Using Video Properly

    A 31-year-old man suffered traumatic brain injury when his cargo van was struck from behind by a school bus.  During trial, the court admitted as demonstrative evidence a silent day-in-the-life film of less than five minutes of his going through physical therapy, Donnellan v. First Student, Inc., No. 1-06-2418 (1st Dist., decided June 19, 2008).  Despite the depiction of obvious pain, the court found that “the very purpose of these videos is to illustrate evidence regarding a party’s life at the time of trial.”  Id., at 7.

    I have used video at trials and routinely included digital DVDs in settlement brochures.  I recall the first time the court allowed a day-in-the-life tape to be run with sound because the court ruled that it accurately portrayed the plaintiff’s condition, and that its probative value outweighed any prejudicial effect.

    It was the case of an 11-year-old Boy Scout who was severely injured in an accident while traveling to a Boy Scout jamboree.  He lay in a coma for eight months with a broken skull and severe permanent injuries.  That case resulted in a $14.2 million verdict in 1990.

    As trial lawyers, we have moved from diagrams to compute animations, simulations, and reconstructions as the public becomes more technologically savvy.  It is clear that, regardless of the type of presentation, lawyers must lay a proper foundation in introducing the evidence with experts or other witnesses.

    Computer-generated animations generally are used to explain or illustrate a witness’s testimony and are allowed as a demonstrative aides with the proper foundation and after the court determines they are relevant, accurate, and not unduly prejudicial.  More courts are accepting such animations, comparing them to charts or diagrams that are drawn by a computer instead of by hand or mechanically.

    Although courts use the term computer animation interchangeably with computer-generated simulations, the latter typically are re-creations based on scientific principles and reliable data.  The reconstruction of events really becomes a transference of data from one reliable medium to another reliable medium – video – that assists the jury in understanding engineering functions and other technical details through a fair and accurate depiction of the events. 

    In Illinois, a computer animation was allowed as demonstrative evidence in Dillon v. Evanston Hospital, 199 Ill.2d 483, 771 B,/e, 2d 357 (2002).  The Illinois Supreme Court affirmed the use of video animation in explaining an expert’s testimony that depicted a bacterial infection in the heart that spread to the brain.

    The court concluded that, even though the video displayed a type and location of infection different from the infections that the plaintiff might suffered in the “the video animation would be helpful in explaining to the jury the general development of endocarditis, a condition for which plaintiff is now at risk.”

    In a brief discussion, the Illinois Supreme Court found that cross-examination of the plaintiff’s expert about the videotape would have avoided any confusion for the jury.

    Computer animations are being used routinely by lawyers in airplane crash cases, truck accidents and even in criminal cases.  In Jones v. Kearfott Guidance & Navigations Corp., 1998 WL 1184107 at 3, 4 (D.N.J.1998), the court allowed the introduction of animated videos of eye-witness observations of a helicopter crash and of the simulated engine failure.

    Not only did the court find them relevant, it held that the engine failure video was not hearsay because “it is not a statement offered to prove the truth of the matter asserted, rather it is offered to illustrate the expert witness’s theory.”  Id., at 4.

    In Darskow v. Teledyne Continental Motors Aircraft Products, 826 F.Supp. 677, 686 (W.D.N.Y.1983), the court held that computer video demonstrations are permissible as demonstrative evidence to illustrate an expert’s version of the events so long as the jurors do not believe that they are “seeing a repeat of the actual event” but instead understand that “they are seeing an illustration of someone else’s opinion of what happened.”  Id., at 686.

    In quoting “Jack Weinstein on Evidence,” the court reiterated, “If audio or visual presentation is calculated to assist the jury, the court should not discourage the use of it ...  Jurors, exposed as they are to television, the movies, and picture magazines, are fairly sophisticated.  With proper instruction, the danger or their overvaluing such proof is slight.”  Id., at 685, quoting, 1 J. Weinstein & M. Berger, “Weinstein’s Evidence,” par. 403[5] at 403-88 (1992 ed.).

    Generally, I introduce video demonstrative evidence under two circumstances: case-specific video that has been created in concert with the experts or treaters who vouch for its accuracy; or “storeroom shelf,” ready made video that is available and case neutral that can be fairly used by both sides as an aid for the jury.

    Certainly, video can be a powerful tool.  The unique attributes of video animation and other types of moving images can be used at trial, with proper foundation and instruction, to better inform the jury of issues that may not be explained as well through diagrams and other one-dimensional demonstrative evidence.  I would not enter a courtroom without this type of helpful evidence.