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How To Get Forensic Trial Animation Admitted
by: Nicholas J. Deleault

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.