Computer Generated Animation: Identifying New and Subtle Prejudicial Special Effects
Computer animation technology has developed substantially in the past few years allowing lawyers to incorporate cinematic special effects into their courtroom presentation.1 The problem is that these special effects have no probative value, result in a “slickly” produced animation that leads the jury to accept the testimony presented in the animation and, consequently, discount the probative value of the testimony presented by other witnesses. This article will identify these special effects and demonstrate their prejudicial effect.
Section 90.403 of the Florida Evidence Code states that “[r]elevant evidence is inadmissible if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of issues, misleading the jury, or needless presentation of cumulative evidence.” F.S. §90.403 (1997). Unfair prejudice is defined as an undue tendency to suggest a decision on an improper basis, commonly, though not necessarily, an emotional one.2 Unfair prejudice has also been defined as a tendency to influence the outcome of a trial by improper means.3 With computer animation, “improper means” would occur if the jury viewing the computer animation accepted the testimony conveyed in the animation more readily than if the jury evaluated the testimony based on all of the presented evidence.
In this state, State of Florida v. Pierce, 671 So. 2d 186 (Fla. 4th DCA 1996), provides the only analysis of the unfairly prejudicial effects of computer animation. There, the appeals court agreed with the circuit court that the computer animation of a vehicular homicide was properly used to illustrate a detective’s reconstruction of the motor vehicle.4 Represented as yellow outlines against a black background, the animation depicted the defendant’s vehicle colliding into three children portrayed as mannequins. The appeals court reasoned that the animation’s substantial danger of unfair prejudice did not outweigh its probative value because 1) the animation had not graphically recreated the accident by depicting blood or sound; 2) the mannequins depicted no facial expressions; 3) there had been no undue emphasis on the animation, which had lasted only six minutes; 4) the trial judge had explained to the jury that the animation was used only to illustrate the expert’s opinion; and 5) the trial court had allowed cross-examination of the expert’s testimony and the animation.5 In essence, the animation was clinical and did not arouse emotional responses.
Pierce was an easy conclusion because the court relied upon the admission requirements for gruesome and shocking evidence, such as the depiction of blood and the shocking character of the evidence. However, computer animation is a new and consistently changing medium that challenges the traditional criteria for determining prejudicial diagrams or video reenactments.6 The important additional dimension is that animators create computer animation for the courtroom in the same subtle or spectacular manner as they create special effects for video games and movies. These special effects can detract from the testimony and create a very memorable impression in the jurors’ minds.7
The Florida Supreme Court recognized the improper persuasive effects of video reenactment in Cave v. State of Florida, 660 So. 2d 705 (Fla. 1995), in which the court took pains to address the moot issue of the trial court’s admission of the state’s videotaped reenactment of a portion of the crime. The court stated that “[w]hen a videotape is proffered into evidence, the trial court must be ever mindful that the ‘artificial recreation of an event may unduly accentuate certain phases of the happening, and because of the forceful impression made upon the minds of the jurors by this kind of evidence, it should be received with caution.’”8 The court’s analysis did not address the use of improper persuasion techniques. However, the case does stand for the proposition that a portrayal can unduly accentuate the testimony in such a persuasive and impressive manner that it is more prejudicial than probative.
To understand the effects of this new medium, lawyers must understand the different techniques used in the field of computer animation, which is interdisciplinary and attracts those working in the science and arts applying these techniques.9 For example, consider the special effects used in the following two animations provided in the promotional videos distributed by separate animation firms and the empirical research that demonstrates the persuasiveness of such special effects. The first animation depicts a bicycle rider who collides with a truck at an intersection.10 The task for the animation firm and the defendant truck company was to show to the jury the relative positions of both the truck and the bicycle during the period leading up to the accident, that the bicycle had ample time to stop, and, therefore, that the defendant was not negligent. The animation features a bicycle-riding mannequin wearing a red shirt and blue pants. The first scene is an aerial view behind the rider. The camera view flies behind the rider as he steers his bicycle off the sidewalk, into the street, and around a grass-covered island heading into an intersection. At the same time, a red and white truck pulling a white trailer is moving in the same direction along the right side of the rider. The truck then makes a left-hand turn at the intersection. The rider then collides with the left side of the truck’s trailer. This sequence of events is repeated two more times. The second scene is an aerial view directly above the intersection, and the third scene is from the rider’s point of view.
Scientific experimentation has shown that the consistent use of color is a factor in recognition of an object.11 One experiment has shown that when test subjects were first shown items in color, and then shown the same items in the same color, they were more likely to recall these items than if they were in black and white.12 For example, a subject was more likely to recall a similarly colored red square than the same square without color.13
Similarly, the use of color assists a jury to recall the computer animation over other proffered evidence. Everything in the bicyclist’s animation is displayed in bright colors. There is a light-blue sky, brown buildings, green grass and trees. The mannequin is wearing a red shirt and blue pants and rides a red bike with silver handlebars. This use of color causes a jury to more readily recall the evidence presented in the animation than the evidence presented with black and white photos or a diagram. However, the use of color is not an automatic presumption of an unduly prejudicial technique. Color may be probative. It may be used to distinguish participants or objects in the reenactment and to create a lighting effect, such as night or day.
Advertising research shows that repetition improves memorability, enhances viewer confidence and attitude, and convinces the viewer to respond favorably to the communication.14 For example, after repeatedly seeing a television commercial, a consumer may be assured that the seller believes in the product and is willing to stand by it.15 The same principles apply to computer animation. In the bicycle animation the same sequence of events is repeated three times. The running time for each segment is 15 seconds. Today, many television commercials are running for 15 seconds as research suggests that two 15-second commercials are more effective than one 30-second commercial.16 Computer animation is affecting memory by running for an optimal length of time and repeating the same event from two, three, four, or more locations. This increases the prejudicial effect and does not aid in communicating the message.17
The second animation was used by a chemical treatment plant defending an action for alleged water contamination.18 The goal of the defense was to show that the plant operators used acceptable waste disposal and recovery practices. To demonstrate this, the defendant used computer animation to show the relatively small amount of chemicals contaminating the groundwater. First, the animation extracted a three-dimensional rectangular portion of the contaminated soil, measuring 10 feet long and 50 feet wide. This portion was then twisted as one would “wring out” water from a wet towel. Groundwater from the soil was represented in the form of large water drops falling into a funnel and then into three train tank cars, for a total of 25,000 gallons. From the tanks, the contaminated groundwater was drained into another funnel and into a long tube with a flame under it. Here, the groundwater was distilled and the contaminant was extracted. The extracted contaminant then fell into a small cup held by a person. In short, the process started with 25,000 gallons of groundwater and ended with a half-cup of contaminant.
The danger of unfair prejudice in the admission of the instant animation exists since it is used for something other than its logical probative force; that is, its tendency to make the existence of a material fact more or less probative. The use of 25,000 gallons of water compared to a measuring cup has a two-pronged prejudicial effect. First, the tanks and measuring cup are a form of “visual metaphor.”19 The concept is that, given the large amount of groundwater, a very small amount of contaminant was spilled as represented through the use of a measuring cup. However, this may be a lethal amount. Second, this proportional image of groundwater compared to contaminant may give rise to an emotional response from the viewer: amazement that only a half-cup remained or resentment at the plaintiff for bringing an action based on only a half-cup of contaminant.
Both animations “fly” the jury through the portrayed events with different camera angles or points of view. The jury can travel just behind and above the speeding truck, in the driver’s seat, have a ground level view, or even underground. Animators can also show two different views at the same time in what is called a “split screen.” For example, in one portion of the screen, the viewer can see an airplane taking off. In another portion, the jury can see a mannequin pilot pulling back on the control stick, allowing the viewer to see the interior mechanical workings of the aircraft. Another effective technique is the dissolve, when visual obstructions fade or vanish, revealing the inner workings of an airplane engine or of a human heart.
Each of these visual manipulations violates reality and results in endless fascination.20 In amazing detail, depth, and range of movement, animators allow the jury to experience a form of reality. But this is just an approximation and not reality. “An object that is novel and yet similar to an already significant object may especially warrant our close attention. We need to know how far something can depart from its usual or expected form and still have the consequences that we have found to follow from its natural kind.”21 The result is a “technology shock” which the jury pays greater attention as the brain deals with this new medium. Greater attention results in a more memorable experience, and the jury may deliberate with the computer animation in the forefront of their minds.
Computer animation provides an effective communication tool that allows a jury to easily receive cumbersome and boring testimony. However, this tool can be transformed into a slick production that convinces the jury of its message by incorporating special effects. The problem is that these techniques are subtle, unfamiliar to the legal profession and consistently improving. The task for the lawyer is to identify the creative and sometimes subtle features in a proffered animation and then determine whether these features rise to the level of a prejudicial special effect. Justice mandates that lawyers engage in this process to understand this new medium for presenting evidence.
1 This article applies both to demonstrative and substantive computer animation. Demonstrative computer animation aids to illustrate and explain testimony of witnesses to the fact finder. Substantive computer animation is offered to supply missing information for the purpose of proving a material fact in dispute, i.e., an expert uses the computer animation to perform calculations and obtain results which form the basis of the experts opinion. See State v. Pierce: Will Florida Courts Ride the Wave of the Future and Allow Computer Animations in Criminal Trials? 19 Nova L. Rev. 374 (1994).
2 Am. Jur. 2d Evidence §331 (1999).
5 Id. at 191.
6 Order on Computer Animation at 4, Pierce (No. 92-19316CF10A); Record at 2340; where the trial court analogized the animation to a chart or diagram.
7 Amitava Chattopadhyay & Joseph W. Alba, The Relationship Between Recall, Cognitive Responses, and Advertising Effectiveness: Effects of Delay and Content, Marketing Science Institute (January 1989, Marketing Science Institute, Cambridge, MA), providing research that the more a person remembers about an advertisement, the more likely that person will purchase the good. Similarly, the more a jury remembers the animation, the more likely they will accept the testimony in that animation.
8 Id. at 707 (quoting Grant v. State, 171 So. 2d 361, 363 (Fla. 1965)).
9 The Journal of Visualization & Computer Animation at http://www.interscience.wiley.com/.
10 Demo animation provided by Engineering Animation, Inc. The demo stated that the defendant was found not liable. The company’s website is http://www.cimtech.com/.
11 Aura Hanna & Roger Remington, The Representation of Color and Form in Long-term Memory, Memory & Cognition 24(3), 322-330 (1996).
12 Id. at 325.
13 Id. at 327.
14 Surendra N. Singh & Linville Ajay Sukdial, Enhancing the Efficacy of Split Thirty-second Television Commercials: an Encoding Variability Application,24Journal of Advertising 24, (Sept. 1, 1995).
17 The repetitive nature of computer animation may also constitute unnecessary presentation of cumulative evidence in contravention of the evidence rule. However, in Pierce, 671 So. 2d 186, 191, the appeals court found that there was no undue emphasis placed upon the animation which was shown to the jury for a total of six minutes in the course of an 11-day trial.
18 Demo animation provided by Z-Axis Litigation Corporation.
19 Paul Messaris, Visual Persuasion: The Role of Images in Advertising 7 (1997).
21 Id. (citing R.N. Shepard, Mind Sights: Original Visual Illusions, Ambiguities, and Other Anomalies (1990).
Cope C. Thomas is employed at Siemens Westinghouse Power Corporation in Orlando. He graduated from the University of Florida Levin College of Law and thanks attorney Richard T. Jones for inspiration and guidance on the article.
This column is submitted on behalf of the Trial Lawyers Section, Robert F. Spohrer, chair, and D. Keith Wickenden, editor.