August 29, 2016  | By Elissa Rex

By Justin Bryan – August 29, 2016

Videos or pictures created after an event to demonstrate how the event happened can enhance jurors’ understanding of the facts and make the relevant events come to life. Such evidence falls into two key categories: simulated evidence (such as reconstructions, reenactments, or recreations of relevant events) and illustrations. Simulated evidence commonly requires an expert to lay foundation. Complex principles of science and math are often required to create an accurate simulation. A number of circumstances can make expert witnesses impractical, but they should not preclude you from considering presenting this type of evidence. Do not overlook the possibility of admitting a reenactment based on lay testimony, however. If you have a witness who observed the actual event in dispute, that witness can offer lay opinion testimony rationally based on his or her observations. Fed. R. Evid. 701(a). Those opinions can include whether a proffered simulation is substantially similar to the disputed incident. Fenstermacher v. Telelect, Inc., Nos. 92-3283, 92-3297, 1994 WL 118046 (10th Cir. Mar. 28, 1994). Illustrations, on the other hand, are not required to meet the substantial similarity standard imposed on simulated evidence because an illustration simply represents someone’s opinion of what happened, as opposed to a simulation which is a repeat of the actual event. Illustrations are easily admitted as long as a jury understands this distinction.

Foundation Required for Simulated Evidence
Simulated evidence must be substantially similar to the actual event. See, e.g.Burchfield v. CSX Transp., Inc., 636 F.3d 1330, 1336 (11th Cir. 2011); United States v. Baldwin, 418 F.3d 575, 579–80 (6th Cir. 2005); Starter Corp. v. Converse, Inc., 170F.3d 286, 297 (2d Cir. 1999); Hinkle v. City of Clarksburg, 81 F.3d 416, 425 (4th Cir. 1996); Four Corners Helicopters, Inc. v. Turbomeca, S.A., 979 F.2d 1434, 1442 (10th Cir. 1992); Barnes v. Gen. Motors Corp.,547 F.2d 275, 277 (5th Cir. 1977). This is the authenticity principle of Federal Rule of Evidence 901(a), which allows evidence to be admitted upon a showing it is what its proponent purports—a simulation of the actual event. “Admissibility [of simulated evidence], however, does not depend on perfect identity between actual and experimental conditions.” Persian Galleries, Inc. v. Transcon. Ins. Co., 38 F.3d 253, 257 (6th Cir. 1994). The evidence must only be so similar that differences go merely to the weight of the evidence. See id.Turbomeca, 979 F.2d at 1442 (citing Champeau v. Fruehauf Corp., 814 F.2d 1271, 1278 (8th Cir. 1987)).

Laying the Foundation for Simulated Evidence
While litigants routinely rely on expert opinions to establish the similarity of a reconstruction or reenactment, lay witnesses can also do so within the parameters of Federal Rule of Evidence 701 or its state counterparts. SeeFenstermacher, 1994 WL 118046 (holding lay witness testimony that a recreation accurately depicted events personally observed by the witness not improper expert testimony). An expert witness can testify to opinions based on the expert’s scientific, technical, or other specialized knowledge. Fed. R. Evid. 702(a). A lay witness can testify to opinions rationally based on the witness’s perception. Fed. R. Evid. 701(a). When a lay witness has observed an event, he or she often can provide an opinion on whether a simulation is substantially similar to the actual event. There are few opinions discussing lay testimony for simulated evidence, but one instructive opinion, though unreported, is Fenstermacher v. Telelect, Inc., 1994 WL 118046.

The Fenstermacher court affirmed the admission of lay opinion testimony following a $7.3 million judgment in a products liability action. The trial court admitted several pictures taken during a reenactment of the underlying incident as well as lay testimony the pictures accurately reflected the actual event. The defendant appealed, contending the testimony comprised improper expert testimony by lay witnesses. The witnesses saw both the actual event and reenactment, however, and the plaintiff even performed the recreation with the assistance of the witnesses. The Fenstermacher court rejected the alleged error because the witnesses’ testimony was based on their own observations pursuant to Federal Rule of Evidence 701.

A review of the record reveals that the testimony of each of the [witnesses] consisted of statements that the photographs taken at the accident re-creation accurately reflected what they observed at the accident itself. They also testified as to what they observed during the reenactment. There was no improper opinion testimony, and there was no testimony that required expert qualifications.

Fenstermacher, 1994 WL 118046, at *6 (footnote omitted). Another example can be seen in Bramblett v. True, 59 F. App’x 1 (4th Cir. 2003). In that opinion, the Fourth Circuit Court of Appeals rejected a claim that the appellant’s trial counsel was ineffective for failing to object to the foundation of a video reenactment. The court held the objection would have been futile because a lay witness testified the reenactment was similar to the event in question. Id. at 10.

Just like experts, however, lay witnesses can fail to provide an adequately reliable foundation. In Brown v. Corbin, 423 S.E.2d 176 (Va. 1992), the Supreme Court of Virginia found error where a trial court admitted a reenactment photograph based solely on lay testimony the photograph was “somewhat similar” to the incident in question. The court noted the witness did not testify to each similarity and difference between the photograph and actual event. Id. at 178. Just as in laying a foundation with expert testimony, it is important to thoroughly cover the similarity between the simulated evidence and the actual event.

Illustrations
Illustrations, although similar in some respects to simulated evidence, are analytically distinct for purposes of their admissibility under the rules of evidence. Simulated evidence purports to be a representation of an actual event, while an illustration purports only to represent a theory or opinion. Because of this, Federal Rule of Evidence 901(a)’s authenticity requirement is materially different for this type of evidence. A good discussion can be found in Datskow v. Teledyne Continental Motors Aircraft Products, 826 F. Supp. 677 (W.D.N.Y. 1993). In Datskow, the plaintiffs brought a products liability action against an airplane engine manufacturer after an airplane crash killed several people. At trial, the plaintiffs introduced a videotaped computer-generated animation illustrating their expert’s theory of where the fire began inside the engine on the airplane. The manufacturer objected on the ground that the video “was less an illustration of [the expert’s] testimony than a purported re-creation of the accident, and as such was unduly prejudicial.” Id. at 685 (footnote omitted). The court overruled the manufacturer’s objection because the court had made clear to the jury that the video was “an illustration of someone else’s opinion of what happened” (i.e., an illustration) and not “a repeat of the actual event” (i.e., a simulation). As such, “the various differences between what was shown on the tape and the actual conditions of the flight went only to the weight to be given to the animation, not its admissibility.” Id. at 686.

An illustration is not required to meet the substantial similarity standard imposed on simulated evidence. Datskow, 826 F. Supp. at 686. The simple testimony of a witness will establish the witness’s opinion in almost every case. The admissibility determination for illustrations is therefore governed by the concern of undue prejudice. To use an illustration, the jury must be adequately aware the illustration is not what is labeled simulated evidence above. The Datskow court described this distinction as “the difference between a jury believing that they are seeing a repeat of the actual event and a jury understanding that they are seeing an illustration of someone else’s opinion of what happened.” Id. An illustration can be accompanied with a kind of evidentiary disclaimer informing the jury it is merely an illustration. For example, the Datskow court prohibited the audio portion of the video and gave the jury a limiting instruction. Id. at 685 (“To reduce the possibility that the jury might interpret [the video] as a re-creation of the accident, [the court] ordered that it be played with the volume turned off . . . [and] the video was admissible for the limited purpose given, and the cautionary instruction was more than adequate to guard against the jury giving it undue weight as a reenactment of the actual event.”). In principle, an illustration may be as admissible as the opinion itself.

While the Datskow opinion dealt with an illustration of an expert’s theories and opinions, it follows that an illustration can show the opinions of a lay witness so long as the opinion falls within the parameters of Federal Rule of Evidence 701 or its state-law counterpart. If the opinion is admissible and an illustration would help the jury understand and evaluate it, it is well within a court’s discretion to admit the illustration so long as the jury has the understanding discussed in Datskow.

Concluding Remarks
Simulated evidence and illustrations can have significant persuasive impact because they help a jury see a party’s version of events. If a picture is worth a thousand words, and a video is a thousand pictures created over a period of time, video evidence can be even more persuasive. The persuasive power of video evidence has been recognized by courts as a reason to treat this type of evidence with due care. See Robinson v. Missouri Pacific R.R., 16 F.3d 1083, 1088 (10th Cir. 1994) (“Video animation adds a new and powerful evidentiary tool to the trial scene. . . . Because of its dramatic power, trial judges should carefully and meticulously examine proposed animation evidence for proper foundation, relevancy and the potential for undue prejudice.”).

If you believe simulated evidence or illustrations can help make your case but an expert witness is cost prohibitive, would make unfavorable admissions, or is otherwise not practical, consider using lay witness testimony to create a simulation or illustration. Even if you cannot meet the foundational requirements for simulated evidence, you might be able to offer the video as an illustration. Even though litigation continues to become more complex with advances in technology and science, witness memory and basic opinions still have a place in presenting evidence, even if they are among the oldest forms of proof.

Keywords: litigation, trial evidence, Rule 701, Rule 702, Rule 901, simulated evidence, illustrations, lay witness testimony

Justin Bryan is an associate at McCathern, PLLC, in Dallas, Texas.