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.