Computer-generated visual evidence is likely to be compelling, so meeting the objections to its admissions is important
IF A videotape is the "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 the shakes, stumbles, shadows and blurs that are the hallmarks of hand-held video cameras.
This article provides some practical suggestions on admitting this type of evidence. While it covers the major evidentiary issues, it is not an exhaustive discussion of the 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 the 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 the courtroom for numerous purposes, including to recreate vehicle accidents and airline crashes, to demonstrate how a product is made, and to show the value of royalty interests in an eminent domain proceeding. In a jury trial involving complex expert testimony concerning an event, the 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 the trial attorney who hopes to use this evidence must be prepared to lay the proper foundation and meet a host of objections. Conversely, counsel who faces the prospect of watching months of expensive trial preparation going down the tubes as a jury watches four minutes of devastating accident reconstruction in transfixed awe, had better know the objections to make to try to exclude CGVE.
THE LAW: GENERAL POINTS
The admission of CGVE potentially may implicate several of the 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 the admissibility of CGVE. The only federal case with any detailed discussion of this issue is the Second Circuit's decision in Perma Research & Development v. Singer Co.,(2) in which a computer simulation was used to rebut testimony regarding the performance of an automotive anti-skid device. Two things are significant about Perma: (1) the CGVE was ruled admissible and (2) the only objection to admissibility addressed by the court was the fact that the proponent of the evidence had not provided sufficient discovery to allow cross-examination on the reliability of the simulation.
State courts also have been relatively silent as to what constitutes proper foundation to admit CGVE. Therefore, discerning the 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 the CGVE being offered? Is it being used merely to illustrate and facilitate the testimony of a witness? Or is it being offered as substantive evidence? If it is offered to illustrate an expert's opinion, it is demonstrative 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 demonstrative aid is that the 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 demonstrative aid. Unfortunately, the "demonstrative" vs. …