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Univ. of South Carolina School of Law

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Monday, December 24, 2007

Heard About Pittsburgh, P.A.?: Pennsylvania Court Finds Video Animations Admissible As Demonstrative Evidence In Christmas Eve Case

On Christmas Eve 2002, unarmed, 12 year-old Michael Ellerbe was shot by police officers in Uniontown, Pennsylvania as he ran down a city alley from a stolen Ford Bronco.  Ellerbe's father, Michael Hickenbottom, thereafter sued the two troopers who shot his son, Juan Curry and Samuel Nassan.  During the inquest into the shooting in 2003, Curry had testified that his gun accidentally discharged as he climbed and fell from a 4-foot fence while chasing Ellerbe.  Meanwhile, Nassan contended that he heard the shot from Curry's gun and saw him fall; thinking that his partner was shot, Nassan fired a round at Ellerbe.

At trial, Hickenbottom plans to call a now 15 year-old eyewitness who supposedly will contradict the testimony of the officers.  That eyewitness' testimony, however, will now be called into question as district court judge Joy Flowers Conti preliminarily ruled last Thursday that the defendants will be able to introduce into evidence video animations prepared by Precise Inc., which recreate the scene of the shooting and allegedly show that the eyewitness could not have seen the shooting from his Cleveland Avenue window.

One of Hickenbottom's attorneys had claimed that these animations were prejudicial, inaccurate, and lacked a foundation for presentation to the jury.  Defense counsel countered that these animations were proper demonstrative evidence because jurors could be instructed that these animations were not to be taken as exactly what happened on Christmas Eve but instead were to be received as an illustration of the troopers' testimony.  Conti agreed with defense counsel, finding that animations documenting one side's theory of a case are a permissible form of evidence as long as jurors are informed.  Conti did note that defense counsel would still have to authenticate the animations at trial and prove that they were relevant and not unfairly prejudicial.

Legally, Judge Conti's ruling is correct as courts have found that animations are admissible as demonstrative evidence as long they are "substantially similar" representations of the areas in question.  See, e.g., St. Paul Fire and Marine Ins. Co. v. Nolen Group, Inc., 2005 WL 1168389 at *7-*8 (E.D. Pa. 2005). 

I am very concerned, however, about the amount of weight jurors put into these animations.  In law school, I particpated in mock technology trials, where we addressed the admissibility of this type of evidence.  One year, an animated recreation of an airplane crash was created in a mock lawsuit against an airline;  the next year, a virtual reality presentation was prepared for a mock trial against the creators of a cholesterol treatment device.

I understand the argument that this evidence is admissible as a visual representation of a witness' testimony and that jurors can be cautioned not to take it as gospel.  Thus, for instance, the animation of the plane crash in theory would only be a visual representation of an accident reconstructionist's testimony and not substantive evidence of how the plane crashed.  That said, do we really believe that jurors or even judges will not put undue weight into evidence which, at least to these eyes, seemed very convincing?  I would love to see a study like the Australian study on gruesome evidence to see whether cases with otherwise similar facts have different results depending on whether animations are presented.

-CM

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