by Robert Ambrogi - Editor
BullsEye Newsletter: May 2006
If a picture is worth a thousand words, then a
computer-generated animation is no doubt a powerful courtroom
tool. But while the use of CGAs is becoming more common in trials
to illustrate the testimony of expert witnesses, their admissibility
in many states remains uncertain.
That is why a landmark April 25 decision from the Pennsylvania
Supreme Court upholding experts' use of CGAs is certain to reverberate
in courtrooms throughout the United States.
The court held that a CGA is admissible evidence and is to be
weighed by the same criteria of admissibility as other evidence –
probative value versus prejudicial effect. But the court said
that certain concerns prior to admission carry more weight and
deserve closer scrutiny for CGAs than for more traditional forms
of evidence.
The court also decided that because a CGA is a graphic illustration
of an expert's reconstruction rather than a simulation based
on computerized calculations, it is not subject to the test governing
admissibility of scientific evidence established under Frye
v. United States, 293 F. 1013 (D.C. Cir. 1923). Still, the
underlying expert opinion that the animation illustrates must
satisfy the standards for admissibility of expert testimony.
While Pennsylvania is not the first court to rule on the admissibility
of CGAs, it is one of only a few. Coming from the state's highest
court, the decision is likely to provide a platform for future
courts to decide the issue.
Computer Animation
A CGA is a series of computer-created drawings that, when assembled
frame-by-frame, produce the image of motion. "The image
is merely a graphic representation depicting the previously formed
opinion of a witness or witnesses," the court's opinion
said.
It is distinct from a computer-generated simulation, which uses
software to analyze data and reach a conclusion, the court noted.
"A CGA is only as credible as the underlying testimony that
it represents and the computer plays no part in calculating an
outcome or presenting its own conclusions."
The CGA in issue was used in the first-degree murder trial of
Michael Serge, who was found guilty of killing his wife. Before
trial, the prosecution sought permission to use the CGA to illustrate
the opinions of two experts, a forensic pathologist and a crime
scene reconstructionist.
The trial judge ruled that he would allow the CGA, provided the
prosecution authenticated it as a fair and accurate depiction
of the expert reconstructive testimony, excluded any inflammatory
features that could cause unfair prejudice, and provided it to
the defense before trial.
At trial, the court twice instructed the jury about the purely
demonstrative nature of the CGA, once before it was presented
and again during the jury charge prior to deliberation. The judge
told the jury that the CGA was a demonstrative exhibit, not substantive
evidence, and that it was being offered solely as an illustration
of the prosecution's version of the events.
"The court informed the jury that they should not confuse art with reality
and should not view the CGA as a definitive recreation of the actual incident," the
Supreme Court recounted.
After the defendant was found guilty of first-degree murder,
he appealed. The Supreme Court took the case solely on the issue
of the admissibility of the CGA, a question it had never decided.
Three-Pronged Test
In beginning her analysis for the Supreme Court, Justice Sandra
Schultz Newman noted that judges must "shed any technophobia
and become more willing to embrace the advances that have the
ability to enhance the efficacy of the legal system." But
she quickly added that even though CGAs represent new technology,
the rules for analyzing their admission are the same as those
that govern traditional forms of demonstrative evidence.
It analogized these experts' use of CGAs to chalk diagrams or
sketches on a blackboard. "The difference is one of mode,
not meaning. The law does not, and should not, prohibit proficient
professional employment of new technology in the courtroom. This
is, after all, the twenty-first century."
Applying these traditional rules, the court said that the CGA
satisfied the requirements of its three-pronged test for admissibility –
it was properly authenticated, was relevant, and its probative
value was not outweighed by the danger of unfair prejudice.
But the court added a new factor for judges to consider when
evaluating a CGA: the dangers and benefits this type of demonstrative
evidence presents as compared with more traditional forms. Given
this, the Supreme Court said, a trial court should issue limiting
instructions to the jury explaining the nature of the specific
CGA.
With respect to authentication, the court said that the prosecution
properly laid the foundation showing that the CGA was what it
purported to be, "a depiction of the various testimonies
of the Commonwealth witnesses concerning their theory about the
chain of events."
As to the CGA's relevance, the court found that it was. "[I]t
clearly, concisely, and accurately depicted the Commonwealth’s
theory of the case and aided the jury in the comprehension of
the collective testimonies of the witnesses without use of extraneous
graphics or information."
The court then turned to the question of prejudice, where the
court said the CGA had the greatest potential danger because
of its visual nature. But the court found that the CGA used in
this case "was neither inflammatory nor unfairly prejudicial." Any
prejudice in the visual depiction was not the fault of the CGA,
the court said, "but rather was inherent to the reprehensible
act of murder."
If there is danger in using a CGA, it can be mitigated through
cautionary jury instructions, the court said. "Although
limiting instructions may not be necessary, such cautionary instructions
limit the prejudice or confusion that could surround a CGA."
Noting that the trial judge cautioned the jury twice – once
when the CGA was shown and again in his jury charge – the
court said he "duly minimized any possible prejudice by
insisting that the jury not make more of the CGA than what it
was –
an illustration of expert witness testimony."
Based on this analysis, the court affirmed the trial court's
decision to allow the CGA.
The case is Commonwealth v. Serge, Case No. J-37-2005
(April 25, 2006).
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