Technology in the courtroom: computerized exhibits and how to present them.

• Author: Baer, Lori G.

The new and developing worm of models, animations, simulations and trial presentation systems enable litigators to be more efficient and effective

AMERICAN life has become increasingly dependent on computer-based technology. Computers and communication systems are the foundation of many human activities. On nearly every desk in every home or office, computers are used almost every day. With the increasing availability of computers, people are more aware of today's cutting edge technology. With this awareness, they are demanding that this technology be implemented in all walks of life. The judicial system is no exception.

Much of today's computer technology focuses on the widespread dissemination and communication of information. Hence, the term "information superhighway" has become a buzzword for the Internet. This concept is important to attorneys, especially litigators. In fact, communication is the heart of litigation. "Evidence is meaningless if it cannot be transmitted effectively to the fact finder, and from the perspective of the litigator, evidence may be valueless if it is not transmitted persuasively."(1)

In the past, effective and persuasive communication in the courtroom consisted of blowups, transparencies, photographs, charts, and diagrams. As technology has progressed, litigators now use videotapes, computer graphics, computer animations, and other computer-based presentation systems. Rather than a pen and a legal pad, the tools of the trade now include videotape, laserdisc, CD-ROMs, bar codes, light pens, and laptop computers. Rather than an overhead projector or easel, there are large, high-resolution television monitors strategically placed throughout the courtroom.

Computer-related information display systems are important because they provide a means of storing, organizing, and clearly presenting large quantities of information in a relatively inexpensive and easy-to-use format.(2) Evidence and testimony are presented in an aesthetically pleasing and therefore persuasive visual manner. In addition, certain scientific information could not be presented without the use of computer-based trial presentation systems.

These computer-based presentation systems are important, as studies have shown that juries remember 85 percent of what they see, as opposed to only 15 percent of what they hear.(3) It is therefore necessary for counsel to become acquainted with and able to use the available computer technology and computer-based presentation systems.

BASIC TERMINOLOGY

1. Static Images

   Computer-generated evidence will typically fall into four major categories. The first type is static images or still illustrations.(4) These include diagrams, charts, blowups, and illustrations that depict documents, objects, scenes, or mechanisms. In many cases, the document, picture, or object is simply enlarged in color and placed on an easel in the courtroom for viewing by the judge and jury. In other cases, it is scanned or imaged into a computer for later manipulation. The image is regenerated or recreated by the computer, but it does not move. The image is then shown to the judge or jury via a large monitor. The use and admissibility of this type of evidence usually does not create many problems.

2. Animation

   The second type is animation. Computer animation is a series of computer-generated images, such as static images or still illustrations that are shown in rapid succession to create the illustration of motion.(5) The computer can rotate objects so they can be shown from different viewpoints. With computer animation, counsel can enlarge small detailed areas or objects viewed from a distance. Examples of computer animation include the computer-generated tornadoes in the recent movie "Twister," as well as simple computer cartoons used by Walt Disney. A key aspect of computer animation is the lack of intent to recreate or simulate an actual event.

3. Computer Simulation or Recreation

   The third type is known as computer simulation or computer recreation. Similar to animations, simulations or recreations display images or illustrations created by a computer in a manner to create the illustration of natural-appearing motion. An event can be portrayed from varying angles or positions or from the viewpoint of different witnesses to or participants in the event. However, a simulation or recreation "involves the recreation of an event based on measurements, coordinates, and other relevant information as well as assumptions (usually scientific) which are built into the program."(6)

   Computer simulations or recreations differ from animation in that they are intended to "recreate an actual incident or event."(7) Measurements and other empirical data, such as size, shape, time, altitude, and velocity, are entered into a computer program, which processes the information and draws conclusions based on these facts. An example of a simulation or recreation would be a common accident reconstruction program.

4. Computer Model

   The fourth type is a computer model. A computer model differs from a simulation or recreation because no image is created. It is a compilation of mathematical formulas and expressions that are integrated into a complex and sophisticated computer program. An expert can use the computer program to test several hypotheses and is better able to form an opinion on the subject at issue.

5. Admissibility

   The admissibility and use of static images seldom raise significant problems outside their content. This article focuses on the use and admissibility of animations, simulations, and models, which are the most controversial types of computer-generated evidence with respect to admissibility and use in the courtroom.

   USE AND ADMISSIBILITY

   Computer graphics when presented on large video monitors in a courtroom are extremely effective and persuasive. They allow large amounts of complex information to be presented in a user-friendly manner. Counsel can illustrate to the judge or jury everything from a complex medical procedure to the working of an automobile engine, to the operation of a hydroelectric power plant.

   While the benefits are clear, admissibility of computer graphics is not. Few reported cases discuss the admissibility of computer animations and recreations in any uniform manner.(8) The cases that discuss the issue have not created a uniform test. In addition, many published articles on the subject discuss various procedures regarding admissibility.

   From the sparse case law on the subject and the many published articles, it appears counsel should plan for possibly two admissibility standards to apply: first, the admissibility of purely demonstrative computer-generated exhibits, and second, and the admissibility of computer data models or exhibits that form the basis of an expert's opinion.

   While the methodology used to determine admissibility varies from court to court, and judicial reasoning has not always been clear, their respective standards substantially conform to the Federal Rules of Evidence. Under those rules and most case law, there is essentially a three-part test for admissibility--relevance, authentication, and probative value.

1. Relevance

   This prong of the admissibility test is usually met without much resistance. Evidence is relevant, according to Federal Evidence Rule 401 if it has "any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." But under Rule 402, only relevant evidence is admissible.

   Therefore, the computer-generated evidence must be relevant to the litigation.(9) It must tend to establish that a fact of consequence is more or less probable.(10) In most cases, the animation or recreation will help the jury determine whether the facts at issue are more or less probable than they would be without this type of evidence. Relevance is usually not a problem if the exhibit depicts all or part of a material event or process at issue.(11)

2. Authentication

   1. Authentication for Demonstrative Purposes

      1. In General--Rule 901(a)

         For the next step, counsel must authenticate the evidence pursuant to Rule 901(a) by presenting "evidence sufficient to support a finding that the matter in question is what its proponent claims."(12) In some instances, the simplest way to authenticate the computer animation is by asking the sponsoring witness if the computer animation is a "fair and accurate" depiction of what it represents.(13)

      2. Process or System--Rule 901(b)(9)

         The most critical factor regarding admissibility is the accuracy of the animation compared to the testimony of the sponsoring witness. Therefore, the proponent also should authenticate the animation program itself by showing that the computer program produces an accurate animation or illustration based on the data provided. The simplest way to do this is through the Federal Rules of Evidence.

         Rule 901(b)(9) states that proper authentication of a process or system may be made by "evidence describing a process or system used to produce a result and showing that the process or system produces an accurate result." This suggests that the computer program can be authenticated by producing evidence that the animation process produces an accurate result.

         Some commentators and courts have analogized this process to computer-generated business records.(14) Under such a test, the proponent of a computer-generated exhibit must show: (1) the input procedures used to supply information to the computer; (2) the test used to assure accuracy and reliability of both the computer operations and the information supplied to the computer; and (3) the generation of and reliance on the computer record in the regular course of business.(15)

         More often the proponent may need to satisfy another similar test. This requires the proponent to show that the computer animation fairly and accurately depicts what it represents through the testimony...