IV. Significance

A. Why Do We Need Clear Rules for Computer Animations and Simulations?

Both computer animations and simulations can have a profound effect on a jury.43 The information that can be communicated by these visual methods is extremely memorable for a jury and can also facilitate jury understanding of the witness's testimony.44 Moreover, computer animations and simulations are effective ways to grab a jury's attention. Additionally, using a well-known medium makes the jury comfortable.45 Some analysts consider animations and simulations to be less expensive, faster, and easier to understand, as well as particularly effective because of their ability to hold the attention of the jury.46

While there are benefits to using computer animations and simulations, there are also certain inherent dangers that increase the need for clear evidence rules.47 First, animations and simulations have the potential to be too influential on the jury-Americans are accustomed to receiving visual information through media like televisions and may be more accepting of the testimony delivered in such a way.48 For example, the jury may accept a computer-animated depiction of an eyewitness's testimony as fact rather than a personal account subject to doubts and judgments of the witness's credibility.49 However, some commentators have faith in the ability of the jury to separate fact from testimony and argue that judges should allow such evidence while instructing the jury not to “overvalue” the evidence.50 In other words, “judges need to be reminded that Rule 403 should be employed 'sparingly' . . . .”51 Other commentators believe that the unfair prejudice rule in Rule 403 is (and should remain) extremely important, because dissimilarities between testimonies and opinions are not always depicted in animations and simulations and can therefore be misleading or confusing to the jury.52

Another inherent danger in using computer animations and simulations is that some images are too powerful and can play on a jury's emotions, fears, or repulsions.53 For example, an animation depicting “facial expressions, blood, or sounds like screams or gunshots” may be overly graphic and thus be unfairly prejudicial.54 One final danger is that, “animations and simulations that contain subtleties such as human gestures emulating emotion are likely unduly prejudicial because they cannot generally represent such features with sufficient accuracy.”55

One final consideration regarding the use of computer simulations as evidence is that they might not be admitted.56 Developing computer animations and simulations for court is very expensive-“complex animations can range in cost from $50,000 to over $100,000.”57 The danger lies in having the computer-generated evidence excluded for any of the five reasons Lorraine explained,58 including violation of the unfair prejudice rule or failure to be authenticated.59 If the evidence is excluded, the client loses that entire investment and the weight of that evidence in court.60 For these reasons lawyers need to take every possible precaution to ensure that the computer animation or simulation has met applicable admissibility standards.

B. How Does Lorraine “Move Forward” by Addressing These Dangers?

The Lorraine court took a fairly progressive approach towards unfair prejudice in computer animations and simulations.61 As noted above, one of the reasons the court gave for non-admission is that “there is a substantial risk that the jury may mistake them for the actual events in the litigation.”62 The evidence may be unfairly prejudicial if there is a “confusion of the issues, or misleading [of] the jury.”63 The court acknowledged the risk that juries will mistake the animation or simulation for the actual events, or that it could be “distracting, confusing, or emotionally charged,”64 but advised that cautionary instructions to juries could overcome these problems.65 This confidence in cautionary instructions is why the court required that judges be given a high degree of discretion in determining admissibility of electronic evidence, thus advising that the exclusion of evidence under Rule 403 should be used sparingly.66 Lorraine's adoption of this permissive approach may permit animations and simulations to become more widely accepted in the future.67

C. How Does Lorraine “Move Backward” in Addressing Some Issues of Authentication of Computer Simulations?

Lorraine correctly stated that “[c]omputer simulations are treated as a form of scientific evidence, offered for a substantive, rather than demonstrative purpose.”68 However, Lorraine hardly mentioned that the rules of admitting scientific evidence are governed by Federal Rules of Evidence 702 and 703,69 and this omission could be confusing to a lawyer looking to Lorraine as an authoritative and all-inclusive guide. Furthermore, the federal test for the admissibility of scientific evidence is explained in Daubert v. Merrill Dow Pharmaceuticals, Inc.,70 whereby “[t]he factors to be considered are . . . whether there has been a particular degree of acceptance [of the scientific program] within the relevant scientific community.”71 Lorraine failed to mention the Daubert test.72 Instead, the court pointed to the Massachusetts state standard that the program must be generally accepted by the appropriate community of scientists.73 “General acceptance in the particular field in which it belongs” is less flexible for purposes of admissibility than Daubert's “particular degree” of acceptance.74 The term “general acceptance” may be designed to “keep out non-established, or 'junk' science, [but] it also would keep out new, innovative scientific techniques . . . until they became established (or 'generally accepted'), necessarily placing courts one step behind society.”75 By failing to mention the more progressive Daubert test for computer simulations, Lorraine made a serious omission and took an overly conservative approach which could mislead attorneys who are wondering which standard applies in their jurisdiction.76 This heightened standard goes against the technological trend (as evidenced by the federal Daubert test) and dampens the hopes that the admission of simulations as scientific evidence will become more commonplace (and without such difficult standards to overcome).77