The purpose of this article is to outline Florida law related to the admissibility of expert testing used for both substantive and demonstrative purposes, and hopefully give attorneys dealing with these types of issues a starting point when drafting memorandums aimed at either admitting or excluding this type of evidence.

A. Testing as Substantive Evidence

When testing is being offered as substantive evidence to prove the way in which a particular event occurred, for example, the proponent of the testing must be prepared to satisfy all the traditional Frye requirements. E.g., Stokes v. State, 548 So.2d 188 (Fla. 1989); Ramirez v. State, 651 So.2d 1164 (Fla. 1995); Brim v. State, 779 So.2d 427 (Fla. 2d DCA 2000). In order to satisfy the reliability component of the Frye standard, the proponent must satisfy the “general acceptance” test. Ramirez, 651 So. 2d at 1168. The “general acceptance” test requires the party offering scientific testing to prove that both the scientific principle and testing procedures used to apply that principle to the facts at hand are generally accepted by the relevant scientific community. Brim, 779 So.2d at 434; Castillo v. E.I. Du Pont De Nemours & Co., 854 So.2d 1264, 1268 (Fla. 2003); General Motors Corp. v. Porritt, 891 So.2d 1056, 1058 (Fla. 2d DCA 2004) (requiring a showing that “‘a clear majority’ of the members of the relevant scientific community ascribe validity to the tests as a methodology of proving that inertial unlatching occurs.”).

In addition the general Frye requirements that apply to all scientific or expert evidence, testing is only admissible when it is shown that it was conducted under conditions substantially similar to those which prevailed at the time of the relevant accident. Huff v. Belcastro, 127 So.2d 476, 479 (Fla. 3d DCA 1961); Morton v. Hardwick Stove Co., 138 So.2d 807, 810 (Fla. 2d DCA 1962); American Motor Corp. v. Ellis, 403 So.2d 459, 468 (Fla. 5th DCA 1981); Porritt, 891 So.2d at 1058.² Whether testing conditions are, in fact, substantially similar is left to the sound discretion of the trial judge and depends upon the underlying theory of the case as defined by the particular claim at issue. Porritt, 891 So.2d 1059. The substantial similarity requirement is premised upon the judicial belief that “[i]n many instances, a slight change in the conditions under which the experiment is made will so distort the result as to wholly destroy its value as evidence, and make it harmful, rather than helpful.” Hisler v. State, 42 So. 692, 695 (Fla. 1906).

One case that is a good example of how courts decide whether testing is admissible is Vitt v. Ryder Truck Rentals, Inc., 340 So.2d 962 (Fla. 3d DCA 1976). In Vitt, plaintiffs argued that the trial court erred in admitting three experiments conducted by the defendant’s accident reconstructionist to show that (1) plaintiff’s motorcycle could be stopped from the point where his skid marks started to the point of impact; and (2) plaintiff’s motorcycle could negotiate the subject corner at the relevant speed without reaching the point of impact. Id. at 964. On appeal, plaintiffs asserted that five specific dissimilarities between the test and accident conditions should have prevented the tests from being admitted at trial. Id.

Specifically, the plaintiffs in Vitt argued that the testing should have been excluded because: (1) the point of impact was not properly established in the tests; (2) the weight of the driver used in the testing was not shown to be approximately the same as plaintiff’s; (3) the tested motorcycle was not shown to have been similar except its make; (4) a truck that was present during the subject accident was not present during the testing; and (5) there was no traffic during the testing and, therefore, there was no emergency condition like the one present during the subject accident. Id. Notwithstanding these differences, the appellate court held that the tests were admissible because the dissimilarities between the test conditions and the conditions surrounding the collision were not such as to destroy the validity of the conclusions drawn by the jury from the testing. Id. at 965.

For those who handle federal cases, please keep in mind that even though federal courts applying the Daubert standard do not require the proponent of testing to satisfy the “general acceptance” test, they do require the party offering testing to establish that the test conditions were substantially similar to those of the subject accident. Jodoin v. Toyota Motor Corp., 284 F.3d 272, 278 (1st Cir. 2002) (“When a party introduces evidence that attempts to reconstruct an accident, that party must show a ‘substantial similarity in circumstances’ between the reconstruction and the original accident.”).

B. Testing as a Demonstrative Exhibit

When testing is used to illustrate or explain a particular premise relied upon by an expert, the party offering the evidence must first establish the foundational requirements necessary to introduce the expert’s opinion. Pierce v. State, 718 So.2d 806, 809 (Fla. 4th DCA 1997). Specifically, the proponent of the testing being used for demonstrative purposes must show that: (1) the evidence depicted in the demonstrative exhibit will be helpful to the trier of fact; (2) the expert is duly qualified to opine on the subject matter included within the testing; (3) the testing applies to the facts of the relevant case; and (4) pursuant to §90.403, Florida Statutes, the testing does not present a substantial danger of unfair prejudice that outweighs its probative value. Kruse v. State, 483 So.2d 1383, 1384 (Fla. 4th DCA 1986); Pierce, 718 So.2d at 809.

In addition to laying the proper foundation to get demonstrative testing admitted, the proponent must also establish that the facts or data relied upon by the expert in forming the opinion expressed in the exhibit are of a type reasonably relied upon by experts in the relevant field. Pierce, 718 So.2d at 809. Moreover, like any other pictorial representation, it must be established that the testing fairly and accurately depicts that which it purports to be. Id.

When dealing with the admissibility of computer animations, a good case to consider is the Pierce case cited supra. The court in Pierce acknowledges that computer animations have been useful to juries as both demonstrative aids and substantive evidence to “supply missing information for the purpose of proving a material fact in dispute.” Id. at 808. In addition to explaining all the evidentiary hurdles that must be cleared to admit a computer animation as a demonstrative exhibit, the Pierce court subtly reminds litigants not to include overly prejudicial depictions such as a bloody accident scene or facial expressions on mannequins when creating animations to ensure they are not excluded pursuant to Section 90.403, Florida Statutes. Id.

The difference between the evidentiary standards applicable to testing used as substantive evidence as opposed to a demonstrative aid is premised on the judicial belief that substantial similarity is required when the jury is likely to believe they are seeing a repeat of the actual events as opposed to an illustration used to explain the principles that support an expert’s opinion. Understanding the evidentiary rules set forth herein can assist when selecting the appropriate expert for your case, developing a testing protocol, identifying demonstrative exhibits and trying your case.

1. Section 90.702, Florida Statutes (2006), states that:If scientific, technical, or other specialized knowledge will assist the trier of fact in understanding the evidence or in determining a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education may testify about it in the form of an opinion; however, the opinion is admissible only if it can be applied to the evidence at trial.
2. See also, Goodyear Tire & Rubber Co., Inc. v. Ross, 660 So.2d 1109, 1111 (Fla. 4th DCA 1995); Wofford Beach Hotel, Inc. v. Glass, 170 So.2d 62, 63 (Fla. 3d DCA 1965); Husky Industries, Inc. v. Black, 434 So.2d 988, 955 (Fla. 3d DCA 1983).