Videos & Photos To Demonstrate Scientific Principals

The following extended quotation is taken from the case of Lau v. Allied Wholesale, Inc., 82 Hawai'i 428 at 434-437, 922 P.2d 1041 at 1047-1050 (Hi. App. 1996). This legal authority demonstrates that DVDs and video clips may be admissible because (1) these videos are not an attempt to "recreate" the accident- but rather (2) these videos depict various concepts and principles described by the experts which were involved in the accident. An in camera inspection before showing the video to the jury is usually required.

"Generally, the decision to admit various types of demonstrative evidence is left to the discretion of the trial court. Yap v. Controlled Parasailing of Honolulu, Inc., 76 Hawai'i 248, 256, 873 P.2d 1321, 1329 (1994) (citing Monlux v. General Motors Corp., 68 Haw. 358, 363, 714 P.2d 930, 933 (1986)). Videotapes depicting a particular incident can be used as demonstrative evidence at trial. A. Bowman, Hawai'i Rules of Evidence Manual § 901-2F(1) (1990); see also Yap, supra, (depicting tests of a chair used for parasailing); Loevsky v. Carter, 70 Haw. 419, 773 P.2d 1120 (1989) (depicting a series of motorcycle rides).

"The controlling authority in this jurisdiction regarding the admissibility of videotape evidence is the Loevsky case... A careful reading of Loevsky reveals that ... two issues were intended to address separate questions of admissibility. The first question is whether the videotape depicts a reenactment or reconstruction of an incident. The second relates to whether the tape shows tests or experiments explaining a scientific principle. We take a close look at the Loevsky case to clarify the analysis for this particular evidentiary problem.

"i. Preview of the videotape

As indicated above, the admission of demonstrative evidence is firmly lodged within the trial court's discretion. Therefore, before going into the specifics of the admissibility analysis, we reiterate the Hawai'i Supreme Court's admonition in Loevsky for the trial court to preview the contents of the videotape before ruling on its admissibility. "Where the admissibility of the contents of a visual recording is at issue in a judicial proceeding, we direct that [Hawai'i] trial courts in the future undertake their best efforts in attempting to view the subject visual recording prior to ruling on its admissibility." Loevsky, 70 Haw. at 424 n. 6, 773 P.2d at 1123 n. 6 (emphases added). Although the language used by the supreme court falls short of making the preview an absolute requirement, we believe that to be able to reach the correct decision on admissibility the trial court must preview the contents of any film or videotape offered in evidence.

"ii. Reconstruction of the incident

The Loevsky court indicates that when a videotape depicts an experiment reconstructing a particular incident, the videotape will only be admissible if there is a showing that the essential elements of the depicted experiment are substantially similar to the incident it purports to reenact. Loevsky, 70 Haw. at 427, 773 P.2d at 1125. In other words, for videotape evidence to be admissible to show a reconstruction experiment, its contents must be substantially similar to the actual incident... Although not admissible as a reenactment, the videotape may still be admissible for another purpose.

"iii. Explanation of scientific principles

The Hawai'i Supreme Court stated that:

'Films or videotapes of experiments by an accident reconstructionist, physicist, engineer, or other witness qualified as an expert on the cause of accidents, offered merely to illustrate the principles used in forming an opinion, do not require strict adherence to the facts and are admissible in evidence, provided such films or tapes are not misleading in and of themselves and provided it is made clear that they are offered only as illustrations of the principles involved.' Loevsky, 70 Haw. at 428, 773 P.2d at 1126 (quoting 3 C. Scott, Photographic Evidence § 1317 (2d ed. Supp. 1987)) (emphasis and citations omitted). Thus, a filmed or videotaped experiment is relevant as long as it is offered to illustrate principles used in forming an opinion. Its admissibility depends on whether 'it is misleading' and not on whether its contents are 'substantially similar' to the incident at issue. Id. The question of whether the videotape's contents are 'misleading' essentially involves the HRE Rule 403 inquiry regarding whether the videotape's 'probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury....'"

"The determination of whether a 'veiled attempt' at a reenactment existed invites a comparison between the contents of the videotape and the actual incident. The comparison, however, focuses on the differences, instead of the similarities, between the incident at issue and the activity depicted on the videotape. The first step is to identify the logical inferences that the visual presentation creates. The trial court must then look at those aspects of the videotape's contents that are different from the incident at issue to determine whether the differences present a flaw in the logical inference created by the videotape presentation. It is this flawed reasoning that jurors may overlook because of the 'drama of the filmed event[,]' resulting in the jurors being misled. Id. Admittedly, this type of determination is not easy. 'Scientific principles, when demonstrated in a fairly abstract way, are quite unlikely to be confused with the events on trial. The more troublesome cases, however, are ones ... where some principles of some kind may be demonstrated but in a fashion that looks very much like a recreation of the event that gave rise to the trial.' Id. at 264 n. 5.'"

Another recent case which discusses this issue is the case of Tabieros v. Clark Equipment Co., 85 Hawai'i 336, 944 P.2d 1279, (Hawai'i 1997). In that case the Hawaii Supreme Court stated:

"The fact that the videotapes were not produced or offered as reconstructions of Tabieros's accident renders them no less potentially relevant... In this connection, we have previously recognized that '[f]ilms or videotapes of experiments by an ... engineer[ ] or other witness qualified as an expert on the cause of accidents, offered merely to illustrate the principles used in forming an opinion, do not require strict adherence to the facts and are admissible in evidence, provided such films or tapes are not misleading in and of themselves and provided it is made clear that they are offered only as illustrations of the principles involved.' Loevsky, 70 Haw. at 428, 773 P.2d at 1126 (quoting 3 C. Scott, Photographic Evidence § 1317 (2d ed. Supp.1987)) (emphasis in original). [FN27] [FN27 provides: 'The foregoing proposition was subject only to the caveat that "it is essential that the jury be carefully instructed as to the extent to which they can use and consider the films or videotapes." Loevsky, 70 Haw. at 428, 773 P.2d at 1126 (citing 3 C. Scott, Photographic Evidence § 1317 (2d. ed. Supp.1987)).']

The Federal Court rule parallels the Hawaii rule on this issue. In the case of Pandit v. American Honda Motor Co., Inc., 82 F.3d 376 (10th Cir. 1996), the Tenth Circuit stated:

"In Gilbert [Gilbert v. Cosco, 989 F.2d 399 (10th Cir.1993)], we explained generally as follows:

"As a general rule, the proponent seeking to admit out-of-court experiments into evidence must demonstrate a 'similarity of circumstances and conditions' between the tests and the subject of litigation. Jackson v. Fletcher, 647 F.2d 1020, 1027 (10th Cir.1981) [cites omitted]. 'The purpose of this rule is to prevent confusion of the jury.' Robinson, 739 F.2d at 1484 (citing Jackson, 647 F.2d at 1027). A recognized exception to this rule exists when the experiment merely illustrates principles used to form an expert opinion. In such instances, strict adherence to the facts is not required. Four Corners Helicopters, 979 F.2d at 1442 [Four Corners Helicopters v. Turbomeca, 979 F.2d 1434, (10th Cir.1992)]; Robinson, 739 F.2d at 1484; Brandt, 638 F.2d at 212 . See also Nachtsheim v. Beech Aircraft Corp., 847 F.2d 1261 (7th Cir.1988). Therefore, experiments which purport to recreate an accident must be conducted under conditions similar to that accident, while experiments which demonstrate general principles used in forming an expert's opinion are not required to adhere strictly to the conditions of the accident. Furthermore, 'when experiments do not simulate the actual events at issue, the jury should be instructed that the evidence is admitted for a limited purpose or purposes.'

Robinson, 739 F.2d at 1484 (citing Brandt, 638 F.2d at 212); Bannister, 812 F.2d at 1270. 989 F.2d at 402..."

"As in Gilbert, the experiments [in this case] ultimately were used to assist an expert in demonstrating principles which formed the basis of his opinion. Kinderman testified he performed the experiments merely to demonstrate the basic principles underlying his opinion, and it is clear the court admitted them for the same limited purpose."

82 F.3d at 381-382

Accord: Gladhill v. General Motors Corp., 743 F.2d 1049, (4th Cir. (Md.) 1984) Randall v. Warnaco, Inc. 677 F.2d 1226 (8th Cir. (N.D.) May 10, 1982), appeal after remand 712 F.2d 1275 (8th Cir. 1983). Hence it appears that the Federal Court rule on this issue is the same as Hawaii's state court rule.

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