Admissibility of Computer Generated Moving Diagrams

Admissibility of Computer Generated Moving Diagrams Eugene P. Ramirez Daniel C. Gavilanes Manning & Kass Ellrod Ramirez Trester LLP 801 S. Figueroa Street, 15th Floor Los Angeles, CA 90017 (213 624-6900 Timothy A. Piganelli Piganelli & Associates Inc. 4425 E. Agave Road, Bldg 5, Suite 122 Phoenix, AZ 85044 (480 753-3770

Eugene P. Ramirez, a founding member of Manning & Kass Ellrod Ramirez Trester LLP, graduated from Whittier College School of Law. He received his undergraduate degree from California State University, Long Beach. He has been profiled in California Lawyer Magazine, for his work in defending law enforcement. He is a member of the American Board of Trial Advocates (ABOTA and is an Associate Fellow in the Litigation Counsel of America. Selected as the Los Angeles County Sheriff s Department s Trial Lawyer of the Year in 1993 and 2006, he was also selected twice as one of the Top 25 Municipal Attorneys in California. He has been awarded Certificates of Appreciation from the United States Army Special Operations Command and from the United States Secret Service. Timothy A. Piganelli is the co-owner and founder of Piganelli & Associates Inc. He is recognized as one of the country s top trial and discovery consultants in the areas of trial strategies, jury consulting, graphics and animation, trial presentation, courtroom technology, and ediscovery. He has been consulting to legal professionals and their clients since 1988, working over 500 case projects, over 250 trials, and over 20,000 courtroom hours. He is an adjunct professor of law at the McGeorge School of Law in Sacramento, California, where he team teaches a course in Computer Assisted Litigation and holds bachelor degrees in Mechanical Engineering and Industrial Engineering Technology. Daniel C. Gavilanes is a law clerk with Manning & Kass Ellrod Ramirez Trester LLP in Los Angeles, California.

Admissibility of Computer Generated Moving Diagrams Table of Contents I. Admissibility of Computer Generated Moving Diagrams...107 Attachment 1...116 Attachment 2...120 Admissibility of Computer Generated Moving Diagrams Ramirez et al. 105

I. Admissibility of Computer Generated Moving Diagrams ADMISSIBILITY OF COMPUTER GENERATED MOVING DIAGRAMS By Eugene P. Ramirez, Tim Piganelli & Daniel C. Gavilanes Manning & Kass, Ellrod, Ramirez, Trester LLP. 15th Floor at 801 Tower 801 S, Figueroa Street Los Angeles, California 900017 213-624-6900 Admissibility of Computer Generated Moving Diagrams Ramirez et al. 107

Computer Generated Animations Over the last decade, trial attorneys have increased their ability to effectively communicate with modern day jurors with the help of computer generated animations. Exhibits like these make it easy to relay large amounts of complex data to a trier of fact in a clear and meaningful way. Recent advances in computer technology and processing have made computer animations so common that they are now seen as the norm rather than the exception for litigators when presenting a case. Computer generated evidence Use of computer generated animations, 5 Bus. & Com. Litig. Fed. Cts. 61:17 (3d ed.. In recent years, however, there has been a growing debate over the admissibility of computer generated animations in court proceedings. This has led to an increase in the amount of judicial decisions that regulate when and how computer animations may be properly introduced at trial. The purpose of this report is to provide a non-exhaustive analysis of the current body of case law that regulates the admissibility of computer generated animations. Computer animations play a crucial role in the courtroom setting, and it is important that attorneys understand how they are used, and to what extent they are permitted. 108 Civil Rights and Governmental Tort Liability January 2015

What Exactly Is a Moving Diagram? Computer animations are often referred to as moving diagrams. Moving diagrams are typically used to enhance expert and lay witness testimony by providing a basic rendition of the testimony being offered. Moving diagrams provide the viewer with different perspectives and points of view. Id. These types of diagrams are extremely versatile. They can be used for almost any factual scenario, making them the ideal tool for any litigation attorney. Moving diagrams have been successfully introduced as evidence in courts all across the U.S. To cite just a few examples, diagrams have been used to show the positions of a shooting victim and a perpetrator in State v. Harvey, 649 So. 2d 783 (La. Ct. App. 1995; an accident illustrating the movement of a train and car in Robinson v. Missouri Pacific Railroad Co., 16 F.3d 1083 (10th Cir. 1994; and a number of other complex scenarios, like toxic spills, building collapses, building ordinance reviews and criminal prosecutions. Moving Diagrams v. Simulations Before we get started, it is important to note that courts and commentators have distinguished between computer generated moving diagrams and simulations (for purposes of analyzing evidentiary admissibility. A number of courts have found that moving diagrams are functionally distinct from computer simulations. See Roy Krieger, Sophisticated Computer Graphics Come of Age - And Evidence Will Never Be the Same, ABA JOURNAL, Dec. 1992, at 93. People v. Duenas, 281 P.3d 887(Cal. 2012 is just one example where a court adopted a different approach between moving diagrams and simulations. The Duenas case dealt with a biomechanics expert who described and showed the jury a four-minute animation of an attempted murder recreation. Using a moving Admissibility of Computer Generated Moving Diagrams Ramirez et al. 109

diagram to help illustrate her testimony, the expert told the jury her opinion of how the events unraveled. Despite the Defendant s contention that the diagram gave off an unwarranted and cumulative aura of scientific certainty, the California Supreme Court found that the animation was demonstrative, and merely helped to explain the substantive testimony of a witness. Duenas, 281 P.3d at 899-900. The Court further noted that, because of their demonstrative nature, moving diagrams are comparable to more traditional forms of demonstrative evidence, such as charts or drawings. Id. at 899. By contrast, computer simulations are considered by courts to be substantive evidence because simulations are created by entering data into a computer model that contains scientific or physical principles, which is then used to reach a scientific conclusion. Id. at 900. (See also Clark v. Cantrell, 504 S.E.2d 605, 613 (S.C. Ct. App. 1998 (citing G. Ross Anderson, Jr., Computer Animation: Admissibility and Uses, South Carolina Trial Lawyer Bulletin 9, 10 (Fall 1995. Because simulations analyze data to reach scientific conclusions, they require a showing of expert validation something that demonstrative aides do not. Unlike simulations, moving diagrams do not draw conclusions. They simply attempt to recreate a scene of events or process, and are treated like visual aids. Id. (citing People v. Hood, 53 Cal.App.4th 965, 969 (1997 (computer animations are usually referred to as pedagogical devices that are used to highlight and illustrate the testimony of a witness. Due to their demonstrative nature, moving diagrams cannot be used to prove the facts of a case. They are merely offered to help a jury understand a witness s testimony or other forms of substantive evidence. Duenas, 281 P.3d at 900; (see also, Admissibility of Computer Generated Animation, 111 A.L.R.5th 529, 538 539, 2[a] (2003. 110 Civil Rights and Governmental Tort Liability January 2015

Lawyers who wish to incorporate these animations into their litigation strategy should realize that moving diagrams do not need to satisfy heightened admissibility standards required of other forms of evidence. In fact, courts typically apply a less critical eye to the factual foundation of a moving diagram because it is only used to aid a witness' testimony; and will not be introduced as a trial exhibit itself. 5 Bus. & Com. Litig. Fed. Cts. 61:17 (3d ed.. This was shown to be the case in People v. Hood, 53 Cal.App.4th 965, 969 (1997. Hood was a first degree murder case where prosecutors showed a moving diagram based on expert testimony. The diagram depicted the Defendant shooting his alleged victim several times with a handgun. In Hood, the California Court of Appeals determined that moving diagrams are not submitted for the purpose of standing on their own. Id. at 971. Instead, moving diagrams are admitted for the purpose of illustrating what a witness could have just as easily drawn on a board. Id. at 968. The Court also found that, because of the animation s illustrative nature, moving diagrams do not require a showing of acceptance by the scientific community; an evidentiary standard that was established in People v. Kelly, 549 P.2d 1240 (Cal. 1976 and Frye v. United States, 293 F.1013 (Cal. 1923. Id. at 969; (in general the Kelly/Frye formula exists to prevent lay jurors from giving considerable weight to scientific evidence when presented by experts by analyzing what scientific techniques were used to reach a legal conclusion. Thus, moving diagrams have been adopted as demonstrative forms of evidence -not scientific, and therefore are not required meet the heightened evidentiary standards like other types of computer generated forms of evidence. Admissibility of Computer Generated Moving Diagrams Ramirez et al. 111

Practical Effects of Presenting Moving Diagrams The use of moving diagrams has huge impact on juror participation. Because today s jurors are more technologically savvy, moving diagrams allow jurors to become more involved and better connected to the proceedings. Inga Hofer, The Rise of Courtroom Technology and its Effect on the Federal Rules of Evidence and the Federal Rules of Civil Procedure, 11 (2007.Visual displays tend to streamline witness examination, and help jurors make connections between the testimonies of different witnesses. Id. (citing Brian Carney & Neil Feigenson, Visual Persuasion in the Michael Skakel Trial: Enhancing Advocacy Through Interactive Media Presentations, 19 SPG CRIM. JUST. 22, 23 (2004 In addition, studies have shown that visual presentation is more effective than verbal communication, and that verbal communication is most effective when coupled with visual presentation. Hofer, supra (see also Adam T. Berkoff, Computer Simulations in Litigation: Are Television Generation Jurors Being Misled?, 77 MARQ. L. REV. 829, 845 (1994. These studies indicate that jurors retain 70% of what they hear three hours later and only 10% of what they hear 72 hours later. Id. However, if the method of presentation involves both a telling and showing, jurors retain 85% after three hours and 65% after 72 hours. Id. Most importantly, moving diagrams are usually displayed on courtroom monitors. This means that while an attorney has the attention of the entire 112 Civil Rights and Governmental Tort Liability January 2015

audience (judge, jury, and opposing counsel, she/he can draw precise attention to any particular point while emphasizing precise aspects of the evidence. Id. Thus, the use of moving diagrams is extremely effective for making visible that which would otherwise only exist as an easily forgotten mental picture. Id. at 12. When and How Should Moving Diagrams Be Used? Moving diagrams that are created with substantive testimony, like pictures, video recordings, or witness testimony, should be admitted the same way a static drawings or photographs of a scene are admitted. As we have learned from a number of jurisdictions, a moving diagram is admissible when it fairly and accurately represents the evidence to which it relates. Duenas, 281 P.3d at 901, People v. Cauley, 32 P.3d 602, 607 (Colo. App. 2001 (a computer animation is admissible as demonstrative evidence if it is a fair and accurate representation of the evidence to which it relates; State v. Farner, 66 S.W.3d 188, 209 (Tenn. 2001 (the requirement that the animation fairly and accurately portray the event is particularly important when the evidence at issue is a computer animated recreation of an event. Therefore, a lawyer who wishes to show a witness s testimony with a moving diagram will need to lay the appropriate foundation and establish that the animation is an accurate depiction of that opinion. Fed. R. Evid. 901(a (standard satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims. When testimony establishes that a photograph, map or drawing is a fair representation of the scene, it is admissible. Given the fact that moving diagrams are purely demonstrative exhibits, they are considered relevant only to the extent that the underlying testimony it is clarifying is relevant. 5 Bus. & Com. Litig. Fed. Cts. 61:17 (3d ed. Therefore, moving diagrams should always be used in conjunction with witness or substantive testimony. By recreating a scene or process of events, the moving diagram should incorporate all elements of the actual environment; from physical objects to lines of sight. In addition, moving diagrams should correspond exactly with the testimony being offered, and should serve to portray how the scene was remembered. Id. Admissibility of Computer Generated Moving Diagrams Ramirez et al. 113

Arguments have been made however, and courts have recognized, that moving diagrams have the potential to mislead a jury by inaccurately portraying events that could create lasting impressions that override other testimony or evidence. Thomas Goutman and Guy Cellucci, Trial Use of Computer-Generated Animations and Simulations, FDCC Quarterly, 149, 154 (Winter 2011 (citing, Clark, 339 S.C. at 384, 529 S.E.2d at 536. In a society enthralled by cuttingedge technology, there is a real danger that juries will give undue weight to computer-generated evidence over less-glamorous forms of evidence. Id. For this reason, some courts seriously consider objections regarding the accuracy of computer animations because of the heightened risk that the jury will irrationally favor computer evidence. Id. Racz v. R.T.Merryman Trucking, Inc., WL 124857 (E.D. Pa. 1994 is one example where a court did not allow a moving diagram as demonstrative evidence. John Selbak, Digital Litigation: The Prejudicial Effects of Computer- Generated Animation in the Courtroom, 9 Berkeley Tech. L.J. 337, 346 (1994. In Racz, the district court held that the risk of unfair prejudice to the plaintiff from the defendant's computer-animated recreation of an accident outweighed the relevance of the evidence. Id. The court recited the old adage, seeing is believing, in concluding that the jury might give undue weight to a computer recreation. Id. The court asserted that because the expert's conclusion would be graphically depicted in a moving and animated form, it may lead the jury to accept the premises underlying the expert's opinion; and thereby, give more weight to such opinion. Id. Attorneys and courts should not discount the effect of computer generated moving diagrams on juries. The fact that a moving diagram is a powerful visual aid is not enough reason by to declare such evidence prejudicial, especially when courtroom advocacy demands that a powerful impact be made. Id. 114 Civil Rights and Governmental Tort Liability January 2015

Furthermore, courts always maintain the discretion to evaluate evidence and determine whether it is more prejudicial than probative. Lawyers who want to make sure their moving diagrams are properly admitted into evidence must be prepared to address several issues regarding the validity of their diagrams. In essence, lawyers should be prepared to: Have the reconstructionist testify that they reviewed the testimony of the parties State whether he/she relied on pictures or video recordings from the events at issue (and any other information for which the reconstructionist relied on to make the animation Make the reconstructionist available during trial for opposing counsel to cross-examine, when the computer animation is formally proffered into evidence. Conclusion The use of effective animations can be the difference between merely presenting evidence and persuading a jury. Like any other diagram or drawing, moving diagrams are not substantive evidence themselves, but an illustration of evidence that will be presented to the jury. These illustrations of evidence help juries visualize the events at issue, and help juries decide the issues presented to it. Lawyers who wish to effectively expand their litigation toolbox should embrace recent advances in technology and computer processing and understand that moving diagrams have become a critical tool in effectively capturing the jury s attention. Admissibility of Computer Generated Moving Diagrams Ramirez et al. 115

Attachment 1 1 2 3 4 5 6 7 8 9 Eugene P. Ramirez, Esq. (SBN 134865 (Exempt from Filing Fee Gov. Code 6103 Timothy J. Kral, Esq. (SBN 200919 MANNING & KASS ELLROD, RAMIREZ, TRESTER LLP 15th Floor at 801 Tower 801 South Figueroa Street Los Angeles, CA 90017 Telephone: (213 624-6900 Facsimile: (213 624-6999 epr@manningllp.com, tjk@manningllp.com Attorneys for Defendants SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF LOS ANGELES 10 11 12 13 14 15 16 17 vs. Plaintiffs, Defendants. Case No.: DEFENDANTS TRIAL BRIEF RE ADMISSION OF COMPUTER ANIMATION ILLUSTRATING DEFENDANTS EXPERT OPINIONS AND USE THEREOF DURING ALL PHASES OF TRIAL 18 19 20 21 22 23 24 25 26 27 28 TO THE COURT, TO PLAINTIFFS AND TO THEIR ATTORNEY OF RECORD: Defendants submit the following Trial Brief re Admission of Computer Animation Illustrating Defendants Expert Opinions and Use Thereof During All Phases of Trial. MEMORANDUM OF POINTS AND AUTHORITIES 1. COMPUTER ANIMATION ILLUSTRATING DEFENDANTS EXPERT OPINIONS IS ADMISSIBLE. This case arises out of a deputy-involved shooting incident which occurred on November 8, 2010, involving Decedent and Defendants. Plaintiffs, the surviving parents of Decedent, have brought suit against Defendants for assault and battery, negligence, and wrongful death, on behalf of Decedent. -1- DEFENDANTS TRIAL BRIEF RE ANIMATION 116 Civil Rights and Governmental Tort Liability January 2015 G:\docsdata\EPR\DRI\Exhibit A.wpd

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Defendants should be permitted to use moving diagrams such as illustrative/demonstrative computer animations developed from eyewitness testimony to illustrate the testimony of Defendants witnesses, particularly their expert witnesses, and to introduce the jury to the facts of the subject incident which defendants anticipate the evidence will show during the course of the trial. Specifically, Defendants seek to use a moving diagram that their expert used to support his opinion, and a computer animation reconstruction of the incident. This animation is no different than what an expert could draw on a chalk board, but has been done in advance to save time. As noted by the California Supreme Court in People v. Duenas (2012 55 Cal. 4th 1, California courts routinely admit computer animation. [A] computer animation is demonstrative evidence offered to help a jury understand expert testimony or other substantive evidence. Id. at 21, citing People v. Hood (1997 53 Cal.App.4th 965, 969. Courts have compared computer animations to classic forms of demonstrative evidence such as charts or diagrams that illustrate expert testimony....a computer animation is admissible if 'it is a fair and accurate representation of the evidence to which it relates. Ibid. (citations omitted. In People v. Duenas, supra, involving the murder of a deputy sheriff, the California Supreme Court held that the trial court did not err in admitting a computer animation illustrating the opinions of two experts regarding how the shooting occurred. The animation was relevant to the question of premeditation and deliberation. It illustrated the theory of a prosecution's expert witness that defendant fired a series of shots, from different locations, including one shot that was fired at close range, while the deputy was falling forward, or while he was kneeling on the ground. It further illustrated the expert's theory that defendant continued to shoot after the deputy was lying on the ground, again suggesting premeditation and deliberation. Id. at 21. The California Supreme Court also found that the animation was not inadmissibly speculative. The expert opinions reflected in the animation were based on substantive evidence found at the crime scene and in the autopsy. Even if the animation incorrectly depicted the sequence of the final shots, defendant suggested no way in which that error could have improperly affected the jury's consideration of the issue of premeditation and deliberation. Id. at 23. The trial court also did not abuse its discretion in ruling that the probative value of the animation was not substantially outweighed by a risk of undue prejudice to defendant. Id. at 24. Nor was the animation -2- DEFENDANTS TRIAL BRIEF RE ANIMATION G:\docsdata\EPR\DRI\Exhibit A.wpd Admissibility of Computer Generated Moving Diagrams Ramirez et al. 117

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 inadmissibly cumulative. The animation was not offered as substantive evidence, but as a tool to aid the jury in understanding the substantive evidence. Id. at 25. The Duenas court relied in part on People v. Hood (1997 53 Cal.App.4th 965. In that case, in a trial for first degree murder, the prosecution was permitted to introduce a computer animation of the shooting to illustrate the testimony of various experts. The trial court ruled that because the animation was illustrative in nature, it was not necessary to determine, as a prerequisite to admissibility, whether computer animation had gained general acceptance in the scientific community. The California Court of Appeal affirmed the trial court s ruling that the computer animation was admissible: The prosecution and defense computer animations were tantamount to drawings by the experts from both sides to illustrate their testimony. We view them as a mechanized version of what a human animator does when he or she draws each frame of activity, based upon information supplied by experts, then fans through the frames, making the characters drawn appear to be moving.... Given the nature of the testimony at trial as to how the prosecution's animation had been prepared, the introduction of the defense's contradictory animation and the instructions given the jury concerning both animations, there was no danger that the jury was swept away by the presentation of a new scientific technique which it could not understand and, therefore, would not challenge. Id. at 970. Since Hood, the California Supreme Court has recognized that California courts routinely admit computer animation. People v. Duenas, supra, 55 Cal. 4th 1 at 21. In this case, the computer animation illustrates the opinions of Defendants experts regarding how the incident occurred, and is no different than what an expert could draw on a chalk board. Under Duenas, this animation is admissible to aid the jury in understanding the substantive evidence. The animation is admissible to illustrate the testimony of the defense witnesses, particularly the defense experts. The animation is supported by and consistent with the evidence that will be presented at trial and is not argumentative. The foundation for the admission of the computer animation proffered by Defendants will be clearly established. The defense expert witness will testify that the computer animation at issue was prepared at his direction, based on his review of the evidence, and that the moving diagram-animation illustrates his opinions. -3- DEFENDANTS TRIAL BRIEF RE ANIMATION G:\docsdata\EPR\DRI\Exhibit A.wpd 118 Civil Rights and Governmental Tort Liability January 2015

1 2 3 4 5 This adequately lays the foundation for admission of the computer animation illustrating the expert s opinions. 2. CONCLUSION. Based on the foregoing, the Court should allow defense counsel to use and refer to the computer animation at all phases of the trial, including opening statement. 6 7 8 9 10 11 12 13 Dated: MANNING & KASS, ELLROD, RAMIREZ, TRESTER LLP By: Eugene P. Ramirez, Esq. Timothy J. Kral, Esq. Attorneys for Defendants 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28-4- DEFENDANTS TRIAL BRIEF RE ANIMATION G:\docsdata\EPR\DRI\Exhibit A.wpd Admissibility of Computer Generated Moving Diagrams Ramirez et al. 119

Attachment 2 1 2 3 4 5 6 Eugene P. Ramirez, Esq. (State Bar No. 134865 (Exempt from Filing Fee Gov. Code 6103 MANNING & KASS ELLROD, RAMIREZ, TRESTER LLP 15th Floor at 801 Tower 801 South Figueroa Street Los Angeles, CA 90017 Telephone: (213 624-6900 Facsimile: (213 624-6999 epr@mmker.com; ssf@mmker.com Attorneys for DEFENDANTS 7 8 9 SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF LOS ANGELES 10 11 12 13 14 15 16 17 18 19 20 vs. Plaintiff, Defendants. Case No.: DEFENDANTS MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF ADMISSIBILITY OF MOVING DIAGRAM 21 22 23 24 25 26 27 28 Defendants respectfully present this Memorandum of Points and Authorities in Support of the Admissibility of Computer Animation. /// /// /// /// -1- TRIAL BRIEF RE: DEFENDANTS MOVING DIAGRAM 120 Civil Rights and Governmental Tort Liability January 2015 G:\docsdata\EPR\DRI\Exhibit B.wpd

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 MEMORANDUM OF POINTS AND AUTHORITIES 1. INTRODUCTION: COMPUTER ANIMATION GENERALLY IS ADMISSIBLE TO ILLUSTRATE EVIDENCE OR AN EXPERT S OPINION Since at least People v. Hood (1997 53 Cal. App. 4th 965, cert. denied (1998 522 U.S. 1093, California courts have routinely admitted computer animation into evidence, where the evidence illustrates testimonial evidence, or illustrates an expert s opinion: The prosecution and defense computer animations were tantamount to drawings by the experts from both sides to illustrate their testimony. Id., at p. 969. In this context, computer animation is, in effect, a moving diagram that illustrates and summarizes the substantive evidence at trial. It is admissible on the same basis as any other diagram, drawing, photograph or illustration of a location relevant to the lawsuit. Here, Defendants are introducing a computer animation that illustrates the events of the shooting at issue, based on the testimonial evidence of the deputies involved, and the video recordings of the area from security cameras at a local business that was close to the location of the shooting. With this foundation, the animation is to be presented to the jury, not as substantive evidence, but as an illustrated summary of the evidence that is being introduced at trial, and an illustration of defendants expert witness testimony. This computer animation will assist the jury in understanding the events as they unfolded. The figures that represent the defendants and the young men who were involved in these events are drawn neutrally, so there is no effort to inflame the jury or otherwise prejudice plaintiffs case. The aerial view of the action is presented to make the individual movements easy for the jury to absorb. The computer animation presented by Defendants is admissible both as a moving illustration and summary of the testimony that is being presented in this action by various witnesses. Defendants reconstruction expert, who supervised the creation of the computer animation, will be available during trial for plaintiffs to cross-examine, when the computer animation is formally presented for admission into evidence. The computer animation, therefore, is admissible. /// /// /// -2- TRIAL BRIEF RE: DEFENDANTS MOVING DIAGRAM G:\docsdata\EPR\DRI\Exhibit B.wpd Admissibility of Computer Generated Moving Diagrams Ramirez et al. 121

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 2. DEFENDANTS PROFFER THE COMPUTER ANIMATION AS AN ILLUSTRATION OF THE TESTIMONIAL AND VIDEO TAPE EVIDENCE OF THE EVENTS SURROUNDING THE SHOOTING Courts all over the country have found computer animation helpful to juries in understanding a complex set of facts, or to illustrate and explain a witness testimony. In this context, computer generated animations recreate a scene or a process, so they are treated like demonstrative aids. See, e.g., 111 A.L.R.5th 529. Here, Defendants offer a computer animated re-creation of the events surrounding the shooting of Plaintiff that is an illustrated moving summary of the substantive evidence presented by witness testimony, video recordings from security cameras, and expert opinion testimony. It is admissible. In People v. Hill, supra, the Court of Appeal rejected the argument that computer generated animation could be admitted only if it met the evidentiary standards for admitting scientific evidence, that is, the Kelly/Frye test: The prosecution and defense computer animations were tantamount to drawings by the experts from both sides to illustrate their testimony. We view them as a mechanized version of what a human animator does when he or she draws each frame of activity, based upon information supplied by experts, then fans through the frames, making the characters drawn appear to be moving. If the animations here had been done by hand, rather than by a computer, there would have been no Kelly issue as to the work done by the animators. Id., at pp. 969; see also Byrd v. Guess (9th Cir. 1998 137 F.3d 1126, 1134-35 (affirming admission of computer animated reconstruction of shooting with all facial expressions are removed. ; Hinkle v. City of Clarksburg, W.Va. (4th Cir. 1996 81 F.3d 416 (approving admission of computer animated videotape to illustrate the testimony defense s forensic expert, showing version of incident based on his interpretation of evidence and that was consistent with police officers testimony; Howell v. Union Pacific R. Co. (La. Ct. App. 2008 980 So. 2d 854 (approving admission of video in action arising from train accident, used to illustrate expert s opinion, depicting expert s best estimation as to location of children and speed of train. -3- TRIAL BRIEF RE: DEFENDANTS MOVING DIAGRAM G:\docsdata\EPR\DRI\Exhibit B.wpd 122 Civil Rights and Governmental Tort Liability January 2015

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 Here, the computer animation created based on substantive testimony, video recordings and expert witness testimony should be admitted the same way a static drawing or photograph of the scene would be admitted. When testimony establishes that a photograph, map or drawing is a fair representation of the scene, it is admissible. See, e.g., 2 Witkin Cal. Evid. Demo. Evid. 14 ( The admissibility of authenticated photographs of places, persons, or things relevant to an issue is well established. ; including: motion pictures and videotape, enlarged photographs or photostatic copies, aerial pictures, and color pictures. Defendants expert reconstructionist reviewed the testimony of the deputies involved in the shooting, the video recordings from the two cameras that picked up portions of the events at issue, and studied the opinion of Defendants medical expert in order to have the computer animation created. The animation s aerial view of the events of the shooting is the illustrated summary of this evidence. Defendant s expert will be available during trial for plaintiffs to cross-examine when the computer animation is formally proffered into evidence. 3. CONCLUSION The computer animation presented by Defendants is moving illustration of the testimonial evidence to be presented at trial, combined with the video recordings from security cameras in the area of the shooting. Like any other diagram or drawing of the scene of an accident or tort, the computer animation is not substantive evidence itself, but is an illustration of evidence that will be presented to the jury. This moving illustration of the evidence will help the jury visualize the events at issue, and help the jury decide the issues presented to it, in particular, the reasonableness of the force used by the Defendants. The Court, therefore, should admit the computer animation into evidence. 23 24 25 26 Dated: MANNING & KASS ELLROD, RAMIREZ, TRESTER LLP By: Eugene P. Ramirez, Esq. Attorneys for Defendants 27 28-4- TRIAL BRIEF RE: DEFENDANTS MOVING DIAGRAM G:\docsdata\EPR\DRI\Exhibit B.wpd Admissibility of Computer Generated Moving Diagrams Ramirez et al. 123