originals are lost or have been destroyed, unless the proponent lost or destroyed them in bad faith.” State v. Detrick, 55 Wn. App. 501, 503, 778 P.2d 529 (1989).
Demonstrative Evidence
The trial court may admit demonstrative evidence if the experiment was conducted under conditions reasonably similar to those existing at the actual event. Whether the similarity is sufficient is for the trial court's discretion. State v. Stockmyer, 83 Wn. App. 77, 83, 920 P.2d 1201 (1996). When evidence is not entirely accurate, the court may exclude it to avoid confusing the jurors. 5 Karl Tegland, Washington Practice: Evidence sec. 403.4, at 368-69 (4th ed. 1999).
A trial court may admit demonstrative evidence when the experimental conditions are substantially similar to the facts of the case. State v. Finch, 137 Wn.2d 792, 816, 975 P.2d 967, cert. denied, 528 U.S. 922, 120 S.Ct. 285, 145 L.Ed.2d 239 (1999). If substantially similar, then demonstrative evidence such as photographs and videotapes may be admitted when their probative value outweighs their prejudicial effect. State v. Rogers, 70 Wn. App. 626, 633, 855 P.2d 294 (1993), review denied, 123 Wn.2d 1004, 868 P.2d 872 (1994).
"The use of demonstrative or illustrative evidence is to be favored and the trial court is given wide latitude in determining whether or not to admit demonstrative evidence." State v. Lord, 117 Wn.2d 829, 855, 822 P.2d 177 (1991).
Photographs.
Evidence Rule 1001(b): "Photographs" include still photographs, X-ray films, videotapes, and motion pictures.
“Photographic evidence is admissible if the probative value outweighs the prejudicial effect. State v. Kendrick, 47 Wn. App. 620, 624, 736 P.2d 1079 (1987).”
“The decision whether to admit photographic evidence lies within the sound discretion of the trial court. State v. Finch, 137 Wn.2d 792, 812,975 P.2d 967 (1999) (citing State v. Lord, 117 Wn.2d 829, note 870, 822 P.2d 177 (1991)).The trial court's decision will not be disturbed on appeal unless there is "a clear showing of abuse of discretion, that is, discretion manifestly unreasonable or exercised on untenable grounds or for untenable reasons." State v. Elmore, 139 Wn.2d 250, 284-285, 985 P.2d 289 (1999) (citing State ex rel. Carroll v. Junker, 79 Wn.2d 12, 26, 482 P.2d 775 (1971)). A court abuses its discretion where no reasonable person would adopt such a view. Id. (citing State v. Blight, 89 Wn.2d 38, 41, 569 P.2d 1129 (1977)). Even gruesome photographs are admissible if the trial court determines their probative value out-weighs their prejudicial effect. Finch, 137 Wn.2d at 812 (citing Lord, 117 Wn.2d at 871).”
“In Washburn v. Beatt Equipment Co., 120 Wn.2d 246, 283-286; 840 P.2d 860 (1992)the court stated: In theory, all relevant evidence is admissible. ER 402. However, relevant "evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice . . . or needless presentation of cumulative evidence." ER 403. Admission or rejection of photographic evidence lies within the sound discretion of the trial court. Toftoy v. Ocean Shores Properties, Inc., 71 Wn.2d 833, 836, 431 P.2d 212 (1967); Mason v. Bon Marche Corp., 64 Wn.2d 177, 178, 390 P.2d 997 (1964). The trial court's ruling will not be disturbed on appeal in the absence of a showing of abuse of that discretion. Mason, at 178; see generally Brouillet v. Cowles Pub'g Co., 114 Wn.2d 788, 801, 791 P.2d 526 (1990) (trial court rulings on admissibility of evidence generally reviewed under an abuse of discretion standard).”
“The fact that the photographic depiction may be gruesome or unpleasant does not render the evidence inadmissible. Mason, at 178; see 5 K. Tegland, Wash. Prac., Evidence 95, at 46 (3d ed. Supp. 1992). Photographs of injuries may be gruesome precisely because they accurately depict what has happened to plaintiff. See Elliot v. Kesler, 799 S.W.2d 97, 104 (Mo. Ct. App. 1990) (admitted photographs of accident scene and plaintiff's injuries were gruesome, but only because the accident itself was gruesome and not because of any embellishment permitted by trial court).”
“The photographs are clearly relevant. The condition of plaintiff's body immediately after the explosion is related to plaintiff's damages. See Traver v. Packaging Indus. Group, Inc., 242 N.J. Super. 574, 578, 577 A.2d 876, 877 (1990). The condition of an injured person's body obviously changes, and photographs can preserve a record of the original condition. See K. Hughes & B. Cantor, Photographs in Civil Litigation 490 (1973). In burn cases, grafting of skin and eventual healing (to the extent it occurs) will improve the appearance of burned areas; photographs taken shortly after the injuries are incurred will record and preserve the pregrafting, prehealing condition of plaintiff. K. Hughes & B. Cantor, at 492. A number of the photographs here were taken 5 days after the explosion and others within the first month. They showed the condition of plaintiff's body at that time.”
“The photographs are also relevant to illustrate the testimony of the treating physicians and help the jury understand the extent and nature of the injuries and the course of treatment. Even where a witness has described an injury, photographs have evidentiary value in making the description more intelligible. See Cervone v. Reading, 371 Pa. Super. 279, 286-87, 538 A.2d 16, 20 (admission of photographs of plaintiff's open wound before and after grafting) (citing Fahringer v. Rinehimer, 283 Pa. Super. 93, 423 A.2d 731 (1980)), appeal denied, 520 Pa. 586, 551 A.2d 213 (1988). "Much that sounds cold coming from a witness may be better conveyed by a photograph." Parson v. Chicago, 117 Ill. App. 3d 383, 390, 453 N.E.2d 770 (1983). The photographs here illustrated the treating physicians' testimony about plaintiff's injuries and the course of treatment.”
“The photographs are in large part sequential photographs of the course of treatment. Courts have upheld admissibility of photographs of injuries taken during a course of treatment which are accurately reflective of the injuries and the treatment which plaintiff had to undergo. E.g., Wilson v. Norfolk & W. Ry., 109 Ill. App. 3d 79, 94, 440 N.E.2d 238, 250-51 (1982) (admission of photographs depicting plaintiff's burn injuries during course of treatment upheld); Kelley v. American Motors Corp., 130 Ill. App. 3d 662, 676-77, 474 N.E.2d 814, 824 (1985) (44 unquestionably gruesome photographs of burn victim taken during 8-month period admissible; probative value in helping jury understand plastic surgeon's testimony and illustrating course of plaintiff's progress and treatment outweighed any prejudice); Day v. South Line Equip. Co., 551 So. 2d 774, 780-81 (La. Ct. App.) (admissibility of photographs of injuries at various stages of recuperation, including photographs showing results of surgical procedures, upheld), cert. denied, 553 So. 2d 474 (La. 1989).”
“The photographs are also relevant to plaintiff's emotional problems arising from the injuries and his pain and suffering. See Bruce v. Rogers Oil Tool Servs., Inc., 556 So. 2d 922, 926-27 (La. Ct. App. 1990). Because the photographs are highly relevant to material issues in the case, and objectively and accurately portrayed the condition of plaintiff's body and the treatment he underwent, their probative value is great.”
Writings and Recordings.
Evidence Rule 1001(a): "Writings" and "recordings" consist of letters, words, sounds, or numbers, or their equivalent, set down by handwriting, typewriting, printing, photostating, photographing, magnetic impulse, mechanical or electronic recording, or other form of data compilation.
Authentication or Identification.
Evidence Rule 901:
- General Provision. The requirement of authentication or identification as a condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims.
- Illustrations. By way of illustration only, and not by way of limitation, the following are examples of authentication or identification conforming with the requirements of this rule:
- Testimony of Witness With Knowledge. Testimony that a matter is what it is claimed to be.
- Nonexpert Opinion on Handwriting. Nonexpert opinion as to the genuineness of handwriting, based upon familiarity not acquired for purposes of the litigation.
- Comparison by Court or Expert Witness. Comparison by the court or by expert witnesses with specimens which have been authenticated.
- Distinctive Characteristics and the Like. Appearance, contents, substance, internal patterns, or other distinctive characteristics, taken in conjunction with circumstances.
- Voice Identification. Identification of a voice, whether heard firsthand or through mechanical or electronic transmission or recording, by opinion based upon hearing the voice at any time under circumstances connecting it with the alleged speaker.
- Telephone Conversations. Telephone conversations, by evidence that a call was made to the number assigned at the time by the telephone company to a particular person or business, if (i) in the case of a person, circumstances, including self-identification, show the person answering to be the one called, or (ii) in the case of a business, the call was made to a place of business and the conversation related to business reasonably transacted over the telephone.
- Public Records or Reports. (Reserved. See RCW 5.44 and CR 44.)
- Ancient Documents or Data Compilation. Evidence that a document or data compilation, in any form, (i) is in such condition as to create no suspicion concerning its authenticity, (ii) was in a place where it, if authentic, would likely be, and (iii) has been in existence 20 years or more at the time it is offered.
- Process or System. Evidence describing a process or system used to produce a result and showing that the process or system produces an accurate result.
- Methods Provided by Statute or Rule. Any method of authentication or identification provided by statute or court rule.
- Presentation Strategies and Methodologies:
- Types of Evidence
- Documents
Documentary evidence is the most commonly proffered form of evidence in most trials, with the exception of criminal matters. Documents in the form of business records, medical records, transactional records, contracts, declarations and affidavits, correspondence, expert reports, police and incident reports, and many other forms of printed or written information generally provide the basis for defining the issues and explaining the facts that jurors need to consider when deliberating. In the last two decades, a whole new universe of information is recorded, transmitted and stored in electronic files, most of which, when offered in evidence, are presented in a “print-out” format.
New computer based presentation software programs such as Trial Director, Sanction, and PowerPoint have made the presentation of documentary evidence not only more manageable, but allow attorneys to bring the documents to life by calling out, hi-lighting and enhancing critical or relevant portions of documents, either in a pre-programmed presentation or “on-the-fly,” as they make their case to the jury. The use of such devices provides a high level of control and can effectively reduce the amount of time needed to address key issues referred to in documents. Through proper data management design, the entire universe of documents can be accessible almost instantaneously, searchable by title, topic, date, source, or any other of a number of pre-determined criteria of preference.
- Real evidence – physical objects
Real evidence consists of some physical object or substance that was once a part or component of the controversy itself. A replica or model, unless offered for demonstrative purposes only, is not in and of itself real evidence. Demonstrative evidence is normally prepared, after the fact, solely to illustrate or to clarify some point. Real evidence in the form of physical objects are basically discrete, inanimate things, and, being unique are therefore irreplaceable. If a physical object intended for use as evidence in trial is lost or destroyed, a valuable case may be seriously damaged, sometimes leading to claims of spoliation, so the care, handling and custody of physical objects is imperative.
For physical objects, “identification” is a paramount concern for establishing a foundation for admission into evidence. A common sense evaluation of the importance of the evidence will often serve as a good indicator of the depth required for an adequate foundation. Also, showing that an object has been “free from tampering” may be required, particularly where the opposition raises that concern. Objections to the proffering of physical objects may include: material break in the chain of possession raising questions of authenticity; the object is immaterial; the object, as evidence, is cumulative; the object is unduly prejudicial; and, the fact that the evidence is too large and unmanageable in the courtroom or that it may pose a danger to those exposed to it.
“"Before a physical object connected with the commission of a crime may properly be admitted into evidence, it must be satisfactorily identified and shown to be in substantially the same condition as when the crime was committed." State v. Campbell, 103 Wn.2d 1, 21, 691 P.2d 929 (1984). Evidence that is unique and readily identifiable may be identified by a witness who can state that the item is what it purports to be. 5 Tegland, Wash. Prac. § 402.31 (1999). However, where evidence is not readily identifiable and is susceptible to alteration by tampering or contamination, it is customarily identified by the testimony of each custodian in the chain of custody from the time the evidence was acquired. Id. This more stringent test requires the proponent to establish a chain of custody “with sufficient completeness to render it improbable that the original item has either been exchanged with another or been contaminated or tampered with." United States v. Cardenas, 864 F.2d 1528, 1531 (10th Cir. 1989).”
- Illustrative graphics
Illustrative graphics come in many forms, such as detailed timelines, charts, graphs, maps, and diagrams which can be hand-drawn on a white board or pad contemporaneously with testimony, or professionally designed, created and produced by graphic artists or visual consultants. Careful consideration must be taken in the development and design of illustrative graphics if they are to be admitted into evidence as opposed to being offered only for demonstrative purposes in order to clarify or amplify other more “substantive” forms of evidence. The value of illustrative graphics, in today’s highly visual world, cannot be underestimated. Lawyers often believe that the use of such devices will be perceived as “too slick,” or will suggest that the client has deep pockets and thus the exhibit will be seen only as “eye-candy” designed to give substance to a case that has little real substance. Twenty five years ago that might have been the case, but not in today’s world. However, the exhibits must be carefully thought out and carefully designed to address specific and limited points to be made. Just creating a lot of colorful charts is not the answer. If every exhibit and/or graphic is purposefully designed to reinforce the Main Message, and succeeds in doing so, visuals will seldom, if ever, be seen as “slick” or extravagant because they will, by their very design, be necessary and to the point. The ability to incorporate illustrative graphics into computer managed presentation programs such as PowerPoint, and to animate them during presentation, further strengthens the proffer of evidence and facilitates juror understanding and retention. If properly founded, well supported by testimony or other evidence, and properly presented, illustrative evidence is a form of “derivative” evidence that is not only powerful in its ability to clarify, simplify and explain, but highly memorable, arming jurors with images that will allow them to advocate favorably in deliberations.
See ER 901(b) above.
- Photographic evidence
Juries, in today’s world, come from many walks of life, from many ethnic origins, and bring to the courtroom a wide range of experiences and perceptions. In every major city, there are multiple languages spoken and many ways of viewing the world we live in. Getting a diverse jury panel to a level of common understanding, or at least perception, is difficult at best with mere words, as words can be understood – and misunderstood – in many ways. While there are many languages and many styles of communicating, there is maximum commonality in the visual language. We see what we see.
If the photographic evidence was recorded or created simultaneously with the subject event, it is classified as an on-site record, which falls into the category of “real” evidence. Such photographs would include surveillance camera shots at a bank ATM machine; police photos of a crime or accident scene; candid, amateur shots that capture fires, earthquakes, assaults, public happenings, or personal events such as weddings. When photographs are taken after the occurrence of the subject event for the purposes of supporting litigation, such photos may fall into the category of demonstrative evidence. If photographs or films are created, handled, or archived along with accompanying documents, they may be classified as documentary evidence.
Photographs must be authenticated and supported by foundational testimony or connection to other substantive evidence, but when properly admitted and effectively incorporated into a well thought out order of evidence, can make strong and lasting impressions on jurors. It is not always necessary, however, for the photographer or a laboratory technician to authenticate a photograph or slide. If the authenticating witness has personal knowledge of the scene or image represented in the photograph, then he or she need only testify that the photo fairly and accurately represents what it purports to represent. For most location photographs, anyone who is familiar with the depicted scene can serve as a qualifying witness.
Aerial photographs of accident or incident scenes are far more engaging and memorable for jurors than hand drawn, computer generated diagrams, or survey diagrams created by experts, which are sometimes difficult for lay jurors to fully appreciate. Like illustrative graphics, photographs can incorporate call outs, highlights, labeling and other additional information that can simplify and clarify specific points about why the photograph is significant, and why that information supports the argument being made.
- Radiographic evidence
Radiographic evidence is generally seen in the form of X-ray films, CT scans and MRI films, each having very specific characteristics and limitations. Generally speaking, unless what is depicted in the radiographic films is strikingly evident, most jurors have a hard time appreciating what the film means in the context of the case, which may be further complicated by the fact that two opposing experts, talking about the same film, might offer expert interpretations of the film that are at odds. Often, subtleties such as spinal disc degeneration are virtually imperceptible to anyone other than a seasoned radiologist or specialist. When an injury is traumatic and clearly demonstrable through the radiographic evidence, such films can be highly useful in creating strong and lasting impressions that are near impossible to counter.
Because the human eye receives and processes images in a positive, rather than a negative aspect, it is sometimes difficult for lay jurors to translate what they are seeing in a negative film into a meaningful picture. It is often useful, therefore, to use a platform such as an Elmo, with a light table, that has the capability of switching the image from a negative picture to a positive picture which is often more easily understandable by a person not trained or schooled in radiology or a medical specialty for the condition being described.
- Video and audio evidence
Like photographic evidence, if the video or audio recording was made simultaneously with the subject event, it may be classified as “real” evidence. Most video evidence offered in litigation, however, is created after the fact, in conjunction with preparing for litigation. Video tapes may take the form of “day- in-the-life” presentations; accident or crime reconstructions or simulations; a view of the operation or inner workings of a complex piece of machinery; or any number of displays of location, activities or events. As a result, such video presentations are inherently self-serving and care must be taken to insure that the line is not crossed producing a demonstration that can be challenged as prejudicial or misrepresentative of the facts of the case.
Litigators in personal injury lawsuits often try to introduce accident reconstructions or so called “day in the life” films. In State v. Sipin, 130 Wn. App. 403 (2005), a party sought to introduce the testimony of an expert regarding the reconstruction of a motor vehicle accident. The court stated at 413-415: “In Washington, the Frye test is used to determine the admissibility of novel scientific evidence. State v. Copeland, 130 Wn.2d 244, 261, 922 P.2d 1304 (1996) (citing Frye v. United States, 293 F. 1013 (D.C. Cir. 1923)). While this court generally reviews the trial court's decision on a motion for a new trial for abuse of discretion, Palmer v. Jensen, 132 Wn.2d 193, 197, 937 P.2d 597 (1997), review of admissibility of evidence under the Frye test is de novo. Copeland, 130 Wn.2d at 255. Moreover, we are not limited to the evidence that was before the trial court with respect to the Frye admissibility issues and may undertake a searching review of scientific literature as well as secondary legal authority before rendering a decision. Id. at 256. A key reason for this expanded scope of appellate review is that "it is impractical in many instances for a true cross-section of scientists to testify at a hearing." Id. We may not properly sustain a trial court's determination regarding admissibility on a mere finding that the record contains sufficient evidence of the reliability of the challenged scientific method. State v. Cauthron, 120 Wn.2d 879, 887, 846 P.2d 502 (1993).”
“Under the Frye test, scientific evidence is admissible if it is generally accepted in the relevant scientific community, but not admissible if there is a significant dispute among qualified experts as to its validity. Copeland, 130 Wn.2d at 255. Under Frye, novel scientific evidence is admissible where (1) the scientific theory or principle upon which the evidence is based has gained general acceptance in the relevant scientific community of which it is a part; and (2) there are generally accepted methods of applying the theory or principle in a manner capable of producing reliable results. State v. Riker, 123 Wn.2d 351, 359, 869 P.2d 43 (1994).”
One thing that is significant when considering the use of photographic or video evidence is that video evidence, because it involves motion and is presented on a television screen, monitor or projection system, is more engaging, involving and memorable, as it is more familiar to jurors in whose world information presented on the television screen has an intrinsic element of credibility, even when displaying things that are objectively and obviously incredible.
Rules of admissibility for video presentations in the courtroom are somewhat different and more stringent than for photographic evidence, but have been relaxed substantially over the past 10 years. With careful consideration of how and when video evidence is used in a case, whether as admitted evidence or for demonstrative purposes, most videos can find their way to the jury and are powerful tools that help jurors to understand and retain important information for use in deliberations.
As with any other form of visual presentation, it is important to remember that just throwing images up on a television screen is not the answer. Attorneys need to be highly selective in the choice of video images and applications for use in the courtroom, and approach the medium with an understanding of, and a respect for both the advantages and the limitations of this valuable tool.
Audio tapes are generally used for voice and speaker identification, or to allow jurors to hear the contents of a recorded conversation or event. As with other forms of evidence, the contents of a tape recording must be relevant in order to be admissible. An audio tape recording should be admissible even if it contains some irrelevant matter, as long as the extraneous matter is not prejudicial. Further, inaudible portions of a tape should not preclude admission if those sections are not relevant or material to the case.
- Computer generated animation
One of the most fascinating and intriguing technological developments that has captured the imagination and attention of computer engineers and designers in recent years is that of “virtual reality” – the ability to recreate and to “get inside” of a computer generated virtual environment. The value of such technology has not been lost to trial lawyers who are more and more turning to this highly creative and clarifying technology to enhance comprehension and retention among jurors. The most common uses of the technology have been seen in accident reconstruction cases, patent litigation where highly complex issues or elements of a machine or device can be more clearly explained, and in environmental and construction defect cases.
Computer generated animations are generally admissible if they pass the “fair and accurate portrayal” test, and if they are compatible, in all material respects, with the events, occurrences or processes that they purport to visualize. Because computer generated animations are based on mathematical models, the reliability of the modeling software should be carefully explored and considered, and the data input to the modeling process should be carefully controlled and closely correlated with known facts in evidence. Computer generated animations are frequently used to support testimony of expert witnesses. Thus, the development of any animation intended to support such testimony must be accomplished with the expert’s full input and participation at every step to insure that each point made by the video is supported by the anticipated testimony of the expert, and to avoid becoming more prejudicial than probative.
As to admissibility, because computer generated animations are, in reality, simply a series of computer generated drawings arranged and displayed in sequence to simulate motion, as long as the animations are accurately created and are not prejudicial or clearly misrepresentative of the facts, most judges will allow the jury to see them, even if only for demonstrative purposes, although most will be admitted into evidence. A jury instruction that was given by the court in Kelly v. Bury, in California, is a model instruction to submit to the court to get an animation admitted. The judge, in instructing the jury stated:
“You are reminded that this is an animation based on a compilation of a lot of different experts’ opinions. And there are what we call crime [accident/event] scene reconstruction experts who could, without using a computer, get on the stand and testify that, based on this piece of evidence and that piece of evidence, the crime [accident/event] occurred in a certain manner. And then they can describe to you the manner in which it occurred. And then they can sometimes use charts or diagrams or re-create photographs to demonstrate that. And the computer animation thatwe have here is nothing more than that kind of expert opinion being demonstrated or illustrated by the computer.
I again remind you that all of the animated video re-enactments or re-creations are only designed to be an aid to testimony or reconstruction, the same as if an expert testified and drew certain diagrams on the board. They are not intended to be a film of what actually happened, or an exact recreation. And therefore, there may be things in each of the videos that are not exactly accurate or exactly as they occurred, but reasonably close, according to expert analysis and opinion, and it is important to keep in mind that with regard to all of the animated videos, they are not actual films of what occurred, nor are they intended to be exact, detailed replications of every detail or every event or every movement. They are only an aid to giving an overall view of a particular version of the events, based on particular viewpoints or particular interpretations of the evidence. The computer animations are tantamount to drawings by the experts to illustrate their testimony.”
“In evaluating general acceptance in the scientific community, we also look to decisions from other jurisdictions. State v. Jones, 130 Wash.2d 302, 307, 922 P.2d 806 (1996). Our inquiry is not whether other courts have accepted the evidence, but whether the scientific community accepts the evidence and whether other jurisdictions have found evidence of widespread use. Jones, 130 Wash.2d at 307, 922 P.2d 806. There is no published federal or state case in the United States that has specifically ruled on the validity of the PC-Crash software. But other jurisdictions have accepted accident reconstruction software and computer simulations as based on the application of long-standing scientific principles. In State v. Clark, 101 Ohio App.3d 389, 416, 655 N.E.2d 795 (Ohio Ct.App.1995), aff'd, 75 Ohio St.3d 412, 662 N.E.2d 362 (Ohio 1996), the appellate court affirmed the admission of computer reconstructed models based on "the reliability of such simulations within the relevant technical community."
“The court in Clark noted that similar simulations have been found reliable and admissible in other jurisdictions. 101 Ohio App.3d at 416-17, 655 N.E.2d 795 (citing Perma Research & Dev. v. Singer Co., 542 F.2d 111, 115 (2d Cir.1976) (results of computer simulation were used to form the basis of expert testimony regarding the feasibility of perfection of an automobile anti-skid device); Messex v. Louisiana Dep't of Highways, 302 So.2d 40, 44 (La.Ct.App.1974) (computer simulation of automobile accident was used to assist court in determining whether the defendant had reasonable opportunity to avoid accident); Holland v. Dick Youngberg Chevrolet-Buick, Inc., 348 N.W.2d 770 (Minn.Ct.App.1984) (computer simulated test was conducted to show a truck could achieve a speed of 55 mph with a full load and was not substantially impaired); Kudlacek v. Fiat S.p.A., 244 Neb. 822, 842-43, 509 N.W.2d 603 (Neb.1994) (expert testimony regarding computer simulation of the path of an automobile on a roadway was properly admitted); People v. McHugh, 476 N.Y.S.2d 721, 124 Misc.2d 559 (N.Y.1984) (computer simulation of car crash was admitted in second degree manslaughter prosecution); Deffinbaugh v. Ohio Turnpike Comm'n, 67 Ohio App.3d 692, 588 N.E.2d 189 (Ohio Ct.App.1990) (two computer generated simulations of a car accident were properly admitted at trial)). State v. Phillips, 123 Wn. App. 761, 98 P.3d 838 (2004).”
- Laying a proper foundation
- Coordinating with experts
The use of any graphics in trial will enhance juror involvement, comprehension and retention of the information you want to arm them with for deliberations. When dealing with visuals that support expert testimony, it is especially important that the expert be involved in the development and creative process. Often, experts will want to create their own exhibits and graphics which, although presumably accurate, are often the product of a level of expertise within the expert’s discipline that is complex or technical to the point of being less useful to jurors than intended. The objective of any visual enhancement to support expert testimony should be to simplify, simplify, simplify. Often breaking the points down into separate exhibits, and considering using a variety of media formats will help to overcome complexity, technicalities and too much information on a single exhibit to be assimilated. Getting the experts together with a visual thinker and/or designer almost always produces the best results.
- Connecting the dots
One of the most important aspects of the use of any kind of visual enhancement in presenting a case to a jury is continuity. It is not uncommon, for any number of reasons, to see evidence presented in a rather helter-skelter manner. Creating a clear and linear path through the evidence is essential. Thus, it is extremely important to create the information architecture that will allow the jury to make the connections that are essential to the verdict sought. As in building a house, there is a process and a sequence that is designed to insure that all of the parts fit together properly, and to prevent having to go back and re-do or correct mistakes that can always be avoided with proper planning. Like the blueprint for a building, the carefully planned design of a case, early on, will be useful in guiding discovery, determining the best methods and strategies for presentation, producing the most effect visual enhancements, and is every bit as important as the actual evidence the case is designed to offer.
It is important, therefore, to begin as early as possible to think about what the case will eventually look like and feel like to the jury. Trial planning and preparation should include someone who is a highly visual thinker, and to think visually, ones self, about the information being processed throughout discovery and trial planning. It is also important to begin this process early on, rather than waiting until two weeks before trial. Getting a graphics person involved early on will allow you to explore options and methods for presenting key elements of the case, and often, if the graphics person is not a lawyer, he or she will be able to assist you in visualizing how a jury might view the evidence and to create a case that puts the pieces of the puzzle together in a more orderly, understandable and credible way. The jury may be given all the evidence they need to reach the desired verdict, but if they don’t know how it all fits together, or how to make the proper connections between the facts they have in hand, the outcome may be far less satisfying than desired.
- Verifiability and credibility
Credibility is inherently linked to common sense and personal experience. People tend to form impressions and draw conclusions that make sense to them in the context of what they know, what their experience has been, and what is familiar. Thus, it is very important for trial lawyers to frame the evidence in ways that are identifiable and familiar to those who live in the day-to-day, non-legal world. If evidence, no matter how correct, is presented in ways that are inconsistent with common experience, or which are called into question by a common-sense understanding of day-to-day realities, jurors will often fail to give weight to evidence that it may in fact deserve.
In developing the presentation architecture and creating a visual case, consideration must be given to the medium and format that is selected to make essential points in the case. Credibility, of varying amounts, attaches instantaneously to many things in the trial process from the very first moments the jury pool enters the courtroom: the parties; the lawyers; the process itself; personalities and presentation delivery styles – many things over which nature has some degree of control despite the best efforts of the people in the well. When it comes to evidence presented visually, however, the lawyer offering the evidence has the upper hand in selecting, designing and proffering the facts in ways that will inform, involve and arm jurors to his or her favor, if the opportunity is taken.
(See ER 104 (e); 607; 608; 609; and 806)
- The presentation mix
- Clear and Simple
The two most important words in the English language when it comes to persuasion, in any context, are CLEAR and SIMPLE. Clarity is the essence of successful trial work. No matter how complex a case may be, no matter how many allegations, causes of action, or issues, they must be able to be commonly understood by a group of people with uncommon backgrounds, experiences and attitudes. In the new electronic reality of the information age we live in, jurors’ expectations of information delivery have greatly changed. They expect the message to be short, sweet and to the point. They expect to be provided with the information they need to make the decision that they will be asked to make when they deliberate. Most cases that end up in the courtroom could well be won with far less information than jurors are asked to deal with. Factoring the case down to what really matters, getting rid of stuff that doesn’t, and presenting the case in a clear and simple manner is the best insurance against an unhappy outcome.
- Continuity of purpose and design
The objective of all successful trial work should not be simply winning. Rather, it should be providing the jury with the information they need to grant the win. In the context of trial work, continuity is essential. Continuity means linear and unbroken. A good storyteller knows that holding the interest and attention of the listener demands a reasonable and orderly sequence of events leading to a logical and satisfying conclusion. Identifying critical issues and developing the themes that will provide the framework for presenting evidence to the jury, early on, will facilitate discovery, guide the trial preparation process, and produce the most effective and compelling presentation for trial. It is best to employ a mix of presentation media and formats, each selected and designed specifically to best clarify the individual points to be made at trial. Balance between high tech presentations and conventional, low-tech presentation methodologies will keep jurors more interested and involved, and will best address the range of information processing preferences that may exist among jurors.
- Juror comprehension and retention
Studies have clearly demonstrated that we remember more of what we see than what we hear. Visual presentation of evidence, underscored by strong testimony, can produce in jurors indelible impressions that will often drive their thinking and decision making in deliberations. As noted earlier, there is only one visual language. Thus, getting a group of randomly selected individuals to understand evidence in a similar manner is best accomplished by providing them with visual images that limit individual and experience-based interpretation of oral argument. It is generally accepted that humans tend to act first on what they remember best. Even though jurors may take time to review the evidence placed into evidence during deliberations, mock trial studies have shown that in many cases they will simply look for the evidence that will support what they remember from the trial presentations.
Using even simple technology such as an animated PowerPoint presentation in trial will create a level of juror involvement that will reinforce both understanding and retention. Working with a person who is skilled in courtroom graphics and visual technology will assist in identifying the proper mix of media formats and applications that will best educate jurors about the merits of the case. Knowing what resources and methodologies are available and in what situations and contexts such resources are best employed is an ongoing process that must be considered as a basis for all trial preparation and presentations in the courtroom.
- Summary
With the increasing availability of new technologies, resources and presentation methodologies, the challenge is to be continually aware of new developments – what is working in the courtroom, and what is not. An awareness of the tools and technologies that may be employed by the other side that may produce a different understanding and greater retention of the evidence by jurors is essential.
The use of technology and visual enhancements, in any form, to create a better understanding and a greater retention of the evidence in a case should never be an afterthought. Rather, it should be an ongoing process, from early on, to develop the presentation architecture that will clearly provide jurors with the information they will need to arrive at the desired verdict.
Today’s jurors, even those with limited formal education, are far more sophisticated in their understanding of new media and visual technologies than one might assume. The technology of the age of “New Media” is now an integral part of the fabric of our culture and must not be dismissed as “slick” or extravagant, but rather, an important factor in understanding and improving the methodology of trial practice.
Prepared by R. Craig Smith, Prolumina Trial Technologies, and Lish Whitson, Law Offices of Lish Whitson LLP, and reprinted by permission of the American Board of Trial Advocates.
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