ComputerGenerated Evidence as Demonstrative or Substantive Evidence.docx

1、ComputerGenerated Evidence as Demonstrative or Substantive EvidenceAmerican Jurisprudence Proof of Facts 3dDatabase updated December 2014Categorical List of Articles Establishing Foundation to Admit Computer-Generated Evidence as Demonstrative or Substantive EvidenceLaura Wilkinson Smalley, J.D.*TAB

2、LE OF CONTENTSArticle OutlineScopeIndexResearch ReferencesARTICLE OUTLINEI BackgroundA Preliminary Matters 1 Introduction; scope of article 2 Uses for computer-generated evidence; in general 3 Uses for computer-generated evidence; in generalSpecific uses for computer-generated evidence 4 Creating an

3、d using computer graphics and animationB Foundation for Admission of Computer-Generated Evidence 5 In general 6 Computer-generated evidence not requiring special consideration 7 Challenges to trustworthiness of computer-generated evidence 7.5 ReliabilityC Admission of Computer Animations Into Eviden

4、ce 8 Contrast between animations illustrating lay or expert witness testimony and computer simulations 9 Admission of computer animations; in general 10 Admission of computer animations; in generalLegal standardD Admission of Computer Simulations Into Evidence 11 In general 12 In generalUse of exper

5、t witness 13 Admission of computer simulation into evidence 14 Admission of computer simulation into evidenceLaying factual foundation 15 Admission of computer simulation into evidenceValidity of underlying scientific or technical theories 16 Admission of computer simulation into evidenceAuthenticat

6、ion of computer hardware and software 17 Admission of computer simulation into evidenceTrustworthiness of underlying mathematical models 18 PrejudiceII Model Discovery 19 Discovery considerations; in general 20 Entitlement to disclosure 21 Provisions governing discovery of underlying information 22

7、Plaintiffs interrogatories to defendant 23 Motion in limine to exclude simulation evidenceIII Creation and Admission of Computer-Generated Evidence at Trial 24 Creation of animation or simulation; checklist 25 Admission of computer-generated at trial; checklistIV Admission of Computer Animation at T

8、rialA Lay Witness 26 Introduction 27 Foundation for admissionB Expert Witness 28 Qualifications 29 Background regarding autopsy 30 Foundation for admitting still animationsV Admission of Computer Simulation at Trial 31 Expert witness; qualifications 32 Qualifying expertResearch ReferencesTopic of Ar

9、ticle:Establishing the foundation necessary to admit computer-generated evidence as demonstrative or substantive evidence at trial.This issue may arise in any civil or criminal action where a party seeks to illustrate evidence for the jury via computer simulations or animations, or where a party off

10、ers the simulation or animation as substantive evidence to prove a crucial fact at issue in the litigation.INDEXAccident reconstruction, 3,15Admission as evidence, 2532Admissions by parties, 6Advanced Dynamic Vehicle Simulation (ADVS), 15Animations, generally, 4,810,2430Audio of actual event, using

11、with simulation, 10Aural evidence, retention compared, 2,3,18Authentication, 6,14,16Background discussion, 118Bad faith destruction of evidence, 20Balancing probative value and prejudice, 18Business records, 4CD-ROM, 4Charts, graphs, and diagrams, 6Checklists admission as evidence, 25creating animat

12、ions or simulations, 24Copying simulation, discovery, 19Costs, production, 4Courts pretrial evaluation, 14Criminal defense uses, 2,3Daubert rule, scientific evidence, 15Defense uses, 2Definitions, 9Demonstrative vs substantive evidence, 7,10,11Destruction of evidence, 20Diagrams, 6Disasters, 3Discov

13、ery, 1923Display of programs, 4Do-it-yourself approach, 4DVD, 4Estimating costs, 4Excluding simulations, 23Expert witnesses, 8,10,12,20,2832Factual foundation, 14Fair and accurate representation, standard, 9,10Foundation, generally, 57Frye test, scientific evidence, 15General acceptance standard, sc

14、ientific evidence, 15Graphs, 6Hardware authentication, 16Hearsay, 4,7Illustrative vs substantive evidence, 7,10,11Influential impact, 2,18Input data discovery, 21Input data verification, 16Interrogatories, 22Introduction to article, 1Jury influence, 2,3,18Laser disk, 4Lay witness, animation, 26,27Li

15、mine motions, 23Maps, 5Mathematical trustworthiness, 17Model discovery, 1923Motions in limine, 23Natural disasters, 3Oral evidence, retention compared, 2,3,18Output data, discovery, 20Patent litigation, 3Prejudicial effect, 18Presentation media, 4Pretrial evaluation by court, 14Printouts, business r

16、ecords, 6Professional animation firms, 4Protective orders in discovery, 20Qualifying expert witness, 31,32Reconstructing accidents, 3,15Relevance, 14,18Reliability, 7,17Report of expert, discovery, 20Retention increase, jurors, 2,3,18Rules of evidence, 5Sample interrogatories, 22Sanctions, discovery

17、, 20Scientific basis, 15,17Scope of article, 1Simulations, generally, 8,1118,2325,31,32Software authentication, 16Sophistication of courtroom, electronic, 4Standards for admission, 9Stored data, discovery, 20Substantial similarity standard, 10,14Substantive vs illustrative evidence, 7,10,11Sufficien

18、cy of underlying factual basis, 14Suppressing simulations, 23Techniques of animation, 4Technological sophistication of courtroom, 4Theory validity, 15Third-party graphics software, 4Trustworthiness, 7,17Underlying data, discovery, 21Underlying factual basis, sufficiency, 14Uses of computer-generated

19、 evidence, generally, 2,3Visual impact, 2,3,18Weighing probative value and prejudice, 18I. BackgroundA. Preliminary Matters 1. Introduction; scope of article Cumulative Supplement This article discusses how to establishing the foundation necessary to admit computer-generated evidence, including anim

20、ations or simulations, as demonstrative or substantive evidence at trial. This situation may arise in any civil or criminal action, where a party seeks to illustrate evidence for the jury via computer simulations or animations, or where a party offers the simulation or animation as substantive evide

21、nce to prove a crucial fact at issue in the litigation. Generally, the issue of how to admit computer-generated evidence at trial will begin to surface during expert disclosure, where a party will have to decide how and when the use of computer animations or computer simulations will be disclosed to

22、 the other side. Often, a computer-generated demonstration, simulation or animation will be the subject of a motion in limine, where the proponent of the evidence seeks to ensure its admission, or, more often, where the opposing party will seek to preclude admission of that evidence.This article wil

23、l discuss all aspects of admitting computer-generated animations, simulations and other computer-generated demonstrations into evidence, from a general discussion of the uses of computer-generated evidence,1 creating the animation or simulation,2 evidentiary considerations,3 and discovery considerat

24、ions,4 including a motion in limine to prohibit the use of computer-generated evidence or to ensure its admission at trial.5 Checklists regarding the creation of an animation or a simulation6 and the admission of computer-generated at trial7 are provided. the article concludes with sample testimony

25、used to lay the foundation for the admission of a computer animation8 and a computer simulation9 at trial.CUMULATIVE SUPPLEMENTA.L.R. LibraryAdmissibility of Computer-Generated Animation, 111 A.L.R. 5th 529Cases:Discretion is the enduring constant: Although demonstrative evidence has evolved from st

26、ill photographs, to films, color slides, videotapes, and computer-generated demonstrations, the trial judge must still exercise sound discretion in determining whether the proffered evidence is relevant and if the probative value is substantially outweighed by the danger of unfair prejudice. Rules o

27、f Evid., Rules 401, 403. Eckman v. Moore, 876 So. 2d 975 (Miss. 2004); Wests Key Number Digest, Equity 188.Computer-generated animation evidence, which was created by murder defendants expert witness and admitted for demonstrative purposes only, should not have been given to the jury for its conside

28、ration during deliberations. Cox v. State, 849 So. 2d 1257 (Miss. 2003); Wests Key Number Digest, Criminal Law 858(3).Video animation and other demonstrative evidence that summarize, or perhaps emphasize, testimony are admissible if the underlying testimony has been admitted into evidence, or is sub

29、sequently admitted into evidence. North American Van Lines, Inc. v. Emmons, 50 S.W.3d 103 (Tex. App. Beaumont 2001), rehg overruled, (Aug. 9, 2001) and Rule 53.7(f) motion filed, (Sept. 19, 2001); Wests Key Number Digest, Evidence 150. Top of Section END OF SUPPLEMENT 2. Uses for computer-generated

30、evidence; in general Cumulative Supplement While not all cases are as sensational as the ones described below, computer graphics can have a dramatic impact in the courtroom. A computer animation used to illustrate an experts testimony recreated a hexane explosion in the Louisville, Kentucky sewer sy

31、stem. The expert, a chemical engineer, testified that pollution from a Ralston Purina plant caused the disaster, and a computer animation illustrated his theory of the case. After the jury was shown the video, Ralston Purina settled for more than $68 million dollars.1 While Ralson Purinas true motives in settling are unknown