August 29, 2016 Articles

Harnessing the Power of Simulated and Illustrative Evidence Without an Expert

When to consider offering illustrations as evidence

by Justin Bryan

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)). 

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