Lindsay Kemp 1

Lorraine v. Markel may have a profound impact on the world of electronic evidence admissibility for its guidance to lawyers, but in the area of computer animations and simulations, it carries a mixed message. The opinion takes a progressive approach to the unfair prejudice standard, granting broad discretion to courts to admit computer animation and simulation into evidence. However, the opinion takes a conservative approach to the treatment of computer simulations as scientific evidence. Lorraine's real effect is yet to be seen, but its on-the-fence approach to computer animations and simulations may cause confusion. Lawyers should therefore use extra caution in meeting all relevant standards when introducing these forms of evidence.

Cite as 9 NC JOLT Online Ed. 16 (2007) | Download PDF

I. Introduction

Imagine you have been involved in a car accident-you were rear-ended while waiting at a red light. Your entire negligence claim against the driver who hit you hinges on his speed at the time of the accident. You invest thousands of dollars in computer simulation evidence, which uses a computer program that generates scientific evidence of the driver's speed based on the laws of physics and the data entered into the computer, such as the extent of the damage done to your car.2 Sadly, however, your lawyer has failed to admit this computer simulation into evidence properly, and your money and your proof are gone. Perhaps your lawyer was negligent in his duties, or perhaps he was legitimately confused as to what to do in this situation. If only your lawyer had had an authoritative source explaining what evidentiary rules apply to computer simulations, he may have been able to avoid his confusion and subsequent failure. A recently decided case, Lorraine v. Markel,3 may or may not be the authoritative source on computer animations and simulations that he needs.

Most legal commentators would agree that “[t]he age of electronic evidence has arrived.”4 Lawyers may also be entering an age in which they must exercise heightened levels of care in submitting and authenticating electronic evidence.5 Lorraine has been heralded as “an excellent guide to an important aspect of the care that may be or become necessary when parties attempt to offer electronic information into evidence.”6 The case exposes the less-than-acceptable standard of care that at least part of the legal community is exercising concerning the admission of electronic evidence.7 Along with the ease and familiarity of internet and computer resources, which have led to a more informal tone in everyone's personal and business lives,8 lawyers have taken this informality into the courtroom by neglecting the Federal Rules of Evidence for electronic evidence.9 What remains to be seen in the wake of Lorraine is what new level of care lawyers will exercise when submitting electronic evidence, as well as where Lorraine is an effective guide and where it is not.

While Lorraine has been accepted for its educational value to lawyers and judges regarding admissibility standards of electronic evidence,10 it is not the purpose of this recent development to prove the case's impact on the many forms of such evidence.11 Rather, this piece explains why clear admissibility rules for computer animations and simulations are necessary and discusses how Lorraine sends mixed messages about the future of the admissibility of computer animation and simulations.