By Michael Hoenig - New York Law
Journal - September 10, 2012
This article revisits the issue of admissibility of computer-generated
animations purporting to reconstruct a series of events or an
accident. Our discussion is prompted by the Aug. 6 decision of
the California Supreme Court in
People v. Duenas, upholding the admission of an
animation re-enacting the sequence of events in the shooting of
a deputy sheriff and offering guidance on why the animation was
properly received by the trial judge. The appeal raised the
interesting question whether slick animations can so beguile a
jury that the demonstrative imagery is unduly prejudicial for
In 2004, U.S.
Eastern District of New York Judge Jack Weinstein issued his
visionary opinion in
Verizon Directories v. Yellow Book USA,1
favoring admissibility of computer-generated demonstrative
exhibits or techniques referred to as "pedagogical devices."
Weinstein was confident that judges could control against abuses
or inequities in resources and tailor proceedings so that such
demonstrative materials would help jurors find the truth. This
writer discussed the opinion and admissibility issues in two
defined four categories of such demonstrative exhibits: (1)
"static images" (common in courtrooms, such as tables, graphs,
maps and diagrams); (2) "animations" (moving pictures in which
static images are shown in rapid succession to create the
illusion of motion); (3) "simulations" or "re-creations"
(detailed and realistic depictions which, in the opinion of the
creator, simulate the nature of the events); and (4) "computer
models" (compilations of mathematical formulae and expressions
integrated into a sophisticated program or series of programs
which, then, are translated into graphics explicating the
results). To these he added a fifth: "enhanced images," a
classification somewhere between static images and animations.
While the enhanced image is for the most part static, it can be
manipulated by highlighting, enlarging particular areas,
presenting side-by-side, split-screen images, printed commentary
or transcripts moving in tandem with the image and/or audio.
recognized them as useful trial aids but the common view was
that such pedagogical devices are not evidence themselves.
Weinstein forcefully advocated that pedagogical devices be
admitted as evidence, subject, of course, to court control
against prejudice and manipulation of the viewer's subconscious.
Since 2004, computer-generated technology has advanced by huge
leaps and bounds. Advances in computer-generated graphics now
portray imagery so sophisticated, so authoritative, so evocative
that the pictorial details can dwarf the testimonial foundation
that justifies its admissibility in the first place. Could
jurors be so smitten by the informative power of the pedagogical
medium that the graphics could be overvalued? Consider, for
example, the special effects presented in many successful
movies. Without the visual impact of such well-staged imagery,
the dialogue itself often would be flat and ineffective. The
viewer's emotions are rabidly excited by the visual cues and it
is the imagery punctuating the dialogue, in large part, that
moves the viewer.
On Aug. 6,
2012, the California Supreme Court, in People v. Duenas,3
seems to have rejected the "beguilement" argument when it comes
to the admissibility of animations illustrating what an expert
said had happened. The convicted defendant argued on appeal that
the animation gave the prosecution's case an unjustified "air of
technical and scientific certainty," citing court decisions from
other states that juries find such visual evidence uniquely
persuasive. This part of defendant's argument thus took issue
with the "form" of the animation as a visual reenactment. That
form, defendant contended, was "likely to beguile the jurors
into uncritically accepting the version of events depicted in
the animation." Thus, he argued that the animation tended to
give the evidence a "posture of mystic infallibility in the eyes
of a jury."4
In a nutshell,
here is what happened regarding admissibility of the animation.
Defendant used methamphetamine and, carrying a loaded pistol,
bicycled past a Los Angeles County Sheriff's Deputy who asked
him to stop. Uttering an obscenity and gesturing with his
finger, defendant continued riding. The deputy pursued in his
patrol car and pulled in front of the bicycle with lights
flashing. Defendant fired a shot that shattered the car's rear
window and hit the Deputy's right hand. The officer drew his gun
and began to exit the patrol car. Defendant walked around to the
driver's side and shot the deputy three times. He then fired
more shots and fled. The deputy was dead. While fleeing,
defendant turned and fired three more shots. Defendant was
tried, convicted and sentenced to death.
presented Carly Ward (an expert in biomechanics) and her son
Parris Ward (who creates computer graphics) to reconstruct the
events and the movements of the victim and shooter, and tie
these to physical evidence. Following a preliminary hearing and
over objection, the jury was shown a four-minute computer
animation as to how the shooting occurred. Parris Ward has a
background in photography, law, computer graphics and creating
computer animations for use in court. He relied on a variety of
sources, including police and coroner reports, photographic
records, precise measurements he took at the scene, examinations
of the patrol car and bulletproof vest, and personal
consultations with the coroner.
animation was played to the jurors, Parris Ward told them that
the animation "doesn't tell you, because it's from computer,
that this had to happen this way"; instead, it is "an
illustrative tool for explaining concepts." The trial court gave
the jury the following cautionary instruction: "What you're
going to see is an animation based on a compilation of different
expert opinions. This is similar to the expert using charts or
diagrams to demonstrate their respective opinion. This is not a
film of what actually occurred or an exact re-creation. It is
only an aid to giving you a view as to the prosecution version
of the events based upon particular viewpoints and based upon
interpretation of the evidence."
was a series of mostly still images drawn to give the impression
of three-dimensional space. Although the objects and figures in
the images rarely move, the viewer's perspective moves within
the images, allowing the viewer to see the objects and figures
from different angles. The figures were drawn in generic
fashion, their facial features indistinct and expressionless.
The viewer's perspective shifts from where the principals were
in relation to the patrol car at the various stages in the
sequence. Red lines were used as the bullets' trajectories with
a number of descriptive words or headlines superimposed over the
animation. Interspersed with the animation were actual autopsy
Supreme Court observed that courts and commentators draw a
distinction between computer animations and computer
simulations, citing an annotation titled, "Admissibility of
Computer-Generated Animation."5 Animation is merely
used "to illustrate an expert's testimony while simulations
contain scientific or physical principles requiring validation.
Animations do not draw conclusions; they attempt to recreate a
scene or process, thus they are treated like demonstrative aids.
Computer simulations are created by entering data into computer
models which analyze the data and reach a conclusion." In other
words, a computer animation is demonstrative evidence offered to
help a jury understand expert testimony or other substantive
evidence. A computer simulation, by contrast, is itself
compared computer animations to classic forms of demonstrative
evidence such as charts and diagrams that illustrate expert
testimony. The animation is admissible if it is a fair and
accurate representation of the evidence to which it relates. A
trial court's decision to admit such evidence is reviewed for
abuse of discretion. A computer simulation, by contrast, is
admissible only after a preliminary showing that any "new
scientific technique" used to develop the simulation has gained
general acceptance in the relevant scientific community. In
Duenas both sides agreed the contested evidence was an
animation, not a simulation.
reenactment was relevant to the question of defendant's
premeditation and deliberation and illustrated the theory of the
prosecution's biomechanics expert, Carly Ward, that defendant
fired a series of shots from different locations, including one
at close range. The California Supreme Court rejected the
defense argument that the animation was speculative. Whatever
uncertainty might exist as to the actual facts, the animation
accurately illustrated the opinions of the prosecution's
experts. The trial court's instruction to the jury that this was
not a film "of what actually occurred or an exact re-creation"
but only a "view as to the prosecution's version of the events,"
clarified the point to the jury.
The court also
rejected the argument that the animation gave the prosecution's
case an unjustified "air of technical and scientific certainty."
The animation was not likely to beguile the jurors into
uncritically accepting the prosecution's version of the events
because the animation creator (Parris Ward), the court and the
prosecutor all made clear to the jury that the animated film was
not an exact re-creation of what actually occurred. Accordingly,
the trial court did not abuse its discretion in allowing the
demonstrative evidence. An Oklahoma appellate case, relied on by
defendant, that held four computer animations to be prejudicial,7
was distinguished because the evidence in that case did not
adequately support the conclusions reached by the expert and
depicted in the animations. Further, the Oklahoma trial court
had failed to give an instruction informing the jury about how
it should understand and evaluate the animations.
civil litigation, such as a high-stakes products liability
trial, both sides often are armed to the teeth with a variety of
demonstrative pedagogicals, animations, simulations or accident
reconstructions. Frequently, the computer-generated simulation
is depicted in some animated format. In such cases, an arbitrary
distinction between a simulation and an animation may be
misleading. Such a work product is in reality a computer
simulation but is depicted, or perhaps masquerades, as a mere
animation. The end product to be shown to the jury is not merely
an illustration of the expert's opinion (akin to a diagram).
Computer-generated simulations are subject to the GIGO
("garbage-in, garbage-out") maxim. Faulty factual inputs can
skew the results and yield "garbage" and "junk science"
opinions, no matter how distinguished-looking or sounding the
expert may be, and no matter how impressive the computer program
may appear to be.
computer-generating reconstruction experts may start out with an
opinion they were hired to profess and then perform "trial and
error" computer runs, alternating factual inputs until they
achieve the desired result. They may take one witness' version
of events, for example, and input that data, discounting or
ignoring other countervailing versions of the facts observed by
others. That type of selective use of limited facts is not only
subject to cross-examination and impeachment. The gambit may
make the simulation, the computer-generated result and the
animation purporting to depict the re-enactment "unreliable."
That could justify a "Daubert" threshold inquiry or a
motion in limine on whether the computer-generated animation
should ever see the light of day.8
need to be alert to what is being peddled as a mere animation.
Diligent pre-trial discovery of all participants in the
production of a computer-generated reconstruction (whether
labeled a simulation or animation) is necessary. Minimally, such
information is needed to cross-examine, to prepare one's own
version of an animation and, even, to frame a proposed curative
instruction that the court should give to the jury if it is
disposed to allow the evidence. Do the computer "runs"
generating the imagery properly and reliably reflect the actual
facts? Does the imagery in the animation depart from the facts?
What critical factual inputs have been neglected or ignored? How
would omitted facts alter the result and the image depictions? A
slew of other "checklist" questions ought to be developed.
power of computer-generated pedagogicals to win the hearts and
minds of the modern, "techie"-oriented jury is inexorable and
undeniable. The dramatic influence of pictorial imagery in our
lives outside court mirrors the potential influence that such
types of evidence can have inside the courtroom. We are not
speaking of mere "trial by cartoon." Some modern animations
don't even move the figures, as in Duenas; rather, they
move the viewers' perspective within and around the images,
allowing views from different angles. The juror is being put in
the driver's seat, so to speak. That may not just amount to
depiction. Subconsciously, to some extent, the juror may
"experience" the reconstructed event. The California decision
shows that courts will not obstruct such technology so long as
jurors are properly instructed. Thus, it falls upon counsel to
perfect his or her advocacy, pro or con, regarding such
is a member of Herzfeld & Rubin.
F.Supp.2d 136 (E.D.N.Y. 2004).
2. Hoenig, "Computer-Generated
'Pedagogical' Devices; Admissible or Not," New York Law
Journal, Nov. 8, 2004, p. 3; "More on Computer-Generated
'Pedagogical' Devices," NYLJ, Dec. 13, 2004, p. 3.
3. 2012 Cal.
LEXIS 7251; 55 Cal. 4th 1; 2012 WL 3155944 (Cal. Sup. Ct. Aug.
4. People v.
Duenas, 2012 Cal. LEXIS 7251, at *43-*44.
5. People v.
Duenas, 2012 Cal. LEXIS 7251, at *35-*36 (citing, Annot. 111
A.L.R. 5th 529, 538-539, §2[a] (2003)).
6. People v.
Duenas, 2012 Cal. LEXIS 7251, at *36 (citing cases).
Dunkle v. State, 139 P. 3d 228, 249-251 (Okla. CR.
Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579
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