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Loevsky v. Carter5/4/1989
g at the time of the accident." Hubbard v. McDonough Power Equip., Inc. , 83 Ill. App. 3d 272, 280, 404 N.E.2d 311, 318 (1980) (citations omitted).
In Carr , the Arkansas Supreme Court held that the trial court erred in admitting into evidence a videotape showing a professional driver riding a motorcycle with two functioning shock absorbers and then with only one functioning shock absorber. The court reasoned that the test did not duplicate the exact conditions of the actual accident, and hence, the videotape was remotely relevant, prejudicial and misleading.
Similar to Carr , here it is undisputed that the motorcycle test neither duplicated the exact conditions nor substantially resembled the actual accident. Indeed, numerous factual differences are apparent. Accordingly, the tape was not admissible for reenactment purposes.
County does not dispute the existence of factual dissimilarities in the tape. Rather, County contends the circuit court did not abuse its discretion in admitting the tape into evidence where the purpose of the tape was for the demonstration of a principle, and not for reenactment purposes. Specifically, the principle demonstrated was that one can negotiate the roadway
and curvature even in the presence of gravel in a safe manner. And since the tape's purpose was to demonstrate this principle, the requirement of substantial similarity of conditions was not required.
"Films or videotapes of experiments by an accident reconstructionist, physicist, engineer, or other witness qualified as an expert on the cause of accidents, offered merely to illustrate the principles used in forming an opinion , do not require strict adherence to the facts and are admissible in evidence, provided such films or tapes are not misleading in and of themselves and provided it is made clear that they are offered only as illustrations of the principles involved." 3 C. Scott, Photographic Evidence § 1317 (2d ed. Supp. 1987) (emphasis added) (footnote and citations therein omitted). "However, . . . it is essential that the jury be carefully instructed as to the extent to which they can use and consider the films or videotapes." Id. (footnote and citation therein omitted).
In our view, the tape's visual contents constitute a veiled attempt to successfully re-create the motorcycle ride under controlled conditions favorable to County. See note 9, supra . The prejudicial and misleading impact of the tape's contents on the jury, we believe, far outweighed its probative value, if any. See Hawaii Rules of Evidence (HRE) Rule 403. "The conclusion is inescapable that, after viewing the [tape], the mind-set of the jury was that[,]" Carr , 280 Ark. 1, 4, 655 S.W.2d 364, 366, since the motorcycle did not slide down during the crucial test runs, one could safely travel around the curve and through the rock and gravel area.
Given this lasting visual impression upon the jury, a logical inference could be made that the presence of gravel, if any, on the roadway during the actual accident, should not have been a contributing factor to
the motorcycle sliding down and subsequently causing Plaintiff's injuries. This flawed reasoning, however, was premised in large part on the distinct factual dissimilarities between the actual accident on December 23, 1984 and the October 25, 1986 reenactment. See note 9, supra .
These noted factual dissimilarities, in turn, rendered the tape's relevancy in establishing County's asserted principle suspect at best. See HRE Rules 401 and 402. Moreover, we find
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