Technology has reached court rooms in the United States. In addition to courts' use of iPods to conveniently condensed records to be examined by the parties, U.S. prosecutors are using computer-generated animation (CGA) to illustrate their theories against defendants. Most criminal cases are prosecuted under state law and state rules of evidence apply; though these rules do not substantially differ from the Federal Rules of Evidence. In 2006, the Pennsylvania Supreme Court held that CGA can properly be admitted as demonstrative evidence.
Under the Pennsylvania's Rules of Evidence (Pa. R. Evid.), there are three basic types of evidence admitted in court: testimonial evidence, documentary evidence, and demonstrative evidence. Demonstrative evidence is used to make evidence more understandable for jurors. Traditionally, admitted demonstrative evidence includes photographs, diagrams, pictures, models, etc. Under Pa. R. Evid., demonstrative evidence can be admitted when its relevance outweighs any potential prejudicial effect; but it has to be authenticated by the offering party. According to Pa. R. Evid. §901(b)(1), demonstrative evidence can be authenticated by the testimony of a witness that claims to have knowledge on the matter. Thus, to be admissible, demonstrative evidence under Pa. R. Evid. must be (1) relevant, (2) its probative value should outweigh its prejudicial effect (it cannot be confusing, misleading, cumulative, unfair), and (3) it must be authenticated.
CGA is a drawing, or sequence of drawings, created by a computer to show images of motion, usually depicting an expert's theory. CGA are different from "computer-generated simulation" which are programs made to receive raw data and reach a computer-generated conclusion. Computer-generated simulation does not depict expert's testimony. The question then becomes whether technological means such as CGA, or any other high tech equipment, used to explain the prosecutors' theory is exceedingly prejudicial for the defendant. Relevancy might not deserve such foremost analysis in this case; authentication may become an issue depending on the facts of each case, e.g., expert's testimony authenticating, qualifications, type of technology used.
In the case of Commonwealth v. Serge, 586 Pa. 671 (Pa. S. Ct. 2006), the defendant was convicted on first-degree murder in a trial where the Commonwealth used CGA to illustrate its theory of homicide. The court of appeals affirmed, and the Pennsylvania's Supreme Court reviewed the case on the issue of whether the Commonwealth's use of CGA to illustrate its theory of homicide constituted admissible demonstrative evidence.
In this case, the Commonwealth used CGA instead of computer-generated simulation. The Commonwealth used the CGA to illustrate the expert opinion of its forensic pathologist. The CGA used the forensic and physical evidence available in this case, presented it in a sequential order, and illustrated the expert's direct conclusions. The defendant alleged that the Commonwealth's CGA lacked (1) proper authentication; (2) proper foundation; and (3) was cumulative and unfairly prejudicial for the defendant. The Commonwealth argued that the CGA was properly admitted by the trial court as demonstrative evidence used to illustrate the testimony of its forensic expert witness and should be subject to the same rules applicable to demonstrative evidence.
The Pennsylvania's Supreme Court acknowledged that our society is becoming increasingly dependent on technology both in our business and personal lives. Thus, the practice of law and our legal system must adapt to these changes. Yet, the Court noted that admission of CGA and its difference with other technological methods should be analyzed within the Pa. R. Evid. The court held that CGA is admissible demonstrative evidence if it satisfies requirements of Pa.R.E. §§ 401, 402, 403, and 901 (relevance, authentication, balancing of prejudice, etc.) State v. Tollardo, 2003 NMCA 122, 134 N.M. 430, 77 P.3d 1023, 1029 (N.M. App. 2003). The computer is not more than a drafting object used in CGA, just as any other drawing device, the Court noted. Indeed, the Court said, jury instructions should include explanations to jurors that CGA are actual graphic representation of biased testimony of one party and not the "product of neutral infallible artificial intelligence," as it is the case of computer-generated simulation.
Therefore, "in a question of first impression in this Commonwealth, we hold that a CGA is potentially admissible as demonstrative evidence, as long as the animation is properly authenticated, it is relevant, and its probative value outweighs the danger of unfair prejudice or confusion."
Other U.S. states have also officially declared that CGA are admissible demonstrative evidence, e.g. Florida, Ohio, Oklahoma, Connecticut, and Wyoming. The reality is that technology is here to stay. We cannot conceive a legal system falling behind these advances, as much as we cannot conceive future generations of computer-savvy folks using methods other than those offered by technology. Just think about this, my generation first used PowerPoint in college; this new generation is first using PowerPoint in third grade. What will they use in the court rooms of the future? We do not know. But, certainly, our Beatle's generation should use the "let it be" approach to technology in the court rooms...