WIN Interactive Technology Helps Bring Murderer to Justice

27 year old Nathan J. Ruell of Ware, Mass. was found guilty of first degree murder after the prosecution seamlessly presented evidence through a variety of multimedia techniques designed by WIN Interactive.


QUINCY, Mass. - February 9, 2008 – In the fall of 2006, Nathan Ruell was arrested for arson, burglary, and the murder of 83-year-old Rose Martowski of Ware, Mass. Though Ruell was only caught by police because of a Camel cigarette left behind in Mrs. Martowski's window on the night of the killing, incriminating statements and conclusive DNA evidence led to a verdict of guilty of first-degree murder on February 5, 2009. For the first time ever in the historic Northampton Superior Courthouse, the combination of excellent prosecution and Win Interactive’s high-end multimedia technology achieved justice.

In August of 2008, First Assistant District Attorney for the Northwestern District of Massachusetts Renee L. Steese and Assistant District Attorney Michael Cahillane who were assigned to the case contacted WIN Interactive. They began talking with veteran prosecutor and president-owner of WIN Interactive, Brian Carney, about assisting them in presenting their evidence in a way that would resonate with the jury and the judge.

During trial WIN Interactive’s cutting edge techniques and technologies impressed courtroom observers as well as longtime state employees. For the trial, WIN Interactive created a scene reconstruction of the town of Ware that could zoom in and out of aerial photographs of the town and diagrams of key locations. The interactive diagram also contained numerous photos from the crime scenes accessed by arrows on the aerial views that oriented the jury to important locations. Some of the photos from the diagram were used to create posters and entered into evidence.

Using the medical examiner’s own notes, drawings, and autopsy photos, the WIN Interactive team put together a medical presentation that highlighted the victim’s injuries for the jury during the medical examiner’s testimony. WIN Interactive also created a never before seen custom DNA presentation tool that compared over 130 different DNA suspect samples on one screen to the sample found on the Camel cigarette left at the murder victim’s home. The DNA presentation visually showed the undeniable link of Ruell to that cigarette.

Finally, WIN Interactive synchronized digital audio of the defendant with transcripts so that the jury could listen and read along on two displays to maximize their understanding of the content. The audio played through the court’s own sound system via WIN Interactive’s equipment, which is just one example of how WIN Interactive outfitted the courtroom technologically.

Among the equipment that WIN Interactive brought into the courtroom to make it conducive for the presentation was a personal 20” LCD monitor for the judge to simultaneously view the presentation that the jury saw on a 52” LCD monitor. These two individual displays worked in conjunction with the District Attorney’s Office projector display and a WIN Interactive power switcher panel that allowed the presenter to easily switch between pieces of equipment.

They professionally shipped, placed, and connected the equipment in the courtroom when the trial began and broke it down efficiently as soon as the trial finished. In addition to their multimedia services, WIN Interactive provided the personal service of having a litigation consultant attend the first few days of the trial and run the presentation while ADA Mike Cahillane questioned witnesses.

“Effective visual communication for trial requires graphical excellence and trial skills that capitalize on the information contained within the visuals. The prosecutors could not have presented a better case,” says Brian Carney. “The prosecution was successful in part because we were able to turn the complex evidence and expert testimony into a simple, memorable and persuasive story.”




About WIN Interactive (www.wininteractive.com)

WIN Interactive, Inc is an attorney owned and operated multimedia production house and consulting company. Since 2001, WIN Interactive has been helping trial lawyers by providing state of the art multimedia presentations, including 2D and 3D animations and recreations of accident scenes for mediation, arbitration, trial prep and trial. WIN Interactive is committed to helping its clients maximize the impact of their visual communication presentations through the development of proprietary software application and unique multimedia techniques which employ imagination, creativity, strategic communication and legal advice.

WIN Interactive works closely with the lawyers and the experts as a team in a creative environment where ideas are encouraged for the purpose of producing revolutionary presentations that permit the lawyers to most effectively communicate complex issues to mediators, arbitrators, judges, and jurors. WIN Interactive is based out of Quincy, MA and serves clients nationwide.



Media Contact:
Kristin Morris
WIN Interactive
617.786.0700
kmorris@wininteractive.com

Experiment, Recreation, Simulation or Illustration?

Hinkle v. Clarksburg, WV No. 94-1925 (4th Cir. 04/17/1996);

A. Videotaped simulation

At trial, Alexander Jason, a Forensic Animation Technologist, testified for the Appellees to a version of the shooting that was based on his interpretation of the evidence and was consistent with the police officers' testimony. To illustrate Jason's testimony, Appellees introduced a computer-animated videotape. The videotape depicted Wilson's apartment complex, the officers' position in relation to the open door to Wilson's apartment, and a step-by-step account of the incident. It showed an animated version of Officer Lake on the stairwell outside the apartment aiming his gun toward Wilson, who was moving toward the open door. It depicted Wilson raising his shotgun toward the doorway, Officer Lake firing the fatal shot, Wilson's body spinning around from the force of the shot, and his shotgun discharging into the stuffed chair in the back of the room. It then showed how the officers' version of the event was consistent with the physical evidence by concluding with a depiction of the trajectory of Officer Lake's bullet in-line with the wounds to Wilson's forearm, chest, back, and the bullet hole in the wall of the room.

Appellants assign as error the district court's denial of their motion in limine to suppress this evidence. Appellants contend the videotape was inadmissible because it was experimental evidence that attempted to recreate the events but failed to reflect conditions substantially similar to those existing at the time of the shooting.

Typically, demonstrations of experiments used to illustrate principles forming an expert's opinion are not required to reflect conditions substantially similar to those at issue in the trial. Gladhill v. General Motors Corp., 743 F.2d 1049, 1051 (4th Cir. 1984). We have, however, recognized the unique problems presented by the introduction of videotapes purporting to recreate events at the focus of a trial. In Gladhill, we noted the potential prejudicial effect of such evidence because the jury viewing a recreation might be so persuaded by its life-like nature that it becomes unable to visualize an opposing viewpoint of those events. Hence, we established a requirement that videotaped evidence purporting to recreate events at issue must be substantially similar to the actual events to be admissible.

Obviously, the requirement of similarity is moderated by the simple fact that the "actual events" are often the issue disputed by the parties. Nonetheless, to the extent the conditions are not a genuine trial issue, they should be reflected in any videotaped recreation. In Gladhill, for instance, the plaintiff crashed his car into a utility pole. He sued General Motors in a products liability action, contending that the brakes were faulty. The parties agreed that at the time of the accident it was night, and plaintiff was driving down a hill at a sharp curve in the road when he struck the utility pole. General Motors introduced a videotaped recreation of the accident that was conducted at a test facility on a flat, straight, asphalt surface in daylight by an experienced driver. We rejected the use of this videotape, holding that "when the demonstration is a physical representation of how an automobile behaves under given conditions, those conditions must be sufficiently close to those involved in the accident at issue to make the probative value of the demonstration outweigh its prejudicial effect." Id. at 1052; see also Chase v. General Motors Corp., 856 F.2d 17, 19-20 (4th Cir. 1988).

We have not previously applied the requirement of"substantial similarity" to computer-animated videotapes that purport to recreate events at issue in trial. We fail to see a practical distinction, however, between a real-life recreation and one generated through computer animation; both can be a particularly powerful recreation of the events. Nonetheless, we need not explicitly decide this issue because we are satisfied the jury here fully understood this animation was designed merely to illustrate Appellees' version of the shooting and to demonstrate how that version was consistent with the physical evidence. The district court carefully instructed the jury on this point:

[t]his animation is not meant to be a recreation of the events, but rather it consists of a computer picture to help you understand Mr. Jason's opinion which he will, I understand, be giving later in the trial. And to reenforce the point, the video is not meant to be an exact recreation of what happened during the shooting, but rather it represents Mr. Jason's evaluation of the evidence presented.

Although there is a fine line between a recreation and an illustration, the practical distinction "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." Datskow v. Teledyne Continental Motors Aircraft Prods., 826 F. Supp. 677, 686 (W.D.N.Y. 1993). The jury understood that the very thing disputed in this trial was the condition under which the shooting occurred. In light of this fact and the court's cautionary instruction, there was no reason for the jury "to credit the illustration any more than they credit the underlying opinion." Id.

We are convinced Appellants suffered no undue prejudice as a result of this computer animation, and we will not disturb the broad discretion afforded trial judges in this area. In reaching this holding, however, we are not unmindful of the dramatic power of this type of evidence; hence, we encourage trial judges to first examine proposed videotaped simulation evidence outside the presence of the jury to assess its foundation, relevance, and potential for undue prejudice.

Computers in Court

PEOPLE v. MCHUGH, 476 NYS.2d 721, 722 (Sup.Ct. 1984)

A computer is not a gimmick and the court should not be shy about its use, when proper. Computers are simply mechanical tools – receiving information and acting on instructions at lightning speed. When the results are useful, they should be accepted, when confusing, they should be rejected. What is important is that the presentation be relevant . . . that it fairly and accurately reflect the oral testimony offered and that it be an aid to the jury’s understanding of the issues in the case.); see also Hinkle v. City of Clarksburg, 81 F.3d 416, 424-25 (4th Cir. 1996) (Although there is a fine distinction between a recreation and an illustration, the practical distinction is the difference between a jury believing that they are seeing a recreation of the actual event and a jury understanding that they are seeing an illustration of someone else’s opinion about what happened. Knowing this there was no reason for the jury to credit the illustration more than they credit the underlying opinion.)

Admissibility of PowerPoint

ARIZONA v. SUCHAREW 4-11-03

Although a computer was used in the presentation, the actual presentation did not include any computer simulation or other similar evidence; rather, it was essentially a slide show of photographic exhibits. The photographs included in the presentation were the same ones disclosed to defendant during pretrial discovery and later admitted into evidence at trial. Moreover, even though the photographs included superimposed descriptive words and labels, the words and labels simply tracked the subject matter of the prosecutor’s opening statement to the jury, and defendant made no objection to any of the content or substance of the actual opening statement. We conclude, therefore, that there was no abuse of discretion by the trial court in permitting the State’s use of the “PowerPoint” presentation. See People v. Green, 302 P.2d 307, 312 (Cal. 1956) (holding trial court had discretion to permit use of motion picture and photographs later admitted into evidence during opening statement), disapproved on other grounds in People v. Morse, 388 P.2d 33 (Cal 1964).

Composite Photoshop Image Not Admissible

STATE V SWINTON May 11, 2004 (Connecticut_SC 16548)

A case in which the use of two different software packages are discussed by the Court. One image developed through the software was admissible, but another image developed using Photoshop was found not to be admissible. While this case may be limited to its specific facts, it could be a potentially dangerous case because how it could be used to limit images edited in Photoshop. It boils down to the wrong witness was put on the stand to authenticate what had been done with the image. Essentially, the witness could not explain, because he did not know, what had been done with the image.

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.