by Jeffrey A. Dunn
A sixty year-old grandmother sits astride a Honda Interceptor, motoring
at eighty miles-per-hour over wild, treacherous terrain, the wind
whipping her face and hair, the heat of the noonday sun on her back,
feeling the g-forces as she and her Interceptor lurch through hairpin
turns and barely miss countless trees and rock formations. Finally, she
fails to negotiate one last turn and flies out into a canyon. In mid-air,
if she has not fainted, she contemplates whether it was foolhardy to
attempt such a ride, and tries to fathom how much mental suffering is
experienced by looking down at the canyon floor and confronting death.
The grandmother is a member of a jury, and she is not actually on a
motorcycle, but merely the audience in a presentation of evidence that
makes use of what would be a rather advanced form of a new communications
medium termed "virtual reality."
It would be a strange sight, with the law looking more like Buck Rogers
than Perry Mason -- six to twelve jurors outfitted in special high-tech
goggles, headphones, and body suits, perhaps sitting upon simulators in a
special room complete with wind and heat or cold. The participants would
view three-dimensional films or computer-generated simulations close-up
through special goggles, listen to stereo sound that accompanies the
film, and wear special body suits that selectively adjust temperature and
pressure to create the sensation of actually being in the movie that they
The use of virtual reality will become increasingly popular as attorneys
become more familiar with the medium and the means by which it can
properly be admitted into evidence. The key to admissibility will be
establishing that virtual reality evidence adds to the body of relevant
information enabling a jury to reach an informed verdict, and showing
that the probative value of the added information outweighs possible
confusion or prejudicial effect. In determining whether this test has
been met, the trial court will be granted broad discretion. Due to the
powerful effect of such evidence, the manner in which a given court
exercises its discretion can be predicted to have a dramatic effect on
bith the settlement value and ultimate outcome of a case.
In Stephenson v. Honda Motors Ltd. of America, Cal.Super. Case No. 81067
, the first case to admit virtual reality evidence, attorney Dennis Seley
of the Sacremento law firm of McKenroth, Seley & Ryan convinced a
California Superior Court of the need to use the visual component of
virtual reality to help a jury understand the nature of the terrain over
which an accident victim chose to drive her Honda motorcycle. Honda and
Seley argued that the terrain was obviously too treacherous for the safe
operation of a motorcycle, and that, while two-dimensional photographs
and videos would help provide the jury with some idea of what the terrain
was like, a three-dimensional view was much more realistic. In allowing
the evidence, the court determined that the three- dimensional view was
more informative, relevant, and probative.
Several questions are raised by the prospect of introducing virtual
reality evidence. First, it must be determined which legal tests should
be applied to determine whether in a given case virtual reality evidence
should be admitted. In some respects, without the additional components
of temperature, pressure, wind, and the like, virtual reality is nothing
more than a very sophisticated video with sound. In other respects, it is
like a jury view, although one which the court and counsel can control
much more easily than an actual jury view. Finally, some may argue,
perhaps erroneously, that virtual reality is analogous to novel
scientific evidence and should be subjected to the Frye test. The
ultimate question that must be answered is whether the virtual reality
evidence is so persuasive and realistic as to create a potential for
undue prejudice or confusion that is not present with photographs or
sound recordings, and whether this potential outweighs the probative
value of the virtual reality evidence. Indeed, the opportunity to
prejudice the trier of fact is the very reason virtual reality evidence
will be offered in lieu of more traditional forms of evidence.
While one's initial reaction to virtual reality in its most advanced form
might be that virtual reality is something akin to Buck Rogers or Star
Trek, it is perhaps most accurate to recognize virtual reality as merely
a compilation of several methods of presentation, two of which are
already used often in courtrooms. In essence, virtual reality is a three-
dimensional motion picture with stereo sound, along with a body suit that
applies temperature and pressure. Wind and wetness might also be
provided, along with such things as body orientation or g-forces. Of
course, not all of these elements need be provided, and if a court
objects to the more unusual elements, it could be argued that a court
should still permit the use of the three-dimensional motion picture and
stereo sound. In that instance, the only difference between the use of
virtual reality and ordinary videotapes with sound would be the three-
dimensional nature of the motion picture and the fact that the sights and
sounds might occupy the entirety of the juror's visual field and hearing.
In the event that the three-dimensional effect is accomplished with a
special image on a video screen sitting in the middle of the courtroom,
so that the jury is looking through its goggles across the courtroom
rather than having the image projected into the goggles, the
dissimilarities between virtual reality and ordinary video become even
However, on a fundamental level, what may set virtual reality apart from
more traditional forms of evidence would be its effort to place a juror
in the position of directly experiencing the subject of the presentation.
Because the virtual reality presentation is more realistic, the juror may
consciously or subconsciously view the subject of the presentation from
the perspective of experiencing it herself, rather than forming a more
objective analysis of what it meant for the relevant party to experience
it. As a result, there may be a greater potential for arousing the
juror's biases and prejudices with regard to the subject of the
presentation. For example, a juror made to endure the simulated
experience of a motorcycle ride over rough terrain may start to think of
the experience in terms of whether the juror would attempt it, rather
than considering whether the course would be suitable for the relevant
party, with that person's experience and temperament and reflexes.
This article will examine some of the rules applied in determining the
admissibility of other types of evidence, discuss the similarities and
differences between virtual reality and other types of evidence, and
analyze how virtual reality evidence might be treated by courts asked to
permit its use in presenting evidence to a jury.
Traditional Evidentiary Tests
The general and most basic rules applied to all forms of evidence in the
federal courts, and in most state courts, are found in Rules 401-403 of
the Federal Rules of Evidence. To be admissible, evidence must be
relevant, Fed. R. Evid. 402, with relevance defined as "the tendency to
make the existence of any fact that is of consequence to the
determination of the action more probable or less probable than it would
be without the evidence." Fed. R. Evid. 401.
Secondly, the probative value of the evidence must outweigh the potential
for creating prejudice or confusion. Rule 403 reads:
Although relevant, evidence may be excluded if its probative value is
substantially outweighed by the danger of unfair prejudice, confusion of
the issues, or misleading the jury, or by considerations of undue delay,
waste of time, or needless presentation of cumulative evidence. Fed. R.
Evid. 403. In determining whether evidence is admissible under Rules 402
and 403, a trial court is granted broad discretion, and generally will
not be overturned absent a showing of a clear abuse of discretion, or a
finding that a court's holding was clearly erroneous. Four Corners
Helicopters, Inc. v. Turbomeca, S.A., 979 F.2d 1434, 1441 (10th Cir.
1992)("'A trial court's evidentiary rulings are reviewed for an abuse of
discretion.'"), quoting Durtsche v. American Colloid Co., 958 F.2d
1007, 1011 (10th Cir. 1992); Bissett v. Burlington Northern R. Co., 969
F.2d 727 (8th Cir. 1992)(videotaped reenactment; Trial court has a
"'large amount of discretion over the admissibility of evidence in
[Federal Employer Liability Act] cases.'"), quoting Paul v. Missouri Pac.
R.R. Co., 963 F.2d 1058, 1061-62 (8th Cir, 1992), quoting Naylor v. St.
Louis S.W. R.R. Co., 847 F.2d 1305, 1307 (8th Cir. 1988); Williams v.
Butler, 746 F.2d 431, 440 (8th Cir. 1984)(Requiring "clear" abuse of
discretion to overturn trial court's determination of evidentiary
admissibility), citing United States v. Jones, 687 F.2d 1265, 1267 (8th
Cir. 1982), quoting United States v. Brown, 482 F.2d 1226 (8th Cir.
Traditional Evidentiary Tests
In many ways, virtual reality evidence is merely a compilation of other
forms of evidence already admitted in appropriate circumstances. Courts
already admit videos and sound recordings, or other demonstrative forms
of evidence, and sometimes permit the use of reenactments or experiments,
or a jury view. Some of the factors considered in determining whether to
admit or exclude some of these other types of evidence will be relevant
to the determination of whether to admit or exclude virtual reality
Under the Federal Rules of Evidence, photographs are generally
admissible, if a proper foundation is established. Navarro de Cosme v.
Hospital Pavia, 922 F.2d 926, 931 (1st Cir. 1991). However, photographs
may be excluded, as is the case with all forms of evidence, "if their
'probative value is substantially outweighed by the danger of unfair
prejudice, confusion of the issues, or misleading the jury, or by
considerations of undue delay, waste of time, or needless presentation of
cumulative evidence.'" Navarro de Cosme, 922 F.2d at 931, quoting
In determining whether the admit or exclude photographic evidence, as
with other similar media, the focus is not simply upon the contents of
the photographs, and the information they convey, but upon the method of
presentation and the impact it may have. For example, in Navarro de
Cosme, certain photographs depicted a stillborn infant. The plaintiffs
wished to admit the photographs to show that death was not caused by an
umbilical cord being wrapped around the neck of the infant when it was in
utero. The First Circuit pointed out that the same information was
communicated in a different manner, by having two experts testify that
death was not caused by the umbilical cord, and refused to reverse the
trial court's discretionary decision to exclude the photographs because
the actual sight of the stillborn infant, already beginning to decompose,
could have inflamed the jury, such that their prejudicial impact could
have outweighed their probative value. 922 F.2d at 930-31.
The trial court stated:
"The photos are gruesome. The photos are, in my own estimation ...
insensible [and] I will not admit them in this Court.... [I]f I live to
be 90 years old I will never forget these photos. And I am not going to
show them to the jury." 922 F.2d at 931, quoting trial transcript.
Similar arguments can be anticipated with regard to virtual reality.
Virtual reality which would truly place a jury "on the scene" would
include stereo sound. However, it would have to be established that the
sound was relevant for it to be admitted in a given case.
Sound recordings are generally admissible if they meet criteria relating
to accuracy and reliability. Whether the recording must be a good
simulation of the actual sound that was recorded depends upon the purpose
for which the sound recording is offered, and its potential impact on the
jury with regard to their treatment of issues relevant to the case.
The Eighth Circuit set out a laundry list of requirements for sound
recordings in United States v. McMillan. 508 F.2d 101 (8th Cir.), cert.
denied, 421 U.S. 916, 95 S.Ct. 1577, 43 L.Ed.2d 782 (1975), cited in
Williams v. Butler, 746 F.2d 431, 440 (8th Cir. 1984). When offering
sound recordings of conversations, proponents must establish that: (1)
the recording device was capable of taking[sic?] the conversation; (2)
the operator of the device was competent to operate it; (3) the recording
was authentic and correct; (4) no changes, deletions, or alterations were
made to the recording; (5) the recording was preserved in a manner which
was shown to the court; (6) the speakers are identified; and (7) the
conversation elicited was made voluntarily, in good faith, and without
any kind of inducement. Williams v. Butler, 746 F.2d at 440, citing
United States v. McMillan, 508 F.2d at 104. The fact that the tape
recording was successfully made is sufficient to establish the competence
of the operator of the recording device, and oral testimony by a police
officer who monitored the recording that the recording and an
accompanying transcript accurately reflect the recorded conversation,
along with testimony establishing the identity of the speakers, are
enough to authenticate a tape recording. Williams v. Butler, 746 F.2d at
441, citing United States v. Panas, 738 F.2d 278, 286 (8th Cir. 1984),
citing see United States v. Gordon, 688 F.2d 42, 44 (8th Cir. 1982).
Ultimately, the MacMillan criteria essentially revolve around the basic
characteristics required of demonstrative evidence generally, that it be
accurate and reliable. Whether a sound recording must accurately simulate
the sounds recorded, however, depends largely on the purpose for which
the recording is offered and the type of relevant information that is to
be presented to the jury.
In Williams v. Butler, for example, the purpose of the sound recording
was to help substantiate the contents of the relevant conversation, not
necessarily to perfectly simulate the sensation of being present at the
conversation. In fact, the recording in Williams v. Butler was of a very
poor quality, and some portions of the recording were actually inaudible.
746 F.2d at 441-42. Nonetheless, the Eighth Circuit declined to reverse
the district court, and set out a test for determining whether poor sound
quality is grounds for exclusion of a sound recording:
"The task of the trial court, in determining whether to admit tape
recordings into evidence which contain inaudible portions, is to assess
whether the unintelligible portions are 'so substantial in view of the
purpose for which the tapes are offered as to render the recording as a
whole untrustworthy.'" 746 F.2d at 442, quoting United States v. Bell,
651 F.2d 1255, 1259 (8th Cir. 1981), quoting United States v. Young, 488
F.2d 1211, 1214 (8th Cir. 1973). In Williams v. Butler, the Eighth
Circuit held that the trial court did not abuse its discretion in
admitting the tape into evidence because the inaudible portions were "not
so substantial that they render[ed] the recording, as a whole,
untrustworthy." Williams v. Butler, 746 F.2d 431, 442 (8th Cir. 1984).
Furthermore, it was permissible in Williams v. Butler to modify a sound
recording electronically to reduce sound interference. 746 F.2d at 441.
As a result, under Williams, a sound recording need not always be a
perfect simulation of the actual sounds being recorded. The sounds can be
partly inaudible, and of a generally poor sound quality, and changes may
be made to the recording to "clean up" the recording with noise reduction
and other similar techniques.
In contrast, in Abernathy v. Superior-Hardwoods, the actual quality and
intensity of sound was relevant to a key issue in the case, and the trial
court excluded the soundtrack portion of a videotape when it could not be
established that the soundtrack accurately simulated the sounds of the
subject of the videotape. 704 F.2d 963, 968 (7th Cir. 1983).
In Abernathy, the plaintiff was injured by a forklift unloading logs from
a truck at a sawmill. The defendant argued that the plaintiff should have
heard the noise of the forklift and gotten out of the way. When the
defendant sought to admit a videotape depicting the general method in
which trucks were unloaded at the sawmill, the court required that the
video be played with its sound turned off, presumably to prevent jurors
from drawing conclusions about whether the plaintiff should have heard
the sound of the forklift.
The Seventh Circuit upheld the exclusion on the grounds that the
soundtrack of the videotape would not accurately depict the sounds of the
forklift as they would have been heard by the plaintiff. 704 F.2d at 968.
The Seventh Circuit stated:
[T]o be admissible -- at least as a matter of law, rather than in the
trial judge's discretion -- the recording must, of course, meet minimum
standards of reliability. E.g., Renfro Hosiery Mills Co. v. National Cash
Register Co., 552 F.2d 1061, 1065-66 (4th Cir. 1977); Brandt v. French,
638 F.2d 209, 212 (10th Cir. 1981). This one did not. The microphone was
not placed where Abernathy had been standing when he was hit by the log,
though it easily could have been; the recording was made by an amateur,
using amateur's equipment; and there is no indication that in the
courtroom the video recorder's volume control would have been adjusted to
produce the same decibel level as the sounds actually recorded. 704 F.2d
The concerns raised in Abernathy could take on special significance in
the context of virtual reality evidence if the point of virtual reality
evidence is to make the jury feel and see and hear exactly what it was
like to be at a certain place involved with a certain activity. This end
is not achieved if sounds are louder or softer or of a different quality
than the actual sounds meant to be depicted. For example, sounds which
are made louder or more threatening by the process of reproducing them
for virtual reality might frighten a juror more than the original sound.
A snowmobile ride might seem more dangerous because the roar of the
engine, the roar of the wind, and the sound of the runners on the snow is
louder than it is in reality or takes on a tone quality which a juror
finds more piercing or menacing than the actual sound in the real world.
To consider the difference in perception that would be created, one need
only think of the difference between watching a movie like Aliens 2 on a
monophonic television and watching it in a theater with giant speakers
blasting out the sounds of the aliens and their movements in high-
fidelity Dolby multiphonic sound.
It is not difficult to imagine circumstances in which the exact volume
and quality of sound is relevant. One instance, of course, is a situation
like that in Abernathy in which sound might have provided a warning and
been relevant to comparative negligence issues. Another scenario in which
sound might be relevant is in determining pain and suffering damages in a
tort case, if sound was part of the overall experience of the tort victim
and added to mental suffering, for example, if the plaintiff heard the
cries of dying passengers or the sound of a plane hitting the water. Even
when a recording from a wiretap is admitted, the quality of sound might
be relevant to an identification of a person's voice.
The test applied to determine whether to admit a videotape is generally
no different than the tests applied to other types of evidence. The court
must determine, in its discretion, whether the evidence presented by the
videotape is relevant, and whether there is a likelihood that the
videotape will have a confusing, misleading, or prejudicial impact, that
will outweigh the probative value of the evidence. Hurt v. Coyne Cylinder
Co., 956 F.2d 1319, 1328 (6th Cir. 1992); LeBoeuf v. K-Mart Corp., 888
F.2d 330, 334 (5th Cir. 1989).
At least in the Sixth Circuit, if a trial court excludes a videotape, in
order for its proponent to obtain a reversal, she must provide a
"compelling" reason why the video should be admitted, or why an abuse of
discretion occurred. See Hurt v. Coyne Cylinder Co., 956 F.2d at 1328.
In addition, as discussed above with regard to photographs, one should
consider what relevant information is added by presenting evidence in
videotape form. If the same information as is presented by the videotape
is permitted in some other form, such as by oral testimony, this fact may
provide an additional reason for an appellate court not to find that an
abuse of discretion occurred when the district court excluded the
videotape. For example, in Swajian v. General Motors Corp., the First
Circuit pointed out that, while the district court excluded a videotape
of a crash test, the district court did permit oral testimony about the
crash. 916 F.2d 31, 36 (1st Cir. 1990).
As is the case with sound recordings, there is concern raised over the
accuracy and reliability of videotape evidence. However, to authenticate
a videotape, absent a well-founded accusation of inaccuracy or
impropriety it is sufficient to merely present testimony that the
videotape accurately depicts the events being taped. Louis Vuitton S.A.
v. Spencer Handbags Corp., 765 F.2d 966, 973-74 (2d Cir. 1985).
More concern can be raised over the subject of a videotape, especially
when the videotape depicts a reenactment or test. It is in these areas
that virtual reality may also become most relevant. For example, in
Stephenson v. Honda Motors Ltd. of America, the three-dimensional video
was essentially a demonstration of a test run over the same terrain as
that which the plaintiff traversed on her Honda. As such, the video had
some aspects of a reenactment, and some aspects of a demonstration or
test. Some of the issues raised by reenactments and tests are raised in
the next two sections.
Generally speaking, a reenactment is an attempt to recreate the events
which are the subject of the litigation. In contrast, a test, experiment,
or demonstration, is intended to illustrate or depict some principle
which is relevant to the litigation, but not in a manner meant to
simulate the actual events which gave rise to the litigation.
For example, a video of a car braking on an icy road might be offered to
demonstrate the manner in which the car and its brakes function under icy
conditions, without attempting to show what happened when a plaintiff
braked her car. Because evidence must be relevant, however, it may be
difficult for a test not to become more like a reenactment. In a case
involving a car accident on icy roads, a video of a car braking on ice
offers little in the way of useful and relevant information unless the
car is the same car as the plaintiff's, the iciness of the road surface
is similar to the that when the plaintiff had her accident, the other
aspects of the road surface and the incline or decline of the road are
similar, as well as whether it is straight or curved, or wide or narrow,
and the lighting conditions or time of day might even have affected
whether the plaintiff would have been aware of the ice on the road. If,
in order to make the test relevant, all of these factors are accounted
for, then the test ends up being a simulation of the actual event giving
rise to the litigation, and essentially a reenactment is created.
When the purpose of an experiment is to simulate actual events, in the
Tenth Circuit the experiment may be admissible as evidence if the
experiment is performed under conditions "substantially similar to those
which are the subject of the litigation. While the conditions need not be
identical, they must be sufficiently similar to provide a fair
comparison." Four Corners Helicopters, Inc. v. Turbomeca, S.A., 979 F.2d
1434, 1442 (10th Cir. 1992)(videotaped experiment), citing Jackson v.
Fletcher, 647 F.2d 1020, 1027 (10th Cir. 1981). In Jackson v. Fletcher,
the Tenth Circuit held that where "a substantial dissimilarity of
conditions prevented a fair comparison and could have misled the jury on
a critical element of the case, the admission of the evidence was
prejudicial." Four Corners Helicopters, 979 F.2d at 1442, citing Jackson,
647 F.2d at 1028.
In Four Corners Helicopters, the proponent of a videotaped experiment
argued that it met the test for admissibility of reenactments, and even
if it did not, in the alternative it was merely an experiment intended to
demonstrate physical principles. 979 F.2d at 1442. The Tenth Circuit
found, however, that the experiment mocked certain conditions relevant to
the events that were the subject of the litigation, and did so in such a
way that it would have confused the jury into thinking it was a
reenactment. 979 F.2d at 1442. As a result, the Tenth Circuit held that
the experiment would be held subject to the stricter standard of
admissibility applied to reenactments. See 979 F.2d at 1442. In Hall v.
General Motors Corp., the District of Columbia Circuit held that a test,
not a reenactment, still would not be admissible unless the conditions
under which the test was performed were "nearly the same in substantial
particulars" as the conditions surrounding the events that were the
subject of the litigation. 647 F.2d 175, 180 (D.C. Cir. 1980), citing
Illinois Central Gulf R.R. v. Ishee, 317 So.2d 923, 926 (Miss. 1975),
quoted with approval in Barnes v. General Motors Corp., 547 F.2d 275, 277
(5th Cir. 1977). The determination of whether there is substantial
similarity is subject to a "clearly erroneous" standard. Hall v. General
Motors Corp., 647 F.2d at 179.
Tests, Experiments, or Demonstrations
As hinted at in the discussion of Hall v. General Motors Corp., even if a
video depicts a test rather than a reenactment, a court might still
require that the test be performed under conditions similar to those that
existed at the time of the events which are the subject of the
litigation. Nachtsheim v. Beech Aircraft Corp., 847 F.2d 1261, 1278 (7th
Cir. 1988), citing Hale v. Firestone Tire & Rubber Co., 756 F.2d 1322,
1333 (8th Cir. 1985) and Sedlack v. General Motors Corp., 253 F.2d 116,
117 (7th Cir. 1958). The standard, therefore, appears to be one of
similarity, rather than substantial similarity.
The Tenth Circuit held in Four Corners Helicopters, Inc. v. Turbomeca,
S.A., that when an experiment is not an attempt to stage a reenactment of
the events which were the subject of the litigation at hand, but is
conducted to demonstrate such things as mechanical principles, it may be
admitted "'upon a showing that "the experiment [was] conducted under
conditions that were at least similar to those which existed at the time
of the [events which were the subject of the litigation."'" 979 F.2d
1434, 1442 (10th Cir. 1992), quoting Bannister v. Town of Noble, Okla.,
812 F.2d 1265, 1270 (10th Cir. 1987), citing Brandt v. French, 638 F.2d
209, 212 (10th Cir. 1981).
In similar fashion in Swajian v. General Motors Corp., the First Circuit
refused to overturn an exclusion of a videotaped test and held that, as a
general rule, for a videotape of a test to be admissible as evidence, the
conditions or events depicted by the videotape must be similar to the
relevant circumstances of the case at hand. 916 F.2d 31, 36 (1st Cir.
1990), citing Chase v. General Motors Corp., 856 F.2d 17, 20 (4th Cir.
1988). The test in Swajian was conducted using an experienced driver who
knew that a malfunction was about to occur and what kind of malfunction
to anticipate, and the test occurred within controlled facilities, with
the vehicle intentionally rigged to break down in a particular way. 916
F.2d 31, 36 (1st Cir. 1990).
On the other hand, experiments conducted only to demonstrate the
principles informing an expert opinion "need not strictly adhere to the
facts." Four Corners Helicopters, Inc. v. Turbomeca, S.A., 979 F.2d 1434,
1442 (10th Cir. 1992), citing Brandt v. French, 638 F.2d 209, 212 (10th
Cir. 1981). Nachtsheim v. Beech Aircraft Corp., 847 F.2d 1261, 1278 (7th
Cir. 1988), citing Brandt and see also Gladhill v. General Motors Corp.,
743 F.2d 1049, 1051 (4th Cir. 1984).
In Nachtsheim v. Beech Aircraft Corp., a videotape was offered into
evidence depicting the operation of an aircraft with ice gathering upon
its wings. 847 F.2d 1261, 1278 (7th Cir. 1988). The Seventh Circuit held
that the videotape could be admissible in view of the fact that the
videotape was not offered to reenact the accident at issue in the
litigation, nor was there any suggestion that the experiment simulated
actual events. 847 F.2d at 1278. The Seventh Circuit also pointed out in
Nachtsheim that the videotape touched upon issues covered in oral expert
testimony. 847 F.2d at 1278.
A proponent of a videotaped test might avoid exclusion of the videotape
by introducing the videotape to the jury in a particular manner, by
avoiding the suggestion that the test was meant to simulate actual events
and by instructing the jury of the limited purpose for which the test is
intended. In addition, in some circumstances objections to certain
aspects of a test might go more to the question of the weight which a
jury assigns to the test as evidence, rather than serving as grounds for
the actual exclusion of the test as evidence.
As stated above, the Seventh Circuit pointed out in Nachtsheim that there
had been no suggestion that the experiment in that case simulated actual
events. Similarly, the Tenth Circuit in Four Corners Helicopters, Inc. v.
Turbomeca, S.A., held that if an experiment is offered into evidence
merely to demonstrate physical principles, "the experiment should be
conducted without suggesting that it simulates actual events." 979 F.2d
1434, 1442 (10th Cir. 1992), citing Jackson v. Fletcher, 647 F.2d 1020,
1027 (10th Cir. 1981).
In Four Corners Helicopters the Tenth Circuit also held that when an
experiment was conducted only to demonstrate physical principles, the
jury should be instructed as to the limited purpose of the evidence. See
979 F.2d 1434, 1442 (10th Cir. 1992), citing Brandt v. French, 638 F.2d
209, 212 (10th Cir. 1981) and see also Millers' Natl. Ins. Co. v.
Wichita Flour Mills, Co., 257 F.2d 93, 97 (10th Cir. 1958).
In Nachtsheim v. Beech Aircraft Corp., the Seventh Circuit found that
there were indeed dissimilarities between the conditions under which the
experiment was performed and that of the actual events giving rise to the
litigation. 847 F.2d 1261, 1278 (7th Cir. 1988) Nonetheless, the Seventh
Circuit held that the dissimilarities could be taken into account by the
jury when determining how much weight to give to the evidence, and did
not require the exclusion of the evidence. 847 F.2d at 1278. The
dissimilarities apparently included the fact that the pilot in the
experiment was an experienced test pilot, and the fact that he may have
manipulated the controls more often than the pilot whose flight was the
subject of the litigation. 847 F.2d at 1278.
A jury view involves the jury actually travelling to the site where
events relevant to the litigation occurred. Because a jury view is
disruptive to court proceedings, they are not favored and are ordered
only infrequently. G. Joseph, Modern Visual Evidence s. 4.03, at 4-17
(1992). Some courts prohibit views unless they would be "'of essential
aid, not merely of some aid,' to the jury," and other alternatives are
not adequate. Id., citing see e.g. Seismic Petroleum Services, Inc. v.
Ryan, 450 So.2d 437, 441 (Miss. 1984).
A jury view might be permitted for one of several different reasons.
Jury views are sometimes referred to as being either "evidentiary views"
or "scene views." Pritchett v. Anding, 310 S.E.2d 267, 271 (Ga.App.
One reason for permitting a jury view would be to provide the jury with
information not otherwise available, or to provide the information in a
manner that is more effective than alternative methods of presentation.
McLaughlin, Federal Evidence Practice Guide, paragraph 5.13, at 5-51
(1992)("Photographs or videotapes may not be adequate in fully depicting
the scene.") A scene view is not intended to provide additional evidence,
but rather to help the jury to better understand oral testimony given in
the courtroom. See Pritchett, 310 S.E.2d at 271. In Pritchett, the state
court trial judge instructed the jury that "any information gained from
viewing the premises could be applied to the sworn testimony, but that
conclusions from viewing the premises could not be used in place of the
sworn testimony." 310 S.E.2d at 271.
The decision to permit a jury view is at the discretion of the trial
judge. 2 J. Strong, McCormick on Evidence, s. 216, at 25 (4th ed. 1992);
McLaughlin, at 5-51. There are several major considerations that a trial
judge is to consider. One is the degree to which the appearance of the
site at the time of the view is similar to that at the time of the events
which are the subject of the litigation. 2 Strong, at 26;
McLaughlin, at 5-51. Another is whether there are less disruptive
alternatives which would provide similar information, such as
photographs, videotapes, or maps. McLaughlin, at 5-51, see 2 Strong, at
26. In addition, the court should consider the importance of the
information to be gained by the view relevant to the issue that it will
help determine. 2 Strong, at 25-26.
If a jury view is permitted, there is generally an effort to make the
viewed site as similar as possible to its appearance at the time of the
events which gave rise to the litigation, as well as an effort to
eliminate other information from being presented to the jury. See
McLaughlin, at 5-51. For example, other persons not essential to the view
might be made to leave the site. See id.
Virtual reality might be best characterized as a "virtual reality view,"
a more accurate alternative to a videotaped view. Like a videotaped view,
a virtual reality view would offer certain advantages over an actual
view. The use of virtual reality would not be as disruptive to court
proceedings as an actual view, and greater control could be exercised
over the content of what the jury sees, hears, and otherwise senses.
Extraneous information such as smells or sights not relevant to the
litigation could also be excluded from the virtual reality presentation.
On the other hand, the use of virtual reality would bring with it at
least one advantage not offered by videotape. Like an on-site jury view,
virtual reality would offer a three- dimensional perspective.
On the other hand, virtual reality could also end up being more
disruptive, or perhaps more prejudicial, than either an on- site or a
videotaped view if the use of special equipment and the exotic nature of
the technology distract the attention of the jury from their main task of
observing the subject of the view.
By "tactile evidence," the author merely means some form of demonstrative
evidence which a juror might touch or otherwise experience by means of
senses other than vision or hearing. For the purposes of this article,
tactile evidence in the context of virtual reality might include such
things as temperature and pressure, wind, dampness, body orientation, and
motion. These aspects of virtual reality are the most dissimilar to
traditional forms of evidence. Tactile components of virtual reality may
be most closely analogous to a jury view, where all of a juror's sense
may be brought to bear on the juror's observations of the view site.
Because of the newness of the tactile component of virtual reality as a
type of evidence, however, the use of the tactile components of virtual
reality may present the most problems in terms of admissibility because
of questions of relevance, the lack of familiarity on the part of courts
with such evidence, and the enhanced potential for prejudicial effect
that may accompany tactile aspects of virtual reality. On the other hand,
unlike a jury view, virtual reality can be modified to eliminate sensory
experiences which are deemed irrelevant or otherwise troublesome to a
Alternative methods of presentation
As mentioned above, one means by which a trial court might exclude
evidence in one form and not be reversed on the appellate level is if the
trial court permits the same information to be presented to the jury in
another form. For example, in Fernandez v. Leonard, a civil rights
action, the trial court refused to admit photographs of the deceased
plaintiff's body, which would have indicated that he was shot in the back
of the head, but pointed out that plaintiff's counsel could make use of
independent evidence in the form of an autopsy report to present the same
facts to the jury. 963 F.2d 459, 465 n.8 (1st Cir. 1992). Similarly, in
Swajian v. General Motors Corp., the appellate court refused to overturn
a trial court's decision to exclude a videotape of a crash test, pointing
out that the trial court did permit oral testimony about the same test.
916 F.2d 31, 36 (1st Cir. 1990). As discussed above, in Navarro de Cosme
v. Hospital Pavia, the trial court excluded photographs it considered
"gruesome" of a stillborn infant, but permitted the use of oral expert
testimony to serve the same ostensible purpose of the photographs, to
argue that death was not caused by an umbilical cord around the neck of
the infant prior to birth. 922 F.2d 926, 930-31 (1st Cir. 1991)
Novel Scientific Evidence
In addition to the ordinary tests for relevance and the balancing of
probative value with the likelihood that evidence will be misleading,
confusing, or prejudicial, some courts apply an additional test for
evidence that is considered novel scientific evidence. This test
considers whether the evidence has gained general accpetance in the
scientific field in which it belongs, and excludes novel scientific
evidence if it has not gained such acceptance.
In those Circuits which still reserve special treatment for novel
scientific evidence, courts may be tempted to treat virtual reality
evidence as novel scientific evidence simply because it is a new and
exotic technology, and because questions may be raised over its accuracy,
and over which of various different virtual reality technologies are most
accurate. However, while virtual reality evidence is certainly novel, and
while scientific expert testimony might be required to determine its
accuracy, virtual reality evidence probably should not be subjected to
the evidentiary test applied to novel scientific evidence if it is not
used to present scientific conclusions or to provide information based
upon scientific theories.
The first case to address the issue of when scientific evidence should be
admitted was Frye v. United States, 292 F. 1013 (D.C. Cir. 1923). United
States v. Jakobetz, 955 F.2d 786, 793 (2d Cir. 1992). Under Frye,
admissibility of a novel scientific technique as evidence hinges upon
whether it has been "'sufficiently established to have gained general
acceptance in the particular field in which it belongs.'" United States
v. Jakobetz, 955 F.2d 786, 793-94 (2d Cir. 1992), quoting Frye v. United
States, 292 F. 1013, 1014 (D.C. Cir. 1923). This acceptance, under Frye,
was equated with reliability, with only reliable evidence deemed
Today, the Frye test remains the majority rule, see, e.g., United States
v. Two Bulls, 918 F.2d 56 (8th Cir. 1990); United States v. Piccinonna,
885 F.2d 1529 (11th Cir. 1989); United States v. Smith, 869 F.2d 348 (7th
Cir. 1989); United States v. Gillespie, 852 F.2d 475 (9th Cir. 1988);
United States v. Smith, 776 F.2d 892 (10th Cir. 1985). See United States
v. Jakobetz, 955 F.2d at 794. See also Hollander and Baldwin, "Winning
With Experts," Trial, March 1993, at 16-24. At least one Circuit has held
that Rule 702 of the Federal Rules of Evidence, which applies to expert
testimony, requires a test which appears to be identical to the Frye
test. See United States v. Piccinonna, 885 F.2d at 1531. However, some
jurisdictions have rejected the Frye test and instead favor applying to
novel scientific evidence only the general test applied to all forms of
evidence, namely whether the evidence is relevant and whether its
probative value substantially outweighs the likelihood that the evidence
will be misleading, create confusion, or cause a prejudicial effect. See
United States v. Jakobetz, 955 F.2d at 794.
In the Second Circuit:
[W]e [have] held that the Frye standard ha[s] been superseded by the
Federal Rules of Evidence, which stress a more permissive method for
determining admissibility. We liken the standard for admissibility of
scientific evidence to that for other evidence, and we [have] stated that
evidence is admissible if the probativeness, materiality, and reliability
of the evidence outweighs its tendency to mislead, prejudice, or confuse
the jury. United States v. Jakobetz, 955 F.2d at 794, citing United
States v. Williams, 583 F.2d 1194, 1198 (2d Cir. 1978), cert. denied,
439 U.S. 1117, 99 S.Ct. 1025, 59 L.Ed.2d 77 (1979). In jurisdictions
where the Frye test is abandoned, therefore, virtual reality will only be
subject to the types of tests described above for photographs, motion
pictures, sound recordings, and the like.
If the Frye test were applied to virtual reality evidence, three
questions would have to be answered. First, it would have to be
determined whether virtual reality evidence was scientific evidence.
Second, the court would have to determine the identity of the scientific
field in which virtual reality evidence belonged, as it was being used in
a particular case. Third, the court would have to answer the question of
whether virtual reality evidence had gained general acceptance in that
While virtual reality is novel, it is not clear that virtual reality
evidence should be considered scientific evidence. While science may be
involved with creating virtual reality, just as science is involved with
photographs or video cameras, the content and nature of the information
which virtual reality evidence would convey in a given case would not
necessarily be scientific. For example, a virtual reality view of terrain
for the sake of seeing what the terrain looked like would not present
scientific theories or conclusions the way that oral testimony about
battered wife syndrome presents scientific theory. Except in cases where
virtual reality was used to explain, illustrate, or inform a scientific
"fact," the chief question raised would be whether the exotic
techonological aspects of virtual reality as a medium make it subject to
a special rule for the admission of novel scientific evidence, perhaps
even in connection to the more general questions of accuracy and
One case which would lend credence to an argument that virtual reality
evidence should be treated as novel scientific evidence is United States
v. Kilgus, 571 F.2d 508 (9th Cir. 1978). In Kilgus, the only evidence
linking the defendants to the illegal distribution of marijuana was the
identification of their aircraft by means of an exotic form of imaging
developed by the United States military known as a Forward Looking
Infrared system (FLIR). 571 F.2d at 509-10. A customs officer testified
that he viewed an FLIR image of a plane from a distance which landed in a
remote area and was intercepted by ground vehicles which were later
stopped and found to contain marijuana. Id. Later, the same customs
officer viewed an FLIR image of a plane landing at an airport which he
thought looked like the FLIR image of the first plane. Id. His conclusion
was based upon the fact that both aircraft appeared to be of a certain
type, and that he recognized similar "spots" on the same locations of the
FLIR images of both planes. 571 F.2d at 510. Persons aboard the plane
which landed at the airport were arrested, tried, and convicted based
upon the customs officer's "identification" of the plane. Id.
In essence, no scientific conclusions were drawn by the customs officer
and presented to the jury. He merely made an identification of something
he "viewed" through a rather exotic device. However, prompted by concerns
over the reliability and accuracy of the image, the Ninth Circuit treated
the testimonay concerning the FLIR image as novel scientific evidence and
applied the Frye test to reverse the convictions. Id. The court held:
Several serious problems exist as to Officer Gibbs' testimony regarding
the "unique identification" of these aircraft through the use of FLIR.
First, Officer Gibbs admitted that he did not understand the theory
behind the FLIR equipment, that he never made any particular study of
FLIR's and that he has had no training in the unique identification of
aircraft from a remote distance. Second, the performance of the FLIR is
affected by barometric pressures, temperature, humidity and other
atmospheric conditions. There is no testimony to show that these factors
were the same on the lake bed in the middle of the night as they were
after sun up in Las Vegas. Third, defense counsel were in essence
foreclosed from impeaching either Officer Gibbs' testimony or his
reliance on the FLIR system because most of the necessary technical
information was shrouded in military secrecy. Finally, and most
importantly, the unrebutted testimony of the defense's expert was that
the FLIR is not a generally accepted technique among the scientific
community for the unique identification of remote objects.
A necessary predicate to the admission of scientific evidence is that the
principle upon which it is based 'must be sufficiently established to
have gained general acceptance in the particular field in which it
belongs.' United States v. Brown, 557 F.2d 541, 556 (6th Cir. 1977),
quoting Frye v. United States, 54 App.D.C. 46, 293 F. 1013, 1014 (1923);
see also United States v. Amaral, 488 F.2d 1148, 1152-53 (9th Cir.
1973). Id. (emphasis in original).
If virtual reality were viewed as novel scientific evidence, the best
approach to apply may be that adopted by the Third Circuit, which in an
effort to give effect to Rule 702 of the Federal Rules of Evidence has
abandoned the Frye test in favor of a test which appears to combine
general requirement of relevance, the balancing of probative value with
the likelihood to mislead, confuse, or prejudice, and the question of
The language of Fed.R.Evid. 702, the spirit of the Federal Rules of
Evidence in general, and the experience with the Frye test suggest the
appropriateness of a more flexible approach to the admissibility of novel
scientific evidence. In our view, Rule 702 requires that a district court
ruling upon the admission of (novel) scientific evidence, i.e., evidence
whose scientific fundaments are not suitable candidates for judicial
notice, conduct a preliminary inquiry focusing on (1) the soundness and
reliability of the process or technique used in generating the evidence,
(2) the possibility that admitting the evidence would overwhelm, confuse,
or mislead the jury, and (3) the proferred connection between the
scientific research or test result to be presented, and particular
factual issues in the case. United States v. Downing, 753 F.2d 1224,
1237 (3d Cir. 1985).
This test, of course, is generally the same as that which would be
applied to virtual reality in Circuits applying the Frye test if it were
treated as being merely a form of nonscientific demonstrative evidence.
The whole question of whether virtual reality evidence should be
considered novel scientific evidence could be affected by decision of the
United States Supreme Court in Daubert v. Merrell Dow Pharmaceuticals,
Inc., 951 F.2d 1128 (9th Cir.), cert. granted, 113 S.Ct. 320 (1992).
N.B.: An update to this article analyzing the effects of that decision is
in preparation. Pending our publication of that update, you may want to
look at the syllabus of the June, 1993, decision.
Arguments For and Against the Admissibility of Virtual Reality Evidence
As mentioned above, in Stephenson v. Honda Motors Ltd. of America,
Honda's counsel succeeded in persuading a California Superior Court to
admit virtual reality evidence. The circumstances of Stephenson help
illustrate how virtual reality can become relevant to the presentation of
evidence in a trial, as well as some of the concerns which might be
raised by its admission.
The Stephenson case involved a plaintiff who suffered an accident while
riding a Honda motorcycle. One of Honda's arguments against awarding
damages was that the plaintiff foolishly encountered a risk that a
reasonably prudent person would not undertake, riding a motorcycle on
terrain that defense counsel argued was extremely treacherous.
In order to help the jury understand the nature of the terrain, and what
it would have been like to encounter it on a motorcycle, the defense
obtained the court's permission to have the jury wear special virtual
reality-type goggles and view a three- dimensional motion picture of the
terrain, from the point of view of a rider on a motorcycle. There was no
sound provided with the motion picture. After the ride through the
terrain, the image then backtracked the course more slowly.
The aspect of virtual reality which made it useful in this instance was
that a three-dimensional viewing of the terrain would do more to help the
jury understand what the terrain was like than an ordinary two-
dimensional view, and certainly more than oral testimony concerning
someone's impressions of the terrain.
Arguments for admissibility of virtual reality evidence As stated above,
virtual reality evidence can be viewed in several different ways. On the
one hand, virtual reality is merely a compilation of several media which
already are used as methods for presenting information to a jury. Virtual
reality at its most advanced level consists of a three-dimensional motion
picture, stereo sound, and a body suit which subjects the wearer to
temperature and pressure. In addition, wetness or wind could conceivable
be added to the tactile stimulation of the wearer.
One must ask what virtual reality adds to the presentation of information
that these other media do not provide. The main differences are that the
video is three-dimensional, that the sights and sounds of the
presentation can occupy the entire visual field and aural reception of
the juror, and that the body suit would seem to be completely new.
Finally, there may be instances where a computer-generated video is used.
However, this technique is not unique to virtual reality in that is also
used for ordinary videos.
The three-dimensional and all-inclusive aspects of virtual reality make
the experience more like a jury view, although the court and counsel may
control the sounds and images to which the jury is exposed.
As seen in Stephenson, where virtual reality should be admitted is when
it provides information to the finder of fact that is not otherwise
available, or in a way that is more effective and otherwise preferable to
the alternative. For example, as in Stephenson, there are circumstances
in which a three-dimensional view provides more or better information to
the jury. If that information is relevant, then there is grounds for the
use of virtual reality. In Stephenson, the information communicated by
the three-dimensional view was an enhanced view of how treacherous the
terrain was, which was relevant to the issue of comparative negligence.
In contrast, in the case of a hidden FBI video of a Congressman taking a
bribe, there might not be additional relevant information communicated by
a three-dimensional view which would not be obtained from an ordinary
two-dimensional view. The relevant information to be obtained from the
video is the identity of the Congressman and the events that transpired
when money changed hands.
There may also be circumstances in which there are even more accurate
methods of presenting information to a jury than virtual reality, but
virtual reality is nonetheless preferable for various reasons. For
example, a jury might actually be ridden over the rough terrain in
Stephenson on a motorcycle, but a court would risk the loss of its
jurors. In addition, virtual reality offers courts and attorneys the
opportunity to place a jury "on the scene," while still being able to
control what the jury sees and the manner in which the jury sees it. The
lack of this type of control is one shortcoming of a jury view.
Another shortcoming of a jury view, as pointed out above, is that
conditions may have changed between the time of the events which are the
subject of the litigation and the time of the view. Virtual reality which
makes use of computer-generated images might help reconstruct conditions
similar to those existing at the time the relevant events took place.
Arguments against the admissibility of virtual reality evidence Several
arguments might be made against the admission of virtual reality
evidence. First, in any given case it could be argued that a court should
examine the additional information conveyed by virtual reality evidence
that is not conveyed by oral testimony or by a video, and ask whether
that additional information is relevant, or whether the probative value
of the information outweighs the potential for prejudice. In some cases,
three dimensional viewing is not necessary, and temperature and pressure
from a body suit might be irrelevant.
Second, in some cases there may be a danger of prejudice from the use of
virtual reality evidence. For example, a frail and timid juror might lose
objectivity if she was forced to see what it would be like to bungie-jump
and have her rope snap, under the guise of helping her to understand the
shock and mental suffering of a deceased plaintiff hurtling to the earth.
Certain prejudices and idiosyncracies may come into play when a juror is
made to experience virtual reality that might not come into play when the
same juror views the same subject on an ordinary videoscreen or listens
to oral testimony conveying the same information.
For example, in Stephenson, it might have been just as useful to place
experts on the witness stand to testify whether they thought a rider of
the level of expertise of the plaintiff would have prudently chosen to
ride over the terrain in question. Photographs might also have been
submitted. It may be that some jurors decided that the terrain was more
treacherous than it really was because they are easily frightened by the
prospect of riding a motorcycle over any wild terrain, even terrain that
would be relatively safe. The sight of the terrain in a stark virtual
reality image may have aroused their prejudices rather than informing
their objective judgement.
On the other hand, of course, it could be argued that there are
circumstances where informing the judgement of the jury requires a
presentation that is more "real."
If virtual reality can provide a jury with relevant information that
other methods of presentation cannot provide, or if virtual reality is
much more effective than other forms of evidence at presenting relevant
information, virtual reality evidence should be admissible unless there
is some reason in a particular case that the method of presentation would
be confusing or misleading, or is so shocking that it has a prejudicial
impact which surpasses the probative value of the evidence.
Virtual reality evidence would often be, in essence, a virtual reality
view, a three-dimensional version of a videotaped view. A chief argument
in favor of admissibility might be that virtual reality might be
preferable to an actual view, in that the contents of the view would be
more easily controlled by the court, and irrelevant aspects of the view
might be kept from the jury. For example, in demonstrating machinery,
where the sound of the machinery is irrelevant it might be shut off. On a
view, the loud and garish sound of machinery might subconsciously make
some jurors feel that the machinery is more dangerous than it is. In
addition, virtual reality might substitute for a view in cases where a
view would be dangerous, but at the same time a videotape would be
inadequate. For example, in Stephenson v. Honda Motor Company Ltd. of
America, no court would have had a jury ride motorcycles over dangerous
terrain, but at the same time an ordinary videotape would not have
presented as accurate an image of the terrain as virtual reality.
Ultimately, a court will have to determine exactly what information is
communicated by the virtual reality medium that would not be presented,
or that would not be presented as well, by another medium, whether the
information adds to the relevant information the jury needs to make its
decisions, and whether there is also a prejudicial impact that outweighs
the benefits of virtual reality. Because there are several different
components of virtual reality, it may be that in a given case a court
will admit one component, but exclude others because they are irrelevant
or because they will be more shocking. For example, the visual component
might be employed, but not sound or pressure or g-forces. In the end, a
litigator with a legitimate use for virtual reality evidence should be
able to present sound arguments for the admissibility of at least some
aspects of the virtual reality medium.
This paper is not intended to provide legal advice or opinion. Such
advice may only be given when related to specific fact situations.
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