3D printing has received attention for its potential to lead to litigation, but little has been said about using 3D printing during litigation. Yes, 3D printing raises a number of legal issues that may result in lawsuits. But the rapid pace of development and the corresponding increase in affordability hints at another potential development: the incorporation of 3D printing into opening statements, witness examinations, and closing arguments.
3D printing has been recently used to create replicas of the human liver to help surgeons during operations, to reconstruct a man’s face after a serious motorcycle accident, and even to create food in the shape of space shuttles and tractors. The possibilities are endless. And 3D printing could easily be applied during litigation as well. For example, a 3D scan of a stabbing victim’s injuries could be used to reproduce the wound and to show a match with the knife found on the defendant. In the realm of civil litigation, a 3D scan and model of two cars involved in a collision could be used to help the jury in determining which driver caused the accident. As the cost and time needed to print objects decrease and the number of available materials and colors increase, 3D printing could become a mainstay in any polished litigator’s toolbox.
That said, the trial potential of 3D printing does not mean we should all immediately jump on the bandwagon. There are a number of speed bumps potentially preventing a full-blown revolution in exhibit presentation. Judges are notoriously resistant to change, and working 3D representations into trial presentations in an era where some courtrooms are still without television screens and electronic presentations may be difficult. Furthermore, some judges sitting in courtrooms with electronic presentation capabilities may be weary of reverting back to the cumbersome presentation of physical evidence in the form of 3D models (and replacing existing televisions with the still-developing technology of 3D televisions seems unlikely given budgetary constraints).
Perhaps more importantly, Federal Rule of Evidence 403 and its state-level counterparts may create evidentiary challenges. For example, in Commonwealth v. Serge the Supreme Court of Pennsylvania encountered a challenge to the use of a computer-generated animation used at trial to depict the prosecution’s theory of the fatal shooting. 586 Pa. 671. According to the defendant/appellant, the cost of creating the animation and its use of a combat-style crouch were unfairly prejudicial. While the challenge was unsuccessful, similar challenges could come up in the use of a 3D model. The cost of 3D printing could pose problems for indigent defendants in criminal cases in the near future, but there are two reasons why such a challenge will be unlikely to succeed. First, the similar challenge to cost was unsuccessful in Serge, and the price tag (between $10,000 and $20,000) in that case was significantly more than the cost of entire 3D printers (and that does not include adjustment for inflation). Second, unlike the case in Serge, there would not be a need to create an opposing 3D model because 3D printing would involve scanning and recreating actual objects. The more plausible challenges to the use of 3D printing, is that it may potentially confuse the jury and waste time. The introduction of a model could focus the jury more on the model than on the issues of fact in the case. Alternatively, any disagreement on the accuracy of the model could lead to mini-trials on whether to admit the model as evidence or to permit it to be shown to the jury during trial.
3D printing is likely going to cause litigation, but its use during litigation and the corresponding evidentiary issues that it presents should not go under the radar.