Dissenting:
T1 I find merit in Proposition I. Harris claimed he shot Pearce after Pearce cut his *502thigh with a knife. The State claimed Harris shot Pearce as he drove, while Pearce was sleeping in the reclined passenger seat. In support of that theory the State introduced two videotapes. One contained a crime seene reenactment and the other was a computer-animated dramatization. These were used as illustrations of the State's theory of the case, admitted into evidence, and available for the jury to view during deliberations. They should not have been used or admitted. This error prejudiced Harris and warrants reversal.1
T2 I agree with the majority that these videos are similar to posed photographs. However, they are not photographs, but videotapes intended to be shown on a television or computer sereen. Oklahoma law prohibits posed reproductions intended to illustrate hypothetical situations.2 Crime scene reproductions must be shown, by extrinsic evidence, to be faithful representations of the place or subject as it existed at the time of the crime.3 Reenactments may not be used to illustrate the State's theory of the crime.4 Courts across the country have struggled with the admission of videotape reenactments and computer dramatizations. The common concern is the danger inherent in admitting this technology-"When people see something on television, they think it is real even when it is not."5 The majority notes the "very real danger" that jurors may believe they are seeing a depiction of the actual event.6 This is particularly true given the popularity of "real-life" television shows, where jurors may have regularly seen crime scene reenactments presented as true. We cannot assume jurors will understand, without instruction, that a videotape admitted into evidence reflects the point of view of the party introducing it, rather than depicting the "truth" of the case.
T3 The majority suggests we adopt stringent guidelines modeled after those used in South Carolina to ensure the fairness and usefulness of this type of evidence without admitting prejudice.7 Before admitting a computer-generated or video crime scene reenactment, the proponent must show the animation is (a) authentic and a fair and accurate representation of the evidence to which it relates, and (b) relevant; (c) its probative value must substantially outweigh the danger of unfair prejudice. The opposing party must have had the opportunity to examine the reenactment and underlying data.8 The trial court is required to contemporaneously instruct the jury that the exhibit represents one version of the facts and is not an actual recreation of the crime. These guidelines represent the minimum protection necessary to avoid prejudice and jury confusion where video reenactments are introduced. However, although the opinion recognizes this, the majority refuses to accord Harris their protection.
T4 In determining that these tapes were not used improperly the majority purports to apply the guidelines above. Of course, this is not a proper exercise on direct appeal-the point of the guidelines is that they are to be used by a trial court before the reenactments are used at trial. The majority finds that the tapes were not prejudicial because expert testimony "can be" very confusing. I believe the expert's testimony was not so confusing *503that it required visual accompaniment. More importantly, whether the jury would have been confused without the exhibit is not the relevant question to ask when determining prejudice. That merely establishes the exhibits' probative value, if any.
5 We should look at whether Harris was unfairly prejudiced, whether the evidence was cumulative, or whether the jury was . misled. The answer to these questions is "yes." Both tapes portrayed the same actions, and both were visual versions of the expert's testimony. The jury was exposed to these theories three times. As the majority admits, there is always the danger that the jury will believe they are seeing the actual crime, not an illustration of the State's point of view. Harris was prejudiced when the jury saw not one but two video reenactments-one computer-generated-showing how the erime was committed. The jury was not instructed that these were intended to be persuasive tools illustrating the expert testimony; in fact they received no instruction on the use of the tapes beyond a caution that Harris had not advanced all the arguments the tapes tried to refute. improperly had the option of viewing the tapes again during deliberations, Neither vigorous cross-examination of the expert nor use of Harris's own crime seene expert can cure this error. These tapes were inappropriately used as demonstrative aids then admitted into evidence. The majority claims the experts' testimony showed the jury these tapes were not actual depictions of the erime itself. If that were true there would never be a need for the elaborate precautions the majority determines are necessary in future cases. The jurors also
T6 These tapes should not have been admitted under current Oklahoma law. They show neither events at the time of the occurrence nor the victim's injuries. They are unlike erime seene videos because they were fabricated to illustrate the State's version of events, not taken at the scene immediately upon discovery of the crime. Neither tape merely demonstrates the victim's injuries or the bullets' paths, which might have been admissible.9 Each video has two figures and purports to show where the defendant and victim were in relation to one another when portraying a series of possible events.
T7 The State hired actors and computer experts to prepare a set of videotapes designed to persuade the jury that its version of events was accurate. Because of the overwhelming potential for prejudice, video erime scene reenactments must be viewed with great caution. If this Court wishes to enact guidelines to protect parties' rights and guard against prejudice, this Court should apply those underlying principles to this case. Any serious consideration of the prejudice here must result in reversal. I also note that, if we allow the State to use technological reenactments purporting to describe the evidence, we are bound to provide the same resources to defendants. I would reverse the case and remand for a new trial. I am authorized to state that Judge Strubhar joins in this dissent.
. 20 0.$.1991, § 3001.1.
. Langley v. State, 90 Okl.Cr. 310, 213 P.2d 886, 892-93 (Ok1.Cr.1950); Roberts v. State, 82 Okl.Cr. 75, 166 P.2d 111, 117-18 (Okl.Cr.1946).
. Langley, 213 P.2d at 892, quoting Colonial Refining Co. v.. Lathrop, 64 Okl. 47, 166 P. 747 (Okl.1917); see Massey v. Ivester, 168 Okl. 464, 33 P.2d 765 (Okl.1934).
. Robison v. State, 1984 OK CR 21, 677 P.2d 1080, 1087.
. Sommervold v. Grevios, 518 N.W.2d 733, 737 (S.D.1994).
. Opinion at 494.
. Clark v. Cantrell, 339 S.C. 369, 529 S.E.2d 528, 536-37 (S.C.2000) (civil suit setting forth guidelines for use of computer-generated video animation as demonstrative evidence).
. I note this differs from the South Carolina guidelines, which direct courts to consider whether the animation and data were disclosed a reasonable time prior to trial The majority opinion could be read to conclude that disclosure during trial is sufficient if the disclosure occurs before the evidence is introduced. I believe this violates both the letter and spirit of our criminal discovery procedures.
. See, e.g., Cleary v. State, 1997 OK CR 35, 942 P.2d 736, 743. We held a styrofoam head pierced with dowels was admissible to show the bullet trajectories found during autopsy. The victim's head was, of course, unavailable. Nothing about this exhibit indicated where the defendant was when the victim was killed, or in any other way illustrated any facet of the State's theory of the case.