The Use of Computer-Generated Animations and Simulations at Trial

Victoria Webster is senior counsel with Yamaha Motor Corporation, U.S.A. and has been overseeing product liability actions involving three and four wheel ATVs, side by side vehicles, golf cars, snowmobiles, and personal watercraft since 1986. She received her J.D. , magna cum laude, from Southwestern University School of Law in Los Angeles in 1984. She is a member of both the California and Georgia bar. Trey Bourn serves as Assistant Practice Group Leader for the Product Liability, Toxic Tort, and Environmental Group at Butler Snow, LLP in its Jackson, Miss. , offices. His practice is focused on representing clients in the areas of recreational vehicles, watercraft, automobiles, and other machinery-related product liability cases. He also focuses his practice on drug and medical device litigation. Trey earned his J.D. from the University of Mississippi, where he served as Editor-in-Chief of the Mississippi Law Journal. The authors would like to thank Carol T. Montgomery and Caroline D. Walker, both attorneys in the Birmingham office of Butler Snow LLP, for their invaluable efforts in putting together this paper. ********** 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 to a possible defense, that it fairly and accurately reflect the oral testimony offered and that it be an aid to the jury's understanding of the issue. (1) INCREASINGLY, computer-generated animations and simulations are being used in courtrooms across the country. Although animations and simulations can assist jurors in understanding complex issues, they can also distract from and distort the facts of a case. In recognition of the power these new evidentiary tools can hold over jurors, courts have erected barriers to admission of this evidence in order to ensure that such evidence helps, more than it hurts, the fact-finder's search for the truth. Courts first review the evidence to determine whether it is animation or simulation, as standards for admissibility differ for each. Since expert testimony frequently provides the vehicle for animation and simulation admission, challenges to this evidence often should be made in the context of Daubert motion practice. Evidence of this type often is created in the latter stages of trial preparation, and therefore timeliness objections are frequently made (though they are rarely successful). Courts nearly always employ cautionary instructions that attempt to blunt the force of effective animations and simulations. I. Animation or Simulation? Computer-generated evidence can be categorized as demonstrative or substantive evidence, and the distinctions between the two are very important. Computer-generated "animations" are generally considered to be demonstrative evidence and can be thought of as visual aids used in support of witness testimony. (2) Their purpose is to help the jury understand a witness's testimony, and they do not purport to be scientific recreations of an actual event. (3) To the extent that animations do recreate events, they can only do so in furtherance of visually representing a witness's belief about what transpired. (4) An animation has only secondary relevance and "must rely on other material testimony for relevance. " (5) In contrast, simulations are considered substantive evidence and are computer-generated models or reconstructions based on scientific principles. (6) Simulations are created by entering data and engaging in computer-assisted analysis in accordance with widely accepted methodology. (7) Rather than depicting a witness's testimony in the manner of an animation, simulations form conclusions based on raw data: "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 incident. …