Illusion Technologies: Animation

How To Get Forensic Trial Animation Admitted
By Nicolas D

With continuing technological advancements, no longer must
attorneys rely on traditional forms of evidence in order to
prove, defend or prosecute a case. The use of forensic computer
animation used as evidence has exploded, bringing with it
challenges to traditional principles of evidence admissibility.
As offered, these computer created animations purport to
demonstrate how a certain event did or did not occur. The unique
characteristic of these animations is that they act as a means
to synthesize all the evidence presented at trial into one
visual representation. Their use can be either greatly effective
or unfairly prejudicial. Animations allegedly demonstrating how
an act did or did not occur can have tremendous persuasive value
in the minds of the jury. Instead of forcing the jury to
integrate every theory and piece of evidence into one seamless
mental thought, a forensic animation seemingly combines all
pertinent facts into a visualized theory of the truth. While
these animations are merely representations of theories, the
jury will often accept them as the truth of the matter due to
their highly persuasive and prejudicial value. In one key study,
82% of trials where animation has been introduced as evidence
has led to victory for the moving party.

The key to arguing for or against the admissibility of computer
forensic animation lies in the attorney’s ability to understand
the standards of admissibility applied to such evidence.
Computer animation can generally be broken down into two
differing classes of evidence, each with its own standard of
admissibility:

(1)Computer generated evidence as demonstrative evidence:

When arguing in favor of the admissibility of computer
generated evidence, the best argument to make is that the
evidence is merely demonstrative. Demonstrative evidence
inherently carries no independent probative value and is used
for five general purposes: (1) to educate your audience; (2) to
explain something; (3) to persuade your audience of something;
(4) to dissuade your audience of something; and (5) to reinforce
something your audience already believes.

Arguing that your computer generated evidence is merely
demonstrative evidence directs the judge to use the low
relevance standard in determining its admissibility. After
categorizing the evidence as demonstrative evidence, the judge
will then ask the following questions in order to determine its
admissibility:

(1)Is it relevant? Does it have a 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? .” F.R.E. 401 (2006).

(2)Does it aid the trier of fact in understanding pertinent
information?

(3)Does it accurately reflect the elements of the situation it
is portraying?

If the evidence is deemed as demonstrative and the answers to
the preceding questions are all in the affirmative, the evidence
will be admissible, provided that its probative value is not
“substantially outweighed by the danger of unfair prejudice.”
F.R.E. 403 (2006). This low threshold test will allow for the
admissibility of most demonstrative evidence. The key to getting
your computer animation evidence in is to argue that it falls
within one of the five general categories of demonstrative
evidence. The successful attorney must know the tests and the
questions to ask, and have the ability to persuade the judge
that the evidence being offered is subject only to the general
relevancy standard in order to gain admission into evidence.

(2)Computer generated evidence as simulation (substantive)
evidence:

When arguing against the introduction of forensic animation,
the better choice is to argue that the animation constitutes
simulation evidence, requiring a higher standard of
admissibility. Computer simulations are seen as blurring the
line between demonstrative and substantive evidence. Simulation
evidence is highly effective because it allows for complicated
facts, data and evidence to be extrapolated into one visual
demonstration of every piece of relevant evidence. Because of
the role that humans play in the creation of computer
animations, judges will often view such animations as
substantive evidence, requiring the expert creating the
animation to take the stand in order to allow for cross
examination. When arguing that a computer animation is
simulation evidence, the arguing attorney must focus on its
technical aspects and the role that humans played in the
selection and interpretation of data used to create the
animation.

Once deemed simulation evidence, the judge will then consider
three primary inquiries:

(1)Is the underlying scientific principle valid? Considering
whether the principle has been tested, its error rates, and the
degree of the principle’s acceptance in that particular
scientific community .” F.R.E. 401

(2)Is the technique applying the scientific principle valid?

(3)Was the technique applied properly on this particular
occasion?

Each of the above questions requires extensive and substantial
inquiry into the quality and characteristics of the evidence
attempting to be introduced. In order for simulation evidence to
be admissible, it must be more than relevant. In addition to
meeting the three tests stated above, only evidence which has
been proven or stipulated to as true may be included in the
simulation. This higher admissibility standard is due to the
highly prejudicial value of such simulation evidence.
Notwithstanding its admissibility as simulation evidence, the
evidence can still be barred if it fails the Rule 403 unfair
prejudice analysis. The Rule 403 unfair prejudice argument is
the last “bow in the quiver” for the attorney arguing against
the admissibility of computer animation evidence and should only
be focused on as a last resort.

As you can see, categorizing computer forensic animation as
demonstrative or simulation evidence will, for the most part,
determine its overall admissibility. These differing standards
of admissibility are to be used as a means of argument,
depending on the attorney’s role in the case. When preparing for
such an argument it is important to keep in mind the opposing
position and to be prepared to argue against it. As with all
trial work, your level or preparation will ultimately determine
the level of your success or the depths of your failure.

About the Author: This article was written by Nicholas J.
Deleault, Pierce Law Center ‘07. Nicholas writes select legal
articles for the Law Firm of
http://www.goldsteinandclegglaw.com/blog, a
http://www.goldsteinandclegglaw.com

Source: http://www.isnare.com