III. Summary of Legal Development

A. What Lorraine Means to Electronic Evidence in General

The Lorraine court did more than merely dismiss motions for summary judgment. By refusing to make a judgment without having authenticated evidence attached to the party's motions,19 the court set an example of heightened judicial scrutiny regarding the admissibility of electronic evidence.20 More importantly, the court used the opportunity presented by the case to set out an authoritative opinion that will guide the future actions of lawyers and judges.21

The Lorraine court first delineated the basic rules for the admissibility of all types of electronic evidence, explaining that the evidence must be: 1) relevant; (2) authenticated; (3) allowable under the hearsay rules; (4) allowable under the original writing (best evidence) rule; and (5) the probative value of such evidence cannot be outweighed by any unfair prejudice.22 Lorraine then discussed authentication guidelines for several specific types of electronic evidence, including computer animations and simulations.23

B. What are Computer Animations and Simulations?

A computer animation is “the display of a sequence of computer-generated images.”24 One commentator explains the difference between animations and simulations: “An 'animation' used for demonstrative purposes is often referred to simply as an animation, while an 'animation' used as substantive evidence is often referred to as a simulation.”25 Thus, animations are simply visual representations used to illustrate a witness's testimony. Simulations are submitted as substantive evidence, however, because they are “based on scientific or physical principles and data entered into a computer, which is programmed to analyze the data and draw a conclusion from it . . . .”26

C. What Lorraine Says About Computer Animations and Simulations

The Lorraine court explained how other courts have treated computer animations in the past. In general, courts “have allowed the admission of computer animations if authenticated by testimony of a witness with personal knowledge of the content of the animation, upon a showing that it fairly and adequately portrays the facts . . . .”27 In Lorraine, he court clarified that, according to past cases, the unfair prejudice rule28 is not violated if the animation is “sufficiently close to the actual events and is not confused by the jury for the real life events themselves.”29 In keeping with the purpose of providing a guide for lawyers in submitting electronic evidence (and here, computer animations) for admissibility, the court wrote that the most common and useful ways for authentication are by (1) witnesses with personal knowledge testifying to its authenticity30 and (2) testimonies of expert witnesses.31

Concerning computer simulations, offered as substantive evidence, the court emphasized the rule in Commercial Union v. Boston Edison,32 which determined that simulations should be treated like scientific tests, whereby the lawyer must show, among other things, that “the program is generally accepted by the appropriate community of scientists.”33 Noting potential problems and dangers that could arise with admissibility of computer simulations, such as the erroneous entry of information into the computer program performing the simulation,34 the Lorraine court also emphasized that the usual methods of authenticating computer simulations are the same for computer animations35 -by testimony from witnesses with personal knowledge36 and by testimony from expert witnesses.37

The court also discussed the final “test” for the admissibility of electronic evidence-unfair prejudice.38 Rule 403 of the Federal Rules of Evidence states: “Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice . . . .”39 Unfair prejudice may be evidenced by “language that may provoke an emotional response.”40 The court furthermore explained that courts will be more likely to consider undue prejudice where there may be “a substantial risk that the jury may mistake [the computer animations and simulations] for the actual events in litigation.”41 Most importantly, the court cautioned lawyers to be prepared to show why there is no unfair prejudice under Rule 403 when they are offering computer animations into evidence.42