THE NATIONAL CRIMINAL JURY INSTRUCTION COMPENDIUM
Instructions And Issues Omitted By The Pattern Instructions
Copyright & Publication Information

 VOLUME 4 - CHAPTER 25
Go to Volume 4 Table of Contents - Go to Chapter 25 Table of Contents

25.9 Electronic Recordings

    25.9.6 Video Recordings

    25.9.6.1 Video Taped Demonstrations: Cautionary Instruction
    25.9.6.2 Video Recording: Consideration Of Facial Expressions, Etc. In Understanding What Was Said
    25.9.6.3 Readback: Replaying Of Video Or Audio Tapes
    25.9.6.4 Replaying Of Video Tape As Prejudicial
    25.9.6.5 Computer Generated Video: "Simulation" vs. "Animation" -- Limiting Instruction
    25.9.6.6 Enhanced And/Or Edited Videotape Evidence

THE NATIONAL CRIMINAL JURY INSTRUCTION COMPENDIUM
Instructions And Issues Omitted By The Pattern Instructions
Copyright & Publication Information

 VOLUME 4 - CHAPTER 25

    25.9.6.1    Video Taped Demonstrations: Cautionary Instruction

RATIONALE: As finders of fact, jurors should be instructed to determine for themselves whether a video taped demonstration accurately reflects or recreates the matter it purports to portray.

POINTS AND AUTHORITIES:  See Chase v. General Motors Corp. (4th Cir. 1988) 856 F2d 17, 20.

FEDERALIZATION: To federalize this request, click here. [Constitutional Macro 5.3; 5.8].

See Manual On Recurring Problems In Criminal Trials [3. Admissibility: Tape Recordings Of Conversations].

See also Manual On Recurring Problems In Criminal Trials [3a. Tape Recordings Of Conversations: Tape Recordings May Be Admitted Into Evidence].

See also Manual On Recurring Problems In Criminal Trials [3b. Tape Recordings Of Conversations: Pretrial Procedure With Regard To Tape Recordings].

See also Manual On Recurring Problems In Criminal Trials [3c. Tape Recordings Of Conversations: Court May Permit Jurors To Have Transcripts As They Listen To Tape Recordings].

See also Manual On Recurring Problems In Criminal Trials [3d. Tape Recordings Of Conversations: Courtroom Procedure With Regard To Tape Recordings].

See also Manual On Recurring Problems In Criminal Trials [3e. Tape Recordings Of Conversations: Jurors May Rehear Tape Recordings After They Have Begun Deliberations].

See 1st Circuit Pattern Jury Instructions - Criminal 2.08.

See also 5th Circuit Pattern Jury Instructions - Criminal 1.42.

See also 7th Circuit Federal Jury Instructions - Criminal 3.17.

See also 8th Circuit Model Jury Instructions - Criminal 2.06.

See also 9th Circuit Model Jury Instructions - Criminal 2.7.

See also 11th Circuit Pattern Jury Instructions - Criminal TI 6.

THE NATIONAL CRIMINAL JURY INSTRUCTION COMPENDIUM
Instructions And Issues Omitted By The Pattern Instructions
Copyright & Publication Information

 VOLUME 4 - CHAPTER 25

RATIONALE: The visual aspects of the taped testimony may be relevant to understand the identity of the speakers, the content, and the finer shades of expression which the video tape was intended to preserve. However, without instruction, the jury may not understand that it should consider such matters.

POINTS AND AUTHORITIES: State v. Donegan (NJ 1993) 625 A2d 1147, 1149; 7TH CIRCUIT FEDERAL JURY INSTRUCTIONS - CRIMINAL 3.17 [Recordings/Transcripts Of Recordings] ¶ 3 (1999).

FEDERALIZATION: To federalize this request, click here. [Constitutional Macro 5.3; 5.8].

See Manual On Recurring Problems In Criminal Trials [3. Admissibility: Tape Recordings Of Conversations].

See also Manual On Recurring Problems In Criminal Trials [3a. Tape Recordings Of Conversations: Tape Recordings May Be Admitted Into Evidence].

See also Manual On Recurring Problems In Criminal Trials [3b. Tape Recordings Of Conversations: Pretrial Procedure With Regard To Tape Recordings].

See also Manual On Recurring Problems In Criminal Trials [3c. Tape Recordings Of Conversations: Court May Permit Jurors To Have Transcripts As They Listen To Tape Recordings].

See also Manual On Recurring Problems In Criminal Trials [3d. Tape Recordings Of Conversations: Courtroom Procedure With Regard To Tape Recordings].

See also Manual On Recurring Problems In Criminal Trials [3e. Tape Recordings Of Conversations: Jurors May Rehear Tape Recordings After They Have Begun Deliberations].

See 1st Circuit Pattern Jury Instructions - Criminal 2.08.

See also 5th Circuit Pattern Jury Instructions - Criminal 1.42.

See also 7th Circuit Federal Jury Instructions - Criminal 3.17.

See also 8th Circuit Model Jury Instructions - Criminal 2.06.

See also 9th Circuit Model Jury Instructions - Criminal 2.7.

See also 11th Circuit Pattern Jury Instructions - Criminal TI 6.

THE NATIONAL CRIMINAL JURY INSTRUCTION COMPENDIUM
Instructions And Issues Omitted By The Pattern Instructions
Copyright & Publication Information

 VOLUME 4 - CHAPTER 25

    See NCJIC 284.1.16 [Readback: Replaying Of Video Or Audio Tapes].

See Manual On Recurring Problems In Criminal Trials [3. Admissibility: Tape Recordings Of Conversations].

See also Manual On Recurring Problems In Criminal Trials [3a. Tape Recordings Of Conversations: Tape Recordings May Be Admitted Into Evidence].

See also Manual On Recurring Problems In Criminal Trials [3b. Tape Recordings Of Conversations: Pretrial Procedure With Regard To Tape Recordings].

See also Manual On Recurring Problems In Criminal Trials [3c. Tape Recordings Of Conversations: Court May Permit Jurors To Have Transcripts As They Listen To Tape Recordings].

See also Manual On Recurring Problems In Criminal Trials [3d. Tape Recordings Of Conversations: Courtroom Procedure With Regard To Tape Recordings].

See also Manual On Recurring Problems In Criminal Trials [3e. Tape Recordings Of Conversations: Jurors May Rehear Tape Recordings After They Have Begun Deliberations].

See 1st Circuit Pattern Jury Instructions - Criminal 2.08.

See also 5th Circuit Pattern Jury Instructions - Criminal 1.42.

See also 7th Circuit Federal Jury Instructions - Criminal 3.17.

See also 8th Circuit Model Jury Instructions - Criminal 2.06.

See also 9th Circuit Model Jury Instructions - Criminal 2.7.

See also 11th Circuit Pattern Jury Instructions - Criminal TI 6.

THE NATIONAL CRIMINAL JURY INSTRUCTION COMPENDIUM
Instructions And Issues Omitted By The Pattern Instructions
Copyright & Publication Information

 VOLUME 4 - CHAPTER 25

    See NCJIC 284.1.17 [Replaying Of Video Tape As Prejudicial].

See Manual On Recurring Problems In Criminal Trials [3. Admissibility: Tape Recordings Of Conversations].

See also Manual On Recurring Problems In Criminal Trials [3a. Tape Recordings Of Conversations: Tape Recordings May Be Admitted Into Evidence].

See also Manual On Recurring Problems In Criminal Trials [3b. Tape Recordings Of Conversations: Pretrial Procedure With Regard To Tape Recordings].

See also Manual On Recurring Problems In Criminal Trials [3c. Tape Recordings Of Conversations: Court May Permit Jurors To Have Transcripts As They Listen To Tape Recordings].

See also Manual On Recurring Problems In Criminal Trials [3d. Tape Recordings Of Conversations: Courtroom Procedure With Regard To Tape Recordings].

See also Manual On Recurring Problems In Criminal Trials [3e. Tape Recordings Of Conversations: Jurors May Rehear Tape Recordings After They Have Begun Deliberations].

See 1st Circuit Pattern Jury Instructions - Criminal 2.08.

See also 5th Circuit Pattern Jury Instructions - Criminal 1.42.

See also 7th Circuit Federal Jury Instructions - Criminal 3.17.

See also 8th Circuit Model Jury Instructions - Criminal 2.06.

See also 9th Circuit Model Jury Instructions - Criminal 2.7.

See also 11th Circuit Pattern Jury Instructions - Criminal TI 6.

THE NATIONAL CRIMINAL JURY INSTRUCTION COMPENDIUM
Instructions And Issues Omitted By The Pattern Instructions
Copyright & Publication Information

 VOLUME 4 - CHAPTER 25

    25.9.6.5    Computer Generated Video: "Simulation" vs. "Animation" -- Limiting Instruction

RATIONALE:  Computer generated video may assist an expert in explaining particular kinds of evidence to the jury.  However, a limiting instruction may be necessary to caution the jurors not to place undue emphasis on such evidence.

POINTS AND AUTHORITIES:  In  People v. Cauley (CO 2001) 32 P3d 602, the court distinguished between "simulations" which rely on scientific principles and "animations" which merely illustrate a witness's testimony.  "[S]imulations are ... recreations or experiments based upon scientific principles and data.  In a simulation, data is entered into a computer, which is programmed to analyze and draw conclusions from it.  The validity of the conclusions drawn depends on proper application of scientific principles.  Because the results of the simulation are dependent upon the application of scientific principles for the purpose of admission, simulations are treated like other scientific tests....In contrast to a simulation, an animation is demonstrative evidence used to illustrate a witness' testimony.  Within the category of animations, courts have distinguished between experiments or demonstrations that purport to recreate an event and illustrations of a general principle.... Thus, like a simulation, an animation is distinguishable from a simulation because it is demonstrative, rather than scientific, and the validity of the conclusion does not depend on proper application of scientific principles.  (Cauley, 32 P3d at 607; see also Clark v. Cantrell (SC 2000) 529 SE2d 528, 535; [NF] Commonwealth v. Serge (PA 12/3/2003, No. 423 MDA 2002) 837 A2d 1255.)

    To be admissible, an illustrative animation must be authenticated, be a fair and accurate representation of the evidence to which it relates, relevant, and more probative than unfairly prejudicial.  (Cauley, 32 P3d at 608; see also Harris v. State (OK 2000) 13 P3d 489, 495.)

    See also NCJIC 25.3 [Charts, Summaries, Etc.].

SAMPLE INSTRUCTION # 1:

       The [government’s] [defendant’s] evidence includes a video taped animation.  The videotape is offered to help _______________ (name of expert) explain ____________________ (type of injuries, etc.) which in [his] [her] opinion can be caused by _________________ (action/item causing injury).

   The prosecution still has the burden of proving all elements of the offense charged.

[People v. Cauley (CO 2001) 32 P3d 602, 608.]

    Members of the jury, parties in a case are permitted to use photographs, drawings and other exhibits to illustrate a point they are attempting to make in a case. This is what we refer to as demonstrative evidence. We refer to this type of evidence as demonstrative evidence, as opposed to substantive evidence, since it is offered merely to demonstrate or illustrate a point rather than as actual proof of that point.

    With the advent of the digital age, computers are now used to produce this type of demonstrative evidence. You heard testimony from __________ [expert witness] and __________ [expert witness] that the computer-generated animation, which will now be shown to you, is a fair and accurate illustration of the opinions that they formed as to how this [shooting] allegedly occurred. You also heard this witness describe how he produced the three-dimensional drawings with computer software to depict those opinions, and thereafter transform them onto this DVD to produce moving images, which will be played for you. What you are about to be shown is commonly referred to as a computer-generated exhibit. There are two types of computer-generated exhibits, and you heard the witness refer to them. The first is what we call a simulation, and the second is what we refer to as an animation.

    In a simulation, data is entered into a computer, which is preprogrammed to perform certain calculations by applying, for example, the laws of physics, mathematical formulas and other scientific principles in order for the computer itself to draw conclusions and to attempt to recreate an incident. The end product of a simulation represents the computer program's conclusion of what happened. And the results of the computer simulation serve as the basis for the testifying expert's opinion of what happened.

    In contrast, an animation is simply a graphic depiction, or illustration, of an opinion that an expert has already formed based upon his or her own independent investigation, computations, and analysis. With an animation, the computer does not perform any scientific calculations or develop any opinions, as is the case with the simulation. An animation consists of computer-generated drawings which are assembled frame by frame, and, when viewed sequentially, produce the image of motion. Thus, an animation is merely a graphic depiction or illustration of an opinion or recreation which an expert witness in the case has already devised through his or her own independent calculations and analysis.

    Please understand that what you are about to view is an animation, not a simulation. This computer-generated animation is a demonstrative exhibit, not substantive evidence, and it is being offered solely as an illustration of the prosecution's version of events as recreated by __________ [expert witness] and __________ [expert witness]. You should not confuse art with reality and should not view the animation as a definitive recreation of the actual incident. The series of pictures which have been drawn by the computer and transferred on to the tape for your review are no different from a witness sketching a series of drawings on paper and then fanning those pages to portray moving images of his or her opinion.

    Remember, the demonstrative animation is only as good as the underlying testimony, data, assumptions, and opinions that serve as the bases for its images, and the computer maxim, "garbage in, garbage out," applies equally to computer animations. Like all other evidence in the case, you may accept it or reject it, that is, the computer-generated animation, in whole or in part. I caution you again that the animation may only be considered for demonstrative purposes to illustrate the opinions of __________ [expert witness] and __________ [expert witness]. Always bear in mind that the prosecution must still meet its burden of proving all of the elements of the offense charged beyond a reasonable doubt.

[See [NF] Commonwealth v. Serge (PA 12/3/2003, No. 423 MDA 2002) 837 A2d 1255.]

THE NATIONAL CRIMINAL JURY INSTRUCTION COMPENDIUM
Instructions And Issues Omitted By The Pattern Instructions
Copyright & Publication Information

 VOLUME 4 - CHAPTER 25

PRACTICE NOTE:  Before admitting an edited or enhanced videotape the trial judge should be required by the best evidence rule to view the original tape to ensure that the edited or enhanced version is fair and accurate in its depictions.  Additionally, a jury should be allowed to view an original videotape when, after viewing an excerpt, the jury asks to see the original.  (See Bryant v. State (FL 2002) 810 So2d 532.)