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)
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)
posted by Brian Carney at 12:41 PM
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