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LPBA Summer 1997 Meeting

Virginia Beach, VA


Summer Meeting in Virginia Beach a Success

By Joe Gawrys, immediate Past-President of LBPA

In July our Association held one of its most successful meetings. One hundred and seventy seven persons were in attendance, arriving in personal airplanes (34 airplanes), by commercial air and by private automobiles. Even some West Coast members flew their personal airplanes to the meeting.

It officially began on July 9 at the Cavalier Hotels in Virginia Beach, Virginia with a meeting of your Executive Committee at 2:30 pm, followed by a meeting of the Board of Directors and a reception that evening. The reception was held on what had been the outdoor ballroom of the historic Cavalier Beach Club with a splendid view of the Atlantic Ocean. The Honorable Meyera Oberndorf, mayor of the city of Virginia Beach was in attendance with her husband, Roger, and welcomed our members. She and her husband traveled across the state to be with us at our banquet on Saturday evening.

Your program chairman, Tim Cook, presided over another outstanding CLE program with topics ranging from ethics, courtroom demeanor , to air navigation. Tim deserves a sincere "well done" for the programs he organized for our winter and summer meetings. At our business meeting, the report of the nominating committee was accepted and the following were unanimously elected: President-Elect - Cecile Hatfield; Secretary - Errol Kantor; Treasurer - James Pokorny.

Following the end of the morning meetings on Friday, over eighty attendees participated in a luncheon cruise on a vessel called the Discovery which took our members on a cruise of picturesque Linkhorn and Broad Bays. This was arranged by Leigh Gawrys.

Seventeen of our members participated in the spot landing contest which was held at the Hampton Roads Airport. The winners were: 1st place - Tom Comerford; 2nd place - Ed Booth, Jr.; and 3rd place (a tie) - Susan Hofer and John Yodice (the defending champion).

In addition to our usual functions, we had a tour of the Naval Air Station Oceana, a master jet base, on Friday, and a tour of the Aircraft Carrier U.S.S. George Washington on Saturday afternoon. The Oceana tour including a briefing at the Landing Signal Officers' School where the briefers explained how landing signal officers are trained to help carrier pilots land on aircraft carriers and a "hands on" inspection of an F-14D fighter aircraft. In addition, five (5) of our members were lucky enough to each get a period in the F-14D simulator. These events were arranged by new member, Peter Pierce, who was conscripted into service by your then president shortly after Peter sent in his application. He and his lovely wife, Leilani, served as "tour guides" for the Oceana and Carrier tours.

With our CLE Program in the morning, the luncheon cruise at noon, the Oceana tour and the spot landing contest scheduled for 3:30 in the afternoon, Friday was an extremely busy day. We had to cancel the tennis matches.

Our golf tournament was held at the Naval Air Station Oceana and the commanding officer invited us to utilize the Officers' Club. Our members took advantage of that invitation on both Thursday and Friday. In addition, some of our members visited the Virginia Marine Science Museum in Virginia Beach, one of the ten best such museums in the country; Busch Gardens, near Williamsburg; and various other places of interest, not to mention relaxing on the beautiful beach and swimming in the Atlantic Ocean.

Our Saturday banquet included a disc jockey for music and dancing as well as a shag dancing exhibition also arranged by Leigh Gawrys. The shag dancers gave lessons to our members and were a big hit.

John Yodice and Karen Griggs who did so much in the planning stages, Leigh Gawrys, Peter and Leilani Pierce, Tim Cook, Marty Weiss (golf chair), Greg Winton (spot landing contest chair), Gloria Jones (your past president's secretary who assisted Karen at the meeting) and so many others who worked very hard to make this meeting a success, deserve our gratitude and thanks. In addition, I especially want to thank the 177 persons who attended because, by their presence and participation, they made it a wonderful meeting.

Virginia Beach-CLE Seminars

The Summer 1997, meeting in Virginia Beach, Virginia, included Arthur W. Hankin, Esquire's Computer Update on Computer Generated Evidence illustrated with a videotape consisting of successive versions of a computer-generated simulation of an aircraft accident which explained the complex physics which disabled the airplane's Emergency Locator Trasmitter, which (the plaintiffs alleged) caused a delay in rescue efforts.

LPBA member and Association Director Arthur W. Hankin, Esq. is a partner in the Philadelphia, PA, office of Blank, Rome, Comisky & McCauley. Mr. Hankin concentrates his practice in commercial litigation with substantial emphasis upon matters arising from aviation, commercial transportation, cable industry, medical malpractice, insurance coverage, and contracts. He maintains a national practice in the representation of aviation interest serving as counsel in numerous major airline matters. He was assisted in the preparation of this presentation by his colleague, David Straite, Esq.

Using Computer-Generated Visual
Evidence in Pennsylvania Courts

I. Introduction

It has become almost cliche‚ to say that the rapid pace of technological innovation will change the face of the law. Indeed, this cliche is often proved wrong, as the denizens of tradition and inertia have tenuously clung to habit and custom. But to some degree, it is true that technology, and computers in particular, have revolutionized our profession in ways that we are just beginning to understand.

One of the more difficult problems created by the intersection of computer technology and the law concerns the use and admissibility of computer animation or other types of computer-generated evidence. The importance and effectiveness of computer animation in the courtroom, in the appropriate case, cannot be overstated. The computer allows the lawyer to present vast amounts of data in an effective, easily-comprehendible, highly "persuasive format" which often takes the form of flashy visual images that move with a distinctive computer-animation feel, and which instantly enhances the credibility of almost any evidence. The Pennsylvania Supreme Court, however, recently voiced concern over the layman's tendency to be "seduced by the magic and technology" of the computer, and recognized that the complexity of computer technology, coupled with the ability of the computer to lend credibility to the presentation of evidence, "presents a real danger . . . of introducing erroneous, misleading, or unreliable evidence."

Despite the unique advantages and dangers presented by computer animation in the courtroom, Pennsylvania has not yet statutorily addressed the particular evidentiary difficulties created by computer-generated evidence. Additionally, although our state Supreme Court in 1989 called for a rules committee to "enlist the assistance of competent, qualified computer experts to prepare a report to this Court and to draft proposed guidelines" to deal with the problems inherent in computer animation, no such guidelines have, to this author's knowledge, been issued. However, as this paper will hopefully illustrate, such rules or guidelines are probably not necessary. Instead, practitioners and the courts should view the computer merely as a tool or a vehicle (albeit a uniquely effective one) for the presentation of other evidence, the admissibility of which has already been circumscribed by existing rules of evidence.

II. Rules of Admissibility

When exploring the admissibility of a particular item of computer-generated evidence in Pennsylvania state courts, the first and most helpful inquiry should be into the purpose and nature of the evidence. Computer-generated evidence can be divided into two broad categories: scientific evidence and demonstrative evidence. The implications of each will be discussed in turn.

A. Scientific evidence

Many times computers offer what is essentially an expert opinion. Such was the case in Commonwealth v. Klinghoffer, the only Pennsylvania Supreme Court case to address this topic. In Klinghoffer, the defendant was charged with vehicular homicide when his car swerved into oncoming traffic. During the course of the trial, the speed of the defendant's car at the time of the accident became a crucial issue. By feeding various data into an accident reconstruction program known as "Applecrash," the Commonwealth was able to determine that the defendant was traveling at about 75 miles per hour at the time of the crash. In essence, the computer program was an expert witness offering expert opinion.

In this case, it is important to note that the computer was not used as a tool to package the presentation other evidence, as would be the case with demonstrative evidence. Here, the computer generated a whole new item of data which was the product of existing data and a complex algorithm. The "conclusion" of the computer was presented from the witness stand to the jury in the time-honored tradition of oral testimony from a serious-looking and presumably trustworthy scientist.

When a computer is used to generate a conclusion, the courts will regard the evidence as both scientific evidence and expert opinion. As scientific evidence, the computer program which generates the calculation or conclusion must first pass the Frye test. This test, first articulated in 1923 in Frye v. United States and adopted as the law in Pennsylvania, requires that "a piece of scientific evidence must have gained general acceptance in the particular field in which it belongs." In essence, the party wishing to introduce the computer-generated evidence must lay a proper foundation establishing that computers are generally accepted in the applicable field. It should be noted that the Frye test used by the Pennsylvania courts is more restrictive than the Daubert test, which merely considers general acceptability to be one of many factors which impact on admissibility. Nevertheless, given the ubiquitousness of computers in just about every aspect of life today, it is difficult to imagine a scenario where the computer is not generally accepted within the relevant scientific field. Indeed, in Klinghoffer, the Pennsylvania Supreme Court did not even address the Frye test, and apparently just assumed that computers are generally accepted in the field of accident reconstruction.

Once a proper foundation has been established under Frye, the party offering the computer-generated evidence must then proceed with the evidence in the same manner as expert testimony. For instance, courts may not permit a witness to relay a computer's conclusory calculations without first having the program available for the scrutiny of opposing counsel for use and cross-examination. Further, like expert reports, the offering party must make the computer program available in advance of trial "so that the adverse party will have an opportunity to examine and test the inputs, program and outputs prior to trial."

This mandate from the state's highest court that the computer program be shared sufficiently in advance of trial presents a real problem if the trial court does not issue an appropriate scheduling order. What does the non-offering party do if the computer program is not shared prior to trial? Perhaps, even in the absence of a scheduling order, a non-offering party could successfully argue against admissibility in that it was fatally prejudiced by the inability to properly test the computer program. Indeed, the Klinghoffer opinion supports this view, because the Court explicitly stated that "[b]ecause of the computer's ability to package hearsay and erroneous or misleading date in an extremely persuasive format . . . this rule should be strictly adhered to whenever expert testimony is predicated upon specially prepared computerized calculations or simulations." From the prospective of the offering party, prudence dictates that the Klinghoffer opinion not be tested, and any computer program used to generate a conclusion or calculation should be shared with the opposing party to avoid unnecessary complications at trial.

Finally, when computer-generated evidence is offered as expert scientific evidence, special attention should be given to the rules of hearsay. In this context, a special danger exists that the evidence might be hearsay within hearsay, which can be attacked at each layer. This danger is more easily recognizable in the computer business records scenario, which is not the subject of this paper, but which is, technically speaking, "computer-generated evidence." For instance, the FAA generates reports known as "service difficulty reports," which are compilations of reported difficulties with various avionics components. The FAA compiles these reports, and offers them to the public. Such reports are inadmissible at trial unless the offering party can establish the trustworthiness of each level of potential hearsay.

First, the party must establish that the FAA entries are accurate. This might entail producing data entry personnel from the FAA to testify as to the procedures for entering the accumulated data. Second, the party must establish that the information relayed to the FAA in the first place was credible, which might even require producing the mechanic or pilot who actually reported the difficulty. If the reports are offered in bulk to demonstrate a pattern of difficulty with a particular avionics component, it becomes nearly impossible to address this burden and to overcome the double-hearsay problem.

When a computer calculation is offered as expert evidence, the danger of double-hearsay may not be as noticeable. First, the jury must hear from a human what the computer concluded. This testimony is hearsay testimony, although not intuitively. Hearsay is generally regarded to be "an out-of-court statement offered to prove the truth of the matter asserted." We instinctively do not view machines such as computers capable of making "statements," because the justifications for the hearsay rule, such as the lack of an oath and the danger of lying, are seemingly not present in the case of non-human declarants. For example, the actions of tracking dogs are not statements capable of being hearsay for precisely this reason, and a witness may testify as to his observations of the tracking dogs without running afoul of the hearsay rules. The computer statement, however, lacks a sufficient guarantee of trustworthiness because it is a conclusion based on an algorithm designed by a human. Indeed, the Klinghoffer court noted that when a computer is programmed to produce a result or calculation specifically for litigation, its result is "hearsay and conclusary."

It is thus clear that the offering party must establish the trustworthiness of the computer conclusion which is presented to a fact-finder, and the non-offering party would do well to attack the program as offering insufficient indicia of reliability. Additionally, there potentially exists a second level of hearsay that the offering party must overcome. In the Klinghoffer example, the court only addressed the first level of hearsay, focusing only on the program which generated the conclusion. However, the computer program cannot generate anything unless someone has entered data into the computer. Like the FAA example, the non-offering party should explore the accuracy of the inputted data, and test whether the data was accurately entered.

Most importantly, computer-generated expert opinion potentially offers yet a third level of hearsay. Even if the algorithm in the computer is deemed to be reliable and trustworthy, and even if the relevant inputs were entered accurately, the non-offering party should test the base reliability of the data sought to be entered. In Klinghoffer, the conclusion that the vehicle was traveling at 75 miles per hour was based on certain observations made by humans regarding the damage to the vehicles, the post-accident positions the vehicles, the mass and composition of each vehicle, and so forth. The reports of these observations are potentially faulty and should be tested and subject to cross-examination.

However, it is important to note that because the computer calculation might be treated as "expert testimony," the data entered into the program and relied upon to generate the conclusion possibly need not be entirely admissible evidence itself. Instead, the courts might hold by analogy that the data upon which the "expert" computer relies must merely be supported by the evidence in the record. For instance, it is well-established that a doctor may offer expert testimony based on a hearsay statement of an earlier treating physician. Thus, if the computer is treated as an expert by analogy, the focus in this third level of hearsay is not really on hearsay, but on the factual evidence in the record which supports the computer's "expert opinion."

Regardless of whether the computer is an "expert" and whether the factual basis for the computer's "opinion" must be admissible evidence or merely facts appearing in the record, the non-offering party quite clearly may and should test the factual evidence which forms the basis of the inputs in the computer model. No matter how sophisticated the computer program, the Klinghoffer Court reminds us of the old adage, "garbage in -- garbage out," and if the initial observations which form the basis for the inputs are faulty, no computer program can generate admissible results.

B. Demonstrative Evidence

When a computer is used to aid a witness in the presentation of otherwise admissible evidence, the computer-generated evidence is known collectively as "demonstrative evidence," and will not be subject to the rigorous requirements of admissibility imposed on scientific evidence. However, demonstrative evidence in turn consists of two sub-groups: illustration and re-creation. It is important to categorize the evidence properly from the outset, because the rules of admissibility will differ according to the classification chosen.

It has long been the case that Pennsylvania courts will allow witnesses to use diagrams and illustrations to aid in the presentation of their testimony. When the illustration is properly used during the testimony, it becomes a part of the witness's testimony, admitted into evidence, and included in the record on appeal. To be admitted, an illustration need only be relevant and authenticated.

The inquiry into relevance is usually limited to whether the illustration is accurate, which merely means supported by the record (and presumably by logic and common sense as well). The testimony being illustrated will also have its own requirements for relevancy, but once that hurdle is cleared, the illustration itself apparently need only be accurate to be relevant.

Authentication, like relevance, is usually not difficult to establish for illustrations. However, authentication should not be overlooked. In Commonwealth v. Al Hamilton Contracting Co., the Department of Environmental Resources, in its prosecution of the defendant for alleged acid discharge from certain surface mining operations, wished to introduce a computer-enhanced contour map of the discharge areas. The court held that the map with the computer-generated contour lines was not scientific evidence, but merely demonstrative evidence, illustrating otherwise admissible evidence. However, the Department failed to sufficiently authenticate the map with the computer contour lines, and thus the map was excluded from evidence.

To authenticate a computer-generated illustration, the requirements of relevancy and authentication are essentially the same. As stated, relevancy is determined almost exclusively by whether the illustration is accurate, unless the illustration is presented in such a way as to be inflammatory or otherwise unfairly prejudicial. To authenticate, a witness need only state that the illustration is a fair and accurate representation of that which the illustration seeks to depict. Indeed, the authenticating witness need not be the person who created the illustration, but need only be one who has sufficient knowledge of the illustration to verify that it is accurate. Thus, when one witness is used to testify that the illustration is a fair and accurate representation, both the requirements of accuracy and authentication are rebuttably met.

If the computer-generated evidence is not merely an illustration of the evidence being presented and is actually a re-creation of an event, the rules of admissibility become somewhat more complex. An item of computer-generated evidence is properly deemed an illustration when the image presented to the jury simply depicts visually that which the witness is attempting to describe. Common examples could be photographs or charts, or even depictions on a chalk board. Regardless of the form, however, the rules of evidence do not change just because the medium of a computer is used to display or otherwise enhance the presentation. But when the computer is used to simulate past events or hypothetical events, the evidence is a re-creation, and more care must be used in determining whether the evidence should be admitted.

Pennsylvania courts have never actually addressed the requirements for the admission of re-creations, computer-generated or otherwise, although the Superior Court recently was careful to note that it considers illustrations and re-creations to be distinct. A re-creation, unlike an illustration, seeks to simulate for the jury an image or set of images which the offering party intends to represent a past reality. Thus, the re-creation is a more powerful tool than the illustration, because the jury will be instructed that the re-creation is more akin to fact, not opinion.

Although the courts in Pennsylvania have never addressed the requirements for admissibility of computer-generated re-creations, federal courts have seemed to reach a consensus that a re-creation must strictly adhere to the conditions of the past event. At this time, there is no reason to believe that Pennsylvania courts would follow a different standard. The federal standard of strict adherence creates a difficult burden for the offering party, especially when the conditions to which the offering party must strictly adhere are in dispute. At this time it is not clear how closely the re-creation must adhere to the conditions, and what effect a factual dispute will have on the admissibility of the re-creation.

III. The Special Problem of Computer Animation

Many types of computer-generated evidence fit neatly into the pre-existing categories of evidence delineated above. For instance, the "Applecrash" calculation of the defendant's speed was clearly scientific evidence, because it was itself a conclusory item of data created by the computer. However, computer animation potentially could be classified as either scientific or demonstrative evidence, or as an illustration or re-creation. Because of the vast potential to mislead a jury via computer animation, great care must be given to properly analyzing the purpose and nature of the animation before it is categorized. Failure in this regard could result in the offering party enjoying the benefits and advantages of one category without satisfying the requirements necessary to ensure the credibility and reliability of the evidence.

Not long ago, our firm was faced with just such a situation. In 1993, a Piper Cherokee Six crashed into a mountain ridge between Johnstown and Latrobe, Pennsylvania. The unusual path of the plane during the crash sequence caused the tailcone to violently wrap around a tree, crushing the ELT (Emergency Locator Transmitter) mounted in the rear of the plane. One defense expert calculated that the ELT was subjected to 2700 G forces. The ELT failed to emit an emergency signal, and tragically, the injured pilot was not discovered in time to save his life. The Pilot's estate and family sued the manufacturer of the ELT, alleging that it was defective. They argued that the ELT should have been designed and manufactured to survive the accident. It thus became crucial to the case to determine the amount of force actually exerted on the ELT.

With this goal in mind, both sides created computer animation videos to illustrate for the jury how the crash occurred. From the outset, we were forced to determine whether to proceed with the animation as demonstrative evidence or scientific evidence. In our case, the animation likely could have been either, because the computer program used to generate the animation arguably was generating a conclusion -- not a raw figure as in Klinghoffer, but instead an entire crash sequence and path. This sequence, like the speed calculation in Klinghoffer, was a product of a computer program and a long series of inputs. Thus, the computer arguably offered an item of expert testimony, and the computer program and the data entry would have been subject to inspection prior to trial by the plaintiffs.

However, the animation arguably could have been characterized as demonstrative evidence, specifically an illustration. In the case, we employed accident reconstruction experts who calculated the G-forces sustained by the ELT, and this calculation was based in part on the dynamics of the estimated crash sequence. Thus, the animation could be said to be an illustration of these experts' opinions. In this case, it might have been a superior tactic to characterize the animation as an illustration, because the program and the data inputs used to generate the animation might not be subject to inspection by the plaintiff; as long as the expert testifies that the animation fairly and accurately depicts his expert testimony, the illustration can be admitted, barring any inflammatory or unfairly prejudicial aspects of the presentation. There is unfortunately some uncertainty in this area, because the Klinghoffer court held that its requirements for admissibility should be adhered to "whenever expert testimony is predicated upon specially prepared computerized calculations or simulations." The unclear language here is "or simulations," which could include demonstrative evidence.

If, however, the strict standards of Klinghoffer do not apply to demonstrative evidence, it would be wise for an offering party to try to characterize the animation as demonstrative evidence. Under such a characterization, the non-offering party would not have the right to test the computer program and data used to create the animation. Yet, the animation conveys the same data, and has the same impact on the jury. Although the jury will not be informed that the computer depiction is an expert calculation of the crash sequence, they will be told that the animation illustrates an expert's version of the sequence, which arguably has the same weight.

A third option would have been to try to characterize the animation as a re-creation. As such, the animation would have been required to strictly adhere to the conditions of the crash. In our case, many of the facts regarding the crash sequence were in dispute, and Pennsylvania courts have not addressed whether a re-creation is even admissible if based in part on disputed facts. The federal courts have been rather strict in this area, and given the impact of a re-creation, such an approach is sensible. When a jury is told that computer animation is re-creating an accident, it is more likely that the jury will interpret the animation as fact. As an illustration of expert testimony, the jury will be instructed that the animation illustrates an opinion. Perhaps this distinction is subtle and overestimates the sophistication of an average jury. Perhaps, however, it does not, and given this potential, courts should handle re-creations more strictly, and thus cautious offering parties should avoid trying to characterize their animation as a re-creation.

Our recent experience described above taught us that computer animation is best introduced as an illustration of expert testimony. As an illustration, the animation likely must only be relevant and authenticated, which could easily be done by the expert witness. The computer program and inputted data (likely) need not be shared, yet the animation is no less effective. There is a danger, though, that an offering party might try to offer the animation as an illustration to assist lay testimony. This attempt is fraught with complications which are best avoided by the use of an expert. Experts can render opinions and can base those opinions on hearsay statements. Lay witnesses for the most part cannot render opinions, and certainly cannot incorporate hearsay statements.

Illustrations of expert opinion are also superior to re-creations, because they are not subject to the intense requirement of "strict adherence to the conditions of the accident." Furthermore, it is doubtful whether a computer-animated re-creation could even be constructed without an expert. In other contexts, it would be possible for counsel or a lay witness to engage in simple experiments and reconstructions to demonstrate basic ideas of physics and logic to the jury. For instance, in a case involving an accident between an automobile and a train, one jury was shown a videotape of a re-creation involving a model train and model car. The re-creation was admissible subject only to the requirement that it strictly adhere to the conditions of the accident, as well as other basic requirements such as relevance and hearsay. In the context of computer-generated evidence, however, the technology involved is infinitely more complex than model train sets. Animated images of crash sequences cannot be created without painstaking data entry and an animation program. It thus seems unlikely that computer animation could even be used properly as a re-creation without an expert. However, if an expert is employed in constructing a re-creation, the offering party would avoid the "strict adherence" requirement if the animation merely illustrated the expert's opinion.

In our recent airplane crash case discussed above, the plaintiffs also procured computer animation to depict the accident. In their animation, the only data from the crash scene used by the animators were the location of tree strikes and the location of the wreckage on the ground. The airplane was then "moved," somewhat like a model train would be moved, in a best-guess fashion, with an assumed path to fit the observations. When the animation was analyzed, we noticed that the plane was shown actually to accelerate midway through an otherwise rapid-deceleration crash sequence. At another point, a wing mysteriously flew unscathed through the trunk of a tree as if either the wing or tree was an apparition.

When we raised our concerns of accuracy to the plaintiffs, we were informed that the animation was not scientific evidence, but merely demonstrative evidence, and thus did not need to be perfectly accurate. However, it is unclear how the plaintiffs intended to establish admissibility. They were correct that the animation could not be scientific evidence, because the program did not generate any conclusion. The flight path was actually entered by the animators, and was not generated by an algorithm based on data inputs. Therefore, if admissible at all, the animation would have to be demonstrative evidence.

It is not clear, however, that the animation could have been admitted as demonstrative evidence either. As a re-creation, the animation must strictly adhere to the evidence. In the "re-creation" offered by the plaintiffs, the animators had the wing passing through a solid object, and the rapidly decelerating plane was depicted as suddenly and inexplicably accelerating briefly. These mistakes were clearly not supported by the evidence, nor even by basic laws of physics, although it is possible that the plaintiffs could have argued that despite a few flaws and rough edges, the basic crash sequence was accurate enough not to be misleading. Likewise, the plaintiffs would have had problems admitting the animation as an illustration. The sequence as presented by the plaintiffs was not generated by an expert, and thus could not illustrate any of their expert testimony. Further, even if computer animation could in theory illustrate lay testimony, the plaintiff's animation illustrated an assumed crash path, which was not actually observed by any lay witnesses.

Because the case settled immediately prior to trial, these difficulties were never addressed by the court. However, even if the animation were admissible, its value was in doubt. The credibility of a witness is seriously challenged when the jury is shown a tape with the plane traveling through solid objects. The animation offended basic notions of common sense, and it is possible that the plaintiff's animation could have actually hurt their case. Parties evaluating the admissibility of their animation should keep in mind that sometimes, even if inaccuracies in the animation do not bar the admission, prudence perhaps should.

IV. Conclusion

Computer-generated evidence, and computer animation in particular, can be a powerful tool for litigators. In some cases, the magnitude of the advantage created by the animation is so great that the computer must be considered an essential element of the case. However, due to the extraordinary expense associated with computer animation, before the evidence is generated, litigators would be wise to first consider the nature and purpose of the evidence and map a path of admissibility. If the evidence is scientific evidence, meaning that the computer program generates a conclusory calculation or simulation, the strict requirements of the Pennsylvania Supreme Court's Klinghoffer opinion apply. If the evidence is instead demonstrative, the offering party should decide early on whether to offer a re-creation or an illustration. Because the requirements for each can differ markedly, the offering party should carefully weigh the advantages and disadvantages of each category and be careful to conform the animation to the chosen category. Keeping these concerns in mind will keep unwelcome surprises to a minimum, and allow the litigator to take full advantage of the evidentiary potential of the computer.

LPBA member and Association Director Arthur W. Hankin, Esq. is a partner in the Philadelphia, PA, office of Blank, Rome, Comisky & McCauley. Mr. Hankin concentrates his practice in commercial litigation with substantial emphasis upon matters arising from aviation, commercial transportation, cable industry, medical malpractice, insurance coverage, and contracts. He maintains a national practice in the representation of aviation interest serving as counsel in numerous major airline matters. He was assisted in the preparation of this presentation by his colleague, David Straite, Esq.

Using Computer-Generated Visual
Evidence in Pennsylvania Courts

I. Introduction

It has become almost cliche‚ to say that the rapid pace of technological innovation will change the face of the law. Indeed, this cliche is often proved wrong, as the denizens of tradition and inertia have tenuously clung to habit and custom. But to some degree, it is true that technology, and computers in particular, have revolutionized our profession in ways that we are just beginning to understand.

One of the more difficult problems created by the intersection of computer technology and the law concerns the use and admissibility of computer animation or other types of computer-generated evidence. The importance and effectiveness of computer animation in the courtroom, in the appropriate case, cannot be overstated. The computer allows the lawyer to present vast amounts of data in an effective, easily-comprehendible, highly "persuasive format" which often takes the form of flashy visual images that move with a distinctive computer-animation feel, and which instantly enhances the credibility of almost any evidence. The Pennsylvania Supreme Court, however, recently voiced concern over the layman's tendency to be "seduced by the magic and technology" of the computer, and recognized that the complexity of computer technology, coupled with the ability of the computer to lend credibility to the presentation of evidence, "presents a real danger . . . of introducing erroneous, misleading, or unreliable evidence."

Despite the unique advantages and dangers presented by computer animation in the courtroom, Pennsylvania has not yet statutorily addressed the particular evidentiary difficulties created by computer-generated evidence. Additionally, although our state Supreme Court in 1989 called for a rules committee to "enlist the assistance of competent, qualified computer experts to prepare a report to this Court and to draft proposed guidelines" to deal with the problems inherent in computer animation, no such guidelines have, to this author's knowledge, been issued. However, as this paper will hopefully illustrate, such rules or guidelines are probably not necessary. Instead, practitioners and the courts should view the computer merely as a tool or a vehicle (albeit a uniquely effective one) for the presentation of other evidence, the admissibility of which has already been circumscribed by existing rules of evidence.

II. Rules of Admissibility

When exploring the admissibility of a particular item of computer-generated evidence in Pennsylvania state courts, the first and most helpful inquiry should be into the purpose and nature of the evidence. Computer-generated evidence can be divided into two broad categories: scientific evidence and demonstrative evidence. The implications of each will be discussed in turn.

A. Scientific evidence

Many times computers offer what is essentially an expert opinion. Such was the case in Commonwealth v. Klinghoffer, the only Pennsylvania Supreme Court case to address this topic. In Klinghoffer, the defendant was charged with vehicular homicide when his car swerved into oncoming traffic. During the course of the trial, the speed of the defendant's car at the time of the accident became a crucial issue. By feeding various data into an accident reconstruction program known as "Applecrash," the Commonwealth was able to determine that the defendant was traveling at about 75 miles per hour at the time of the crash. In essence, the computer program was an expert witness offering expert opinion.

In this case, it is important to note that the computer was not used as a tool to package the presentation other evidence, as would be the case with demonstrative evidence. Here, the computer generated a whole new item of data which was the product of existing data and a complex algorithm. The "conclusion" of the computer was presented from the witness stand to the jury in the time-honored tradition of oral testimony from a serious-looking and presumably trustworthy scientist.

When a computer is used to generate a conclusion, the courts will regard the evidence as both scientific evidence and expert opinion. As scientific evidence, the computer program which generates the calculation or conclusion must first pass the Frye test. This test, first articulated in 1923 in Frye v. United States and adopted as the law in Pennsylvania, requires that "a piece of scientific evidence must have gained general acceptance in the particular field in which it belongs." In essence, the party wishing to introduce the computer-generated evidence must lay a proper foundation establishing that computers are generally accepted in the applicable field. It should be noted that the Frye test used by the Pennsylvania courts is more restrictive than the Daubert test, which merely considers general acceptability to be one of many factors which impact on admissibility. Nevertheless, given the ubiquitousness of computers in just about every aspect of life today, it is difficult to imagine a scenario where the computer is not generally accepted within the relevant scientific field. Indeed, in Klinghoffer, the Pennsylvania Supreme Court did not even address the Frye test, and apparently just assumed that computers are generally accepted in the field of accident reconstruction.

Once a proper foundation has been established under Frye, the party offering the computer-generated evidence must then proceed with the evidence in the same manner as expert testimony. For instance, courts may not permit a witness to relay a computer's conclusory calculations without first having the program available for the scrutiny of opposing counsel for use and cross-examination. Further, like expert reports, the offering party must make the computer program available in advance of trial "so that the adverse party will have an opportunity to examine and test the inputs, program and outputs prior to trial."

This mandate from the state's highest court that the computer program be shared sufficiently in advance of trial presents a real problem if the trial court does not issue an appropriate scheduling order. What does the non-offering party do if the computer program is not shared prior to trial? Perhaps, even in the absence of a scheduling order, a non-offering party could successfully argue against admissibility in that it was fatally prejudiced by the inability to properly test the computer program. Indeed, the Klinghoffer opinion supports this view, because the Court explicitly stated that "[b]ecause of the computer's ability to package hearsay and erroneous or misleading date in an extremely persuasive format . . . this rule should be strictly adhered to whenever expert testimony is predicated upon specially prepared computerized calculations or simulations." From the prospective of the offering party, prudence dictates that the Klinghoffer opinion not be tested, and any computer program used to generate a conclusion or calculation should be shared with the opposing party to avoid unnecessary complications at trial.

Finally, when computer-generated evidence is offered as expert scientific evidence, special attention should be given to the rules of hearsay. In this context, a special danger exists that the evidence might be hearsay within hearsay, which can be attacked at each layer. This danger is more easily recognizable in the computer business records scenario, which is not the subject of this paper, but which is, technically speaking, "computer-generated evidence." For instance, the FAA generates reports known as "service difficulty reports," which are compilations of reported difficulties with various avionics components. The FAA compiles these reports, and offers them to the public. Such reports are inadmissible at trial unless the offering party can establish the trustworthiness of each level of potential hearsay.

First, the party must establish that the FAA entries are accurate. This might entail producing data entry personnel from the FAA to testify as to the procedures for entering the accumulated data. Second, the party must establish that the information relayed to the FAA in the first place was credible, which might even require producing the mechanic or pilot who actually reported the difficulty. If the reports are offered in bulk to demonstrate a pattern of difficulty with a particular avionics component, it becomes nearly impossible to address this burden and to overcome the double-hearsay problem.

When a computer calculation is offered as expert evidence, the danger of double-hearsay may not be as noticeable. First, the jury must hear from a human what the computer concluded. This testimony is hearsay testimony, although not intuitively. Hearsay is generally regarded to be "an out-of-court statement offered to prove the truth of the matter asserted." We instinctively do not view machines such as computers capable of making "statements," because the justifications for the hearsay rule, such as the lack of an oath and the danger of lying, are seemingly not present in the case of non-human declarants. For example, the actions of tracking dogs are not statements capable of being hearsay for precisely this reason, and a witness may testify as to his observations of the tracking dogs without running afoul of the hearsay rules. The computer statement, however, lacks a sufficient guarantee of trustworthiness because it is a conclusion based on an algorithm designed by a human. Indeed, the Klinghoffer court noted that when a computer is programmed to produce a result or calculation specifically for litigation, its result is "hearsay and conclusary."

It is thus clear that the offering party must establish the trustworthiness of the computer conclusion which is presented to a fact-finder, and the non-offering party would do well to attack the program as offering insufficient indicia of reliability. Additionally, there potentially exists a second level of hearsay that the offering party must overcome. In the Klinghoffer example, the court only addressed the first level of hearsay, focusing only on the program which generated the conclusion. However, the computer program cannot generate anything unless someone has entered data into the computer. Like the FAA example, the non-offering party should explore the accuracy of the inputted data, and test whether the data was accurately entered.

Most importantly, computer-generated expert opinion potentially offers yet a third level of hearsay. Even if the algorithm in the computer is deemed to be reliable and trustworthy, and even if the relevant inputs were entered accurately, the non-offering party should test the base reliability of the data sought to be entered. In Klinghoffer, the conclusion that the vehicle was traveling at 75 miles per hour was based on certain observations made by humans regarding the damage to the vehicles, the post-accident positions the vehicles, the mass and composition of each vehicle, and so forth. The reports of these observations are potentially faulty and should be tested and subject to cross-examination.

However, it is important to note that because the computer calculation might be treated as "expert testimony," the data entered into the program and relied upon to generate the conclusion possibly need not be entirely admissible evidence itself. Instead, the courts might hold by analogy that the data upon which the "expert" computer relies must merely be supported by the evidence in the record. For instance, it is well-established that a doctor may offer expert testimony based on a hearsay statement of an earlier treating physician. Thus, if the computer is treated as an expert by analogy, the focus in this third level of hearsay is not really on hearsay, but on the factual evidence in the record which supports the computer's "expert opinion."

Regardless of whether the computer is an "expert" and whether the factual basis for the computer's "opinion" must be admissible evidence or merely facts appearing in the record, the non-offering party quite clearly may and should test the factual evidence which forms the basis of the inputs in the computer model. No matter how sophisticated the computer program, the Klinghoffer Court reminds us of the old adage, "garbage in -- garbage out," and if the initial observations which form the basis for the inputs are faulty, no computer program can generate admissible results.

B. Demonstrative Evidence

When a computer is used to aid a witness in the presentation of otherwise admissible evidence, the computer-generated evidence is known collectively as "demonstrative evidence," and will not be subject to the rigorous requirements of admissibility imposed on scientific evidence. However, demonstrative evidence in turn consists of two sub-groups: illustration and re-creation. It is important to categorize the evidence properly from the outset, because the rules of admissibility will differ according to the classification chosen.

It has long been the case that Pennsylvania courts will allow witnesses to use diagrams and illustrations to aid in the presentation of their testimony. When the illustration is properly used during the testimony, it becomes a part of the witness's testimony, admitted into evidence, and included in the record on appeal. To be admitted, an illustration need only be relevant and authenticated.

The inquiry into relevance is usually limited to whether the illustration is accurate, which merely means supported by the record (and presumably by logic and common sense as well). The testimony being illustrated will also have its own requirements for relevancy, but once that hurdle is cleared, the illustration itself apparently need only be accurate to be relevant.

Authentication, like relevance, is usually not difficult to establish for illustrations. However, authentication should not be overlooked. In Commonwealth v. Al Hamilton Contracting Co., the Department of Environmental Resources, in its prosecution of the defendant for alleged acid discharge from certain surface mining operations, wished to introduce a computer-enhanced contour map of the discharge areas. The court held that the map with the computer-generated contour lines was not scientific evidence, but merely demonstrative evidence, illustrating otherwise admissible evidence. However, the Department failed to sufficiently authenticate the map with the computer contour lines, and thus the map was excluded from evidence.

To authenticate a computer-generated illustration, the requirements of relevancy and authentication are essentially the same. As stated, relevancy is determined almost exclusively by whether the illustration is accurate, unless the illustration is presented in such a way as to be inflammatory or otherwise unfairly prejudicial. To authenticate, a witness need only state that the illustration is a fair and accurate representation of that which the illustration seeks to depict. Indeed, the authenticating witness need not be the person who created the illustration, but need only be one who has sufficient knowledge of the illustration to verify that it is accurate. Thus, when one witness is used to testify that the illustration is a fair and accurate representation, both the requirements of accuracy and authentication are rebuttably met.

If the computer-generated evidence is not merely an illustration of the evidence being presented and is actually a re-creation of an event, the rules of admissibility become somewhat more complex. An item of computer-generated evidence is properly deemed an illustration when the image presented to the jury simply depicts visually that which the witness is attempting to describe. Common examples could be photographs or charts, or even depictions on a chalk board. Regardless of the form, however, the rules of evidence do not change just because the medium of a computer is used to display or otherwise enhance the presentation. But when the computer is used to simulate past events or hypothetical events, the evidence is a re-creation, and more care must be used in determining whether the evidence should be admitted.

Pennsylvania courts have never actually addressed the requirements for the admission of re-creations, computer-generated or otherwise, although the Superior Court recently was careful to note that it considers illustrations and re-creations to be distinct. A re-creation, unlike an illustration, seeks to simulate for the jury an image or set of images which the offering party intends to represent a past reality. Thus, the re-creation is a more powerful tool than the illustration, because the jury will be instructed that the re-creation is more akin to fact, not opinion.

Although the courts in Pennsylvania have never addressed the requirements for admissibility of computer-generated re-creations, federal courts have seemed to reach a consensus that a re-creation must strictly adhere to the conditions of the past event. At this time, there is no reason to believe that Pennsylvania courts would follow a different standard. The federal standard of strict adherence creates a difficult burden for the offering party, especially when the conditions to which the offering party must strictly adhere are in dispute. At this time it is not clear how closely the re-creation must adhere to the conditions, and what effect a factual dispute will have on the admissibility of the re-creation.

III. The Special Problem of Computer Animation

Many types of computer-generated evidence fit neatly into the pre-existing categories of evidence delineated above. For instance, the "Applecrash" calculation of the defendant's speed was clearly scientific evidence, because it was itself a conclusory item of data created by the computer. However, computer animation potentially could be classified as either scientific or demonstrative evidence, or as an illustration or re-creation. Because of the vast potential to mislead a jury via computer animation, great care must be given to properly analyzing the purpose and nature of the animation before it is categorized. Failure in this regard could result in the offering party enjoying the benefits and advantages of one category without satisfying the requirements necessary to ensure the credibility and reliability of the evidence.

Not long ago, our firm was faced with just such a situation. In 1993, a Piper Cherokee Six crashed into a mountain ridge between Johnstown and Latrobe, Pennsylvania. The unusual path of the plane during the crash sequence caused the tailcone to violently wrap around a tree, crushing the ELT (Emergency Locator Transmitter) mounted in the rear of the plane. One defense expert calculated that the ELT was subjected to 2700 G forces. The ELT failed to emit an emergency signal, and tragically, the injured pilot was not discovered in time to save his life. The Pilot's estate and family sued the manufacturer of the ELT, alleging that it was defective. They argued that the ELT should have been designed and manufactured to survive the accident. It thus became crucial to the case to determine the amount of force actually exerted on the ELT.

With this goal in mind, both sides created computer animation videos to illustrate for the jury how the crash occurred. From the outset, we were forced to determine whether to proceed with the animation as demonstrative evidence or scientific evidence. In our case, the animation likely could have been either, because the computer program used to generate the animation arguably was generating a conclusion -- not a raw figure as in Klinghoffer, but instead an entire crash sequence and path. This sequence, like the speed calculation in Klinghoffer, was a product of a computer program and a long series of inputs. Thus, the computer arguably offered an item of expert testimony, and the computer program and the data entry would have been subject to inspection prior to trial by the plaintiffs.

However, the animation arguably could have been characterized as demonstrative evidence, specifically an illustration. In the case, we employed accident reconstruction experts who calculated the G-forces sustained by the ELT, and this calculation was based in part on the dynamics of the estimated crash sequence. Thus, the animation could be said to be an illustration of these experts' opinions. In this case, it might have been a superior tactic to characterize the animation as an illustration, because the program and the data inputs used to generate the animation might not be subject to inspection by the plaintiff; as long as the expert testifies that the animation fairly and accurately depicts his expert testimony, the illustration can be admitted, barring any inflammatory or unfairly prejudicial aspects of the presentation. There is unfortunately some uncertainty in this area, because the Klinghoffer court held that its requirements for admissibility should be adhered to "whenever expert testimony is predicated upon specially prepared computerized calculations or simulations." The unclear language here is "or simulations," which could include demonstrative evidence.

If, however, the strict standards of Klinghoffer do not apply to demonstrative evidence, it would be wise for an offering party to try to characterize the animation as demonstrative evidence. Under such a characterization, the non-offering party would not have the right to test the computer program and data used to create the animation. Yet, the animation conveys the same data, and has the same impact on the jury. Although the jury will not be informed that the computer depiction is an expert calculation of the crash sequence, they will be told that the animation illustrates an expert's version of the sequence, which arguably has the same weight.

A third option would have been to try to characterize the animation as a re-creation. As such, the animation would have been required to strictly adhere to the conditions of the crash. In our case, many of the facts regarding the crash sequence were in dispute, and Pennsylvania courts have not addressed whether a re-creation is even admissible if based in part on disputed facts. The federal courts have been rather strict in this area, and given the impact of a re-creation, such an approach is sensible. When a jury is told that computer animation is re-creating an accident, it is more likely that the jury will interpret the animation as fact. As an illustration of expert testimony, the jury will be instructed that the animation illustrates an opinion. Perhaps this distinction is subtle and overestimates the sophistication of an average jury. Perhaps, however, it does not, and given this potential, courts should handle re-creations more strictly, and thus cautious offering parties should avoid trying to characterize their animation as a re-creation.

Our recent experience described above taught us that computer animation is best introduced as an illustration of expert testimony. As an illustration, the animation likely must only be relevant and authenticated, which could easily be done by the expert witness. The computer program and inputted data (likely) need not be shared, yet the animation is no less effective. There is a danger, though, that an offering party might try to offer the animation as an illustration to assist lay testimony. This attempt is fraught with complications which are best avoided by the use of an expert. Experts can render opinions and can base those opinions on hearsay statements. Lay witnesses for the most part cannot render opinions, and certainly cannot incorporate hearsay statements.

Illustrations of expert opinion are also superior to re-creations, because they are not subject to the intense requirement of "strict adherence to the conditions of the accident." Furthermore, it is doubtful whether a computer-animated re-creation could even be constructed without an expert. In other contexts, it would be possible for counsel or a lay witness to engage in simple experiments and reconstructions to demonstrate basic ideas of physics and logic to the jury. For instance, in a case involving an accident between an automobile and a train, one jury was shown a videotape of a re-creation involving a model train and model car. The re-creation was admissible subject only to the requirement that it strictly adhere to the conditions of the accident, as well as other basic requirements such as relevance and hearsay. In the context of computer-generated evidence, however, the technology involved is infinitely more complex than model train sets. Animated images of crash sequences cannot be created without painstaking data entry and an animation program. It thus seems unlikely that computer animation could even be used properly as a re-creation without an expert. However, if an expert is employed in constructing a re-creation, the offering party would avoid the "strict adherence" requirement if the animation merely illustrated the expert's opinion.

In our recent airplane crash case discussed above, the plaintiffs also procured computer animation to depict the accident. In their animation, the only data from the crash scene used by the animators were the location of tree strikes and the location of the wreckage on the ground. The airplane was then "moved," somewhat like a model train would be moved, in a best-guess fashion, with an assumed path to fit the observations. When the animation was analyzed, we noticed that the plane was shown actually to accelerate midway through an otherwise rapid-deceleration crash sequence. At another point, a wing mysteriously flew unscathed through the trunk of a tree as if either the wing or tree was an apparition.

When we raised our concerns of accuracy to the plaintiffs, we were informed that the animation was not scientific evidence, but merely demonstrative evidence, and thus did not need to be perfectly accurate. However, it is unclear how the plaintiffs intended to establish admissibility. They were correct that the animation could not be scientific evidence, because the program did not generate any conclusion. The flight path was actually entered by the animators, and was not generated by an algorithm based on data inputs. Therefore, if admissible at all, the animation would have to be demonstrative evidence.

It is not clear, however, that the animation could have been admitted as demonstrative evidence either. As a re-creation, the animation must strictly adhere to the evidence. In the "re-creation" offered by the plaintiffs, the animators had the wing passing through a solid object, and the rapidly decelerating plane was depicted as suddenly and inexplicably accelerating briefly. These mistakes were clearly not supported by the evidence, nor even by basic laws of physics, although it is possible that the plaintiffs could have argued that despite a few flaws and rough edges, the basic crash sequence was accurate enough not to be misleading. Likewise, the plaintiffs would have had problems admitting the animation as an illustration. The sequence as presented by the plaintiffs was not generated by an expert, and thus could not illustrate any of their expert testimony. Further, even if computer animation could in theory illustrate lay testimony, the plaintiff's animation illustrated an assumed crash path, which was not actually observed by any lay witnesses.

Because the case settled immediately prior to trial, these difficulties were never addressed by the court. However, even if the animation were admissible, its value was in doubt. The credibility of a witness is seriously challenged when the jury is shown a tape with the plane traveling through solid objects. The animation offended basic notions of common sense, and it is possible that the plaintiff's animation could have actually hurt their case. Parties evaluating the admissibility of their animation should keep in mind that sometimes, even if inaccuracies in the animation do not bar the admission, prudence perhaps should.

IV. Conclusion

Computer-generated evidence, and computer animation in particular, can be a powerful tool for litigators. In some cases, the magnitude of the advantage created by the animation is so great that the computer must be considered an essential element of the case. However, due to the extraordinary expense associated with computer animation, before the evidence is generated, litigators would be wise to first consider the nature and purpose of the evidence and map a path of admissibility. If the evidence is scientific evidence, meaning that the computer program generates a conclusory calculation or simulation, the strict requirements of the Pennsylvania Supreme Court's Klinghoffer opinion apply. If the evidence is instead demonstrative, the offering party should decide early on whether to offer a re-creation or an illustration. Because the requirements for each can differ markedly, the offering party should carefully weigh the advantages and disadvantages of each category and be careful to conform the animation to the chosen category. Keeping these concerns in mind will keep unwelcome surprises to a minimum, and allow the litigator to take full advantage of the evidentiary potential of the computer.

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