Appeal From Oconee County- Clark v. Cantrell

[eliscio]

Here is another interesting admissibility issue that brings to light the fact that an animation or reconstruction needs to accurately reflect the reconstructionist's testimony.  Discrepancies in testimony and the animation are subject to being inadmissable.

Appeal From Oconee County - Alexander S. Macaulay, Circuit Court Judge

2. COMPUTER-GENERATED VIDEO ANIMATION

Cantrell contends the Court of Appeals erred in affirming the trial judge's refusal to admit her computer-generated video animation purporting to show how the accident occurred as demonstrative evidence. We disagree.

Cantrell wanted to introduce a video containing a computer-generated animation of the accident through her expert witness. Anderson objected, asserting the video did not accurately reflect the testimony of the witnesses or the experts who had reconstructed the accident. Specifically, the video animation did not accurately reflect the initial position of Anderson's car as described by Cantrell in her testimony. A portion of the animation also made it appear that Anderson's car pulled directly in front of Cantrell's car when Cantrell was almost upon it, which conflicted with the testimony of both parties' expert witnesses.

The trial judge refused to admit the video animation as demonstrative evidence because it was inconsistent with prior testimony, including that of Cantrell's expert witness, and it inaccurately reflected the evidence. Those deficiencies meant it would mislead and confuse the jury, the judge ruled.

We have not previously addressed the admissibility of computer generated video animations as demonstrative evidence.2 Cantrell does not object to the basic analysis used by the Court of Appeals, although she disagrees with the result reached in her case. We adopt the following analysis, modified slightly from that set out by the Court of Appeals.

Demonstrative evidence includes items such as a photograph, chart, diagram, or video animation that explains or summarizes other evidence and testimony. Such evidence has secondary relevance to the issues at hand; it is not directly relevant, but must rely on other material testimony for relevance. Demonstrative evidence indistinguishable from exhibits that comprise "real" or substantive evidence, such as the actual murder weapon or a written document containing allegedly defamatory statements.

These categories sometimes overlap. For example, a bank surveillance photograph of a robbery suspect may be classified as demonstrative evidence because it illustrates the crime scene; however, it also may be classified as substantive evidence of the identity of the perpetrator. See Mueller & Kirkpatrick, Evidence, §§ 9.31-9.36 (1999) (discussing various definitions and types of demonstrative evidence).

Demonstrative evidence often is admitted only for use in the courtroom to explain and illustrate a witness's testimony, but it also may be admissible as an exhibit for the jury to examine and consider during deliberations. E.g., State v. Kelsey, 331 S.C. 50, 502 S.E.2d 63, 76 (1998) (photographs and diagram of crime scene properly admitted in evidence); Holmes v. Black River Elec. Co-op., Inc., 274 S.C. 252, 258, 262 S.E.2d 875, 878 (1980) (photographs of plaintiffs injured arm properly admitted in evidence); State v. Barrs, 257 S.C. 193, 199, 184 S.E.2d 708, 711 (1971) (upholding admission of coil of copper wire that was like the one allegedly stolen by defendants as proper demonstrative evidence); Mueller & Kirkpatrick, supra, § 9.31.

Attempts to use computer-generated video animations at trial, although not an everyday occurrence, are increasing. Computer animation is likely to become more prevalent, especially as the price of preparing such animations falls. G. Ross Anderson, Jr., Computer Animation: Admissibility and Uses, South Carolina Trial Lawyer Bulletin 9 (Fall 1995).

Computer animation allows attorneys to convert witnesses' verbal testimony into dynamic, visual demonstrations capable of mentally transporting jurors to the scene .... However, a computer animation can mislead a jury just as easily as it can educate them. An animation is only as good as the underlying testimony, physical data, and engineering assumptions that drive its images. The computer maxim "garbage in, garbage out" applies to computer animations.

Anderson, supra, at 9. As the Louisiana Supreme Court further explains,

The extreme vividness and persuasiveness of motion pictures . . . is a two-edged sword. If the film does not portray original facts in controversy, but rather represents a staged reproduction of one party's version of those facts, the danger that the jury may confuse art with reality is particularly great. Further, the vivid impressions on the trier of fact created by the viewing of the motion pictures will be particularly difficult to limit or, if the film is subsequently deemed to be inadmissible, to expunge by judicial instruction.

State v. Trahan, 576 So.2d 1, 8 (1990) (quoting McCormick on Evidence, § 214 (2d ed. 1972). Likewise, our Court of Appeals correctly highlighted several concerns about computer animations: the potential to mislead by an inaccurate, portrayal of the facts, the potential to create lasting impressions that unduly override other testimony or evidence, and the need for heightened guarantees of trustworthiness due to the possibility of editorial distortion by the party preparing the animation. Clark, 332 S.C. at 445-46, 504 S.E.2d at 612.

Despite the dangers, computer animations can serve worthwhile purposes if screened carefully and admitted cautiously. We hold that a computer-generated video animation is admissible as demonstrative evidence when the proponent shows that the animation is (1) authentic under Rule 901, SORE; (2) relevant under Rules 401 and 402, SORE; (3) a fair and accurate representation of the evidence to which it relates, and (4) its probative value substantially outweighs the danger of unfair prejudice, confusing the issues, or misleading the jury under Rule 403, SORE. See Anderson, supra, at 9; Mueller & Kirkpatrick, supra, § 9.34; Gregory P. Joseph, A Simplified Approach to Computer-Generated Evidence and Animations, 156 F.R.D. 327 (1994) (all suggesting ways to analyze admission of computer animations).

To ensure that the opposing party has sufficient time to analyze the animation, the trial court also should consider whether the proponent disclosed the animation and underlying data within a reasonable period of time before trial. Cf. Ramos v. Hawley, 316 S.C. 534, 536, 451 S.E.2d 27, 28 (Ct. App. 1994) (" [p] roper trial procedure for the introduction of evidence requires that opposing counsel be given a reasonable opportunity to inspect the proposed evidence before it is accepted by the court. This opportunity allows counsel to determine whether an objection is proper."); see also Richardson v. State Highway & Transp. Comm'n, 863 S.W. 2d 876 (Mo. 1993) (upholding trial judge's refusal to admit computer simulation where party did not give notice of it to opponent until last business day before trial, hindering opponent's ability to challenge its admission or cross-examine experts who prepared it); Anderson, supra, at 11 (suggesting animation and underlying data should be disclosed at least two weeks before trial). Untimely disclosure should not, standing alone, necessarily result in exclusion of the animation. But late disclosure may prevent the opposing party from adequately attempting to explain why the animation is not a fair and accurate representation which, in turn, may prompt the court to conclude its probative value does not substantially outweigh the danger of unfair prejudice.

We also encourage the trial court to give a cautionary instruction that the animation represents only a re-creation of the proponent's version of the event; it should in no way be viewed as the absolute truth; and, like all evidence, it may be accepted or rejected in whole or in part. The court may wish to call attention to any assumptions upon which the animation is based, as well as any other particular facts that warrant a cautionary instruction. See Mueller & Kirkpatrick, supra, § 9.34; Fulcher, supra, at 75-76.

Finally, the trial court, as with other evidence and testimony, has broad discretion in whether to admit a computer animation, and its decision will be overturned only for an abuse of discretion. See Holmes v. Black River Elec. Co-op., Inc., 274 S.C. at 258, 262 S.E.2d at 878; Brown v. Orndorff, 309 S.C. 320, 324-25, 422 S.E.2d 151, 153-54 (Ct. App.1992).

Under the above analysis, we conclude the Court of Appeals properly affirmed the trial court's refusal to admit the video animation in this case.

"The requirement of authentication or identification as a condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims." Rule 901(a), SORE. Thus, a party may authenticate a video animation by offering testimony from a witness familiar with the preparation of the animation and the data on which it is based. In this case, the animation was authenticated by the testimony of the expert who prepared the underlying data and the computer technician who used that data to create it.

Next, an animation is relevant when it has a direct bearing upon and tends to establish or make more or less probable the matter in controversy. Rules 401-402, SORE; State v. Alexander, 303 S.C. 377, 401 S.E.2d 146 (1991). An animation may be relevant when it relates to other admissible, material evidence and it will aid the trier of fact in understanding the related evidence. Anderson, supra, at 10. In this case, the animation was relevant because it was related to the testimony of several witnesses about the accident. It would have aided the jury in understanding that testimony, provided it did not have to be excluded on other grounds.

Next, the animation must be a fair and accurate representation of the evidence to which it relates. It need not be exact in every detail, but the important elements must be identical or very similar to the scene as described in other testimony and evidence presented by the animation's proponent in order to constitute a fair and accurate representation. In an animation reconstructing a vehicle accident, for instance, the animation must be technically correct on details such as distance, terrain, relative speed, path of travel, and surroundings. The fact the animation is inconsistent with testimony or evidence presented by the opposing party should not necessarily lead to its exclusion, provided it fairly and accurately portrays the proponent's version of events. E~., Hinkle v. City of Clarksburg, W. Va., 81 F.3d 416, 424 25 (4th Cir.1996) (explaining that a computer-animated videotape is essentially like a real-life re-creation. and thus it must be sufficiently close to actual facts); Hutchinson v. American Family Mut. Ins. Co., 514 N.W.2d 882, 890 (Iowa 1994) (upholding trial court's refusal to admit animation generally illustrating how a closed-head injury occurs because it was not based upon particular facts of plaintiffs case and witness was not familiar with specific speeds and forces in the case); Sommervold v. Grevlos, 518 N.W.2d 733, 738 (S.D. 1994) (upholding trial court's refusal to admit animation of colliding bicycles because speed of bicycles, street lights, and location of accident did not match witnesses' testimony); Trahan, 576 So.2d at 8 (upholding trial court's refusal to admit videotape reconstruction of crime scene it did not depict parties in an identical or similar manner to the incident as testified to by defendant); Anderson, supra, at 10-12.

In this case, the trial judge properly excluded the animation because it did not accurately reflect the testimony of the proponent and her expert witness. The animation did not accurately reflect the initial position of Anderson's car as Cantrell described it in her testimony. A portion of the animation also made it appear that Anderson's car pulled directly in front of Cantrell's car when Cantrell was almost upon it. Cantrell's expert witness, however, testified Cantrell could have first seen Anderson's car some distance back from the point where Cantrell's car initially was positioned in the animation.

Finally, the probative value of the animation must substantially outweigh the danger of unfair prejudice, confusing the issues, or misleading the jury under Rule 403, SORE. See Fulcher, supra, at 70 (explaining this factor often is a "formidable obstacle" due to the relatively recent advent of computer animation, although such fears are diminishing as judges and the public become more familiar with computer technology). In this case, the probative value of the animation did not substantially outweigh the danger of unfair prejudice and misleading the jury due to the inaccuracies it contained.

Accordingly, we hold the trial judge did not abuse his discretion in refusing to admit the computer animation as demonstrative evidence, and the Court of Appeals correctly affirmed that ruling.