Admitting Computer Animations: More Caution and New Approach Are Needed
Indrani Chatterjee · Defense Counsel Journal · 1995
COMPUTER-generated evidence has been admitted as both substantive and demonstrative evidence. Computer simulations are admitted under high standards because they draw new conclusions for a jury. Computer animations, on the other hand, are admitted under lower demonstrative evidence standards because courts analogize them to charts or diagrams. This legal distinction is premised on numerous misunderstandings concerning the nature of human perception of computer Similar standards should be employed for both simulations and Based on various theories of admissibility, this article develops a three-step process for admitting computer animations as substantive evidence. COMPUTER ANIMATION Computer animation graphically depicts the testimony of a witness or witnesses.(1) In its simplest form, it is a picture of a static object. For instance, the animation could be a simple picture of a baseball. Theoretically, the animation makes no conclusions, but as it becomes increasingly complicated, assumptions and theories begin to take on a more character. Thus, a standard is needed to admit simulated animations. In a simulation, a computer draws conclusions based on limited facts. An example of a simulation is a calculation of the flow of toxic waste through the soil given only the consistency of the soil and the amount of toxic waste put in the ground. A simulation may or may not have a graphic depiction. This article uses an example of an animated event to demonstrate the problems that arise when animations or simulations are used in trials. The event animated is a player hitting a home run during a baseball game but also possibly hitting a victim with the baseball. The animation is used to demonstrate the testimony of a witness who claims to have observed the event. An issue in the case is how hard the victim was hit, if at all. The issues raised are: * possible theories of admissibility for the computer-generated evidence; * problems of reliability encountered in animating events; * most appropriate method of admitting animation, including laying a proper foundation for the computer programs used to animate the event, the underlying scientific theories and authentication of the animation if a witness is available; and * concluding that a higher standard for admitting computer animation is necessary to ensure fairness. By subjecting animation to a more rigorous test, the proposed method reduces the likelihood a jury will be misled by unreliable evidence. THEORIES OF ADMISSIBILITY A. Historical Background Not until the mid-1970s did litigants begin to exploit the graphic capabilities of computers. Computers in the early 1970s were limited in capacity and could not accurately reflect or compute many events used in litigation.(2) At that time, they were used infrequently as litigation aids. The first major case concerning the admissibility of a computer simulation, Perma Research and Development v. Singer Co.,(3) was decided in 1976.(4) In Penna Research, the Second Circuit upheld the trial court's admission of expert testimony based on computer simulations. The plaintiff's case relied almost exclusively on two expert witnesses. One expert's testimony was based on the results of a computer simulation to determine whether an anti-skid braking device was improvable. When the plaintiff refused to turn over the simulation's underlying data and theorems to the defendant, the defendant argued that without that information it did not have a fair opportunity to cross-examine the plaintiff's witness, and it moved to exclude the expert's testimony. The majority of the Second Circuit panel disagreed and held that the defendant had not shown that it did not have an adequate basis on which to cross-examine. Judge Van Graafeiland wrote a strong dissent, arguing that the defendant should have access to the information because the credibility of the simulation could not be attacked without it. …