INFLUENCING JUROR PERSPECTIVE. In traffic accident litigation, videography is sometimes used to record the results of a

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1 INFLUENCING JUROR PERSPECTIVE In traffic accident litigation, videography is sometimes used to record the results of a visibility study that purports to illustrate what was available to be seen by a driver immediately before a crash. Accident reconstructionists, human factors and photography experts collaborate to create a video to persuade jurors at trial. The video can provide dramatic, compelling evidence, demonstrating the time available for the driver to perceive and react to another vehicle in its path. In order to re-create driver visibility, the experts stage a re-enactment at the accident site using exemplar vehicles driven at the same speeds, in the same locations and during similar lighting conditions as reported by the parties and witnesses. A video camera is placed at the driver s eye position to simulate the driver s view looking through the windshield and sometimes through the side windows and mirrors as well. As the exemplar vehicle is driven at the approximated accident speed toward the area of impact, the eye-level camera records a view that will eventually invite jurors to take the wheel. Providing a jury with a pre-crash motion picture from the driver s point of view attempts to put jurors in the driver s seat and simulate the situation the driver confronted as the accident unfolded. It beckons the jurors to test their own skill at crash avoidance (similar to a driving video game), from the comfort of their chair in the courtroom, far removed from the roadway, far removed from the attentional demands of real driving and importantly, provided with advance knowledge of what is coming. Some may be more fascinated with the high tech video itself than focused on evaluating the issues involved. The risk of course is that jurors will use their own imagined driving performance during the artificial display of the accident circumstances, better or worse that during a real driving situation, as a reference for what was reasonable when they judge the conduct of the drivers involved.. 1

2 A litigant s visibility study presented to show that a driver could or could not have detected an intruding vehicle in sufficient time to avoid impact can be the most captivating evidence presented at trial. An object becomes visible when there is sufficient contrast to distinguish it from its background. A camera is capable of altering the threshold or stimulus condition of vision perception by use of a photographer s choice of camera, lens, exposure setting and many other subjective variables. When integrated into an accident reconstruction, the video s representation of hazard detection starts the all important clock. It purports to illustrate the time from when a threat stimulus becomes apparent until a discernible response can be made. The choreographer of the video is an accident reconstructionist who directs the speed of the exemplar vehicle, defines the point of impact and the speed and timing of the incursion vehicle s movement. The photographer is responsible to record video footage that is substantially similar to the driver s eye view by selecting appropriate camera equipment, lens focal length and exposure setting for the prevailing lighting conditions. The photographer controls the photographic accuracy by using a calibration process performed during videotaping at the accident site. To calibrate, the photographer may visually compare and attempt to match the exposure of the image displayed in the camera s monitor with his direct view of the scene. If what he sees in the monitor is reasonably consistent with his natural view, the video is calibrated. Other calibration techniques are also used, better or worse, but since the performance of the human eye exceeds the performance of current photographic technology, video and still photographs continue to be only limited approximations of what our eyes can see. Applicable Law Some courts and legal scholars have questioned the reliability of visibility studies. Wigmore pointed out that a movie of such re-creation is made upon a series of movements and erections usually involving several actors, each of them the paid agent of the party and acting 2

3 under his direction. Hence, its reliability, as identical with the original scene, is worthless. [3 Wigmore, Evidence (Chadbourn rev. 1970), 798a]. A 1972 New Jersey case, Balian v. General Motors and Gay Allen Chevrolet, etc., 121 N.J. Super. 118, determined that a motion picture is unique evidence. In Balian, plaintiff objected to the introduction at trial of a movie prepared during trial by General Motors. Plaintiff alleged that a Chevrolet automobile manufactured by GM was defective because a rivet in the steering system became displaced resulting in a loss of steering. GM s movie, made at the direction of its reconstruction expert, depicted the operation of an exemplar Chevrolet at its proving grounds. The car was shown to be steerable even when the rivet was missing. On appeal, the appellate court over-ruled judgment in favor of GM due to the trial court s admission of the movie because its probative value was offset by the element of unfair surprise that was created by the manner in which the motion picture was prepared and presented. The court reasoned that: A motion picture in the eyes of the jury is one of the most spectacular forms of evidence. It is cumulative in nature. There are inherent dangers in its preparation and presentation.... [Balian, id., at p ] Pointing out that the end product may be something less than objective, the court observed...any movie is a manufactured, self-serving piece of evidence. It is true, of course, that all evidence may be said in one sense to be self-serving. However, not all evidence is a staged production whose finale is not only hoped for but very much a part of the script. [Balian, Id., at pp ] Lastly, notwithstanding its finding that GM s video was properly authenticated and substantially similar to accident conditions, the Balian court concluded that a litigant s preparation of a visibility study requires due process:... fundamental fairness dictates that the party proposing to offer such evidence give notice thereof an opportunity to his adversary to monitor the experiment and the taking of the film. [Balian, Id., at pp ]... 3

4 Despite Wigmore s disdain for filmed re-enactments, a significant number of courts admit them into evidence subject to a determination that the video reasonably represents what it portrays, will aid the juror in their determination of the facts, was produced under substantially similar conditions as present during the actual accident and is not misleading. In DiRosario v. Havens (1987) 196 Cal.App.3d 1224, a California Appellate Court determined the admissibility of a videotape recreating the accident. The case arose out of a wrongful death accident involving an automobile striking a pedestrian in a crosswalk. Plaintiff s accident reconstructionist videotaped the approach of the defendant on a busy roadway using a video camera that was positioned next to the driver s eye. The appellate court considered several disparities in plaintiff s video: (1) the accident occurred in October but the video was made in June; (2) the plaintiff, a 4 foot female, was portrayed by a 5 foot female; (3) traffic was heavier on the day of filming; (4) the street markings differed; (5) the camera was in a fixed position unlike the human eye, and (6) because the jurors knew the victim in the video was wearing red they had the benefit of 20/20 hindsight unlike the defendant. [DiRosario, Id., at pp ] The court, without addressing disparity number 6, held that the discrepancies cited by the appellant failed to establish that plaintiff s videotape was misleading. It determined that the videotape was substantially identical to those conditions encountered by the appellant. It depicted the same approach encountered by the defendant driver, used the same model car, used the same lighting conditions, the person in the crosswalk wore the same color. Unlike Balian, the court did not consider a due process issue. In Butts v. United States (822 A.2d 407 (2003).), the Appellate Court dealt with the admissibility of a nighttime video study that used a light skinned mannequin (the victim was dark skinned) that was conducted during different traffic conditions where the degree of lighting at the time of impact was unknown. A reconstructionist was hired... to conduct a visibility 4

5 study in order to determine the time it would take an unimpaired driver to perceive and react to a pedestrian under conditions similar to those on the night of the accident. The court ruled that the video was properly admitted and determined that the dissimilarities that were identified by the defendants were insufficient to render it inadmissible, but fertile field for crossexamination. (Butts, Id., at p. 414). Proponents of visually graphic demonstrative evidence contend that it is easier and more effective to simply show jurors what is being described, rather than waste time and risk confusion of jurors by relying on oral testimony. Motions in Limine to prohibit the admission of video re-enactment evidence are common. Advocates of video reenactment point out that opponents can cross examine those witnesses who created the film, and may choose to create their own video. Confronted with still photographs that contradict a filmed reconstruction, they assert that still photographs are unrealistic whereas a visibility study allows jurors to assess visibility in real time similar to what a driver must do. Still photographs, they argue, do the opposite: they afford the jury an unrepresentative view of a driver s vision and visibility. Faced with such arguments, the court should determine the video s admissibility by balancing the probative value of the re-enactment against its prejudicial error. If the court finds the film relevant, it is time to plough the fertile field of cross-examination. Fertile Field for Cross-Examination The potential for photographic re-enactment to mislead is discussed in one of the preeminent texts in the field of perception issues. Olson & Farber Forensic Aspects of Driver Perception and Response, 2d Ed. (2003: Lawyers and Judges Publication Co.): the greatest of care by a skilled photographer can result in very misleading evidence if perceptual and cognitive issues are neglected. There are a number of ways to go astray. Because photography cannot replicate human vision and because there are a multitude of differences between what is presented in court versus what was actually perceived in an accident scenario, it is important to 5

6 understand these issues when presenting or challenging photographic evidence at trial. (Forensic Aspects of Driver Perception and Response, p. 305.) As a prerequisite for a juror to actually rely on his own vision and perception as a reference for what the driver could have or should have detected and when, the camera needs to be capable of duplicating the human vision of the driver, as well as reasonably approximating his perception and focus of attention. The camera is an artificial representation of the human eye and the human visual system. It does not see what humans see, nor does it record what human s record. The camera takes a 3-dimensional image and reduces it to a 2-dimensional pictorial. A driver s eyes move on a consistent and regular basis. A video does not mimic eye scan patterns of a driver, so it does not reflect the visual experience of the driver, a real human. A human eye, unlike a camera, is capable of sharp centralized vision used to read, watch television and movies, and drive a vehicle. Convincing a jury that your opponent s visibility study was misleading can be daunting. Some technical and cognitive points that might be made on cross-examination or in limine are: The driver s 180 horizontal field of view cannot be replicated by commercially available videographic equipment. Image size from the driver s point of view may be different than presented in a video screen or monitor. Image size must be correctly matched to the jurors viewing distance and controlled during trial. A juror watches the video with the foreknowledge that an impact will occur unlike the pre-crash mind set of the involved driver. It is dissimilar because knowing what to expect is said to pre-alert the viewer s perception and focus of attention. 6

7 Distractions in the courtroom or distractions in the view such as timers or other reference markings may distract juror s attention away from the relevant issues. Neither fatigue nor inattention can be displayed in the video. Dashboard glare on the windshield, road surface glare, glare from the vehicle s hood and/or other glares existent the time of the accident are difficult, if not impossible, to duplicate during videotaping. Camera focal length: wide angle and telephoto lenses may be used to render critical portions of a photograph too obscure or too accentuated. The estimation of distance observed in a video is distorted because the video is twodimensional. A human s centralized vision emanates from the central portion of the retina, the fovea, enabling a normal viewer to resolve a rather small specific area within his field of view with 20/20 vision performance and also scan across a very wide angle field of view with the same sharp resolution. Current videographic technology cannot display the equivalent of 20/20 vision over the wide angle field of view of the human eye. The driver was confronted with an unfolding situation only once and in real time. Slow motion and repeated showing of the video is not representative of the driver s circumstances at the time, distorts the available time to respond and is therefore highly misleading. Conclusion Videographic re-enactment evidence causes jurors to perceive a disputed event with vivid imagery. If the court rules that what the video portrays is substantially similar to the facts of the accident and does not mislead, it may be admitted into evidence. There are a number of photographic and cognitive factors that can be argued to discredit the reliability of the re- 7

8 enactment. Realistically, however, the impact of developing these points in cross-examination pales in comparison to the persuasive power of cinema. The trial judge must be convinced that there is inherent prejudice in presenting vivid reconstruction evidence. A re-enactment video is demonstrative evidence in the form of a staged film that is purely derivative and illustrative in the setting of the courtroom, far removed from the actual driving environment. Because it attempts to simulate human perception, it is necessarily speculative and, therefore, likely to mislead. Dennis G. Seley Seley & Cote LLP P.O. Box Professional Drive Roseville, CA Telephone: (916) Facsimile: (916) Website: 8