4. Sample Examination of Expert Witness
Michigan Rules of Evidence
Rule 901. Requirement of Authentication or Identification
(a) General provision. The requirement of authentication or identification as a condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims.
(b) Illustration. By way of illustration only, and not by way of limitation, the following are examples of authentication or identification conforming with the requirements of this rule:
(1) Testimony of witness with knowledge. Testimony that a matter is what it is claimed to be.
. . . .
(9) Process or system. Evidence describing a process or system used to produce a result and showing that the process or system produces an accurate result.
See also MRE 401, 403, 702, 703, 801-805, 1001, 1004, 1005.
The use of computer animation or computer-generated imaging in the courtroom, although not completely new, remains a relatively intimidating and little-understood trial technique. It is also an amazingly effective instructional tool, one that presents an engaging yet simple visual presentation of complex evidence. It can be used to reproduce an actual event or merely to provide a demonstrative illustration of expert testimony. It is easily presented at trial, since the animation, once generated by the computer, is usually captured on videotape. The videotape is then shown to the court and jury at trial.
Michigan's higher courts have had little opportunity to address the issue of computer-animation evidence. However, computer-generated images, should be dealt with the same as other, more traditional forms of evidence, such as photographs or videotapes. At a minimum, the animation must be accurate, have probative value, and help the jury understand a material issue. McMiddleton v Otis Elevator Co, 139 Mich App 418, 362 NW2d 812 (1984).
As with videotapes, the foundation required to introduce a particular computer animation will depend primarily on its purported use at trial. If the animation is offered to actually recreate a specific event (i.e., its purpose is substantive evidence), the court will require precise attention to detail, making authentication more difficult. If, however, the animation is offered merely to illustrate an expert's theory, the foundational requirements are much less stringent. See, by way of analogy, Gorelick v Department of State Highways, 127 Mich App 324, 339 NW2d 635 (1983); Green v General Motors Corp, 104 Mich App 447, 449, 304 NW2d 600 (1981).
Attorneys offering computer animation at trial should keep in mind that the authenticity of an animation can be attacked at several levels. Animations are the product of raw data fed into a computer program, whose results can be visually manipulated. Introducing the evidence requires testimony that supports the reliability of the underlying data (i.e., what the facts are in the case) together with the scientific soundness of the computer software used to produce the evidence (what system was used to transform the facts into animation). This may require the use of several different witnesses: fact witnesses, experts, and technical people who animate with the computer. The most significant witness will be the expert who introduces the animation to illustrate the expert's theory. Petrove v Grand Trunk Western Railroad Co, 174 Mich App 705, 436 NW2d 733 (1989), vacated on other grounds, 437 Mich 31, 464 NW2d 711 (1991).
Evidentiary challenges to keep in mind include objections based on hearsay (MRE 801 et seq.) (although the animation may not be hearsay at all, depending on its purported purpose), prejudice (MRE 403) (although its powerful probative value should never equate to prejudice), and foundational issues (which likely present the most fertile ground for effective challenge). See MRE 702; Petrove. Animations may also be excluded on the basis that the offering party failed to provide adequate notice and discovery of the animation before trial. See Mississippi Public Service Commission v Mississippi Valley Gas Co, 358 SO 2d 418 (Miss 1978).
For an excellent national review of evidentiary rulings regarding computer animations, see D. Weinberg, Admitting Computer Animation and Simulation Evidence (Engineering Animation, Inc., Chicago).
- Demonstrate that the underlying data is factually supportable and, thus, reliable. MRE 901.
- Demonstrate that the computer program generating the animation is reliable and scientifically accepted. MRE 901.
- Demonstrate that the animation recreates an actual event based on substantially similar conditions, or demonstrate that the animation provides helpful illustration of an expert's testimony. MRE 401.
- Demonstrate that the information presented is both relevant and helpful to the jury's understanding of the case and that its probative value is not outweighed by its prejudicial effect. MRE 401, 403.
- Disclose the animation to opposing parties in advance of trial, as required by any pretrial orders.
Sample Examination of Expert Witness
This examination demonstrates the type of testimony that would have been required if the Challenger space-shuttle disaster had gone to trial and the plaintiffs' attorneys introduced animation depicting the theory that the O-rings were improperly designed, thereby causing the explosion that killed the astronauts.
Attorney: Do you have an opinion about what caused the shuttle to explode?
Witness: Yes, I do.
Attorney: What is that opinion?
: That the O-rings, made by the defendant, were improperly designed because they could be weakened by temperature shifts, especially by colder temperatures. That the manufacturer did not warn NASA about this condition that could cause--and in this case did cause--a massive failure with fatal consequences.
Attorney: Could you demonstrate your theory for the jury?
Witness: Yes, I could.
Attorney: How would you demonstrate it?
Witness: I have worked with a computer model to generate an animation that explains my theory in detail.
Attorney: How does the animation process work?
Witness: After I read all of the deposition testimony, I had a solid understanding of the facts. I then examined the weather data that had been produced and concluded that the temperature shift weakened the metal of the O-rings. Using my computer model, I was able to pictorially demonstrate what happens when the metal of the O-rings is weakened. The computer, using the factual data of the case, was able to animate my theory about what happened to the O-rings on the morning of the scheduled liftoff and the failure that occurred shortly after liftoff.
Attorney: Does the animation accurately illustrate your theory, as you have described it here today?
Witness: Yes, it does, in better detail than I could explain to the jury without spending considerable time drawing it on the blackboard.
Attorney: Have you worked with this computer model previously?
Witness: Yes, I have.
Attorney: Are you familiar with its technical processes?
Witness: Yes, I am.
Attorney: Is the computer model that you have used to illustrate your theory of this case generally accepted within your area of specialty?
Witness: Yes, because it can demonstrate accurately and efficiently what would otherwise take hours to do.
Attorney: How was the computer-generated animation recorded for presentation to this court?
Witness: The animation was recorded on videotape so that I could present it at trial today.
Attorney: Was the videotape altered in any way?
Attorney: Have you verified that no alterations were made?
Witness: Yes, I have.
Attorney: What did you do to verify that no alterations were made to the evidence?
Witness: I compared this videotape to the computer-generated animation in my computer, and they are exactly the same.
Attorney: Are you presenting this evidence to actually recreate the events that occurred on the day of the explosion?
Attorney: What, then is the purpose of the evidence?
Witness: To demonstrate my theory of how the O-rings failed and therefore caused the catastrophic explosion that resulted in the deaths of the astronauts.
The author would like to thank attorney, Brian K. Lawson, who assisted in the preparation of this article.