State v. Martin, 944 A.2d 867, 2007 VT 96 (Vt. 2007)
We have not specifically addressed the issue of pretrial reenactments before, but we agree with the trial court that the correct inquiry is whether the experiment was conducted under substantially similar conditions. [3] This standard has been adopted by the vast majority of jurisdictions for all pretrial experiments. 1 McCormick on Evidence § 202, at 820 n. 15 (6th ed. 2006) (collecting cases). The standard is flexible, and whether conditions are substantially similar "depends on the purpose for which the experiment is introduced." United States v. Jackson, 479 F.3d 485, 489 (7th Cir.2007); see also Hermreck v. State, 956 P.2d 335, 339 (Wyo.1998) ( "Substantial similarity does not require identity of conditions, but only that degree of similarity which will ensure that the results of the experiment are probative."). "The requirement is at its strictest when the experiment expressly seeks to replicate the event in question to show that things could (or could not) have happened as alleged." 1 McCormick on Evidence, supra, § 202, at 821. Some courts have gone so far as to say that "if the purpose is to recreate an event, the timing and physics of which are critical, courts will only admit evidence of experiments that are conducted under nearly identical conditions as the actual event." Jackson, 479 F.3d at 489. But see Jodoin v. Toyota Motor Corp., 284 F.3d 272, 279 (1st Cir.2002) (" 'Virtually identical' is an incorrect standard."). Courts should also be particularly wary of using video evidence of reenactments, given their "lasting visual impression upon the jury." Loevsky, 773 P.2d at 1126.
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