Reconstructions, Reenactments and Demonstrations



July 01, 1999

Author(s): Joseph J. Ortego

by Joseph J. Ortego

by Joseph J. Ortego

I. Introduction

In today’s age of media savvy jurors, the creative use of technology in the courtroom could mean the difference between winning and losing a case. Courts are also visibly accepting the use of technology in the courtroom by updating their equipment. While the main source of evidence still comes from the use of direct and cross-examination of witnesses, and attorneys still rely on opening and closing statements to paint their case, the use of technology can enhance what could otherwise be a dry form of capturing the jury’s attention. Greater effect can be achieved if attorneys use demonstrative evidence in the form of technology such as videotapes and computer animation/simulation. As one commentator has observed, “Since ‘seeing is believing,’ and demonstrative evidence appeals directly to the senses of the trier of fact, it is today universally felt that this kind of evidence possesses an immediacy and reality which endow it with particularly persuasive effect.” 2 MCCORMICK ON EVIDENCE § 214 at 3 (footnotes omitted).

This article seeks to assist attorneys in obtaining a basic understanding of what type of technology is available, and how that technology has overcome the hurdle of admissibility to be effectively used in actual cases.

II. Types of Visual Technology Used in Reconstructions, Reenactments and Demonstrations

A wide range of technology is available to produce reconstructions, reenactments and demonstrations. A general understanding of the technological methods available to create this evidence is critical in evaluating its admissibility. It further permits the attorney to more easily evaluate grounds of objecting to the adversary’s use of such technology.

A. Traditional Videos

Produced through the use of a video camera, this technology is the most commonly used among trial attorneys. It is also probably the least costly of the different methods since it does not involve the use of any expensive computer equipment or software, and can be easily shown in court without complicated hookups. Such videos have been used successfully in cases by defendants such as auto manufacturers which introduce crash tests into evidence. See, e.g., Stamper v. Hyundai Motor America, 699 N.E.2d 678 (Ind. Ct. App., 5th Dist. 1998) (affirming two separate jury verdicts for automaker Hyundai, and upholding use of crash test videos prepared by Hyundai’s experts). See also Veliz v. Crown Lift Trucks, 714 F. Supp. 49 (E.D.N.Y. 1989) (affirming jury verdict for defendant, and upholding use of videotape depicting lift truck’s various operations).

B. Reconstruction/Reenactment Videos Using 3-D Stop Action Technology

“Three-dimensional stop action animation” involves the use of objects which are photographed with a stop-action film or video camera to create a frame. The objects within the scenery are then moved slightly and photographed again for the next frame. After repeating this process numerous times, the frames shown in sequence give the illusion of the objects moving. See, e.g., Robinson v. Missouri Pacific Railroad Company, 16 F.3d 1083 (10th Cir. 1994).

C. Reconstruction/Reenactment Videos Using Key Frame Animation

“Key frame animation” involves inputting data into a computer program where the programmers specify an object, its location, and its destination. The software program then processes the information and fills in the rest, displaying the path of motion. However, the reliability of this method depends on the accuracy of the date inputted, how much data is inputted into the software, and what formula the software uses to fill in the gaps.

D. Reconstruction/Reenactment Video Using Scripted Animation

In “scripted animation,” the programmer determines the position of objects in each frame, rather than leaving it to the computer to fill in gaps. The programmer would have to take into account the laws of physics and other laws to produce an accurate depiction.

While there are services available to produce these types of video and computer simulations, as well as other forms of videography, it is important to keep in mind that since the cost of doing so is expensive, the issues of admissibility must be carefully considered at every stage of the creation or production of the evidence. Failure to do so could result in an expensive, frustrating and possibly embarrassing mistake at trial.

III. General Standards for the Admissibility of Reconstructions, Reenactments and Demonstrations

As most product liability trial attorneys are aware, a judge has considerable discretion in evaluating whether to admit evidence. Robinson v. Missouri Pacific Railroad Company, 16 F.3d 1083, 1088 (10th Cir. 1994). The general principle under Fed. R. Evid. 402 and 403 is that the evidence must be relevant, but may be excluded “if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.” Fed. R. Evid. 403.

However, since most reconstructions and reenactments are used as tools for expert witnesses to amplify, explain and clarify their position to the fact-finder, Fed. R. Evid. 702 and 703 (relating to expert testimony) come into play as well. Unlike other evidence admitted under Fed. R. Evid. 402 and 403, computer animation generally cannot be looked at distinct from the expert’s testimony. The computer-generated evidence is in essence another form of testimony of the expert.

Under Fed. R. Evid. 702, if the “scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert” may testify in the form of an opinion or otherwise. As interpreted by the Supreme Court in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S. Ct. 2786 (1993), Rule 702 permits the trial court to admit an expert’s testimony into evidence if the opinion is relevant and if the process used in formulating the opinion is reliable. The trial judge serves a “gatekeeping role” in that regard. Furthermore, while general acceptance by the scientific community is a factor, it is not dispositive with respect to admissibility.

Fed. R. Evid 703 allows an expert, in forming his or her opinion, to rely upon facts or data which are not otherwise admissible in evidence. This lays the groundwork for videos and computer animations, relied upon by experts, to be introduced to the jury.

Notwithstanding what may appear to be a higher standard of review, decided cases show that the court’s discretion has surprisingly been exercised to err on the side of allowing video and computer technology into evidence.

While admissibility issues are fact intensive, the best way to evaluate whether a video or computer simulation will be admissible or objectionable is to study what went right and what went wrong in particular cases. The cases below illustrate factors used by the courts in making their determination.

IV. Videotapes of Actual Events Generally Admitted into Evidence

Where the video sought to be admitted is a recording of the actual event in progress, recorded by the traditional method of videotaping, courts are readily willing to admit it into evidence, provided the proper evidentiary foundations are met.

Unlike a video produced after the fact, there is less risk of misleading the jury. For example, in Mikus v. United States, 433 F.2d 719 (2d Cir. 1970), defendant challenged a video of a bank robbery for which he stood accused. Defendant contended that proper foundation was not laid. In contrast to the cases where videos were produced after the fact, an expert’s testimony was not required to authenticate the video. It was sufficiently authenticated based on one of the bank teller’s testimony with respect to the area to which the camera was directed, the means of activating the camera, her own activation and her own prior viewings of the film sought to be introduced. She had also testified that the film was a fair and accurate representation of the occurrences inside the bank during the bank robbery.

The court held that since the film in question was the purported recordation of the actual occurrences rather than a reconstruction, no expert opinion was needed to authenticate it. The court rejected defendant’s claim that it was necessary to call the persons responsible for installation and maintenance of the bank camera. Quoting a respected treatise on evidence, the court stated, “where the moving picture is taken without artificial reconstruction, i.e., at the time and place of the actual event (a possibility not infrequent), it lacks the above element of weakness [i.e., ‘special risk of misleading’] and is entitled to be admitted on the same principles as still photographs.” 433 F.2d at 725 (quoting 3 Wigmore on Evidence § 798a (1940), at 203).

Similarly, in United States v. Pageau, 526 F. Supp. 1221 (N.D.N.Y. 1981), the court found that a videotape of the actual event would be admissible over defendants’ objection that there was no testimony with respect to the identity of the persons depicted or of the voices heard on the tape, and no testimony that the videotape was a fair and accurate representation of the sights and sounds recorded.

In Pageau, defendants were various corrections officers who were accused of beating and assaulting a prison inmate. The Government sought to introduce the videotape of the beating as evidence. Due to the nature of the case, no officer was available to testify that the camera produced a “fair and accurate representation” of the actual events recorded. However, despite defendants’ objections, the court found that proper foundation had been laid because the Government had produced evidence describing the recording process and demonstrating that the process produces an accurate result. 526 F. Supp. at 1224.

V. Cases Admitting Video and Computer Demonstrations

Courts consider several factors in admitting videos and computer animation/simulation as demonstrative evidence where methods of producing such evidence other than the traditional video camera are used (e.g., stop-action, key frame and scripted animation). Generally, where the purpose of the video is to demonstrate the expert’s opinion rather than to replicate what actually happened, courts have been inclined to admit the evidence, assuming proper foundation is laid. The following cases illustrate the creative uses of such technology, and how it was admitted into evidence.

The case of Datskow v. Teledyne Continental Motors Aircraft Products, 826 F. Supp. 677 (W.D.N.Y. 1993) was a product liability suit arising out of the crash of a private airplane in which four people were killed. Plaintiffs sued the manufacturer of the engine on the theory that a defect in the plane’s engine caused the crash. Id. at 681. Plaintiff’s expert, a mechanical engineer with a background in accident reconstruction, opined that the crash was due to a clogged fuel nozzle inside the engine, which caused fuel to leak and catch fire during the flight. As part of his explanation to the jury, the expert sought to use videotaped experiments and courtroom demonstrations illustrating his theory of where the fire began inside the engine and how it spread. In addition, simultaneous with the videotape, the expert sought to play a voice-over of the actual radio communications between the downed aircraft and the airport control tower.

Realizing the possible effect of such visual and audio evidence, defendant contended that the video simulations were unfairly prejudicial.

The court admitted the video into evidence, but excluded the voice-over. In doing so, it took into account several factors:

  • The tape was shown to help the jury understand the expert’s opinion as to what happened and not meant to be a re-creation. The court noted as real and significant “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’ opinion of what happened.” 826 F. Supp. at 686. The court explained that “[s]o long as that distinction is made clear to them—as it was here—there is no reason for them to credit the illustration any more than they credit the underlying opinion.” Id.

  • To reduce the possibility that the jury might interpret the tape as a re-creation of the accident, the court disallowed the voice-over.

  • The court gave cautionary instructions to the jury more than once, that the computer pictures were to help them understand the expert’s opinion, and not meant to be an exact re-creation. The court apparently placed much faith on the jury’s ability to follow cautionary instructions. It quoted United States v. Nixon, 779 F.2d 126, 133 (2d Cir. 1985), explaining that “the practice of instructing a jury to disregard improper testimony is necessary and well established.” 826 F. Supp. at 686.

Had the video been an attempted replication of the actual events rather than a demonstration, a higher standard of accuracy probably would have been required. “When used in an attempted replication of the litigated event, courts general insist that conditions in the experiment substantially match the circumstances surrounding that event.” Volz v. Coleman Co., 155 Ariz. 563, 565, 748 P.2d 1187, 1189 (App. 1986), aff’d on this ground, 155 Ariz. 567, 748 P.2d 1191 (1987) (citations omitted). On the other hand, “when the experiment is not a purported replication but is more in the nature of a demonstration, it is appropriately admitted if it fairly illustrates a disputed trait or characteristic.” Id. The fine distinction between a demonstration of the expert’s opinion and a purported replication, when accompanied by limiting instructions, has apparently been used to admit such evidence even in very close cases.

For example, the decision by the trial court to let in a video produced by stop-action animation in Robinson v. Missouri Pacific Railroad Co., 16 F.3d 1083 (10th Cir. 1994) was upheld, but described as a “close one.” 16 F.3d at 1086. Julia Ann Turnbull was killed when she drove her Chevrolet onto the tracks and was struck by a Missouri Pacific (“MoPac”) freight train at the crossing. The passengers in her car, including her son, were also killed. The wreckage showed that the car ended up approximately 2000 feet south of the crossing, having been pushed straight down the track by the train. Mrs. Turnbull’s husband brought actions for wrongful death against MoPac. At issue was whether the gates failed to lower at the proper time to prevent Mrs. Turnbull from entering the crossing. Defendant MoPac’s theory was that Mrs. Turnbull had driven around the gate after it had properly lowered.

As part of plaintiff’s case, the court allowed the expert witness to introduce into evidence and exhibit to the jury a video animation prepared by the expert, illustrating his theory of the crash. The expert opined that the train struck the car at a perpendicular angle and that the angle of impact served to reject any drive-around-gate theory. In support of his theory, the expert had produced the video by using a movable model train and car, along with crossing gates, structures and shrubs simulating the immediate surroundings. A video camera then tracked the scene every 1/10 of a second as the expert moved the model vehicles by hand.

The video simulation resulted in a dramatic two-minute silent presentation depicting the theory of plaintiff’s expert in two scenarios. In the first scenario, the car drove onto the tracks with the gates up, resulting in the car being pushed straight down the track. In the second scenario, which stirred defendant’s vigorous objections, the car drove around the gates onto the tracks and is hit at an angle, causing the car to spin off the tracks in a southwesterly direction (contrary to where the car was actually found). Therefore, the video depiction sought to rebut MoPac’s theory that Mrs. Turnbull had driven around the gate.

MoPac objected on several grounds relating to missing or inaccurate details. It argued that the second scenario on the videotape ignored the fact that the car had locked with the engine, and that therefore, even if hit at an angle, the car could still end up straight down the tracks. MoPac also argued that the lights on the crossing sign, the sound, and the unproven speed of the vehicles, were not properly depicted in the video.

Nevertheless, the trial court permitted the video to be admitted, and apparently, the jury took it into account, finding MoPac 70% at fault, notwithstanding five eyewitnesses to the accident, two of whom testified that Mrs. Turnbull drove around the gates.

On appeal, the verdict was affirmed. While acknowledging that “[t]he expert opinion evidence for plaintiffs appears to have carried more weight than eyewitness testimony,” 16 F.3d at 1088, n.4, the appellate court nevertheless upheld the decision, finding no abuse of discretion. In affirming the trial court, it noted several factors:

  • The trial court instructed the jury, emphasizing that the video was not a recreation of the accident, but merely to illustrate the expert’s theory.

  • The exhibit was admitted solely for illustrative purposes.

  • The opposing party had the opportunity for vigorous cross-examination.

However, the court noted several warnings. It cautioned that because of a video animation’s “dramatic power, trial judges should carefully and meticulously examine proposed animation evidence for proper foundation, relevancy and the potential for undue prejudice.” 16 F.3d at 1088. It also recommended that the trial judge should review the video outside of the jury’s hearing. Id.

Perhaps because this case was such a close call, the court also listed several possible areas of objection which can be raised in future cases:

  • The expert must be qualified, and the proposed scientific knowledge must assist the trier of fact to understand or determine a fact in issue. Fed. R. Evid. 104(a); 702.

  • Relevancy or reliability. Fed. R. Evid. 401; 402.

  • Lack of authentication. Fed. R. Evid. 901(a)

  • Hearsay or lack of foundation when the computer software developer has not testified. Fed. R. Evid. 801.

  • Undue prejudice as an attempted reenactment. Fed. R. Evid. 403.

Robinson, 16 F.3d at 1089 and n. 7 (citations omitted).

VI. Cases Refusing to Admit Video and Computer Demonstrations

While courts are generally willing to admit visual computer-generated technology as demonstrative evidence, the use of such evidence as been held to be error where the proper foundation was not laid. The case of Bledsoe v. Salt River Valley Water Users’ Association, 179 Ariz. 469, 880 P.2d 689 (Ct. of App., Div. 2, Dept. B 1994) is an example of a failed attempt at introducing such evidence.

Joseph Bledsoe worked for the Phoenix Fire Department health center, and his duties included designing and implementing physical fitness programs. His attempt to set a fitness example for the other firefighters by riding a bicycle to work ended in tragedy. Traveling in the dark early in the morning, Bledsoe’s route included a lateral road owned by defendant Salt River, whose road was blocked by cable gates along the way. Not seeing one of these gates, Bledsoe struck it, was thrown over the front of his bicycle, and was rendered a quadriplegic.

As part of plaintiff’s case, plaintiff’s counsel sought to show the jury a videotaped computer simulation of the accident during closing argument. Defendant Salt River had previously moved in limine to preclude the use of the video, arguing that it would be unsupported by evidence or by testimony of the computer expert who prepared it because Bledsoe would not be calling him as a witness. 179 Ariz. at 471, 880 P.2d at 691.

The trial court allowed the video into evidence, and after the evidentiary phase, ruled that the video was merely a more sophisticated way of what plaintiff’s counsel could have done by getting up and drawing a picture. The appellate court disagreed.

Rejecting the trial court’s comparison of the video tape to “just a more sophisticated way of presenting” a theory of what actually happened, the appellate court stated that the video tape was much more. In this case, it “depicts a computer expert’s opinion of, among other things, how the accident happened, the location of lighted and darkened areas at the time, and the effect of alternate or additional lighting.” 179 Ariz. at 472, 880 P.2d at 692. Because the video was much more sophisticated than plaintiff’s attorney had portrayed it to be, the court held that plaintiff “was thus required to lay the appropriate foundation for those opinions, and [defendant] was entitled to cross-examine the expert about them.” Id. Use of the video by plaintiff’s counsel during closing argument constituted reversible error.

The court listed several factors explaining how that video could have been admitted into evidence:

  • Proponent must show that the computer simulation fairly and accurately depicts what it represents, whether through the computer expert who prepared it or some other witness who is qualified to so testify.

  • The opposing party must be afforded an opportunity for cross-examination.

  • The court also noted that in some instances, the proponent may also be required to show 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.

Although the court noted that “the evidentiary use of computer simulations is generally permissible, their use is dependent on satisfying the usual foundational requirements for other demonstrative evidence.” 179 Ariz. at 472, 880 P.2d at 692. Since plaintiff’s counsel had elected not to satisfy even the minimal foundational requirements, the court held that it was error for the trial court to allow the jury to see the video. While Bledsoe argued that even if this were an error, it was not prejudicial, the court again disagreed. The court held that admitting the video was reversible error because of the impact it probably had on the jury. Citing a respected evidence treatise, the court commented, “For not only is the danger that the jury may confuse art with reality particularly great, but the impressions generated by the evidence may prove particularly difficult to limit.” 179 Ariz. at 473, 880 P.2d at 693 (citation omitted).

Whether traditional methods of videotaping or computer-generated methods are used, a video or computer simulation may also be rejected if it tends to be irrelevant, cumulative or misleading. In Busse v. Versus Bayerische Motoren Werke, A.G., 1997 U.S. Dist. LEXIS 2791 (E.D. La. Mar. 11, 1997), plaintiffs sued the auto manufacturer, BMW, on behalf of individuals killed in a car accident. In its defense, BMW sought to introduce several videos into evidence depicting a series of controlled experiments conducted at one of its test tracks in Germany, which were recorded with the traditional videotape method. While the court allowed as demonstrative evidence a video depicting driving tests tracing the effect of variable conditions on a test driver’s ability to operate a vehicle, it rejected several other videos. The court explained that the rejected videos were either cumulative, lengthy, less instructive and more difficult to follow, misleading and distracting to the jury, or the content could easily be explained in words.

Prepared videotapes and computer simulations are rarely, if ever, admitted as substantive evidence which the jury can review and replay in their deliberations behind closed doors. The primary reason is that the content of these videotapes and computer simulations are hearsay. While they are admissible to illustrate an expert’s testimony, they are viewed as the basis of the opinion, and not as substantive evidence in themselves. However, as illustrated by the cases discussed, admitting the video or computer technology as demonstrative evidence, even with limiting instructions, still has a potentially tremendous impact on the jury.

VII. Conclusion

Courts are generally willing to admit videos and computer technology as demonstrative evidence to assist the trier of fact to better understand the case. Obviously, when admitted, such evidence has a significant impact on the jury. Its admission or lack of admission may be the turning point for any product liability case. Given the critical nature of this evidence and the potentially high costs of producing such a video or computer simulation, attorneys should be cautious that evidentiary standards of admissibility are met. It is also advisable to produce different versions of the video, in case the court finds certain parts objectionable. While demonstrative evidence may pose dangers for abuse, when used properly and when carefully monitored by the court, it can become a great asset for trial attorneys and be used to render an effective and fair result.

APPENDIX

FED. R. EVID. 402—Relevant Evidence Generally Admissible; Irrelevant Evidence Inadmissible.

All relevant evidence is admissible, except as otherwise provided by the Constitution of the United States, by Act of Congress, by these rules, or by other rules prescribed by the Supreme Court pursuant to statutory authority. Evidence which is not relevant is not admissible.

FED. R. EVID. 403—Exclusion of Relevant Evidence on Grounds of Prejudice, Confusion, or Waste of Time.

Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.

FED. R. EVID. 702—Testimony by Experts

If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise.

FED. R. EVID. 703—Bases of Opinion Testimony by Experts

The facts or data in the particular case upon which an expert bases an opinion or inference may be those perceived by or made known to the expert at or before the hearing. If of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject, the facts or data need not be admissible in evidence.

BIBLIOGRAPHY

Cases

Bledsoe v. Salt River Valley Water Users’ Association, 179 Ariz. 469, 880 P.2d 689 (Ct. of App., Div. 2, Dept. B 1994)

Busse v. Versus Bayerische Motoren Werke, A.G., 1997 U.S. Dist. LEXIS 2791 (E.D. La. Mar. 11, 1997)

Datskow v. Teledyne Continental Motors Aircraft Products, 826 F. Supp. 677 (W.D.N.Y. 1993)

Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S. Ct. 2786 (1993)

Mikus v. United States, 433 F.2d 719 (2d Cir. 1970)

Robinson v. Missouri Pacific Railroad Company, 16 F.3d 1083 (10th Cir. 1994)

Stamper v. Hyundai Motor Co., 699 N.E.2d 678 (Ind. Ct. App., 5th Dist. 1998)

United States v. Nixon, 779 F.2d 126, 133 (2d Cir. 1985)

United States v. Pageau, 526 F. Supp. 1221 (N.D.N.Y. 1981)

Veliz v. Crown Lift Trucks, 714 F. Supp. 49 (E.D.N.Y. 1989)

Volz v. Coleman Co., 155 Ariz. 563, 748 P.2d 1187 (App. 1986)

Secondary Sources

Hon. Stephen G. Crane, Courtroom 2000 Dedicated to the Memory of Justice Friedman, NEW YORK STATE BAR JOURNAL at 607 (Nov. 1998) (discussing technology of courtroom in New York).

Paul Elias, 9th Circuit Judges Focus on Split, THE RECORDER at 1 (June 22, 1998) (discussing technology as “shrinking” the federal circuits since judges and lawyers can teleconference although miles apart).

Robert Seltzer, The Keys to Admissibility, California Lawyer (Special Section: Demonstrative Evidence).

Seat Belts/Side Impact: Stamper v. Hyundai Motor America, AUTOMOTIVE LITIGATION REPORT, Vol 17 at 8 (Sept. 15, 1998) (reporting successful use by auto manufacturer of both traditional video and computer animation)

McCormick on Evidence

Wigmore on Evidence


The foregoing has been prepared for the general information of clients and friends of the firm. It is not meant to provide legal advice with respect to any specific matter and should not be acted upon without professional counsel. If you have any questions or require and further information regarding these or other related matters, please contact your regular Nixon Peabody LLP representative.

The foregoing has been prepared for the general information of clients and friends of the firm. It is not meant to provide legal advice with respect to any specific matter and should not be acted upon without professional counsel. If you have any questions or require any further information regarding these or other related matters, please contact your regular Nixon Peabody LLP representative. This material may be considered advertising under certain rules of professional conduct.

Back to top