Subliminal Messaging

State of Connecticut v. Michael Skakel, SC 16844 (January 24, 2006)

As you may already be aware, WIN Interactive, Inc.’s multimedia presentation used during the prosecution’s closing argument was challenged on appeal and reviewed by approval from the Supreme Court of Connecticut.

The defendant asserted that the state manipulated the defendant’s taperecorded comments about masturbating in a tree to make it seem as if he were confessing to murder. The defendant claimed that the state did this by splicing together a ‘‘deceptively edited version’’ of his taperecorded interview and then using it as a voice-over to photographs of the murder scene. The Court disagreed that the state’s use of the audiovisual exhibits was improper.

The court held the following.

At the close of the state’s rebuttal argument, the state’s attorney played for the jury, in three separate segments, approximately two minutes of the thirty-two minute tape-recorded interview that the defendant had given to Richard Hoffman and which previously had been played for the jury in its entirety during the state’s case-in-chief. In each segment, the state displayed a transcript of the interview on a screen while the corresponding audio was amplified over a speaker.

. . . Finally, at the very end of his rebuttal argument,the state’s attorney stated in regard to the interview conducted by Hoffman: ‘‘And then, the defendant does the most amazing thing . . . . He takes us on his staggering walk down memory lane. He first avoids the driveway oval where the club head was found and, more likely, [where] he first caught up with [the victim], given [Henry] Lee’s testimony about blood in the driveway where the whole terrible thing started. Then he has himself under a street light throwing rocks and yelling into that circle with the exact same motion that had to have been [sic] used to beat [the victim] to death. ‘‘Why this explanation. It’s kind of obvious. As he explained to...Hoffman, what if somebody saw me last night and then . . . .’’ At this point, the state’s attorney stopped talking and the third segment of the Hoffman interview appeared on the screen while the corresponding audio was amplified over the speaker: ‘‘And then I woke up, went to sleep, then I woke up to [Dorothy] Moxley saying ‘Michael, have . . . you seen Martha?’ ’’ Just as the defendant finishes saying, ‘‘ ‘Michael, have . . . you seen Martha,’ ’’ a photograph of the victim, smiling, appeared in the lower right hand corner of the screen beneath the written text. After a short pause, the following text appeared on the screen while the corresponding audio was amplified: ‘‘I’m like, ‘What?’ And I was like still high from the night before, a little drunk, then I was like ‘What?’ I was like ‘Oh my God, did they see me last night?’ And I’m like, ‘I don’t know,’ I’m like, and I remember just having a feeling of panic.’’ At this point, a photograph, previously introduced into evidence, depicting the victim’s body lying under the pine tree, appeared in the lower right-hand corner of the screen, to the side of the written text. After a few seconds, the photograph disappeared and the following text appeared while the corresponding audio was amplified: ‘‘Like ‘Oh shit.’ You know. Like my worry of what I went to bed with, like may...I don’t know, you know what I mean. I just had, I had a feeling of panic.’’ Another photograph, which also had been introduced into evidence, depicting the victim’s badly beaten body, then appeared in the lower righthand corner of the screen, next to the written text. The state’s attorney argued: ‘‘Howcould the sight of Dorothy Moxley possibly produce a feeling of panic in an innocent person, in a person who had gone to sleep knowing nothing of [the victim’s] murder. The evidence tells you that only a person who had experienced that poor girl lying under the tree, not in his dreams but firsthand, would have a cause to panic on awakening that morning.’’

As we previously have stated, ‘‘counsel is entitled to considerable leeway in deciding how best to highlight or to underscore the facts, and the reasonable inferences to be drawn therefrom, for which there is adequate support in the record. We therefore never have categorically barred counsel’s use of such rhetorical devices, be they linguistic or in the form of visual aids, as long as there is no reasonable likelihood that the particular device employed will confuse the jury or otherwise prejudice the opposing party. Indeed, to our knowledge, no court has erected a per se bar to the use of visual aids by counsel during closing arguments. On the contrary, the use of such aids is a matter entrusted to the sound discretion of the trial court.’’ State v. Ancona, supra, 270 Conn. 598.

We conclude that it was not improper for the state’s attorney to play for the jury approximately two minutes of the defendant’s tape-recorded interview with Hoffman and to display trial exhibit photographs of the victim while the tape was being played. . . .

After viewing the audiovisual presentation, we are not persuaded that there is any reasonable likelihood that the state’s presentation confused the jury or prejudiced the defendant in any way. Contrary to the defendant’s claim, the presentation itself was not deceptive. That presentation consisted of the written transcript of the interview with Hoffman, which the jury already had seen in its entirety, the corresponding audio and three unaltered photographs of the victim that had been entered into evidence, one of which depicted her alive and smiling and two of which had been taken at the scene of the crime. As we previously have noted, the three photographs were juxtaposed with the transcript of the defendant’s statements to Hoffman describing his panic upon seeing the victim’s mother on the morning after the victim’s murder but before her body had been discovered. By juxtaposing the photographs of the victim with the defendant’s statements, the state’s attorney sought to convey to the jury in graphic form what the State believed was the real reason for the defendant’s panic, that is, that he had killed the victim.”

Conviction upheld. Multimedia presentation discussed at page 72 of the opinion.

Simulation vs. Animation

Pennsylvania v. Serge, S.Ct. J-37-2005 (Penn. April 25, 2006)

This case is from Pennsylvania and it addresses many issues that trial lawyers must consider when developing an animation for a case that may end up at trial. The superior court judge (Nealon, J,) originally drafted an excellent decision that explained the definition of animations and simulations and explored the distinguishing aspects of the two methods.

Court Holding
"[W]e hold that a [Computer Generated Animation (CGA)] is potentially admissible as demonstrative evidence, as long as the animation is properly authenticated, it is relevant, and its probative value outweighs the danger of unfair prejudice or confusion."

Mode of Drawing Does Not Affect Admissibility
The mode of using a more concise and more precise computer-generated animation versus a hand-drawn sketch does not affect its admissibility. The Commonwealth’s experts, a crime scene reconstructionist and a pathologist, using traditional methods, may have drawn chalk diagrams or sketches on a blackboard to help explain the basis for their opinions. Instead, they used a CGA to more concisely and more clearly present their opinion. The difference is one of mode, not meaning. The law does not, and should not, prohibit proficient professional employment of new technology in the courtroom. This is, after all, the twenty-first century. As such, we must turn to the traditional factors considered in determining if a particular CGA is admissible.

Witnesses Used For Authentication
The method used to authenticate the animation was to put on the witness stand the expert witnesses whose opinions were illustrated in the CGA as well as the 3D developer who created the animation. There was an opportunity to cross-examine these witnesses and to attempt to undermine the credibility of the animation.

A Tool of Advocacy
The CGA is "not meant to represent the theories of both parties." Rather it was offered to illustrate the opinions of the experts for the prosecution only. "It was merely representing the theory of the Commonwealth." Therefore it is unnecessary to show the exact pose of each finger, hair, distances precise to the micrometer, or other minor aspects of the individuals involved.

Relevant to Summarize the Commonwealth's Theory
“The animation’s relevance under Pa.R.E. 401 lay in its clear, concise, and accurate depiction of the Commonwealth’s theory of the case, which included the rebuttal of Appellant’s self-defense theory, without use of extraneous graphics or information.” Serge, 837 A.2d at 1262. In addition, it melded the theories of the various Commonwealth experts into a concise presentation that removed the testimony from the abstract into a concise and clear explanation of the individual testimony and how that testimony fits within the overall framework and consistency of all of the expert testimony.”

Prejudicial Elements Were Not Present
The possible unnecessary and prejudicial aspects of a CGA were not present. “In particular, the CGA did not include: (1) sounds; (2) facial expressions; (3) evocative or even life-like movements; (4) transition between the scenes to suggest a story line or add a subconscious prejudicial effect; or (5) evidence of injury such as blood or other wounds. Instead, much like a two-dimensional hand drawing of bullet trajectories, the CGA merely highlighted the trajectory of the three bullets fired, concluding from ballistics and blood splatter that the body had been moved after the victimdied as part of Appellant’s attempt to stage his self-defense. The CGA was devoid of drama so as to prevent the jury from improperly relying on an emotional basis. SeePeople v. Hood, 53 Cal.App. 4 th965, 972 (1997) (permitting a CGA in a murder trial, in part because “[t]he animation was clinical and emotionless. This, combined with the instruction given the jurors about how they were to utilize both animations, persuades us that the trial court did not [err in permitting the CGA].” . . . [I]t was a clearly relevant and helpful tool for an expert to present an informed opinion to the jury.

Limiting Instruction Was Given To Jury
"[A] uniquely dangerous aspect of a CGA is in its visual appeal to a jury [and might] possibly result] in an acceptance of the CGA as fact. However, such a danger is vitiated by thorough cautionary instructions that educate the jury on the exact nature and role of a CGA." A limiting instruction was given to the jury explaining the purpose for presenting and the possible and legitimate use of the animation by the jury as well as “[reiterating] the same concerns and instructions during [the judge's] closing jury charge." See the Serge jury instruction.

Potency of The Illustrative Aid Is Not A Sufficient Ground For Objection
“[C]onspicuously absent among the factors to be considered in determining the relevancy and prejudice of evidence is the potency of the evidence. Thus, although the use of illustrative demonstrative evidence by an expert, such as a CGA, may help explain his or her opinion and make the testimony more persuasive than it otherwise might have been, it is not proper grounds for excluding this relevant evidence.”

The Indigent Defendant Objection
"The relative monetary positions of the parties are relevant for the trial court to consider when ruling on whether or not to admit a CGA into evidence. Such a question and determination are within the province of the trial court and should not be overturned absent an abuse of discretion. In particular, the trial court sitting with all facts before it, including the monetary disparity of the parties, must determine if the potentially powerful effect of the CGA and the inability of a defendant to counter with his or her own CGA should lead to its preclusion. Nevertheless, as noted above, this specific argument is waived in the instant matter.

Motion in Limine Must Be Filed
We hold that the moving party, be it the Commonwealth or a defendant, should file a motion in limine and seek permission of the trial court to admit the evidence as soon as possible, even if after the start of trial.

BUT SEE CONCURRING OPINION BY EAKIN, J.
There are general principles of evidence and its admission that cover these animations as well as any other evidence. Technology advances, and the law must accommodate it, but we need not write a new rule every time a new manifestation of evidence arises. Our existing rules of admissibility, discovery, and motions cover this situation quite adequately. While clearly fancier, in legal concept this animation appears little different from any other drawing or chart--it is a visual aid and nothing more. Time-tested principles will determine its admissibility without a new rule specific only to computer-generated animations or variations, existent or to come. Adding dicta suggesting a special rule because of the form of the visual aid is not warranted or necessary.”

Search for case at http://www.courts.state.pa.us
Majority opinion (pdf) and 3 concurring opinions (separate pdf’s)

Animation Jury Instruction

Here is the cautionary instructions that Judge Nealon gave in the Serge case. A very clear explanation for both jurors and lawyers. A good model for future cases:
Members of the jury, parties in a case are permitted to use photographs, drawings and other exhibits to illustrate a point they are attempting to make in the case. We refer to this type of evidence as demonstrative evidence, as opposed to substantive evidence, since it is offered merely to demonstrate or illustrate a point rather than as actual proof of that point. With the advent of the digital age, computers are now used to produce such demonstrative evidence.
You heard testimony from Dr. Gary Ross and Trooper Brad Beach that the computer-generated animation which will now be shown to you is a fair and accurate illustration of the opinions that they formed as to how this shooting occurred. You also heard Randy Matzkanin of 21st Century Forensic Animations describe how he produced three-dimensional drawings with computer software to depict those opinions and thereafter transformed them onto videotape to produce moving images.
What you are about to be shown is commonly referred to as a computer-generated exhibit. There are two types of computer-generated exhibits: (1) a simulation and (2) an animation. In a simulation, data is entered into a computer which is pre-programmed to perform certain calculations by applying laws of physics, mathematical formulas and other scientific principles in order for the computer to draw conclusions and attempt to recreate an incident. The end product of a simulation represents the computer program’s conclusion of what happened and the results of the computer simulation serve as the basis for the testifying expert’s opinion of what happened.
In contrast, an animation is simply a graphic depiction or illustration of an opinion that an expert has already formed based upon his/her own investigation, computations and analysis. With an animation, the computer does not perform any scientific calculations of develop any opinions as in the case with a simulation. An animation consists of computer-generated drawings which are assembled frame by frame and, when viewed sequentially, produce the image of motion. Thus, an animation is merely a graphic depiction or illustration of an opinion or recreation which an expert witness has already devised through his/her own independent calculations and analysis.
Please understand that what you are about to view is an animation, not a simulation. This computer-generated animation is a demonstrative exhibit, not substantive evidence, and it is being offered solely as an illustration of the Commonwealth’s version of events as recreated by Dr. Gary Ross and Trooper Brad Beach. You should not confuse art with reality and should not view the animation as a definitive recreation of the actual incident. The series of pictures which have been drawn by the computer and transferred on videotape for your review are no different from a witness sketching a series of drawings on paper and then fanning those pages to portray moving images of his/her opinion. Remember, the demonstrative animation is only as good as the underlying testimony, data, assumptions and opinions that serve as the basis for its images and the computer maxim “Garbage in, Garbage out” applies equally to computer animations.
Like all other evidence in the case, you may accept or reject the computer-generated animation in whole or in part. I caution you again that the animation may only be considered for demonstrative purposes to illustrate the opinions of Dr. Gary Ross and Trooper Brad Beach. Always bear in mind that the Commonwealth must still meet its burden of proving all of the element of the offense charged beyond a reasonable doubt.

Commonwealth v. Serge (Superior Court decision, Nealon, J.)

COMMONWEALTH V. SERGE, NO. 01-CR-260 (Superior Court, Nealon, J.)
The great majority of those jurisdictions which have considered the admissibility of CGE's has recognized a salient distinction between a “simulation” and an “animation” that is produced by a computer. In a simulation, data is entered into a computer which is programmed to analyze the information and perform calculations by applying mathematical models, laws of physics and other scientific principles in order to draw conclusions and recreate an accident. See Cauley supra at *4; State v. Farner, 2000 WL 872488, **8, 21 (Tenn. Crim. App. 2000). For instance, a computer simulation may compute the effects of acceleration, gravity, friction, atmospheric pressure of water flow in formulating a recreation of events. See Bennett et al., Seeing is Believing: Or is it? An Empirical Study of Computer Simulations as Evidence, 34 Wake Forest L. Rev. 257, 260 (Summer 1999); Borelli, The Computer as Advocate: An Approach to Computer-generated Displays in the Courtroom, 71 Ind. L. J.439, 450-52 (1996). More importantly, the results of the computer simulation serve as the actual basis for the opinion(s) expressed by the reconstruction expert. See Pierce, 718 So.2d at 808. See also Galves, 13 Harv. J. L. & Tech. At 185 (to produce a simulation, “an expert enters a compilation of mathematical formulate or other scientific principles into the computer so that the computer can generate a model – based on the data and scientific assumptions – that the expert will use to form an opinion as to what must have or could have actually happened”).
In contrast, an animation does not develop any opinions or perform any scientific calculation and, to the contrary, is nothing more than a graphic depiction or illustration of the previously formed opinion of an expert. See Cauley, supra at *4. As one commentator has described:
“Animations are simply computer-generated drawings assembles frame by frame which, when viewed sequentially, produce the image of motion. The still frames are viewed in rapid succession, usually at a speed of 24 or 30 frames per second. The image is merely a graphic representation – a series of pictures 'drawn' by a computer operator with a computer – depicting a witness's testimony.” Galves, supra at 180-181. Accord Joseph, A Simplified Approach to Computer-Generated Evidence and Animations, 43 N.Y. L. Sch. L. Rev. 875, 888 (2000) (“[a]t its simplest, an animation is merely a sequence of illustrations that, when filmed, videotaped or computer-generated, create the illusion that the illustrated objects are in motion.”) In short, a simulation uses computer programs to formulate certain conclusions and recreate an event whereas an animation simply illustrates an opinion or reconstruction which an expert witness has already devised through the expert's own independent computations and analyses. See, e.g., Farner supra at *21.
Although some courts have utilized the terms simulation, recreation, illustration, and animation interchangeably, see, e.g. State v. Clark, 101 Ohio App.3d 389, 416-417, 655 N.E.2d 795, 812-813 (1995), app. Dismissed, 72 Ohio St.3d 1548, 650 N.E.2d 1367 (1995), most have recognized that the simulation-animations dichotomy should be the focal point of any evidentiary inquiry. See Hinkle v City of Clarksburg, 81 F.3d 416, 425 (4th Cir. 1996). In aptly describing this fundamental distinction, a federal district court has noted:

“Although defendant argues that there is no practical difference between recreating an accident and recreating an expert's theory of the accident, the difference is both real and significant; it is the difference between a jury believing that they are seeing a repeat of the actual event and a jury understanding that they are seeing an illustration of someone else's opinion of what happened.” Daskow v. Teledvne Cont'l Motors, 826 F. Supp. 677, 686 (W.D. N.Y. 1993) (emphasis in original). As a consequence, an animation is generally regarded as demonstrative evidence that a jury should not be entitled to review during its deliberations while a simulation is considered to be substantive evidence in the same nature as any other scientific test of experiment. See Cauley, supra; Farner, supra at **21-24; Gosser, 31 S.W.3d at 901-902.
The classification of a CGE as a simulation or an animation determines the evidentiary foundation which governs its admissibility. Since a simulation is dependent upon scientific principles, its admissibility is controlled by Frye/Daubert standards which regulate scientific evidence. Thus, the party seeking to offer a simulation must introduce evidence of the validity of the computer program's methodology and scientific principles as a condition precedent to its admission.
To satisfy that burden, the proponent of a computer-generated simulation must demonstrate that: “(1) the computer is functioning properly; (2) the input and underlying equations are sufficiently complete and accurate (and disclosed to the opposing party, so that they may challenge them); and (3) the program is generally accepted by the appropriate community of scientists.” Commercial Unino Ins. Co. v. Boston Edison Co., 412 Mass. 545, 549, 591 N.E.2d 165, 168 (1992) (simulation estimating energy usage based upon a computer program comprised of scientific formulae and algorithms concerning heat transfer, building materials, operating characteristics of heating equipment, and weather history); Kudiaceck v. Fiat S.P.E., 244 Neb. 822, 842-843, 509 N.W.2d 603, 617 (1994). Accord Clark, 101 Ohio App.3d at 416, 655 N.E.2d at 812.
However, an animation does not draw conclusions and is merely a demonstrative exhibit, and as such, it is not subject to the Frye/Daubert test. See Pierce, 718 So.2d at 808 (reasoning that an animatinon is a new form of expression, not a scientific of experimental test, and is not governed by Frye); Galves, 13 Harv. J. L. & Tech. At 256-257 (observing that Daubert does not apply to animation used for demonstrative purposes to illustrate a witness's verbal testimony since “the jurors are not being asked to accept the science used to create the CGE.”). Instead, computer animation is generally deemed admissible if it: (1) is properly authenticated under Rule 901 as a fair and accurate representation of the evidence it purports to portray; (2) is relevant under Rules 410 and 402; and (3) has a probative value that is not outweighed by the danger of unfair prejudice under Rule 403. See Harris, 13 P.3d at 495; Mintun, 966 P.2d at 959. Accord, Cleveland v. Bryant, 236 Ga. App. 459, 460, 512 S.e.2d 360, 362 (1999) (animated videotape illustrating an expert's opinion is admissible if it is a fair and accurate representation of an expert's opinion as to how the incident occurred). Furthermore, although the proponent of a demonstrative animation need not establish that the computer program is generally accepted in the field of computer science, compare Commercial Union Ins. Co., supra, if the animation purports to contain exact measurements or to be drawn to scale, the party seeking to utilize it must offer testimony as to how the data was obtained and inputted into the computer. Gosser, 31 S.W.3d at 903.