The use of computer-generated animations and simulations at trial.

• Author: Webster, Victoria

Victoria Webster is senior counsel with Yamaha Motor Corporation, U.S.A. and has been overseeing product liability actions involving three and four wheel ATVs, side by side vehicles, golf cars, snowmobiles, and personal watercraft since 1986. She received her J.D., magna cum laude, from Southwestern University School of Law in Los Angeles in 1984. She is a member of both the California and Georgia bar. Trey Bourn serves as Assistant Practice Group Leader for the Product Liability, Toxic Tort, and Environmental Group at Butler Snow, LLP in its Jackson, Miss., offices. His practice is focused on representing clients in the areas of recreational vehicles, watercraft, automobiles, and other machinery-related product liability cases. He also focuses his practice on drug and medical device litigation. Trey earned his J.D. from the University of Mississippi, where he served as Editor-in-Chief of the Mississippi Law Journal.

The authors would like to thank Carol T. Montgomery and Caroline D. Walker, both attorneys in the Birmingham office of Butler Snow LLP, for their invaluable efforts in putting together this paper.

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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 to a possible defense, that it fairly and accurately reflect the oral testimony offered and that it be an aid to the jury's understanding of the issue. (1)

INCREASINGLY, computer-generated animations and simulations are being used in courtrooms across the country. Although animations and simulations can assist jurors in understanding complex issues, they can also distract from and distort the facts of a case. In recognition of the power these new evidentiary tools can hold over jurors, courts have erected barriers to admission of this evidence in order to ensure that such evidence helps, more than it hurts, the fact-finder's search for the truth.

Courts first review the evidence to determine whether it is animation or simulation, as standards for admissibility differ for each. Since expert testimony frequently provides the vehicle for animation and simulation admission, challenges to this evidence often should be made in the context of Daubert motion practice. Evidence of this type often is created in the latter stages of trial preparation, and therefore timeliness objections are frequently made (though they are rarely successful). Courts nearly always employ cautionary instructions that attempt to blunt the force of effective animations and simulations.

1. Animation or Simulation?

   Computer-generated evidence can be categorized as demonstrative or substantive evidence, and the distinctions between the two are very important. Computer-generated "animations" are generally considered to be demonstrative evidence and can be thought of as visual aids used in support of witness testimony. (2) Their purpose is to help the jury understand a witness's testimony, and they do not purport to be scientific recreations of an actual event. (3) To the extent that animations do recreate events, they can only do so in furtherance of visually representing a witness's belief about what transpired. (4) An animation has only secondary relevance and "must rely on other material testimony for relevance." (5)

   In contrast, simulations are considered substantive evidence and are computer-generated models or reconstructions based on scientific principles. (6) Simulations are created by entering data and engaging in computer-assisted analysis in accordance with widely accepted methodology. (7) Rather than depicting a witness's testimony in the manner of an animation, simulations form conclusions based on raw data: "In a simulation, data is entered into a computer which is programmed to analyze the information and perform calculations by applying mathematical models, laws of physics and other scientific principles in order to draw conclusions and recreate an incident." (8) In short, in the context of simulations, the computer itself is the expert.

2. Foundational Requirements

   Whether computer-generated evidence is classified as an animation or a simulation has important practical implications, particularly as it relates to the evidentiary foundation required for its admission. (9)

   Generally, animations are admissible if the usual foundational requirements ap plicable to other forms of demonstrative exhibits are met. (10) Usually, this means that the animation must be relevant, its probative value must outweigh its potential for unfair prejudice or confusion, and it is supported by testimony establishing that it accurately depicts that which it purports to depict. (11)

   By contrast, as substantive evidence, simulations are subject to the same scrutiny as more traditional scientific tests. Accordingly, the simulation generally must pass the scientific evidence admissibility standards of the relevant jurisdiction. (12) The simulation's proponent must establish that the evidence is "based upon sufficient facts or data," that the facts and data upon which the simulation is based "are of a type reasonably relied upon by experts in the particular field," that the simulation is "the product of reliable principles and methods," and that the supporting expert witness "applied principles and methods reliably" when creating or using the simulation. (13)

3. Objections

   Courts recognize that computer-generated animations and simulations are powerful evidentiary tools that have the potential to mislead a jury if they inaccurately portray events. In a society enthralled by cutting-edge technology, the danger that juries will give undue weight to computer-generated evidence over less-glamorous forms of evidence is very real. Parties opposing the use of such evidence should think carefully about how to craft their objections to computer-generated exhibits, and proponents of the same evidence should craft these animations and simulations as early as possible in their preparation for trial so that they are well equipped to parry objections from opposing counsel.

   The most common objection to computer-generated evidence seems to be that the proponent of the evidence failed to disclose it within a reasonable time before trial. (14) A "reasonable time" has been defined as enough time to allow the opposing party to inspect the evidence and determine possible objections, and two weeks prior to trial has been held to be a sufficiently timely disclosure. (15)

   On its own, a party's late production generally is insufficient to warrant its preclusion. When deciding on a timeliness objection to computer-based evidence, courts primarily look to the prejudice attributed to the delay that is suffered by the moving party. (16) Importantly, a party must do more than simply claim to be prejudiced, but instead must actually demonstrate the prejudice has or will occur. (17)

4. Cautionary Instructions

   In order to prevent unfair prejudice, courts have encouraged--and in some cases, required--that cautionary instructions be given to the jury regarding the nature of the animation or simulation, as well as the weight it should be afforded. (18) Requests for a limiting or cautionary instruction are nearly always granted and, in many jurisdictions, recommended by appellate courts. (19)

   Cautionary instructions generally include the following elements: (1) an admonition that the jury is not to give the animation or simulation more weight just because it comes from a computer; (2) a statement clarifying that the exhibit is based on the supporting witness's evaluation of the evidence; and, (3) in the case of an animation, a statement that the evidence is not meant to be an exact recreation of the event, but is, instead, a representation of the witness's testimony. (20)

   Due to concerns that animations and simulations can be given undue weight by juries, a majority of courts have held that computer-generated animations used only as demonstrative exhibits should not be provided to juries during their deliberations. (21) On the other hand, some courts have allowed animation evidence to be viewed by the jury during deliberations. (22)

5. Federal and State Survey

   The following does not purport to be an exhaustive survey of case law on this subject. However, the below circuits and states have addressed at least some of the issues relating to the use of computer-generated animations and simulations. Although requirements may differ slightly by jurisdiction, the general principles discussed above inform the analyses of all courts.

   First Circuit

   Courts will allow the admission of computer animations "if authenticated by testimony of a witness with personal knowledge of the content of the animation, upon a showing that it fairly and adequately portrays the facts and that it will help to illustrate the testimony given in the case." (23) To be admissible, computer animations must be authenticated by independent evidence or be self-authenticating. (24) The Insight Tech court excluded the defendant's expert's affidavit, which contained an explanation of computer animations, on the basis that the explanations constituted expert opinion that the defendant did not properly disclose. The court also excluded the animations because without the expert's explanations, the animations were "unauthenticated drawings of unidentified devices." (25)

   Second Circuit

   A party that utilizes demonstrative evidence in the form of video simulations or computer-generated animations to illustrate a witness' testimony must take care to inform the jury that the video offered is not a re-creation of the event being depicted, but is instead "computer pictures" to help them understand the witness's opinion. (26) In contrast, if a party offers computer-generated...