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'Animation' of shooting weighed Admissibility at issue in cyber re-creation Sunday, October 14, 2001 By The Associated Press
PHILADELPHIA -- In a first for Pennsylvania, a judge said last week that he would probably allow jurors to see a computer animation that simulates a man shooting his wife to death.
Lackawanna County Judge Terrence R. Nealon ruled that prosecutors may use the two-minute animated depiction provided it "does not include any inflammatory features which may cause unfair prejudice."
Nealon wrote that he was the first Pennsylvania judge to rule on the admissibility of computer animation in a criminal trial. Gerald C. Grimaud, a lawyer and longtime observer of the state's court system, said he could not recall animation ever being used in a Pennsylvania criminal trial.
Legal scholars say computer-generated imagery is rarely used in criminal cases, partly because of the expense and partly because of concerns it might prejudice jurors.
"The more realistic the animation looks, the greater concern about unfair prejudice," said Fred Lederer, director of Courtroom 21, a model high-tech courtroom at the College of William & Mary law school. "Even though your intellect knows it's not real, it might be hard to keep that in mind when you evaluate it later" during deliberations.
The Pennsylvania case involves Michael Serge, 54, who was arrested Jan. 15 after he called 911 and said he had fatally shot his wife. Serge's trial on first- and third-degree murder charges is scheduled to begin next month.
Serge, a retired Scranton police detective, has said 53-year-old Jennifer Serge came at him with a knife in their Scott Township, Lackawanna County, home and that he shot her in self-defense.
But the prosecution contends the first shot hit Mrs. Serge in the back, proving that she was not headed in Serge's direction and negating his self-defense claim. The animation, based on prosecution expert testimony, supports that version of the shooting.
But defense attorney Joseph D'Andrea ridiculed the video as a "cartoon" and said he would challenge its admissibility. The defense contends the first shot hit Mrs. Serge in the side, not the back.
"What they want to do is have this animation, or cartoon, [and] try to influence the jury," D'Andrea said. "But there's no way a Hollywood producer in Texas can recreate what happened on Jan. 15 with a couple of expert reports. All it is is a conclusion of a conclusion."
Nealon has not ruled on D'Andrea's request for a hearing.
Arlington, Texas-based 21st Century Forensic Animations produced the animation, which company president Andre Stuart said is very realistic, showing the faces of both Jennifer and Michael Serge and even portraying minute details such as the grill on the speaker of the couple's big-screen TV.
Stuart said 21st Century had produced fewer than 10 criminal trial animations in its 13-year existence, while churning out hundreds of animations for civil trials.
Animations are expensive, costing anywhere from $5,000 into the hundreds of thousands of dollars, Stuart said. He declined to say how much Lackawanna County paid for the Serge animation.
The first criminal trial animation was used a decade ago and helped convict Jim Mitchell, a well-known San Francisco-area pornography producer, of voluntary manslaughter in his brother's shooting death, Lederer said.
An appeals court later threw out the computer-generated version of the crime -- but only because it was based on questionable testimony, not because lawyers used the high-tech tool. Mitchell's conviction was upheld.
"The courts are just beginning to encounter this type of evidentiary re-creation," said Elizabeth Phillips Marsh, who heads the criminal procedure section of the American Bar Association. "There would be nothing to keep it out, unless the judge found it would be prejudicial or confuse the jury or be misleading."
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