November 24, 1997

Pictures Speak Much Louder Than Words
In Courtroom Animations

By KRIS GOODFELLOW

or months the FBI has suggested that mechanical failure, not a missile, caused TWA Flight 800 to explode in a fireball off the coast of Long Island.

But seeing is believing.

Credit: Central Intelligence Agency This is frame grab from a videotape provided by CIA of TWA Flight 800: "What Did the Eyewitnesses See?"

A 15-minute videotape, made by the CIA and shown on national network news last week, both explained the FBI's conclusions about the plane crash and crystallized the event for the public in a way that words had not.

The simulation of the TWA crash was one more example of the way that computer graphics and animation have moved from the fiction-dominated business of storytelling to the imaginative reconstructions of space flights or cosmic events like the birth of galaxies and finally to the fact-based world of investigations, forensic science and civil and criminal trials.

Such evidentiary re-enactments are flooding courtrooms today, according to trial lawyers around the country. The influence they have on a jury, as with society as a whole, has made them one of the most persuasive tools available to trial lawyers.

Video re-enactments "can convert extensive, loquacious arguments into a picture so that you can see exactly what those words mean," said Gregory P. Joseph, the chairman of the litigation section of the American Bar Association and the author of "Modern Visual Evidence."

RELATED ARTICLES Index of TWA Flight 800 Articles, With Video From the C.I.A.

Michael R. Arkfeld, assistant U.S. attorney in Arizona and chairman of the technology task force for the state bar association of Arizona, said: "Animations make the complex subject simple. If you want to show a comparison of a product in a patent suit, it is easier with an exploded view of it. It would be a very difficult thing to explain with words."

Of course, for decades, courtroom evidence has included not just testimony and documents but diagrams of crime scenes, of automobile accidents, or the physical forces involved when a poorly made bottle explodes.

But the ubiquity of graphic technology opened the way for animated evidence, including diagrams and re-enactments of plane crashes or faulty surgeries or patent disputes.

There are no reliable statistics on the number of companies creating the re-enactments, animations and exhibits known as demonstrative evidence. But as the technology becomes cheaper and more lawyers become familiar with these presentations, more visual consulting concerns seem to be springing up: Z-Axis Corp. in Denver, Decisionquest in Torrance, Calif., and Forensic Technologies International in Annapolis, Md., are among the biggest.

ntil recently the cost of animations, like the cost of other experts has kept smaller law firms out.

Fully orchestrated courtroom presentations and original animations can cost hundreds of thousands of dollars for the animators, computer programmers and expensive work stations needed to do the work.

Credit: Kevin Moloney for the New York Times Z-Axis sales and Marketing VP Stephanie Kelso, and CEO Steven Cohen look over the research of animator Dave Williams at the firm's Denver office. Z-Axis specializes in computer animated graphics used to explain legal cases to jurors.

But some enterprising graphics companies have developed generic animations that can cost as little as a few hundred dollars. For example, a malpractice lawyer can buy a standard medical animation like one from a Chicago-area company called Biomedia about problematic delivery-room practices by doctors or nurses.

Not all lawyers, however, want boilerplate animation.

"I wouldn't trust a generic film for an idiosyncratic situation," said Marc S. Moller, a senior partner at Kreindler & Kreindler, one of the premier aviation law firms, who has used tailor-made animations to show the facts of airline crashes. "It would be very subject to cross-examination. This is not cookbook stuff."

In a survey of large law firms conducted by the American Bar Association this year, 53.4 percent said they were using graphics as evidence or trial exhibits.

"Jurors are citizens, and you have to use the techniques they use to acquire information," Arkfeld said. That means using television or computer screens to distribute and explain evidence instead of simply words, the heart of the legal profession.

Moller said the impact of graphics on juries and courtrooms had been dynamic.

He worked with Z-Axis — which created the graphics for Timothy McVeigh's Oklahoma City bombing trial — when he needed a re-enactment of the crash of American Airlines Flight 965 into a mountain outside Cali, Colombia.

"I showed it to people, and by the end of it, their hands were on their mouths," he said. "The black box recordings from the cockpit had been synchronized with an animation of what was happening to the plane. It's like you're sitting in the airplane."

“When verbal testimony comes out, there is ample opportunity to stop it. But with visual evidence there is more of a gestalt. We forget that the camera has an angle of vision, that the technology itself has a perspective.”
Harlon Dalton, Yale Law School professor

The animation was shown to the defense lawyers and the judge, but the case never went to trial.

As in the case of the TWA Flight 800 animation, even though no one ever saw the event with this clarity, the crash seems as real as the actual explosion of the Shuttle Challenger. For juries, and the public, a virtual crash can become a real memory.

This poses a danger of creating false memories for jurors.

"As with memory generally, we fill in that which we know with that which we don't know," said Harlon Dalton, a Yale Law School professor who will be team teaching the school's first class on visual evidence next semester with a local artist. "We believe that we know something because it fits. The potential for doing that through visual media is much more possible because we are not even aware that we are learning something.

"Classically demonstrative evidence has been admitted sparingly because it shows more than the presenter might wish," Dalton said. "When verbal testimony comes out, there is ample opportunity to stop it. But with visual evidence there is more of a gestalt. We forget that the camera has an angle of vision, that the technology itself has a perspective."

Graphics experts like Edward Tufte, the author of "Envisioning Information" go further in criticizing the presentations for being overproduced, like the mood music in the Flight 800 tape.

"The spirit that drives this stuff is a kind of bad public TV," he said. "This isn't about entertainment, it's about how people lost their lives."

Graphics companies argue that their animations are rooted in fact and that they help juries understand complex ideas. "It has to be accurate or it can be thrown out," said Stephanie Kelso, the vice president for sales and marketing at Z-Axis.

The federal rules of evidence apply to visual exhibits. A lawyer must establish that an animation is accurate, that the method for creating it did not distort the information and that it is relevant.

When it comes to scientific visual evidence, the rules are governed by a 1993 Supreme Court case, Daubert vs. Merrill Dow Pharmaceuticals. In this case, the court ruled that federal judges must insure that scientific evidence and testimony admitted is not only relevant, but reliable. The ruling applies not only to the words of expert witnesses, but also to the graphics that are used to enhance or supplement their testimony.

"Jurors like to be taught; the party that can teach them best wins," said William F. Lee, a lawyer with the Boston law firm of Hale & Dorr, who has used animations for his patent suits.

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