Two Samples from Battle-Quick Exhibit Foundations

Computer animation, enhancement, or simulation

[This is only a sample – one item from one page of the form. The full form checklist and text is over 20 pages long.]

Some commentators and courts divide computer generated demonstrative evidence into two distinct categories of evidence: simulations and animations. (1) In a simulation, data is entered into a computer which is programmed to analyze the information and perform calculations by applying mathematical models, laws of physics and scientific principles in order to draw conclusions and recreate an incident. (2) An animation [See, e.g., Commonwealth v. Serge, 58 Pa. D. & C.4th 52, 68-69 (2001)] does not perform any scientific calculations but is only a graphic depiction of the testimony in the case. A third category [See., e.g., in State v. Swinton, 268 Conn. 781, 847 A.2d 921 (Conn. 2004), computer enhancement of photos or other physical items is sometimes encountered.

Although some courts have defined different standard foundations, (dependent on whether the computer generated demonstrative exhibit is an animation, enhancement, or simulation): “there is a developing consensus… which agrees on how the accuracy of computer-generated evidence can be established and gives a trial court sufficient parameters to exercise its discretion in this area without the need for a precise formula.” Bray v. Bi-State Development Corp., 949 S.W.2d 93, 97 (Mo. App. 1997). Hence, the following foundation will generally work for computer generated demonstrative evidence, whether it be a computer animation, enhancement, or simulation. Here are the bullet points:

  • The computer equipment is accepted as standard and was in good order.
  • Qualified computer operators did the work and are available for cross-examination.
  • Proper procedures were followed in connection with the input of information.
  • The input data is qualified as accurate by establishing:
    • the source of the data;
    • how data accuracy was checked;
    • how data was physically input; and
    • what assumptions were input into the computer;
  • A reliable software program was utilized, one generally accepted by the relevant community.
  • The equipment was programmed and operated correctly.
  • The exhibit is identified as the output in question.
  • The exhibit will aid the trier of fact in understanding or evaluating testimony.
  • The exhibit will help the witness explain an item relevant to the issues in dispute.

If you need to delve further into attacking (or admitting) computer generated demonstrative exhibits, see generally the excellent discussions in State v. Swinton, 268 Conn. 781, 847 A.2d 921 (Conn. 2004); K. Butea, Seeing is Believing: A Practitioner’s Guide to the Admissibility of Demonstrative Computer Evidence, 46 Clev. St. L. Rev. 511, 525 (1998); and E. Weinreb, ‘Counselor, Proceed With Caution’: The Use of Integrated Evidence Presentation Systems and Computer-Generated Evidence in the Courtroom, 23 Cardozo L. Rev. 393, 410 (2001).

[Page 9 of Exhibit Foundations Quick Reference Checklist]

Recordings – audio or video (including motion pictures)

  • Witness knows the scene, person, et cetera, that is recorded on the audio or video recording.
  • Witness explains the basis for his knowledge.
  • Witness recognizes the scene, person, et cetera, etc., on the recording.
  • The recording is a “fair,” “accurate,” “true,” or “good” recording of the of the recorded persons, objects, devices, places, processes, et cetera.
  • Witness identifies the scene, person, et cetera on the recording.
  • Witness explains the differences, if any, between the scene, device, or process as shown in the recording and as they were the time of the events in question must be explained

The above is all that normally is required to admit a recording, whether it be audio or video. However, the trial judge may in her discretion require more. E.g., the Eighth Circuit set out a longer laundry list of requirements, using somewhat different words) for sound recordings in United States v. McMillan, 508 F.2d 101 (8th Cir.), cert.denied, 421 U.S. 916 (1975) You should be prepared to offer the following additional information.

  • Mechanical device was capable of accurate recording.
  • Operator of device was competent to operate the device
  • If moving devices, processes, or tests are shown, then the speed of the camera and playback equipment should be shown, to demonstrate that there is no material speeding up or slowing down of the process, without full explanation of the speed change.
  • No changes, additions or deletions have been made since the original recording except by court order or agreement of the parties. (If any changes, editing, or deletions have been made, they should be explained.)


  • The summary being offered is a summary of relevant evidence.
  • That relevant evidence is contained in “voluminous writings, records, or photographs.”
  • Those “voluminous” materials “cannot conveniently be examined in court “. (The point to be proved is the inconvenience to the judge and jury in themselves reading all the voluminous materials. Although the attorneys say that the attorneys and their experts could all find it easy to look at all the contents, that is not the convenience referred to in the rule. It is the convenience of the judge and jury that is the measure involved in the foundation for using a summary as real evidence.)
  • The originals, or duplicates, of the voluminous materials were made available to opposing counsel for examination at a reasonable time and place.
  • The person who prepared the summary is available in court to testify and explain the method of preparation of the summary and what the summary means.
  • There is a reasonably guarantee of the accuracy of the summary. – See Fed. Rules Evid., Rule 1006.

This is only a sample – one item from one page of the form. The full form checklist and text is over 20 pages long.