Authentication Chain of Custody

Likewise, to establish the chain of custody for geographic intelligence, counsel must show: (1) the accuracy and reliability of the original source data, including all formulas, calculations, and assumptions used in defining and analyzing the data, (2) the accuracy of the source data entered into the computer, (3) the reliability and capability of the computer hardware and software, (4) the process of software used for the computer graphics, (5) the method used to produce the graphics in court, and (6) the accuracy and reliability of the final presentation. Powell at 582. Experts who process the data are arguably in the best position to describe the system used to produce geographic intelligence. The data suppliers can demonstrate that data security within the workplace was maintained at all times. Hodge at 718-19.

Because of their current uniqueness, geographic intelligence exhibits are likely to be deemed relevant as "evidence having any 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. However, the court will likely closely examine such evidence to assure that its probative value is [not] 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 so doing, the courts and litigators can draw on their respective experience in applying the prejudicial/probative balancing test under Fed. R. Evid. 403 in the area of computer-enhanced simulations. In Datskow v. Teledyne Continental Motors, 826 F.Supp. 677 ( W.D. N.Y. 1993), the defendants challenged the plaintiff’s use of a computer-animated video to show how a fire could begin and spread inside a plane. The court found no evidence to suggest that a jury would give more weight to the video than it deserved. The video did not purport to recreate the accident; it merely recreated an expert’s theory of what caused the accident. "So long as that distinction is made clear to [the jury]. . . , there is no reason for them to credit the illustration any more than they credit the underlying opinion." Id. at 685.

The Sixth Circuit came to a similar conclusion when it reviewed the admissibility of a computer-animated video involving a circuit breaker’s failure which had also caused an airline crash. In re Air Crash Disaster, 86 F.3d 498 (6th Cir. 1996). The court admitted the video because it was offered as a demonstration, not as an actual simulation, of what had happened to the circuit breaker in the accident. But see Pino v. Gauthier, 633 So.2d 638, 652 (La. App. 1st Cir. 1993). A videotaped computer animation showing four possible ways a car could travel a particular roadway was properly excluded as unduly prejudicial. The animation was produced by inserting data (such as the vehicle’s speed and weight) into the program and the opposing party could not alter the variables used to create the images. Accord King v. Copp Trucking, Inc., 853 S.W.2d 304, 309 (Mo. App. W.D. 1993). The King court held that a video-taped re-enactment of the accident on which the lawsuit was based had little probative value and would likely confuse the jury. Because the interpretation of Fed. R. Evid. 403 is highly discretionary and fact intensive, there is no way to predict how any one court would weigh the probative value of geographic intelligence against its potential for prejudice.