Reel to Real: Should You Believe What You See? (1999)

Keeping the good and eliminating the bad of computer-generated evidence will be accomplished through methods of self-authentication and vigilance IN THE acclaimed and popular motion picture Titanic, the opening scene shows hundreds of people seeing off the ill-fated vessel on its maiden voyage. But the scene was created through digital techniques using fewer than 20 actors. In fact, one of the Academy Awards the film received was for best visual effects. Of course, Titanic is only a movie, whose audiences may not expect to see scenes true to life. What if the scene were played out in a courtroom for a jury? Who could say whether it is real or not? This example highlights the persuasive power of digital imaging as evidence of reality. Modern jurors have grown up with television, and they believe and remember what they see. Advocates must realize digital imaging is the future, and the future is now. Today's jurors must be shown as well as told. IMAGES AS EVIDENCE The legal system uses a targeted concept of evidence, defined by Black's Law Dictionary as [a]ny species of proof[] or probative matter ... by the act of the parties and through the medium of witnesses, records, documents, exhibits, concrete objects, etc., for the purpose of inducing belief in the minds of the court or jury as to their contention. Evidence, including image-based or computer-generated evidence, is divided into two broad categories--substantive and demonstrative. Substantive evidence is defined as that adduced for the purpose of proving a fact in issue, as opposed to evidence given for the purpose of discrediting a witness (i.e., showing that he is unworthy of belief), or of corroborating his testimony. Demonstrative evidence is defined as that addressed directly to the senses without intervention of testimony.... Such evidence is concerned with real objects which illustrate some verbal testimony ... [and] may include maps, diagrams, photographs, models, charts, medical illustrations, X-rays. The purpose for which one intends to use computer-generated evidence such as charts, diagrams, simulations and reenactments may determine its admissibility.(1) A. Substantive Evidence The initial admissibility determination for computer-generated evidence remains with the trial judge using a preponderance of the evidence standard.(2) When witnesses are not testifying as experts, their testimony is admitted regarding observation and first-hand knowledge(3) but limited when based on opinion or inference.(4) The purpose of the Federal Rules of Evidence, as well as state rules, includes assuring that all scientific, technical, or specialized knowledge evidence and testimony admitted is relevant and reliable.(5) High technology evidence embodying independent probative value may be used as substantive evidence.(6) The rule for of scientific evidence dates from the 1923 decision in Frye v. United States,(7) in which the D.C. Circuit required general acceptance within the scientific community from which the novel scientific evidence arose before it could be used as evidence. The Frye standard ruled for about 70 years, keeping several advances in scientific knowledge from being used as evidence until they were no longer novel. Some of the advances raising evidentiary issues include photography,(8) x-rays,(9) the polygraph,(10) hypnosis,(11) and more recently videotape,(12) computer simulations and animations,(13) and DNA.(14) Holding that the Federal Rules of Evidence superseded the Frye standard, the U.S. Supreme Court in 1993 in Daubert v. Merrell Dow Pharmaceuticals Inc. rejected the general acceptance standard as the sole test for admissibility of scientific evidence.(15) That case involved limb reduction birth defects allegedly linked to the mother's ingestion of Bendictin. The district court had granted summary judgment to the drug's manufacturer, holding that the plaintiff's expert evidence did not meet the standard, and the Ninth Circuit agreed that the expert opinion was inadmissible because it was based on reanalysis of statistical data in earlier published studies, a technique not generally accepted. …