§ 27.04 COMPUTER ANIMATIONS AND SIMULATIONS

• Jurisdiction: United States

§ 27.04. COMPUTER ANIMATIONS AND SIMULATIONS

There are several different types of computer-generated evidence. For example, computer-generated business or public records are quite common, and they are generally judged by the same hearsay standards as hard-copy business and public records.³⁴ More recent uses involve animations and simulations.

[A] Computer Animations

An animation is merely a moving series of drawings, such as the Saturday morning cartoons.³⁵ They are often used in conjunction with expert testimony. Some computer-generated animations fall into this category. Here, the fair-and-adequate portrayal requirement applies.

There is a difference between computer-generated animations used as illustrative evidence and those used as recreations of the event at issue. One court explained:

Although defendant argues that there is no practical difference between recreating an accident and re-creating an expert's theory of the accident, the difference is both real and significant; it is the difference between a jury believing that they are seeing a repeat of the actual event and a jury understanding that they are seeing an illustration of someone else's opinion of what happened. So long as that distinction is made clear to them there is no reason for them to credit the illustration any more than they credit the underlying opinion.³⁶

The court further noted: "It is also because of that distinction that tests or experiments that merely illustrate a theory or scientific principle are not required to possess as high a degree of similarity to the actual event as are purported re-creations of the event."³⁷

Under either theory, Rule 403 applies. As the Tenth Circuit has observed: "Video animation adds a new and powerful evidentiary tool to the trial scene. Because of its dramatic power, trial judges should carefully and meticulously examine proposed animation evidence for proper foundation, relevancy and the potential of undue prejudice."³⁸ In Sommervold v. Grevlos,³⁹ the South Dakota Supreme Court affirmed a trial court's decision to exclude a computer-generated video animation offered to illustrate the testimony of an accident reconstruction expert because it was more prejudicial than probative. The court noted the special risk of computer-generated animations, even when offered to illustrate an expert's testimony: " 'a video recreation of an accident . . . stands out in the jury's mind. So it emphasizes that evidence substantially over ordinary spoken testimony.' "⁴⁰ As with any party's staged reproduction of facts, there is the risk that the resulting product may be more like a Hollywood version of an event than anything resembling a fair depiction.⁴¹

[B] Computer Simulations

Computer simulations differ from animations, for the former are a type of scientific evidence...