After spending time, effort and money to produce an animation that will support a key point of your case (or disprove a key point of your opponents’ case), you want to make sure the jury actually gets to see your animation. This post will discuss a couple of recent California decisions where videos were not admitted, and draw some lessons from those decisions.
Offer Your Video as an Animation, Not a Simulation
If you want to use a computer-created video in court, you must first understand the legal difference between an animation and a simulation. As the California Supreme Court explained in People v. Duenas, 55 Cal.4th, 1, 23 (2012):
“Animation is merely used to illustrate an expert’s testimony while simulations contain scientific or physical principles requiring validation. Animations do not draw conclusions; they attempt to recreate a scene or process, thus they are treated like demonstrative aids. Computer simulations are created by entering data into computer models which analyze the data and reach a conclusion.” Id. (internal citations omitted).
Getting an “animation” before the jury is much easier than getting a “simulation” before the jury. Under Duenas, an animation is admissible with the expert’s foundation that the animation accurately demonstrates his or her opinion. In contrast, seeking to have your video admitted as a simulation is more difficult. To lay the foundation for the admission of a simulation, anyone who worked in creating the video will likely need to testify as to how the video was made, and you would have to show that the underlying facts of the case are accurately depicted.
In most cases, getting the video in front of the jury to show your expert’s version of events will give you the opportunity to make a visual argument to persuade the jury. As a practical matter, whether the jury understands the video to be demonstrative or substantive evidence seems a lesser concern. While the characterization of the evidence will undoubtedly play some role in how the jury weighs the video, trying to have it admitted as a simulation (substantive evidence), increases the risk that the jury won’t see it at all.
Your Expert Must Use the Correct Terminology
A recent case illustrates that expert witnesses must understand the important legal distinction between animations and simulations, and not use the terms loosely or incorrectly. Your expert should adopt and use the correct terminology throughout all phases of the case, including depositions.
In Maseba v. Mosqueda (Cal. App. 5th App. Dist. Oct. 30, 2013) (unpublished), a recent unpublished opinion applying Duenas, a trial court correctly excluded video evidence where the expert referred to the evidence as “the true state of affairs” and insisted, even during the deposition, that it was a “simulation” not an “animation.” An expert must understand that while she has created a reconstruction of an event, it is her opinion of how the event occurred, and referring to the video as a simulation or suggesting that it definitely shows circumstances at the time, creates a higher bar of admissibility. When trying to admit a video as a simulation, the testimony of the expert alone is insufficient; anyone who worked on the creation of the video must also need to testify—making admission of the video more complex.
If, for tactical reasons, you choose to assert that a video is a simulation of the underlying facts, be prepared to present anyone who worked on creating the model in order to lay the proper foundation, including the technical person who designed the video.
The Animation Should Represent the Totality of Your Expert’s Testimony
Another recent case illustrates that when your expert’s opinion is that an event or process could have happened in more than one way, it is important that the video depict your expert’s opinion in its totality.
A temptation in creating an animation is to portray the event in the way most favorable to your case, and not focus on other aspects of the expert’s opinion. If you choose that route, however, your video may be excluded because while it would be consistent with your expert’s opinion, it would not represent the totality of your expert’s opinion. See King v. Kennedy, (Cal. App. 2nd App. Dist., Oct. 8, 2013) (unpublished) (where the expert opinion was consistent with the animation, but also with other scenarios not represented in the animation, the Appeals Court determined that it was not an abuse of discretion for the trial judge to exclude such evidence under Evid. Code Sec. 352). This means that if your expert admits there are a couple of different ways in which something may have occurred, be sure to cover them all in the animation so as not to “cherry pick” the one you like the most.
Conclusion and More to Read
Any animation requires careful attention to detail for purposes of admissibility, but following the holdings of these cases is a good starting point to get animations admitted.
For more on admissibility of animations under Duenas, see Morgan Smith’s earlier posts “What Attorneys Need to Know About the Cal. Supreme Court’s Important Ruling on Animation Admissibility” and “Demonstrative Evidence: Half the Battle Is Keeping Out the Other Side’s.” We also invite you to browse samples of animations used in litigation in our portfolio.
We welcome Amy Golden as a research attorney at Cogent Legal and a new author for this blog. Amy formerly worked as staff attorney at the federal Ninth Circuit Court of Appeals from 2004-2010, and as an associate at O’Melveny & Myers LLP. She received her J.D. from the University of California, Berkeley – School of Law (“Boalt”).
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