By Harvey Weitz, Esq.
HERE IS HARDLY a commercial or professional activity today which does not involve the use of computers.
In a world where microcomputers are routinely used to record and preserve information; process information; recall and recreate information and events; project and predict information and events and furnish answers concerning everything from which product design is best to when to sell or to buy a commodity or stock, it is impossible to avoid dealing with material produced by these machines.
Even the New York State court system, whose rate of innovation has been compared unfavorably with that of some third world nations, has deemed it expedient to install and implement a computer tracking system for the operation of its calendars. Yet, there exists a residual reluctance to utilize and/or permit computer-generated evidence (CGE) in the trial itself, an attitude which seems endemic to bar and bench.
A tour of any courthouse will confirm that CGE is not in general use. Perhaps this is attributable to the bar's rampant conservatism, or perhaps the explanation is simply that attorneys are not in the habit of utilizing such tools and are generally unaware of the alternatives available to them. Whatever the reason, the result is unfortunate.
It is self-evident that, as our lives and our world become more complex, so does our litigation. Whether viewed from the perspective of an advocate seeking victory for her side or from the perspective who views the trial as a search for the truth, CGE could serve as a valuable tool. However, we have instead effectively disarmed ourselves, and in the process have thus far eschewed the very means for coping with the increased demands of our time.
This is not to say that every form of CGE should be accepted without scrutiny at face value. Certainly our courts must avoid failing victim to the media hype that often takes an obscure scientific study and trumpets it as the "breakthrough" cure for cancer, AIDS or the common cold. Nor should our courts seek to be the arbiter of what is or is not "junk science" for, all too often, yesterday's junk is tomorrow's gospel.
Yet, if we only recognize that CGE is merely traditional evidence in a different form, the use and admissibility of such evidence becomes relatively straightforward, and the separation of wheat from chaff can be accomplished by means of our traditional evidentiary distinctions.
TWO TYPES OF CGE MATERIAL
BASICALLY, THERE ARE TWO types of computer generated material. The first is computer-stored information, e.g., accounting records, payables, receivables, inventories, sales and records of transactions, etc. The other type is material produced by the computer itself. This latter class includes accident reconstruction, computer-generated simulations, computer-enhanced photographic images, computerized test scores, etc.
The output of the first type is essentially a reiteration of human statements stored in a computer. The output of the second type is produced by a program which takes material -- either stored or entered -- and manipulates it in a predetermined method. The predetermined method is the program which has been designed to manipulate the material.
The first type of material most commonly consists of business records which have been stored on a machine (computer) rather than in a traditional file cabinet. While it could be argued that this manner of storage lends itself to manipulation of the data, the fact is that the same is true of paper records in a file cabinet. And if the asserted distinction is that an expert witness might detect when a traditional (paper) document has been altered in some respect, this fails to account for the fact that such a document can be wholly replaced rather than changed, in such fashion that no alteration would be apparent from any examination thereof. Yet, these considerations have not been deemed to justify wholesale exclusion of traditional paper documents; nor should they justify exclusion of computer-stored data.
Indeed, given that both DOS (the most common computer operating system) and almost all commercially available word processing software automatically record the last date of any change to any stored document or file, this provides an indicia of trustworthiness which is lacking as to traditionally stored documents. (Yes, this too can be manipulated either by manipulation of the software or by changing the date on the computer's internal clock, but the point is that such requires both a willingness to do so and the technical acumen to do so, whereas successful alteration or replacement of traditionally stored data requires only the former.)
In this posture, if we could conquer our aversion to the unfamiliar, admission of computer-stored data could be evaluated in the same manner as traditionally stored data. That is, such material is generally hearsay (unless of independent legal significance), but should nonetheless be admitted pursuant to the business record exception to the hearsay rule (CPLR 4518), this provided that the requisite foundation is established (i.e., that the document and file was compiled and maintained in the ordinary course of business). Once such foundation is established, then, as with familiar paper records, "[a]ll other circumstances of the making of the memorandum in record ... may be proved to affect its weight", but should "not affect is admissibility." CPLR 4518.
GRAPHICS AND SIMULATIONS
THE SECOND TYPE of computer generated material presents a somewhat different problem. Computer graphics or simulations usually consist of material produced expressly for litigation and, thus, call upon the court for an initial assessment "that the matter in question is what its proponent claims." [e.g., Federal Rules of Evidence, Rule 901(a)].
In what is now considered traditional demonstrative evidence, graphs and charts are frequently used in connection with expert testimony, this with the rational that such material is "helpful and useful" to the jury's understanding of the testimony. Typically, witness, expert or otherwise, authenticates the material as "a fair and accurate" representation of its contents, be it an anatomical sketch, a drawing of a mechanical object, or an illustration of some scientific principle. Once the threshold questions and responses are made, the hearsay material is received in evidence. In essence, what has taken place is in compliance with the principles of authenticity and relevancy generally governing the admission of evidence (e.g., Federal Rules of Evidence, Rule 403 and Rule 901(a,b)).
Computer simulations can be used in a manner similar to traditional demonstrative evidence. As graphics provide simplified explanations of technical matters, so do simulations. An expert in accident reconstruction verbally recreates an accident by taking the basic numbers such as the weight of the vehicles, the length of skid marks, the dimensions of the roadway, its coefficient of friction, crush data, etc., and using generally accepted mathematical formulae, the expert computes speeds and reconstructs the events. Likewise, in aviation cases, experts will reconstruct a mid-air collision from known data such as velocity, heading, rate of climb, etc., and using mathematical analysis, the events are reconstructed.
The use of reconstructionists' testimony is so commonplace today that it is seen in virtually every type of case from simple automobile accident claims to those involving explosions, fires, ship collisions and environmental pollution. Often, the reconstructionist's testimony is accompanied or enhanced through the use of drawings, charts, diagrams and the like. Sometimes, while on the witness stand, the expert will use a hand-held calculator to apply standard laws of physics to observed data in order to determine speed of objects or the length of time required for an event to occur. In essence, an animated computer simulation merely combines now commonplace testimony with visual material.
SOME VIEWS OF THE COURT
IN A SEMINAL CASE dealing with such a computer simulation, Schaeffer v. G.M. Corp., 372 Mass. 171, 177, 360 N.E.2d 1062, 1066-1067 (1977), the Supreme Court of Massachusetts provided an instructive analysis, both as to the nature of such proof and as to the logical considerations vis-a-vis admissibility. Using a program which automobile manufacturer had utilized to predict vehicle behavior under various conditions, the defendant's expert "fed in" the observed data as to the subject collision and thus obtained computer-generated information as to those impact speeds which would yield a reconstruction most consistent with the physical evidence.
On appeal, plaintiff argued that the receipt of such proof constituted reversible error. As it happened, a new trial was deemed necessary in any event, by reason of other evidentiary errors. Yet, because the Court anticipated that the issue would again arise at the re-trial, it addressed the matter at some length.
Significantly, the Court refrained from a knee-jerk rejection of the untraditional proof, and, on the contrary, explicitly acknowledged that the computer performs an invaluable function in today's world:
The key, as the Court saw it, lay with the computer program used to generate the results, not with the computer itself nor with form in which the evidence was presented. If the equations and assumptions contained within the program were sufficiently accepted in scientific theory that an expert's oral testimony from the stand could be predicated thereon, then the form of the computer-generated proof could not logically bar its admission. If, on the other hand, such assumptions and data were not generally accepted, the proof would not be rendered competent merely because it came out of a computer. Resolution of the evidentiary issue thus required an analysis which had not been performed by the trial court, and which would not be attempted on appeal in the absence of a determination in the first instance by the lower court:
A similar view -- in essence that computer-generated proof should neither be routinely accepted nor routinely rejected, but instead permitted when appropriate and useful -- was nicely stated in People v. McHugh, 124 Misc.2d 559, 476 N.Y.S.2d 721 (Sup. Ct. Bronx Co. 1984), where Justice Collins observed:
The first reported use of non-visual computer simulation is found in a Second Circuit decision, Perma Research and Development v. Singer Co., 542 F.2d 111 (2nd Cir. 1976), cert. den., 429 U.S. 987 (1976). The plaintiff Perma had assigned a patent to Singer. The patent related to an anti-skid device. Perma claimed that Singer had failed to use its best efforts to perfect, manufacture and market the device, as it was required to do under their agreement. Singer, in defense of the breach of contract action, claimed that the device was not perfectible.
At trial, Perma presented expert testimony based upon computer simulations. Singer objected to the expert testimony on the ground that it had been supplied neither with the computer program nor with the underlying data prior to the trial. Singer further argued that it was unable to conduct an adequate cross examination without this pre-trial disclosure. The Second Circuit, writing in affirmance of the trial court's admission of the evidence, held:
Interestingly enough, the affirmance was not unanimous. In dissent, Judge Van Graafeiland expressed the reservations of many who are concerned with the use of computer simulations whether animated or not. He questioned the validity of the computer's program and opined that it was hearsay. He also criticized the simulation as being too narrow because it failed to cover such things as changes in types or cars, road surfaces, grades and weather conditions. He further observed that there were no parallel experiments to establish the reliability of the computer simulation. In summary, Judge Van Graafeiland stated:
Of course, to some extent, the concerns voiced by Judge Van Graafeiland were the same concerns noted in Schaeffer and in McHugh. To some extent, they are valid concerns. Yet, the dissenting opinion is also representative of the unbridled, and in some respects, illogical hostility to computer-generated proof which pervades breach and bar, for it is plain that the evidentiary standard espoused by the dissent was far more exacting than would be applied to other, traditional forms of proof.
For example, if a reconstruction expert renders an oral opinion in the traditional form without having considered the nature of the roadway surface or without having considered other arguably pertinent facts, such may well leave the witness exposed to a telling cross-examination, but is not likely to be deemed grounds for wholesale exclusion of the testimony. In this more familiar context, while the court in the first instance makes a determination vis-a-vis the legal relevancy of the proof and also as to the expert's credentials to give testimony, we typically rely in large measure upon the proponent's adversary to elicit and expose the shortcomings of the analysis, and also upon the jury to evaluate the weight of the proof in light of those shortcomings.
Yet, one suspects that many judges would echo the dissent's misgivings, perhaps because those who have not grown up with computers are understandably distrustful of them. Perhaps such attitudes also betray an inherent distrust of the jury and a lack of confidence in the jury's ability to distinguish science from science fiction.
CONQUERING OUR FEARS
AT ANY RATE, UNLESS WE WISH to be prisoners of our past, we must conquer our fears of the computer. Whether or not we succeed in this, our children surely will. This does not mean that computer-generated proof should be routinely admitted without question or scrutiny, but instead that it should be admitted when helpful and when shown to be sufficiently reliable, as per the analysis in Schaeffer. Thus, before receiving the material in evidence, the court must hear some foundation relative to the accuracy of the simulation and the accuracy of the process which produced it. The foundation testimony should address itself to three basic areas. First, is the underlying scientific theory valid? Second, was the methodology applying the theory valid and, third, was the methodology correctly applied on this particular occasion?
These questions can be readily answered by the expert for whom the simulation has been prepared. Such an expert will be able to recount and explain all of the steps involved in processing information into, through and out of the computer. In essence, the expert will attest to the reliability and authenticity of the various sources for the data used. He will establish the manner of entry of information into the computer (input); the type of program used to manipulate the information and the general acceptance of such a program by persons working within the field; and the method(s) of assuring that the material produced (output) is accurate.
Accordingly, in laying a foundation for the introduction of computer-generated evidence, there should be testimony which will demonstrate that either the program or the methodology contained safeguards sufficient to reject or flag erroneously entered data; that the program reasonably provides for pertinent contingencies; that the program has built in verification procedures and/or that it has been subjected to and passed a test program with known results.
In stepwise fashion, the foundation testimony might proceed as follows:
Q. What was the source or sources of the material entered into the computer?
A. I used the exhibits previously marked in evidence in this case, namely, the police accident investigative reports, the emergency service unit reports, the municipality's official roadway maps and the material provided by the defendant on discovery, its specifications for the highway barriers as well as the manufacturer's specifications for the automobile involved.
Q. What type of computer was used?
A. A Sun Microsystems Engineering work station with a standard software graphics program.
Q. You entered this material and how was it done?
A. A clerk under my supervision entered the material into the computer by typing the data utilizing the numeric keyboard.
Q. What type of program was used to process the data?
A. A computer program developed by the Calspan Corp., serving automobile manufacturers, primarily, to predict the behavior of automobiles under a variety of circumstances.
Q. To what extent, if any, is this particular program used by people who work in the field of accident reconstruction and computer simulation?
A. It is the most commonly used program and has undergone verification procedures against known data with known results so that it is generally accepted as reliable by persons in this field.
Q. Suppose the entered data is insufficient to provide us with definitive simulations?
A. If we are missing information, the program is designed to assign to the information variable values which most closely correspond to the observed data. In such instance, the simulation will state that the data was processed by assigning to the unknown information variable values.
Q. Did that occur in this case?
Q. How can one know if, in fact, the material produced is reliable?
A. We tested the program by entering data previously calculated in a conventional manner with a known result and checked the program's output against this material.
Q. Have you viewed the computer-generated animation?
Q. Is it a fair and accurate rendering of the manner in which you hypotheticate the happening of this accident?
Q. In three dimensional form, does it fairly and accurately display the distances traveled, the path of the vehicle, the impact with the guiderail, the view of the driver and the evasive action which the driver and car took prior to impact, and does it show the final resting place of the vehicle?
A. Yes, it does.
Q. And do you consider this simulated animation useful and helpful in explaining your testimony and the findings produced by your calculation?
A. Yes, it would be most helpful.
Thus, one can see, introducing an animated computer simulation is no more difficult than introducing a photograph of a defective sidewalk.
Web Law Review, Winter 1997
and Photo © 1996-97, Harvey Weitz, Esq.
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