 Welcome to Evidence for the Trial Judge, a Federal Judicial Center program for United States District and Magistrate Judges. Computer generated visual evidence, Part 2. Computer made animations, simulations, and reconstructions can provide vivid illustrations of events at issue in a case, but they can also give rise to authentication, fairness, hearsay, discovery, daubart, and rule 403 issues. In Part 1 of our program, we discussed two very different examples of this type of evidence. A dramatic reconstruction of an airplane crash admitted as substantive evidence in a negligence case. And at the opposite end of the spectrum, an illustration of how a mechanical device works admitted as demonstrative evidence in a patent case. Continuing our discussion of the issues that arise in connection with computer generated visual evidence are Steven Salzburg, Howie Chair of Trial Advocacy at the George Washington University Law School, who will moderate, United States District Judge Fern Smith of the Northern District of California, Chair of the Judicial Conference Advisory Committee on Evidence Rules, and Gregory Joseph, partner with Friede Frank, Harris Shriver, and Jacobson in New York City, and Chair of the American Bar Association's Litigation Section. So that now takes us to one more of our video segments, which is, this is a segment that we're going to see that involved a fire. And this also has no sound, and this is also a video which we're going to explain while we show it. And Greg, once more, the task of explaining it falls to you. So while we're showing the tape, would you tell us what this is? Sure, Steve. This actually falls somewhere in between the last two, because it is both a recreation of sorts. It's a visualization of testimony. It illustrates a theory, but it ineluctably does give rise to concerns about recreation. What we're seeing is a fuse box, a circuit breaker, and the issue is what caused a fire. This is prepared by the defendant, and the position the defendant takes is that deterioration and maintenance at the back of the fuse box coupled with the way the fuse was removed caused the arcing, which gave rise to the sparking in the fire. This proceeds in real time, visualizing the theory of the expert as to what transpired. Now it really shows more the result of his or her theory. It doesn't purport to show what the employee did, but it shows based upon the expert's reconstruction what he or she believed transpired. This was tried for three and a half months or thereabouts in federal court on the West Coast. I do not have a result, which does not tell me it was decided adverse to the interests of Z-Axis who did prepare this tape. It just tells me I wasn't able to find that information out. Judge Smith, this one of the ones we've seen bothers me the most in some ways because I'm sure if Greg were offering this in your court what he would say is, Judge we're not offering it to show that this is exactly the way it happened, we're offering it to illustrate our theory. The problem is once you show a tape like this in a jury case it seems to me that you've visualized one way something could have happened and it's going to be very difficult if somebody else doesn't have a similar sort of tape for the other side to be able to put forward an alternative that is going to be as understandable and even though it should be to a jury. I mean am I way off on this? Not necessarily and I think you started out, Steve, by saying this falls somewhat in the middle of the three tapes and yet I think you're right that in some ways this is the furthest out because there's the most room to really object or to change the facts and I think as a general concept the more assumptions you put into one of these pieces of evidence and the more you try to link them to causation the more difficult the problems become and so in this particular case I think you'd have to look at what the other side could do. Could the other side do a similar tape but coming to a different conclusion? My guess, Greg, is that this is not at the high level of expense although I haven't kept track with that. You'd also have to see how else the expert could explain this relationship. It is in some ways difficult to explain because you're talking about what happens in a box of circuits and how it's not seen by the human eye and how you think it occurred so it's certainly helpful to the tryer of fact. I think you start with that premise. The next question then is is it so helpful that it's going to bias them unfairly and prevent them from viewing another theory or possible explanation? So this is a case I think where you'd have to talk to the other side, see what it could do, see what your alternatives are and then try to weigh those two competing interests of helpfulness to the jury versus any unfair prejudice. I think that in fact part of the analysis ultimately may be how effective the cross-examination can be in eradicating whatever the prejudicial effect will be and that is something you'll get a feel for the motion and lemonade stage because if there are underlying assumptions which raise issues as to whether there's any merit at all to it, I have to say opposing the tape wouldn't give me great trouble. You just castigated it as a cartoon that bears no relationship to the facts. Right, well and again and I think limiting instructions help here but again I think part of it depends on your philosophical approach to this and I tend to go along with Greg from the standpoint that despite the concern now about unfairness and an imbalance of resources, that's part of the adversarial system. I mean that has existed and will continue to exist as long as we have the system we have. One side has a better lawyer than the other side. One side has the head of microbiology at one of the leading universities and the other side has somebody who took his education through some correspondent school. What are you going to do about that? That is with us. It's part of the system and I'm not sure how far judges should go in trying to correct the balance of power. And I guess that also raises a distinction between civil and criminal cases because we do see more and more often now at least in reported cases which is all we can really assess. So these are being used in criminal cases or being offered anyway and there certainly does seem to be a much stricter scrutiny that's applied to them in that context. Well, let's turn to criminal cases for a second. We've now seen that we've moved from the right to counsel for those who can't afford counsel to the right in some circumstances to a court-appointed expert, particularly mental health experts. Have we moved to the point where you have the right to a court appointed animator or a court-appointed computer generator if the government is going to offer sophisticated evidence? I think that's a big if, but I think that that may be what tilts the balance. If someone were to come in to me without making any showing that the government was going to do something of this sort, I'd be certainly not well-disposed towards saying fine, go out and do this. On the other hand, if the government was going to use a piece of evidence like this and refused to make its resources and background available, then I'd be much more willing to consider it because I think the standard is what would a retained attorney with funds do in such a case? And I think the answer is often he or she would go out and get an expert to do exactly what the government has done and come to a different conclusion. And just as a factual matter, Steve, if one side does make available the software and does make available the exhibit, it's not as though simply by tweaking a few numbers you then have displayed a new animation. There's a great deal of cost in rendering the animation after all of this has been done. So if, Judge Smith, you were to tell someone that based on emotion eliminate a certain portion of it did not reflect the facts that they were going to be introducing and they had to change it, there's a significant amount of lead time that would be necessary were they to choose to do that rather than simply eliminate it because it doesn't all happen automatically at the flick of a switch. The fire scene that we just saw is interesting in one respect and that is the testimony would likely be of an expert, it seems to me, that if you assume that the employee removed the switch in some certain way and if you assume that there was deterioration as Greg described, then a fire could have occurred as this fire occurred. Now, just assume that that's what the expert would say. I wonder what this video actually adds if everything is based on assumptions like that. If it, other than it's adding what it appears to create almost in the minds of the impression that this is the way it really did happen as opposed to possibilities. I mean, that's what gave rise to my concern. If testimony rests on certain assumptions about fact and you have an illustration like this, should we ask the question, do we need this illustration to understand that if two things were true, a fire could occur? Sure. No, I think we definitely need to ask those questions. And I think that goes back to the statement that I made earlier about the fact that the more this is based on assumptions and theory and questions of causation and less on undisputed facts, things that can be replicated, proven, shown, then I think the more problematic the use of this kind of evidence becomes and the easier it is to say, no, I don't think so. This is not going to help assist the jury. This is simply too prejudicial under 403 and. Well, Steve, you know, I mean, that raises a point which Ed Smith has made a couple of times, which is really critical to this. When courts look at these kinds of things, there are a few basic criteria. We talk about it in terms of authentication and hearsay. But if you're looking at the entire issue, you look at how complete the underlying data actually are. How much is being done by way of assumption? How much is known? And the difference between the two videos we've seen in the spray nozzle case, everything is known and verifiable. You could dismantle the device, wasn't doing too well in court, but you could otherwise dismantle the device and actually verify that. You know, how complex are the formulas that are being employed? And again, in an accident reconstruction where you've got weather variables, where you have all sorts of coefficients that are going on in an air crash case, of course, they're three-dimensional that are even more so than on a planar surface like a car case. But that's another one, and the arcing one is certainly both incomplete and very complex. And it's not verifiable without additional testimony. And I'm not going to say that this is not a perfectly fine and admissible tape because there may have been additional verification that would support that theory, which leads the expert to conclude, rather than simply to assume that there was both deterioration and mis-movement, if that's a word by this employee. And lastly, I guess you'd look at how routine this was, either in terms of the software. This would not look like off-the-shelf kind of software, at least unless it was tinkered with a great deal, it wasn't off-the-shelf. Or whether it was done in an ordinary course of business, as so many of the post-Adalbert kinds of cases say, it was clearly prepared for litigation. Interesting, in the tapes we've seen, you've raised a number of issues. There are potentially authentication, as you've said, potentially hearsay, and potentially relevance and prejudicial effect kinds of issues. It seems to me that the 403 issues are the ones that tend to predominate the most in the litigation that we see. Do you agree with that? Yeah, I think that they tend to color the analysis, and they appropriately color the analysis, that if you have a piece of evidence which is likely to have a very substantial impact, and which was prepared to have a very substantial impact, then all the questions about authentication and admissibility come immediately to the fore because you don't want the case to be more likely decided on the basis of a piece of evidence that you're not completely confident in. I think we have to go back to the obvious, which is that no attorney is going to spend in the six figures to create a piece of evidence that could be duplicated or substituted just as easily by a package of documents. They do it for a reason. They do it because it's an incredibly powerful tool. And it has the potential for great good and understanding, but it also has all the problems we've talked about. And I think that if courts are ever going to play a gatekeeper role, this is the kind of place to be playing it. You mentioned the six figures. And let's suppose that Lydian has a case that could be potentially subject to a summary judgment motion. Suppose Lydian were to go through discovery, not have an exhibit like this, survive summary judgment, and then come in and say, judge, I know that we've already done experts and all this, but we're going to trial now. And we'd really like to generate an exhibit that we have not used. Would you be more willing at that stage to say, even though you didn't produce it under Rule 26 before your expert or in connection with your expert report, even though they didn't have it when the expert was deposed, it really makes some sense now to let you do it and not have required you to do it in advance before you knew how I'd rule in summary judgment? I would at least listen to the argument. I'd want to know what prejudice, if any, that brought to the other side, how much that delayed the trial, if at all, what cost is involved, if they were to say, for example, well, we just don't have that much money and we wanted to be sure we got past summary judgment before we expended that kind of money. That's not a bad argument. I think that's worth listening to. And unless the other side, as I say, could say, well, no, this really biases us because. I'd listen. What I might do, for example, is say, OK, go ahead and do it. But when it comes to re-deposing your expert on this issue or re-deposing the other side's expert on this new evidence, you've got to pick up the cost of that. There's a variety of things that I think you can do to make it equitable and meaningful. And I think the bottom line ought to be how do you wind up with the best presentation for a jury to help that jury decide what's really going on in the case? And I think that also highlights how a form pretrial order that at least flags these issues, this kind of evidence may be helpful because that's a kind of presentation that might be made in advance by a potential proponent that this is going to be extremely expensive. We're not going to undertake it. We think we're going to win summary judgment, but we're not sure. Or if we do, we don't have to pay forward if it's a defendant. And it may be something that could be built into the timing for the trial in advance, which would be certainly less disruptive to the court. Exactly. Let me ask you a question, Greg, that has the potential to have a lot of judges angry with you. Why should this be different from the other time we've talked? And the question is this. Suppose you have a big case, and you often do, and a lot of money is at stake, and you're thinking of doing a very fancy video. It's expensive. And you're having to decide, am I going to be able to get this admitted? What do you do in terms of how do you make that the cost-benefit analysis? How do you know whether the odds of getting it in are sufficiently high to justify going forward? What goes through your mind? Well, there are a couple of things. The first thing that I do is I indicate in the expert report that an animation is going to be prepared. So everybody's on notice of that, even if we want to wait until summary judgment. And if we've had occasion to be with the trial judge, or at least if it's a magistrate judge who's conducting the pretrial proceeding, somebody physically for pretrial, which often doesn't happen early in a case. It often happens very late in a case if the party's moving along on their own. I want to address the issue up front and just say, this is going to be an issue that's going to come up. But I also want to at least have an outline that's sufficiently detailed to put the court on notice and to address it to the court. I would prefer to address it to the judge who's going to be making the evidentiary decision. But I'm happy to address it with a magistrate judge if that's the judge who's not going to be trying it, but is hearing the pretrial, so that at least the issue is on the table. And if there's going to be a motion in lemonade, I might make the motion myself, though it's never come to this. But I do want to have at least a feeling that it's not going to be dismissed out of hand. But I have to be able to give sufficient information about it, which itself entails a cost. So those are the kinds of issues. You want to put everybody on notice early. You want to try and get, at least before a substantial funds are expended, a feeling that at least it's not going to be curtly dismissed. And then you have to take your chances, ultimately, because you can never predict what the judge is going to do. I got the sense, though, Judge Smith, see if I'm right about this, that if someone is careful, that is, they ground whatever they're doing in facts that are unlikely to be disputed. It's not a tape based on assumptions, a huge number of assumptions, any one of which, if you change it, changes the outcome, that if you basically are not exaggerating on the tape things, you do them to scale. And if you make efforts to reduce the things that a judge is likely to say, God, that's prejudicial, that the odds, if it really does, assist understanding. Today, the chances of getting this in are probably better than they would have been, say, 10 years ago. I think without a doubt. Part of it is we look to some of the truisms that we've heard all our lives. And one is, one picture is worth 1,000 words, and that's accurate. And I think over the last decade, more and more judges have become accepting of the fact that that is true in the courtroom as well. We're all more and more aware of technology and what can be done. It is more available cost-wise. And so I think the acceptance rate is very high. And I don't think that there's anything wrong with a lawyer, whether it's Greg or somebody else, coming in early in the game saying, I'd like a status conference. And then saying, this is what I plan to do. I plan, would like to go out and have a computer-generated video made on this particular subject. I simply want to alert all the parties and see if there's any prohibition the court has about things like that or anything that either the opposing counsel would like to say or the court would like to say about it. I think that's acceptable. And it's hard for me to believe it's necessary in this day and age. But I'm also aware that there are books on most of us. And if there are judges that have a reputation for being opposed to this kind of evidence, it might not be a bad thing to do. OK, Greg, you're the presenter of the evidence. Your adversary has moved in lemonade unsuccessfully to exclude your video. Judge Smith is going to let it in. Now the question is, how do you want to present it to a jury? Now that you've got it, how do you want the courtroom set up so that a jury actually sees this tape? Assuming, as I do, that many courtrooms, they're not already wired for video. They're not ready for this. What do you suggest, if anything, to the judge about how to do it mechanically? Well, the DABA has new civil trial practice standards in force right now. One of the things they talk about is that the parties ought to be required to confer in advance on any hardware needs they're going to have, because you don't want to have multiple monitors which are only going to show each side's evidence in advance. For something, there are two different ways of doing it. You would like to have a large enough screen close enough to the jury that all six or 12 of them, it's going to be six usually, or eight, whatever the number is, will see it, and it'll have a significant impact. It's always a function of the courtroom size. There are more and more courtrooms of the future, as we have Judge Hogan in the District of Columbia, Judge Barber Doro in the Northeast. I mean, there are a number of those that are being created. And that makes it much easier, because they actually have things like monitors at each juror's, or every other juror's chair, and one for the court, one for counsel. But you would like to have one that you can make sure the jury sees. And if that means you have to bring multiple monitors to put just shortly near the jury box so that each of them can see it, that's important. It doesn't help to have it be so far away or so grainy that they're not able to see what it is you need to have them see. And for example, in the spray nozzle case, that was a small dot, that ball. And it was very important that they'd be able to make that out. My right, Judge Smith, that if parties are going to use this kind of fancy stuff, they probably have to produce in court the equipment they need to generate it rather than depending on the court to do it. Absolutely. My courtroom, for example, while it's has the advantage of size, does not have built-in capability for this type of evidence. And so I assume that the parties will take care of it and would require, at a minimum, a monitor for me, a monitor for opposing counsel, and one or two monitors for the jury, depending upon how big the monitors are. I think also you need to know whether, for example, in the 191 video, there's the transcript of what is being said in the cockpit. If there's something that needs to be read, it has to be closer or larger. As Greg pointed out, in the patent case, there was that very small part that needs to be seen. So I think that needs to be done in advance and is the responsibility of the parties, both as to the cost and as to the mechanics of getting the courtroom set up for it. Which it really is another reason why, or another way in which pre-trial orders can be adjusted to take into account something like the civil trial practice standard to say, lawyers, you work on it, but you come to us at a certain prescribed point with the plan of what you're going to do, because, Judge, you may have a problem with what they want to do ultimately, but at least they'll have given the time attention and the cost-benefit analysis to it. Well, now we have seen an introduction to this program. We've seen three different segments. We've seen an airline case, we've seen a patent case, we've seen the reconstruction of a fire. And I think it's probably fair to say that while we've talked about some potential problems with a couple of these, that none of the tapes we've seen involve awful exaggeration or the kinds of things that immediately get your back up. I think we're going to turn now to see a tape, which I think is unique, because it defies the law of nature. We are going to see a recreation of an automobile accident in which a guardrail is so smart that if you watch it carefully, you will see it moves before it is hit by either vehicle. Now, Ted Smith, after that earthquake, I guess they're putting in guardrails on down in California, aren't they? That's right, flexible guardrails. Now, what we've seen is obviously a bad animation. That guardrail can't move, at least not like that before a vehicle hits it. Let's suppose, however, that the party that made it said, Judge, we're offering it only to illustrate the vehicles, the path of the vehicles, and we actually weren't concerned with the guardrail. Is it possible that you'd still admit it? Well, it is possible, because as I understand it, the guardrail really isn't the issue in the case. The issue in the case is the automobile accident. If the issue in the case were the guardrail, then I'd be far less inclined to admit it. So I would wanna know what the opposing side said. If I were the opposing lawyer, I might want it in, because then I'd love to get up and make mincemeat of this videotape that has this moving guardrail, if I wanted to discount the veracity of the tape in general and make light of it. So I would ask the other side, it's hard for me to see that there's anything terribly prejudicial about this, because as I say, it's not the issue in the case. So it would really depend on everybody's reaction. You agree with that? That in fact, the judge could still let this in, depending on the nature of the case, the issues involved. And there may or may not be a limiting instruction that this is only being offered to show a version, one party's version of how the accident happened. The guardrail might even be identified specifically by the court and say that pops out beforehand doesn't make any difference because that's not relevant to the case. And it again, it illustrates the importance of limiting instructions as you mentioned before, Judge Smith. Assuming that we take the guardrail problem out, that kind of a video, that's the kind that you can generate pretty readily these days, using off the shelf packages, isn't it? That's pretty much the case. The issue is that you have to plug in all the variables and make sure that the software is appropriate to do that. There's one note of caution I would add to this. If this is based essentially on eyewitness accounts or parties version, the number of variables that you can affect without the person who is the authenticator, even noticing it is probably immense because any number of small things can be changed, which would make fractional, minimal changes to the way that happened, yet to an observer who saw it happen in a second, he or she could not tell that anything had changed. So I just note that when you're relying on eyewitness testimony, that's an important factor to take into account when you're looking at if it's under dispute or if it's a rule 403 kind of issue, whether that thing ought to be coming in. Just wanna ask you this question and see if there's maybe a follow-up for Judge Smith and that is if you have an expert who's gonna give an opinion, but he or she is not the person who actually prepares the video, do you try to depose that person who physically did the preparation of the video to see what it is that they did exactly in preparing it? If my expert tells me there's something suspect about it, if it's only going to be purely illustrative, much like the spray nozzle example that we saw was, I probably would not bother, unless there was something wrong with that, but if it's a recreation, you'd be much more inclined to do that because remember, it's not only the expert's theory that has to satisfy Daubert, the person who actually translates that theory into the complex formulas that give rise to an animation also has to do that in accordance with either accepted scientific practice or at least in a way that's helpful under Rule 702. That does lead me to this question. It sort of brings us right back to where we started and probably a good place to end. If someone other than the expert who's going to testify prepares a video and in the 26A report that is followed by the expert, the expert says I'm gonna use a video to illustrate my opinion. Is it necessary, do you think, for the party also to have a report of the person who prepared the video or is the expert enough? I think the expert is probably enough initially, but if the other side then said, we would like to depose or to know about the person who prepared it, I would certainly give them that right to do so. I think that's a fair point because that is really not a consulting expert. That is data that's been relied upon by the expert who's testifying in aid of his or her testimony. Exactly, it's the underlying data. But let me just make two other comments in closing. I think while we've talked a lot about protecting jurors and about fairness, I think we need to underscore two things that are critical in the use of these kinds of exhibits. One is that juries today are also more sophisticated than they used to be. They watch television, they go to movies, they've seen all sorts of special effects, and they know just how much can be made up out of fantasy. And so they tend to be somewhat skeptical at times. And the other thing is that in my opinion, at least a withering cross examination can still be one of the most powerful tools that there is in getting across an opposing viewpoint. And this doesn't obviate either of those. Well, that completes our program for today. On behalf of the Federal Judicial Center, I'd like to thank Judge Smith and Gregory Joseph for being with us today. And also thank you for watching. Last but not least, we hope you'll take a moment to fill out the program evaluation form in your materials. As your feedback is important to us and plays an important role in the design of these programs. Thanks again and good day.