Some Suggestions on Admitting Computer Graphics into Evidence at Trial
Richard Minta Dunn, Christopher D. Brown · Defense Counsel Journal · 1998
Computer-generated visual evidence is likely to be compelling, so meeting objections to its admissions is important IF A videotape is the next best thing to being there, then a computerized graphic of an event is even better than being there. Unlike a videotape, a computerized graphic can show what would have happened, and it can do so without any of shakes, stumbles, shadows and blurs that are hallmarks of hand-held video cameras. This article provides some practical suggestions on admitting this type of evidence. While it covers major evidentiary issues, it is not an exhaustive discussion of admissibility of this type of evidence. WHAT IS CGVE? Computer generated visual evidence, known as CGVE, is any graphic representation of an event that is created through use of a computer. CGVE can consist of graphic reconstructions of actual events, simulated depictions of hypothetical events or simply data lists. This article deals only with computer depictions of accidents. CGVE of both real and hypothetical events has been used in courtroom for numerous purposes, including to recreate vehicle accidents and airline crashes, to demonstrate how a product is made, and to show value of royalty interests in an eminent domain proceeding. In a jury trial involving complex expert testimony concerning an event, impact of CGVE depicting that event can be staggering, because information presented in a graphic visual form is retained vastly better than information presented orally.(1) But trial attorney who hopes to use this evidence must be prepared to lay proper foundation and meet a host of objections. Conversely, counsel who faces prospect of watching months of expensive trial preparation going down tubes as a jury watches four minutes of devastating accident reconstruction in transfixed awe, had better know objections to make to try to exclude CGVE. THE LAW: GENERAL POINTS The admission of CGVE potentially may implicate several of Federal Rules of Evidence: relevance (Rules 401 and 402), prejudice (Rule 403), hearsay (Rule 803), scientific reliability (Rules 702 and 703), and authentication (Rule 901). There is scant federal case law directly addressing admissibility of CGVE. The only federal case with any detailed discussion of this issue is Second Circuit's decision in Perma Research & Development v. Singer Co.,(2) in which a computer simulation was used to rebut testimony regarding performance of an automotive anti-skid device. Two things are significant about Perma: (1) CGVE was ruled admissible and (2) only objection to admissibility addressed by court was fact that proponent of evidence had not provided sufficient discovery to allow cross-examination on reliability of simulation. State courts also have been relatively silent as to what constitutes proper foundation to admit CGVE. Therefore, discerning necessary foundation for admission of CGVE is almost entirely a matter of common sense and adherence to traditional evidence principles.(3) DEMONSTRATIVE OR SUBSTANTIVE EVIDENCE? One must ask, first, for what purpose is CGVE being offered? Is it being used merely to illustrate and facilitate testimony of a witness? Or is it being offered as substantive evidence? If it is offered to illustrate an expert's opinion, it is evidence only. Demonstrative evidence may consist of charts, diagrams, objects or other items, including video or computer images, that assist a witness, usually an expert, in presenting testimony. The advantage of using CGVE as a aid is that evidentiary standards for its admissibility are relaxed. In fact, trial courts have almost unfettered discretion to allow witnesses to illustrate or explain testimony using a aid. Unfortunately, demonstrative vs. …