¶11 The State submits that the computer-generated animation was intended as a demonstrative exhibit. The decision to admit or exclude demonstrative evidence is committed to the trial court’s discretion.  State v. Gribble, 2001 WI App 227, ¶55, 248 Wis. 2d 409, 636 N.W.2d 488. As long as the trial court demonstrates a reasonable basis for its determination, this court must defer to the trial court’s ruling. Id. In exercising its discretion, the trial court must determine whether the demonstrative evidence is relevant, Wis. Stat. §§ 904.01 and 904.02, and whether its probative value is substantially outweighed by the danger of unfair prejudice under Wis. Stat. § 904.03.  Gribble, 248 Wis. 2d 409, ¶55; State v. Peterson, 222 Wis. 2d 449, 454, 588 N.W.2d 84 (Ct. App. 1998). We conclude that the trial court erred in its determination permitting admissibility of the exhibit.¶12 The defendants did not have notice regarding the use of the computer-generated animation. While “surprise” is not a basis for exclusion under Wis. Stat. § 904.03, “testimony which results in surprise may be excluded if the surprise would require a continuance causing undue delay or if surprise is coupled with the danger of prejudice and confusion of issues.” Roy v. St. Lukes Med. Ctr., 2007 WI App 218, ¶12, 305 Wis. 2d 658, 741 N.W.2d 256,review denied, 2008 WI 19, 307 Wis. 2d 293, 746 N.W.2d 810 (Jan. 22, 2008) (No. 2006AP480) (citation omitted). For several reasons, the surprise in this case was coupled with the danger of prejudice and confusion.
Roy, which upheld admissibility of animation though adverse party not made aware of its intended use until 5th day of 8-day trial, distinguished (largely because there, it was introduced via expert as part of effort to depict theory of case, and here it was via non-expert as part of seeming effort to recreate alleged crime step by step), ¶¶12-18:
¶22 Far from being an exhibit which merely illustrated a lay witness’s testimony or an expert’s opinion, this exhibit was nothing more than a collage of information—bits and pieces from each of the State’s witnesses when, mixed together, effectively represented the police officer’s own version of what occurred at the time and place in question. But the animator was not an eyewitness to the crime. His assessment about how the crime actually unfolded was just that, his collage, his assessment. By bringing this nonevidentiary perspective of the evidence to life by means of the computer-generated animation, and advising the jury that this was a representation of what happened, the jury was invited to view the collage as fact. A pasting of differing and sometimes conflicting facts from a mixture of witnesses, in an order that made most sense to the State, thus became the final, conclusive historical factual presentation of the crime. This is why it was unduly prejudicial. The animation superceded the sifting and winnowing that a jury normally does when fact witnesses describe the same event in varying and sometimes contradictory ways.
Inadmissibility, then, comes under the overarching 904.03 rubric. Yet, the court also seems to suggest independent bases for inadmissibility, namely lack of personal knowledge, ¶16, foundation¸ ¶17, and authentication, ¶18. If, indeed, each such defect may be a “stand-alone” ground for inadmissibility of computer-generated animation, then you don’t always need the precise concatenation of defects that occurred in this case. Regardless, the holding is narrow in the sense that on the facts it’s limited to a lay witness’s attempt to recreate testimony.