FORMS OF COMPUTER GENERATED EVIDENCE (CGE)
The admissibility of the evidence will reflect the type of evidence it is: (1) demonstrative evidence or (2) substantive or real evidence.
The two main forms of computer generated evidence regarding accident reconstruction are computer generated animations and computer generated simulations.
Animations are pure demonstrative trial aids. They are computer generated drawings assembled frame by frame that, when viewed sequentially, produce the image of motion. Their reliability is completely dependent upon the expert’s testimony and credibility. Ie.- illustrate factual findings and conclusions of the expert, illustrate factual findings. See Constans v. Choctaw Transport, Inc., 97-0863 (La.App. 4 Cir. 12/23/97),712 So.2d 885.
Simulations, on the other hand, are substantive evidence. They add new facts to the case and have probative value in themselves. Whereas animations only illustrate data, computer simulations are based upon mathematical models that generally involve the input and manipulation of data. In computer simulation, the computer essentially becomes a witness, by not only illustrating the evidence but also presenting it. See e.g. Pino v. Gauthier, 633 So.2d 638 (La.App. 1 Cir. 12/29/93)
The admissibility rules for CGE is different depending upon whether the evidence is an animation or a simulation. Basically, simulations are subject to the more strenuous Daubert rules of admissibility for scientific evidence.
Although an animation is more likely to be admitted as evidence, since it is only demonstrative, a simulation is more likely to be permitted for the jury to view during deliberation because of its independent probative value.
Also, purely demonstrative evidence may not be permitted in opening/closing statements.
VIDEO EVIDENCE GENERALLY
The determination of whether motion pictures or videotapes are admissible is largely within the discretion of the trial court. Olivier v. LeJeune, 95-0053 (La.2/28/96), 668 So.2d 347; Lafleur v. John Deere Co., 491 So.2d 624, 632 (La.1986).
The trial court must consider: (1) whether the videotape accurately depicts what it purports to represent, (2) whether it tends to establish a fact of the proponent’s case, and (3) whether it will aid the jury’s understanding.
Against those factors, the trial court must consider whether the videotape will unfairly prejudice or mislead the jury, confuse the issues, or cause undue delay. The trial court may exclude the evidence if the factors favoring admission are substantially outweighed by the factors against admission. Louisiana Code of Evidence arts. 401 – 403; U.S.F. & G. v. Hi-Tower Concrete Pumping, 574 So.2d 424, 438 (La.App. 2nd Cir.1991).
If the CGE is actually a program that provides the reconstruction by inserting figures and variables for the computer to perform mathematical evaluations, then it will also have to pass the reliability and trustworthiness standards of Daubert.
The trial court applies several factors to determine whether the reasoning and methodology underlying the simulation is scientifically valid and can properly be applied to the facts at issue.
These factors include (1) whether the expert’s theory or technique can be and has been tested; (2) whether the theory or technique has been subjected to peer review and publication; (3) the technique’s known or potential rate of error; and (4) whether the methodology is generally accepted in the scientific community.
When evaluating the admissibility of the simulation:
1. Be sure that the animation is based on science. All motions in the animation must be governed by the laws of physics.
The coordinates for the motions must be supplied by the engineer, not the animator.Ensure that the data underlying the animation is reliable.
2. Be sure to give a copy of the animation to opposing counsel as soon as possible so that the opposing counsel can adequately prepare a defense to it. This will make it less likely that the judge will exclude the evidence.
3. Consider supplying the opposing counsel with a tabular format of data so that they can regenerate the animation if they so choose.
4. If possible, show the animation to eyewitnesses to verify that the visual presentation in the animation reflects what they saw at the time of the accident.
5. Preferably, try to get the animation admitted pre-trial and get a copy of the animation to the judge for him to review.
6. Evaluate the video from the opponent’s point of view in order to anticipate his arguments against it.
7. Have ready information on the exact computer used, software programs employed, and programmer/animator’s name, should these questions arise.
Practical Procedural Steps to Admission of Evidence:
Prior to putting the witness on the stand, be sure to establish all underlying facts and assumptions in the video. (Through fact witnesses.)
Once the witness is on the stand, qualify him as an expert in accident reconstruction and qualify his methodologies as reliable under the Daubert standard.
Have the witness explain his calculations, assumptions, and conclusions regarding the accident. Have the witness establish the reliability of his calculations and assumptions. Have the witness give his conclusion. (Without discussing the exhibit.)
Ask the witness if he has prepared an exhibit to illustrate his findings. (“Did you prepare an animation that illustrates the points you are making?” “Did you bring it with you today?”)
Helpfulness: Ask the witness, “Would the animation be helpful for you to explain your reconstruction?” (Answer: “Yes, I think that it would be very helpful.”)
Ask the court’s permission to present the animation.
Have him explain how the data was used to make the animation. This, of course, would depend on how the animation is made. Was it done by a computer? What program was used? What kind of computer is used? How the computer goes through the process of turning the data into an animation? Perhaps the animations were sketches done by hand and a computer is used just to do the animation. Explain how the raw data is used to form the sketches. Explain all assumptions that were used and underlying equations that governed the motions in the animation.
Some anticipated issues:
a. Timing of the film- Is the timing accurate to the timing of the accident. How do you know? Be able to explain with science.
b. Speeds of the vehicles – Are the speeds accurate. How do you know? Explain how based on science or testimony.
c. Distance of the vehicles from each other – Explain how we know the distance of the vehicles from each other, based on science and facts.
d. Size of the objects in the video- Is the animation to scale? Explain how it was made to scale. How did we know what size to make the vehicles? Is that based on science/ factual evidence? Is the size accurate to what the eye would see? Is the increase in size as you approach accurate?
e. Road layout – Is the angle of the intersection between the private road and the highway accurate? Is the topography of the highway accurate? Are the twists and turns in the right place and they right distance? Are the inclines in the right place and right distance? Be able to explain how the film was created to accurately depict these things.
f. Visibility – does the video accurately reflect proper visibility for the time of the day of the accident?
g. Point of impact- Is the point of impact accurate?
The following are some older cases on the subject, but they are still authoritative.
Novosyolova v. Stevens, 850 So. 2d 29, (La. App. 4 Cir., 2003): Widow of passenger hit by a deputy sheriff ‘s car while walking along a highway filed suit for damages. The district court found for the defendant and the widow appealed. The court of appeal upheld the lower court’s decision, finding that the evidence supported a finding that the pedestrian was at fault, and the deputy sheriff acted reasonably.
Of course, there may be something actually in the animation that would cause it to be prejudicial and inadmissible: i.e.- distortion of the facts, continuous replay of a single action such that it is excessively cumulative, prejudicial video or camera tricks, putting dopey or evil faces on persons, etc….
There must be a proper foundation for the animation. The animation must “accurately depict what it purports to represent.” The animation must be accurately based on the facts of the case. If the facts are in dispute, it may not be a bad idea to provide alternative illustrations. The illustration must accurately depict the expert’s determinations and the underlying science. See Smith v. Kansas City Southern Railway Co., 2002-1505 (La.App. 3 Cir 5/28/03), 846 So.2d 980. (The court disallows computer animation that is based on inaccurate facts.)
The expert who develops the animation, the animator, must testify as to its validity and accuracy. He needs to explain how he used the data provided by the accident reconstruction expert to create the image for each frame.
The exact computer used, software programs employed, and programmer’s name and information should be available should these questions arise.
The video animation was allowed into evidence and upheld on appeal, even though it was not established that the animation matched the conditions of the accident scene. The video camera was not calibrated at the accident scene.
In opposing the admission of the video, plaintiff argued that the videotape was used to determine reaction time by the police officer. Defense expert stated that while he considered the reaction time used in the videotape, he based his opinion on several other factors offered into evidence.
As the defense expert based his testimony of reaction time on other evidence, including work he had done at the accident scene, any error in admitting an animation showing a longer reaction time, went to the weight of the evidence and not its admissibility.
Where there are questions to the qualifications of the creator of the animation, the computer program used to create it, and that some of the information used to create the animation may be inaccurate, the appellate court found no error in disallowing the animation to be shown to the jury. In Smith, the animator relied on information for an accident in which a railway train hit an automobile that was not corroborated by the information collected by the police or retained by the railway trains “black box” recording system. Constans v. Choctaw Transport, 712 So. 2d 885 (1998)
Passengers in an automobile that collided with a semi-truck brought an action against the driver and owners of the semi-truck. The truck driver and owner brought a cross-claim against the driver of the automobile. On appeal, the trial court was found to not have abused its discretion on allowing the videotape of the accident reconstruction into evidence.
A videotape recreating an automobile accident that consisted of a series of diagrams being played in rapid succession was deemed admissible, as it was an acceptable manner for the expert to illustrate his testimony. The pace of the diagrams shown seemed to give the effect of animation. The expert utilizing the videotape explained that the diagrams were not being shown in “real time” and were not the result of any mathematical or computer calculations.
The court found that the “animation” in this suit was essentially no different from numerous diagrams shown in succession and this manner of depicting them was a “labor saving device.” Constans, at 901.
Defendant was convicted of second-degree murder of his wife. Among the multiple holdings in this case, the court held that the probative value of the computer-generated animations of the shooting were not outweighed by the possibility of unfair prejudice.State v. Harvey, 649 So. 2d 783 (1995)
As the factors used in recreating the possible scenarios of a shooting, using computer animation, were corroborated by the information contained within the expert forensic pathologist’s autopsy report along with his in-court testimony, the animation was admissible.
On cross-examination, the pathologist testified that while other scenarios were possible, the ones depicted by the animations shown were the most conservative and how it most likely occurred. Harvey at 10.
Parents of an injured passenger and mother of the deceased driver brought a lawsuit for damages arising out a head-on collision. The judicial circuit court found that the state highway department’s failure to place a temporary median barrier between opposite moving lanes was the cause-in-fact of the accident. The court also excluded the computer simulation offered into evidence as the scenarios and factors considered by the expert, and contained within the simulation, did not correspond to the events leading up to the accident. Pino v. Gauthier, 633 So. 2d 638 (1993)
A computer simulation depicting four separate scenarios of how a defendant’s truck could have traveled, just prior to a head-on collision, was excluded from evidence, as the cause of the accident was caused by the different road surfaces and the lack of a temporary barrier between the lanes of on-coming traffic. Providing these separate scenarios, which altered several different variables, was seen as being prejudicial. Additionally, where the expert could clearly explain his testimony without the use of the computer simulation, it was deemed unnecessary to use such a simulation.