Demonstrative Evidence – Courtroom Admissibility

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From The Rutter Group’s CIVIL TRIALS & EVIDENCE, CH. 8C-D (2008):

  1. [8:514] Accident reconstruction: Assuming a proper foundation is laid, a visual reconstruction of the accident or event in dispute may greatly assist the jurors. Thus, videos or other recordings of such reconstructions, made under substantially similar conditions to the events in dispute, are admissible as demonstrative evidence (illustrating witness testimony or other evidence). [See Hasson v. Ford Motor Co. (1977) 19 C3d 530, 548–550, 138 CR 705, 717–718 (over-ruled on other grounds in Soule v. General Motors Corp. (1994) 8 C4th 548, 574–580, 34 CR2d 607, 622–626); Culpepper v. Volkswagen of America, Inc. (1973) 33 CA3d 510, 520–522, 109 CR 110, 117–118—filmed reconstruction of vehicle rollover; DiRosario v. Havens (1987) 196 CA3d 1224, 1231–1233, 242 CR 423, 426–427—filmed reconstruction of intersection accident]
  1. (1) [8:515] “Substantial similarity” of conditions required: The reconstruction must have been made under “substantially similar” conditions (e.g., comparable lighting, identical intersection, same model car, etc.) to those existing at the time of the accident or event in dispute. [People v. Boyd (1990) 222 CA3d 541, 565–566, 271 CR 738, 753–754—filmed reconstruction, offered to show witness could not have seen clearly enough to make ID, inadmissible where D failed to establish filming occurred under substantially similar lighting conditions]

But the conditions need not be “absolutely identical.” [Grimshaw v. Ford Motor Co. (1981) 119 CA3d 757, 791, 174 CR 348, 370; DiRosario v. Havens, supra, 196 CA3d at 1231, 242 CR at 427—filmed recreation of accident scene was admissible despite some dissimilarities]

(2) [8:516] Compare—dissimilar conditions: But such evidence is likely to be excluded where there are significant variables in the conditions under which the accident reconstruction was conducted. [Solis v. Southern Calif. Rapid Transit Dist. (1980) 105 CA3d 382, 390, 164 CR 343, 347—accident reconstruction evidence excluded because conducted on clear day on dry pavement whereas accident occurred on rainy day, and vehicle not in same mechanical condition] [8:517] Likewise, filmed demonstrations are inadmissible where the conditions are totally inconsistent with all eyewitness testimony. [Ehrhardt v. Brunswick, Inc. (1986) 186 CA3d 734, 740–741, 231 CR 60, 63–64—videotaped demonstration depicting D’s theory of boating accident properly excluded where demonstration inconsistent with all eyewitness testimony] [8:517.1–517.4] Reserved.

  1. [8:517.5] Photographic reconstruction: Photographs of an accurate reconstruction of an event in issue are admissible as illustrative evidence. [People v. Cummings (1993) 4 C4th 1233, 1291, 18 CR2d 796, 833—photograph of defendants posed in back seat of car admitted to illustrate prosecution’s theory in murder case]
  1. [8:518] Computer simulations: Where an accident or event reconstruction is not feasible (e.g., because the occurrence was unseen or the sequence of events involved is uncertain) computer simulations may be used to illustrate events based on witness testimony and other evidence.

They have the unique advantage of creating visual images of events that may otherwise be difficult to describe or illustrate. For example:

—to reconstruct the way in which a crime or other event could have occurred;

—to illustrate sequence of events in chain of causation;

—to illustrate the spread of a toxic plume in an environmental damage case.

Although increasing in use, there is presently no known California case law dealing with the admissibility of computer simulations.

(1) [8:519] Admissibility of computer animations to illustrate expert testimony: Computer animations are “tantamount to drawings” by experts to illustrate their testimony. They are admissible to the same extent as if the animations had been done by hand, rather than by acomputer. [People v. Hood (1997) 53 CA4th 965, 969, 62 CR2d 137, 140—computer animation did not need to satisfy Kelly rule for scientific evidence (¶ 8:563 ff.)] [8:520–523] Reserved.

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