"Animation is a new and powerful evidentiary tool, but must be used with great care." 1 Although this article primarily concerns Computer Animations, some general assertions are made with respect to demonstrative evidence in all forms. Although Minnesota cases are discussed, I will cite the Federal Rules, rather than local state rules.
"If you have a good animation, it's such a difficult thing for the other side to fight," said David Golomb, a Manhattan attorney who has served as president of the New York State Trial Lawyers Association. He calls it "devastating evidence"
1State v. Stewart, 643 N.W.2d 281, 295 - 296 (MN 2002) (citing Gregory P. Joseph, A SIMPLIFIED APPROACH TO COMPUTER-GENERATED EVIDENCE AND ANIMATIONS, 156 F.R.D. 327 (1994); Fred Galves, WHERE THE NOT-SO-WILD THINGS ARE: COMPUTERS IN THE COURTROOM, THE FEDERAL RULES OF EVIDENCE, AND THE NEED FOR INSTITUTIONAL REFORM AND MORE JUDICIAL ACCEPTANCE, 13 Harv. J.L. & Tech. 161 (2000).)
Demonstrative evidence is evidence in the form of an illustration, rather than substantive evidence and is used widely in both civil and criminal cases.2 Examples of demonstrative evidence include plaster casts or molds, scale models, maps, charts, diagrams, drawings, police composites, mug shots, sketches, photographs, microscopic enlargements, videotapes, computer reconstruction or simulation, scientific tests or experiments, x-rays, movies, sound recordings, forensic animation and graphs. Visual aids of this type are intimately tied to the credibility of the witness who testified with them, and although they are not separate pieces of evidence, like substantive evidence, they sometimes may be made available again to a jury for viewing during deliberation.
Visual Aids are Sine Qua Non to almost every type of trial presentation
"The attorney must constantly ask, how can I make this testimony more concrete? Or, how can I help the jury visualize this point? . . The answer will often be found in the development of demonstrative evidence." Steven Lubet, Modern Trial Advocacy: Analysis and Practice (2d ed. 1997)
Trial lawyers have experienced that jurors retain 87% of what they see but, only 10% of what they hear. Presenters using visual aids are 43% more persuasive than those, who rely on words alone.3 Presenters using visual aids experience 400% higher information retention from their audiences than presenters, who deliver purely verbal presentations.4 As a result, effective trial lawyers have almost always relied upon visual aids, which have progressed from simple illustrations to photographs to video to computer animations and, more recently, holograms.
Use a Combination of Demonstrative Evidence
Tom O'Connor explains, in a recent Law Technology News article, How Can a Litigator Go from the Dark Ages to Enlightenment in One Quick Step, that:
In the early days, we found that using a variety of visual aids in court was the most compelling to juries. A well planned combination of standard exhibit boards, video and computer-based exhibits is better than trying to fit all your evidence into one type of display.
Tom's point is that this was an early lesson that holds true today. Consider using a combination of physical models that jurors can closely examine or hold, magnetic boards, projected displays, animations, photographs and timelines.
Make Advance Arrangements with and Engage Your Expert Witnesses
Your expert witnesses must approve of and be familiar with and comfortable with the demonstrative exhibits that you intend to provide in concert with their testimony. In the case of computer animations, iterative development is imperative. The final animation must exactly compliment the expert's opinion and proposed testimony. Early involvement of animation in a case is often beneficial and, consequently, it may be prudent to retain an animator prior to expert witnesses. The animator may also serve as a liaison of sorts between the litigator and expert witness, fusing the litigator's art of persuasion with the expert's cold facts into a presentation that both may agree upon.
Another way to intimately involve the expert is to provide annotation equipment, such as a touch screen, light pen or telestrator. Annotation makes a low-key but substantial contribution by allowing either the litigator or the expert to mark up images generated by an evidence camera or laptop computer and displayed on a monitor or projection screen. This allows pointing out what is important in the display, drawing emphasis to a particular aspect, or connecting lines to show a nexus or to help expedite opening statements, witness testimony and closing arguments.
Make Arrangements in Advance with the Court
At an ABA Techshow presentation in March 2006, I recall both judges Christina Habas (District Court, Denver County) and Herbert Dixon (Superior Court, District of Columbia) emphasizing the importance of coordinating, in advance, the use of technology for trial.
Essentially, this means little more than contacting the court coordinator or division clerk to work out a time to come into the court room prior to trial to work out issues of wiring, orientation and visibility for both the judge's bench and jury box and audio (if applicable). It's important to work out whether you will be permitted to dim the lights during a projected presentation or whether it would be best to bring in one or more flat-panel big screen televisions for the judge and jury that are capable of displaying sharp, bright, crisp images.
One overlooked aspect of this pre-flight preparation is to be mindful of the positioning of clumsy equipment and confined spaces. If too many types of display technologies are present, constant moving of equipment (to keep the jury line-of-sight open) and tripping over wires and cables will disrupt the flow the case.
Admissibility of Computer Animations
Perhaps, the biggest and most overlooked concern is admissibility. To be admissible, demonstrative exhibits must "fairly and accurately" represent the real subjects at the relevant times and their probative value must outweigh any prejudicial effect. Based upon these standards, courts have allowed video and computer animation demonstrative evidence to keep pace with technology advances and the "CSI effect" of jurors.
It is important to distinguish between animations offered for "illustrative purposes only" from those claimed as simulations, recreations or mathematical modeling. In Lake Superior v. Hammel, 715 N.W.2d 458, 481-82 (Minn. App. 2006), the appellants argued that the district court erred by admitting a computer animation showing the means and methods that a large aquarium tank could have been constructed. Appellants contended that the animation was prejudicial because it showed a perfect result. Judge Kalitowski explained:
When the district court denied appellants' pretrial motion to exclude the animation, it admitted the animation for illustrative purposes only and did not allow it in the jury room for deliberations. Rejecting the challenge to the animation again as a basis for appellants' motion for new trial, the district court explained that appellants claimed the tank was not constructable as designed while respondents claimed that the structure could have been erected using appropriate means and methods. Thus, the court stated that the animation's purpose was to illustrate the process that respondents claimed could have been employed to successfully build the structure. Appellants provide no evidence to suggest that the animation was inaccurate, was considered as substantive rather than illustrative evidence, or resulted in prejudice to them. Because the district court thoroughly examined the admissibility of the animation on two occasions and instructed the jury to consider the animation for illustrative purposes only, we cannot say that the district court abused its discretion by admitting the animation.
(quotations ommitted) (quoting Behlke v. Conwed Corp., 474 N.W.2d 351, 358-59 (Minn.App. 1991)).
If an animation is offered for illustrative purposes, only, the most common objection is to foundation, demanding adequate testimony to establish the accuracy of the date, structures, motion, sound and other aspects of the animation. Therefore, it is imperative for litigators to lay a proper foundation in introducing such evidence with experts or other witnesses. The impact of animated exhibits is so great that, if there are insufficient indicia of reliability under Rule 901, then Rule 403 and Rule 611 considerations will weigh against use of the animation.
Objections as to unfair inferences being drawn from or depicted with relation to the evidence may include:
- Viewpoint: A computer can frame an animation from a point at the scene where no witness was or could have been or show more of a scene than than could have been viewed by an eyewitness, thereby construed as misleading.
- Speed: The speed of motion in an animation may be objectionable when there is no foundation to show the motion depicted is accurate (such as the speed of a colliding vehicles)
- Motion: Current software offerings utilize algorithms and require animators to make choices as to when and where an actor changes direction in a scene. An incorrect choice can lead to an inaccurate representation of the motion.
- Terrain: Low budget animations will use flat terrain, which may not be representative of the actual scene
- Sound: The sound in computer animations may be objectionable when there is no foundation to show that the sound is accurate.
Another set of objections concerns information in the animation that is not in evidence. This can include, for example, fog or ice depicted in a vehicle accident scene, where neither has been established in corroborating, admissible evidence. See, e.g., Kelly v. Ellefson, (Minn. App. 2005) (No. A04-615, unpublished) (rev'd on other grounds 712 N.W.2d 759 (Minn. 2006)), (district court abused its discretion by admitting animation that was not disclosed until the morning of the first day of trial; was shown to jury without cautionary instructions; and was misleading, suggesting facts not admitted into evidence or corroborated by any other testimony). In a published case, State v. Stewart, 643 N.W.2d 281, 295 - 296 (MN 2002), the court explained:
[W]hile it is true that the animation may have made it easier for [the expert] to testify and may have been very effective in depicting the shooting, the animation's effectiveness was enhanced through artists' renditions of facial expressions and movements that did not merely re-create what was in the record, but created impressions depicting deliberate, intentional actions favorable to the state's theory of the case. Because the animation's contents exceeded what was in the record and created impressions that went right to the heart of what the state needed to prove as to intent, and because the animation exceeded the purpose for which it was admitted, the district court erred in admitting the entire animation.
* * *
Animation is a new and powerful evidentiary tool, but must be used with great care. McCormick has cautioned that one party's staged reproduction of facts creates the danger that "the jury may confuse art with reality" and that "the impressions generated by the evidence may prove particularly difficult to limit." 2 John William Strong, MCCORMICK ON EVIDENCE 19 (5th ed.1999). Because of its dramatic power, proposed animations must be carefully scrutinized for proper foundation, relevancy, accuracy, and the potential for undue prejudice.
Under Rule 703, while the data relied on by an expert in reaching an opinion need not be admissible, evidence that is normally inadmissible may not be communicated to the jury. If the animation is a visual representation of inadmissible bases for the expert's opinion, it can be excluded under the Rule.
Lastly, on the subject of admissibility, another must-read is Commonwealth v. Serge, 837 A.2d 1255 (Pa. Super. 2003), a case out of Pennsylvania, regarded around the country as one of the most instructive opinions regarding the admissibility issues of computer animations, illustrations, demonstrative evidence and simulations.
Technology is No Substitute for an Effective Litigator
Budget minded attorneys may believe that they can and should present and manage so-called "high-tech" courtroom presentations. However, a litigator must avoid running afoul of the lawyer-as-witness rule and should never be called upon to testify as to the preparation of and underlying data of a demonstrative exhibit. Moreover, most commentators suggest that hiring a consultant allows the litigator to focus on the case rather than the technology. Even a technologically savvy judge is unlikely to tolerate an inexperienced litigator fumbling with a laptop or projector for long. Moreover, the jury may associate the lack of preparedness with the attorney and the client's cause, whereas, if such mishaps are handled by or attributable to a technology consultant, the negative inference, if any, is attached to the third-party consultant. Although good technology consultants should be invisible during trial, simply having one on hand to deal with mishaps demonstrates to the jury that the litigator was, in fact, prepared and believes in the client's cause.
On the other hand, both judges and juries can resent litigators and their teams of consultants, if it appears that the litigator's strongest element of persuasion is near total reliance on technology (a/k/a "cyber bullying"). There is a careful balance to strike between satisfying modern juries' expectation of technology (the so-called "CSI effect"), providing realistic demonstrative evidence (very often less interesting than "CSI") and overdoing it (cyber-bullying).
Both the judge and jury will expect the litigator to be passionate about the cause, to understand the facts and legal issues and for the oral presentation (including demeanor, gesticulations, tone, body language) to compliment the strength of the demonstrative evidence. If the litigator is unprepared, appears disinterested, is unpersuasive or does not appear convinced of the client's cause, the judge and jury will not be fooled by even the most polished high-tech presentation.
2Melvin Belli is generally credited with popularizing the use of demonstrative evidence in civil cases.
3Wharton Research Center, Univ. of Pennsylvania (1981)
4Minnesota Management Information Systems Research Center (1986)