What are they?
Animation
Computer-generated animations can be either demonstrative or substantive. When used to illustrate a witness’s testimony, an animation is purely demonstrative. A purely demonstrative animation “consists of computer-generated drawings which are assembled frame by frame, and, when viewed sequentially, produce the image of motion.”[1] While demonstrative animations can be used to illustrate the testimony of any witness, they are usually used to illustrate the opinion of an expert witness. Typically, an expert for either side will propound a theory about how they believe an accident took place and will work with a technical animator to create a demonstrative animation to show the jury the expert’s opinions. Demonstrative animations in this context can be incredibly helpful: animations make expert-level mathematical computations and scientific reasoning accessible to laypeople. These kinds of demonstrative animations assist juries in understanding and retaining information; they break up the monotony of trial; and they direct the jury’s attention to issues that counsel feels are the most important. The Federal Rules of Evidence have also endorsed these kinds of animations. See Federal Rules of Evidence Manual § 403.02 (2018) (“In order to explain or prove how a disputed event occurred, a party may find it helpful to demonstrate the event in Court, or to provide a videotaped or even a computerized recreation of the disputed event.”)
Animations are most useful in cases involving accident reconstruction: car and railroad collisions, aircraft failures and industrial accidents are examples of cases in which they have been used effectively.[2]
Simulation
Instead of illustrating a witness’s testimony, a simulation “forms a conclusion based on raw data and is substantive evidence in itself.”[3] “Simulations […] are created by entering known data into a computer program, which analyzes those data according to the rules by which the program operates (e.g., the laws of physics or mathematics) to draw conclusions about what happened and to recreate an event at issue. The program itself, rather than witness testimony, is the source of the visual images depicted and may actually serve as the basis for opinion testimony.”[4] Plainly put, a simulation is an experiment captured in a virtual environment. “The critical distinction is that, unlike an animation, which merely reflects testimony, a simulation is the evidence presented to the jury.”[5] While animations illustrate an opinion, experts base their opinions on the outcomes of simulations.
Examples of a simulation include an accident reconstructionist entering data about the construction of a road curve along with the specifications for a car that had been involved in an accident on that curve into a computer simulation program designed to electronically recreate the conditions and demonstrate whether the asserted injuries were possible;[6] a computer simulation used to interpolate and extrapolate the results of tests with anthropomorphic test dummies used to provide opinion to an expert in a case involving injuries sustained in a car accident;[7] and a computer simulation used to highlight the differences between seats in personal watercraft vehicles in a personal injury case involving injuries sustained while using a jet ski.[8]
What are the different standards for admissibility?
Because animations are used to illustrate witness testimony, the only foundation necessary is that required of other forms of demonstrative evidence—the testimony of a knowledgeable witness that the animation fairly and accurately depicts what its proponent claims. In the context of an animation that will be used to demonstrate the opinion of an expert witness, a Daubert examination will also be required. In all cases, because an animation will not be used as substantive evidence, its introduction will require a limiting instruction in which the court informs the jury that the animation is only to be used an illustration of the witness’s opinion, and not as proof of the matter asserted, and will not be allowed inside of the jury room.
Unlike animations, simulations, because they are the evidence and not solely an illustration of an opinion, are admissible as substantive evidence. Also, unlike the fair and accurate standard that governs the admission of animations, simulations must be substantially similar to the at issue incident in order to be admissible. In addition to being offered by an expert who must independently pass a Daubert analysis, the proponent of the simulation “generally must acquire and have an expert in computer reconstruction or animation testify at trial.”[9]
Are they worth it?
If your case involves expert testimony, and that expert testimony can be effectively portrayed through the use of animation, it’s probably worth it. Experts know things that the rest of us don’t and explain those things in ways that us laymen might find dull, hyper-technical and just hard to follow. If you can convey an expert’s potentially jargon-heavy, highly technical testimony in an animation that the jury can easily follow and digest, then it’s probably a good idea.
Of course, if your expert requires a simulation to prove their point, then it’s no longer optional. The simulation is the testimony and introduction can’t be avoided.
[1] Com. v. Serge, 837 A.2d 1255, 1264 (Pa. Super. Ct. 2003)
[2] Dean A. Morande, A Class of Their Own: Model Procedural Rules and Evidentiary Evaluation of Computer-Generated “Animations”, 61 U. Miami L. Rev. 1069 (2007).
[3] Id at 1072.
[4] Bullock v. Daimler Trucks North America, LLC, 819 F.Supp.2d 1172, 1176 85 Fed. R. Evid. Serv. 307 (D. Colo. 2011).
[5] A Class of Their Own, at 1074.
[6] Mihailovich v. Laatsch, 359 F.3d 892, 904 (7th Cir. 2004).
[7] Melberg v. Plains Marketing, L.P., 332 F. Supp.2d 1253, 1260 (D.N.D. 2004).
[8] Hickerson v. Yamaha Motor Corp., U.S.A. (D.S.C. 2016).
[9] Bullock v. Daimler Trucks North America, LLC, 819 F.Supp.2d 1172, 85 Fed. R. Evid. Serv. 307 (D. Colo. 2011).