Autumn 2007
The use of computer simulation evidence in court
To what extent have the courts embraced new technology in delivering a modern-day, cost effective, justice system? Whilst there has been a steady increase in the use of telephone and video conferencing by the courts, computer-generated sequences or "computer simulation", another method of presenting evidence in court, has struggled to be accepted to any great degree in the English legal system. Although it is occasionally used in public inquiries, tribunals and Coroners Courts, it is very rarely used in civil cases in this jurisdiction, despite its widespread use in other jurisdictions. We look here at the legal issues which have emerged surrounding its use in civil cases.
Computer simulation can be seen as a logical extension of the use of photographs and models. On one level therefore it is no different from any method of presentation of information in visual form. However, it is a form of evidence which has a largely scientific basis. It offers not simply an eyewitness account brought to life, but rather a visual demonstration of an interpretation of what actually happened: the sequence will be based upon a mix of established mathematical and physical principles, as well as eye witness testimony.
A critical point to consider is the highly persuasive nature of such simulations and the care that must therefore be taken to ensure the accuracy of the techniques used. Because of the high level of scientific input, and because the resulting simulation purports to be an exact recreation of events, it is vital that any expert preparing the simulation is available to answer questions about the principles applied in its creation.
The Protocol for the Instruction of Experts to give Evidence in Civil Claims directs that "where tests of a scientific or technical nature have been carried out, experts should state: (a) the methodology used; and (b) by whom the tests were undertaken and under whose supervision, summarising their qualifications and experience". Experts in computer simulation will need to comply with this and it is particularly important that the underlying scientific process be explained. If the expert is unable to satisfy the court of the scientific basis of the simulation, the evidence could come under attack from the opposing party and be declared inadmissible or given reduced weight or credibility.
The leading case in this area is "The Pelopidas" and "The Concord" (1999)1 , which concerned a night-time collision at between two cargo ships in the access channel to the port of Buenos Aires. In that case, both parties adduced computer-generated displays as evidence to illustrate the course of the vessels during the few minutes prior to the collision. Mr Justice Steel commented on the wealth of data available from the black box of The Concord, which facilitated an expert analysis of the likely track of the vessel. This presumably assisted in lending credibility to the simulation evidence. This case represents one of the few times where this form of technology has been used before the English courts.
Mr. Justice Steel did, however, urge caution in the use of computer simulation evidence, citing as possible danger areas the high costs and the potential to present evidence in a more emotionally manipulative fashion.
Computer simulation is clearly suitable for use not only in shipping cases like The Pelopidas but could also be useful in explaining matters of geology, faults with machinery or structural deficiencies in buildings.
Despite the potential problems, computer simulation is now widely and successfully used in other jurisdictions, particularly the USA. Parties looking for a new and forceful way of presenting a technical case in the courtroom, or during a mediation or negotiations should consider computer simulation where the money at stake justifies it, whilst being on guard about possible criticism of the process.
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