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Nov 23 Attorney Articles

High Tech Evidence and Brick and Mortar Foundations

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As trial attorneys we enjoy entering the court room on the first day of trial with the confidence which comes with being organized, prepared and ready to put on our best case. Electronic presentation of evidence allows an attorney to have any exhibit ready to call up with the simple scan of a barcode, or to emphasize and “call-out” certain aspects of evidence during opening, direct and cross-examination and closing argument. The current state of courtroom technology allows for computer animation, simulation, and video evidence to be presented seamlessly by a well prepared trial attorney.

Electronic evidence and courtroom technology are being utilized more often because it gives trial counsel a better opportunity to present evidence in a more efficient and persuasive manner. Modern day jurors are accustomed to receiving visual information through media like television and may be more accepting of the testimony delivered in such a way. Judges embrace courtroom technology because it streamlines evidence presentation and has a tendency to focus the real issues of the case. Many years ago technology and electronic evidence presentation was expensive and only utilized by attorneys who had wealthy clients. However, technology has progressed so far and wide that for less than a $1,000 investment, any attorney can be on an equal playing field when putting his or her case before the jury.

Our presentation in Williamsburg will focus on the process and benefits of using state of the art software for trial presentation purposes. This paper, however, addresses an equally important topic which we will not have sufficient time to cover during our presentation which is age old evidentiary foundation issues and high tech electronic evidence.

Authentication for Computer Animation versus Simulation

It is critically important for trial counsel to have a clear understanding of the differences between computer animation and computer simulation. The admissibility standards between the two are dramatically different. If trial counsel does not have a firm appreciation of the differences then it can lead to the nightmare of not being able to lay the proper foundation at trial.

As a rule of thumb, computer animation has a lower standard of admissibility. Computer animation is a form of demonstrative evidence. Animations are used to illustrate a witness’ testimony by attempting to recreate a scene or process. In essence, an animation is nothing more than a series of diagrams which, when played in rapid succession, gives the affect of animation. Constars v. Choctaw Transport, Inc., 712 So. 2d 885 (La. App. 1997). An animation can be utilized to demonstrate general principles. For instance, in a products liability case an animation can illustrate how a component part is supposed to work in a moving piece of machinery.

The starting point in analyzing the admissibility of computer generated animation is the rule governing illustrations and demonstrative evidence (Federal Rule of Evidence 901). Generally, before being admitted into evidence the animation must be a fair and accurate representation of the evidence to which it relates, and its probative value outweighs the danger of unfair prejudice. Since the animation is merely demonstrative evidence proffered to illustrate and educate it has a relaxed standard of admissibility.

Computer animation is generally admissible when it is used as a summary of witness testimony, without the addition of other data. The standard for having it admitted as demonstrative evidence is much easier to meet.

A problem can arise, however, where an attempt is made to introduce an animation or illustration of an expert’s opinion, but the presentation is based on incorrect facts. In Guillory v. Domtar Industries, 95 F.3d 1320, 1329-31 (5th Cir. 1996), the court considered an attempt to introduce several forklift animation scenarios. The court disallowed this evidence, finding that the expert’s testimony as well as the animations were based on altered facts and speculation in support of the defendant’s position. The court’s reasoning was based on a finding that the expert’s conclusions were “unfounded and misleading” and the fact that the evidence was so “technical” that it would have misled the jury if admitted.

A computer simulation, on the other hand, is proffered as evidence as what did occur under a set of assumed facts. A computer simulation involves the recreation of an event or an experiment based on scientific principles and data. The computer software utilized, in essence, becomes the expert. The computer simulation is therefore subject to the same foundational scrutiny as any other expert opinion prior to being admitted into evidence. Typically the forensic expert who prepared the simulation will testify about the software used, the software’s general acceptance in the scientific community and the data inputted by the expert, and why the data is reliable.

Computer simulations can have a profound effect upon a jury. The simulation, in essence, is substantive evidence and its admissibility is similar to scientific evidence. In State v. Spain 123 P3d. 862 (Wash. Ct. App. 2005) the court held that a computer simulation used as substantive evidence or as the basis of expert testimony regarding matters of substantive proof must be generated from computer programs that are generally accepted by the appropriate community of scientists to be valid for the purpose at issue in the case. Relevant factors to be considered in making this determination include whether the software is subject to license agreements; whether it is publicly available; and whether it has been modified.

The four primary authentication criteria for computer simulation are (1) completeness of the data; (2) complexity of manipulation; (3) routineness of the entire operation; and (4) verifiability of result. It is not necessary to understand computers to be able to address the evidentiary issues that computer-generated evidence presents. Several principles simplify the process. First, there are certain common types of computer-generated evidence that present no genuine issues of trustworthiness. For these, ordinary evidence rules are sufficient to gauge admissibility without reference to the fact that the exhibits have in fact emanated from a computer. Second, some types of computer-generated exhibits are inherently hearsay because they reflect extrajudicial assertions. For those, it is necessary to consider whether any hearsay exception or exemption applies.

Demonstrative Video versus Video Recreation

Oftentimes experts will utilize video to enhance their testimony and to strengthen their points or to help explain a scientific principle. The same problem with computer animation versus simulation occurs with respect to some forms of video evidence. If the video is being used to merely explain or exhibit a scientific principle, then the more relaxed demonstrative evidence rules apply. On the other hand, should the video be an attempt to recreate an event, the more stringent “substantial similarity” evidentiary rules apply.

This difference is illustrated n the recent case of Burchfield v. CSX Transport Fed. (11th Cir. March 30, 2011). In Burchfield, plaintiff, a railroad yard worker sued CSX Transport (“CSX”) for a faulty handbrake in a rail car. At trial, over the objection of plaintiff, CSX was able to play a videotape of the subject railcar with the handbrake at varying degrees of pressure working properly. Plaintiff argued the test depicted in the video was not conducted under “substantially similar” conditions. CSX argued the video was merely being offered as demonstrative evidence of the general principal of how a railcar handbrake system operates. The defense informed the trial judge the video was not being proffered as a recreation of the accident. The trial court allowed the video to be admitted s demonstrative evidence under the less rigorous foundation standards of Federal Rule of Evidence 901(a).

CSX also argued the video depicted only an “experimental test.” Pursuant to the case of McKnight v. Johnson Controls Inc. 26 F.3d. 1396, 1401 (8th Cir. 1994), where experimental tests do not purport to recreate the accident, but instead to demonstrate only general scientific principles, the requirement of substantially similar circumstances no longer applies. However, after the video was admitted and played before the jury, CSX changed its tack. During witness examination and on closing argument SCX argued expressly that the handbrake video was an attempt to recreate the accident and contradicted plaintiff’s version of the events. The court of appeal reviewed the records and determined that at various stages the trial counsel for CSX represented to the jury the video was an attempted actual recreation of the incident. The district court of appeal held the video tape was improperly admitted since the video lacked any foundational proof that it was created under substantially similar conditions. The court reasoned for the experiment to be admissible it is not required that all of the conditions be precisely reproduced, but they must be so nearly the same in substantial particulars as to afford a fair comparison in respect to the particular issue to which the test is directed.

Electronic Evidence and Motions for Summary Judgment

Summary Judgment Motions and Motions for Summary adjudication typically are composed of written pleadings and volumes of printed documentary exhibits. Recently, however, the courts have shown a willingness to review and consider electronic evidence in deciding summary judgment motions, and making rulings as a matter of law based on the electronic evidence. In 2007 the U.S. Supreme Court in Scott v. Harris 550 U.S. 372, 380 (2007) reviewed and considered a police dashboard video of a high speed chase. In Scott v Harris, a county sheriff attempted to pull over plaintiff for driving 73 miles per hours in a 55 mile per our speed zone. Instead of pulling over, plaintiff led police on a high speed chase on a two lane road. The entire chase and resulting collision was caught on the video camera mounted on the dashboard of the police car. During the chase Sheriff Harris employed a recognized police maneuver with his vehicle and struck plaintiff’s vehicle which resulted in plaintiff’s vehicle going off the highway and overturn. As a result of the collision plaintiff was rendered a quadriplegic. Plaintiff sued the sheriff claiming excessive force. The sheriff brought a motion for summary judgment on the basis of qualified immunity. The trial court denied the motion, and the court of appeal affirmed the denial.

As part of the record, and a marked exhibit, was a properly authenticated and electronically stored 16 minute police video of the chase. The Justices of the U.S. Supreme Court took a look at the video. In an 8-1 majority opinion Justice Scalia wrote in the majority opinion that the video exhibited a car chase where plaintiff’s actions posed a substantial and immediate risk of serious harm to others; “no reasonable jury could conclude otherwise. Scott’s attempt to terminate the chase by forcing respondent off the road was reasonable, and Scott is entitled to summary judgment.” Scott, 550 U.S. at 386. The majority concluded that the video tape was inconsistent with the facts presented by the respondent: “Respondent’s version of events is so utterly discredited by the records that no reasonable jury could have believed him. The Court of Appeals should not have relied on such visible fiction; it should have viewed the facts in the light depicted by the videotape.” Scott 550 U.S. at 381-82.

The Supreme Court’s official opinion provided a link to the 16 minute video which was made available on the U.S./ Supreme Court’s web-site. See Scott, 550 at 378 n.5 (police car contact and crash occurs at about 14:10 minutes in the high speed-chase “we are happy to allow the videotape to speak for itself. See Record 36, Exh.A, available at in the Clerk of Courts case file.

The use of electronic evidence by the U.S. Supreme Court in deciding motions for summary judgment paved the way for lower courts. In the recent case of Griffin v. Hardrick 604 F.3d 949 6th Cir. May 13, 2010), the Sixth Circuit addressed the issue of videotape evidence and summary judgment. Griffin involved an excessive force case involving plaintiff and two police offices. One of the officers attempted a “leg sweep maneuver” in order to handcuff plaintiff. During the maneuver, a second officer accidentally landed on one of Griffin’s legs fracturing her tibia. The district court reviewed the video and concluded that “no reasonable jury could find that officer Hardrick had intended the unnecessary and wanton infliction of pain when he tripped Griffin.” On appeal, Griffin claimed the district court erred in considering the video tape on summary judgment. The Sixth Circuit majority affirmed the granting of summary judgment, and noted the video tape evidence was appropriately considered. Citing Scott v Harris ‘when opposing parties tell two different stories, one of which is blatantly contradicted by the record, so that no reasonable jury could believe it, a court should not adopt that version of the facts for purposes of ruling on a motion for summary judgment. Scott v. Harris 550 U.S. 372, 380 (2007)

The plaintiff in Griffin also claimed that defendant’s expert opinion stating the leg sweep was a proper law enforcement maneuver under the circumstances should not be considered in a motion for summary judgment. In other words, at the motion for summary judgment stage the defense expert should not be allowed to offer opinions based on his review of the video tape. The Griffin court dismissed this contention. It ruled a court may properly consider video tape evidence at the summary judgment state.

So an expert opinion based on such evidence is appropriate so long as the opinion is not a conclusion about an ultimate legal issue.

In the recent case of Lorraine v. Markel American Insurance Co. 241 F.R.D. (D.Md. 2007) both plaintiff and defense counsel attempted to use electronic evidence in support of their respective motions for summary judgment. Each counsel, however, overlooked the necessary foundational requirements. The trial court in a lengthy opinion took the opportunity to educate counsel regarding the rules of foundational evidence, and the Lorraine decision has been relied upon by many subsequent courts and attorneys.

Admissibility of Electronically Stored Evidence –Lorraine v. Markel

The case of Lorraine v. Markel American Insurance Co. 241 F.R.D. (D.Md. 2007) has become a national primer of the admissibility of electronically stored evidence and is often cited by other courts and legal scholars. The case involved electronic e-mails discussing a sailboat insurance policy where both sides filed motions for summary judgment. However, neither party supplied any authentication for the e-mails such that they would be admissible to support a motion for summary judgment. The Honorable Paul W. Grimm, Chief United States Magistrate Judge for the District of Maryland took the opportunity to write a 101 page opinion on precisely how to get electronically stored information into evidence. The decision identifies problems with the admissibility of electronically stored information and provides key guidance on some of the strategic ways to proffer such evidence in federal court.

Judge Grimm begins his opinion by recognizing that in order to get electronically stored information into evidence, a series of evidentiary “hurdles” must be overcome, specifically, Federal Rules of Evidence 104, 401, 901, 801, and 1001-1008. The court then discusses each rule at length. The decision makes clear that failure to pay attention to the issues raised by admissibility may damage a case just as severely as any e- discovery sanction.

Judge Grimm points out that one of the problems with the authenticity of electronically stored information is that computerized data raise unique issues concerning accuracy and authenticity. The integrity of data may be compromised in the course of discovery by improper search and retrieval techniques, data conversion, or mishandling. This is a key point for litigants who self-collect electronically stored data. Special care must be taken to ensure proper collection methods. If a company or law firm does not have the requisite expertise to properly collect data, they would be wise to seek help from an expert to assist with proper chain of custody protocols.

An attorney faced with the admissibility of electronically stored information at trial will have an easier task if his client earlier employed an effective and comprehensive records retention policy. As Judge Grimm points out, a good records retention policy can help with both self-authentication under Rule 902(11) (authentication of regularly conducted business) and an exception to the hearsay rules under 803(6) (exception for business records).

The Lorraine decision will continue to serve as a guiding post for attorneys and judges on the admissibility of electronic evidence. Ironically, the trial attorneys on each side of the Lorraine case completely overlooked the necessary tests for foundation and admissibility. This is not an uncommon omission by trial lawyers when dealing with high tech evidence. The bench and bar owe a debt of gratitude to Judge Grimm for his published opinion which is now considered the national primer for admissibility of electronic evidence.


The age old rule of laying a proper foundation has never left the court room. Trial lawyers in today’s high technology world of computer animations, simulations, videos and e-mails cannot overlook the necessity of laying a proper foundation when attempting to admit electronic evidence. Trial judges inherently recognize that electronic evidence can have a profound effect upon a jury, and the trial lawyer should expect the court to strictly enforce foundational rules of evidence. Thus, the trial lawyer in today’s high tech courtroom must make sure he or she does not forget to bring the old reliable tool kit of a working knowledge of the foundational rules of evidence.