Predicates 2013 Update: Documentary and Demonstrative Evidence p.1

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I. ANATOMIC CHARTS AND DOLLS

A. PREDICATE:

1) The chart or doll depicts a certain part(s) of the human body.

2) The witness is familiar with that body part(s) and explains the basis for his or her familiarity.

3) In the witness’s opinion, the chart drawing or doll is an accurate depiction of the body part(s).

B. EXCLUSION:

1) The probative value of the chart or doll is substantially outweighed by the danger of unfair prejudice; or

2) The probative value of the chart or doll is substantially outweighed by the danger of confusion of the issues or misleading the jury; or

3) The probative value of the chart or doll is outweighed by danger that the chart will cause undue delay, waste of time, or needless presentation of cumulative evidence. Tex. R. Evid. 403.

C. COMMENTARY:

Anatomically correct dolls can be used to assist minor complainants to convey the substance of their testimony. Zuniga v. State, 811 S.W.2d 177, 179-80 (Tex. App. – San Antonio 1991, no pet.). Sodorff v. State, 2003 WL 22770058 (Tex. App. ‘-Houston [14 Dist.] 2003); King v. State, 2003 WL 1884295 (Tex. App. – Houston [14 Dist.] 2003); Cruz v. State, 2003 WL 22511505 (Tex. App. – Houston [1 Dist.] 2003).
It is proper in Texas to illustrate injuries by anatomic charts or outlines of the human body, and have witnesses mark on the charts the location and type of injuries the victim received. Stedman Fruit Co. v. Smith, 28 S.W.2d 622, 628 (Tex. Civ. App. – Beaumont, 1930), writ dism’d.; Pittman v. State, 434 S.W.2d 352, 358 (1968) reh’g.den.
The discretion of the judge controls the admissibility of this evidence. See Cooper Petroleum Co. v. LaGloria Oil and Gas Co., 436 S.W.2d 889, 891 (Tex. 1969); Speier v. Webster College, 616 S.W.2d 617, 618-619 (Tex. 1981).
See also 83 A.L.R.2d 1097 (1962); 3 Wharton’s Criminal Evidence Sec. 16:27 (15th Ed. 1999); 58 A.L.R.2d 689 (1958); 29A Am.Jur.2d Evidence Sec. 995 (2003); 4 ATLA’s Litigating Tort Cases Sec. 42:14 (2003).

II. ARTIST’S SKETCH

A. PREDICATE:

1) The sketch depicts a certain area, object, notation, scene, etc.

2) The witness is familiar with that area, object, notation, scene, etc. and explains the basis for his or her familiarity.

3) In the witness’s opinion, the sketch is an accurate depiction of that area, object, notation, scene, etc.

B. EXCLUSION:

1) The probative value of the chart is substantially outweighed by the danger of unfair prejudice; or

2) The probative value of the chart is substantially outweighed by the danger of confusion of the issues or misleading the jury; or

3) The probative value of the chart is substantially outweighed by danger that the chart will cause undue delay, waste of time, or needless presentation of cumulative evidence. Tex. R. Evid. 403.

C. COMMENTARY:

Reproductions of artists’ sketches of robbers contained in newspaper clippings may be admitted into evidence. Carter v. State, 550 S.W.2d 282, 284 (Tex. Crim. App. 1977), rev’d on other grounds; Shipman v. State, 604 S.W.2d 182 (Tex. Crim. App. 1980).
A sketch may be admitted even though not drawn to scale; an objection based on sketch being inexact goes to weight rather than admissibility. Yates v. State, 509 S.W.2d 600, 603-604 (Tex. Crim. App. 1974) cert. den., 419 U.S. 996, 95 S.Ct. 310, 42 L.Ed.2d 270. But see Urban Renewal Agency of City of Austin v. Georgetown Savings and Loan Ass’n., 509 S.W.2d 419, 421 (Tex. Civ. App. – Austin 1974), writ. ref. n.r.e. (admission of sketches of proposed office building was objectionable as speculative).
See also 7A Tex. Prac. Series Sec. 70.13 (2004)(pocket); 18 Tex. Jur.3d Criminal Law Sec. 269 (2004).
The discretion of the judge controls the admissibility of this evidence. See Cooper Petroleum Co. v. LaGloria Oil & Gas Co., 436 S.W.2d 889, 891 S.W.2d (Tex. 1969). Speier v. Webster College, 616, S.W.2d 617, 618-619 (Tex. 1981).

III. BLACKBOARDS

A. PREDICATE:

1) The blackboard drawing depicts a certain area, object, or notation.

2) The witness is familiar with that area, object or notation and explains the basis for his or her familiarity.

3) In the witness’s opinion the blackboard drawing is an accurate depiction of that area, object, or notation.

B. EXCLUSION:

1) The probative value of the blackboard illustration is substantially outweighed by the danger of unfair prejudice; or

2) The probative value of the blackboard is substantially outweighed by the danger of confusion of the issues or misleading the jury; or

3) The probative value of the blackboard is substantially outweighed by danger that the blackboard will cause undue delay, waste of time, or needless presentation of cumulative evidence. Tex. R. Evid. 403.

C. COMMENTARY:

Ordinarily, the permission or refusal of the use of a blackboard during counsel’s argument is a matter within the sound discretion of the trial court. Haycock v. Christie, 249 F.2d 501, 502, 101 App. D.C. 409 (1957). See also Lewis v. State, 759 S.W.2d 773, 775-776 (Tex. App. – Beaumont 1988); 86 A.L.R.2d 239, Sec. 4, 9 (1962); 5 Am. Jur. Trials 577 (2003); 4 ATLA’s Litigating Tort Cases Sec. 44:38 (2003); Am.L.Prod.Liab. 3d Sec. 76:24 (2004).
Use of the blackboard, not only in jury argument, but to help illustrate and make more meaningful the testimony of a witness, is clearly permissible in Texas. Mid-Texas Development Co. v. McJunkin, 369 S.W.2d 788, 795 (Tex. Civ. App. – Dallas, 1963), no writ.
The use of a blackboard to summarize future loss of earnings testimony has been allowed. Davis v. Haldeman, 150 F.Supp. 669, 673 (1958), aff’d, 253 F.2d 286, (3rd Cir. 1958).
Blackboard exhibiting words and figures testified to by actuarial witness allowed. Southern Cement Co. v. Patterson, 271 Ala. 128, 122 So. 2d 386 (1960); Payne v. Jones, 284 Ala. 196, 201, 224 So.2d 230, 234 (Ala. 1969).
Blackboard listing alleged medical expenses, loss of wages, and compensation for pain and suffering allowed. Kindler v. Edwards, 126 Ind. App. 261, 263-264, 130 N.E. 2d 491 (1955), cited with approval, Andrews v. State, 532 N.E.2d 1159, 1165 (Ind. 1989) reh’g.den.
Chart on blackboard outlining argumentatively the plaintiff’s claim for damages allowed. Nehi Bottling Co. v. Jefferson, 84 So. 2d 684, 686, 226 Miss. 586, 596 (1956), cited with approval, Heidelberg v. State, 584 So.2d 393, 396 (Miss. 1991).
Note, several cases hold that the blackboard aid, when relating to damages, should not be exposed to view of the jury except during the argument for which it is employed. See Haycock v. Christie, 249 F.2d 501, 502 (D.C. Cir. 1957); McLaney v. Turner, 267 Ala. 588, 597-598, 104 So. 2d 315, 322-323 (1958); Kindler v. Edwards, 126 Ind. App. 261, 130 N.E. 2d 491 (1955); Four-County Electric Power Assoc. v. Clardy, 221 Miss. 403, 73 So. 2d 144 (1954); Cross v. Robert E. Lamb, Inc., 60 N.J. Super 53, 76,158 A. 2d 359, 371 (1960); Murphy v. National RR Passenger Corp. 547 F.2d 816, 818 (4th Cir. 1977); Ratner v. Arrington, 111 So.2d 82, 86-87 (Fla. 1959).
One risk of blackboard usage is illustrated by the conflicting cases of Brossman v. Petteway, 501 S.W.2d 751 (Tex. Civ. App. – Houston [14 Dist.] 1973), no writ, and MacDonald v. Skinner, 347 S.W.2d 950 (Tex. Civ. App. – El Paso, 1961), dism’d. by agr. In both cases the blackboard sketches were used to illustrate the trial testimony, and were then erased and not included in the record on appeal. One case holds that the record is incomplete and the other holds that it is not. See also 5 Tex.Jur.3d Appellate Review, Sec. 389-390 (2004).
To avoid this, counsel should ask the court ahead of time to order all counsel not to alter or erase blackboard drawings until the other side has a chance to photograph it and introduce the photograph into evidence. Counsel should routinely have a Polaroid camera as part of the trial kit in order to accomplish this. Separate blackboards may be designated for plaintiff and defendant when available.
Blackboard drawings need not be an exact replica of the subject drawn to be admissible. Smith v. State, 626, S.W.2d 843, 844 (Tex. App. – Corpus Christi 1981). See also 3 Wharton’s Criminal Evidence Sec. 16:24 (5th Ed. 2003).

IV. BUSINESS RECORDS

A. PREDICATE:

1) Witness is custodian or other person with knowledge of the business’s filing system.

2) The record was made in the ordinary course of business.

3) The record was made at or near the time of the event in question.

4) In the regular course of business, a person with knowledge made the record or was furnished with information for the record.

5) It was the regular practice of that business activity to make such a record. Tex. R. Evid. 803(6).

B. SELF AUTHENTICATION:

Tex. R. Evid. 902(10) Self Authentication.

Extrinsic evidence as a condition precedent is not required with respect to business records accompanied by an affidavit. Instead of calling a custodian of records to the witness stand, you may submit an affidavit from that custodian, attached to the records, and offer the evidence for admission.
Tex. R. Evid. 902(10) provides an example of the form of affidavit that should be used.
The records sought to be introduced must satisfy the business record predicates set forth in Tex. R. Evid. 803(6).
The proponent must provide the opposing party with adequate notice of the use of the affidavit. This is accomplished by filing the records and affidavit with the clerk of the Court at least fourteen days prior to the trial date, and sending a copy to the opposing party.
As long as the records sought to be admitted could meet the predicate required by the Tex. R. Evid. 803(6), and fourteen days’ notice is given, they can be admitted by affidavit under the Tex. R. Evid. 902(10). This includes medical records and possibly even x-rays, if these are included in the records as part of the physician’s or hospital’s regular business practices. See Ziegler v. Tarrant County Child Welfare Unit, 680 S.W.2d 674, 680 (Tex. App. – Ft. Worth 1984), writ ref’d n.r.e.

C. EXCLUSION:

1) Absence of proper sponsor.

The Federal Rules of Evidence do not contain a provision for self-authentication of business records. Some state rules will waive extrinsic evidence as a condition precedent when business records are accompanied by an affidavit. As a general rule, affidavits will not support the admission of business records in federal court. The custodian, in the absence of a stipulated predicate, must appear for cross examination. See generally, N.L.R.B. v. First Termite Control Co., 646 F.2d 424, 427 (9th Cir. 1981); Belber v. Lipson, 905 F.2d 549 (1st Cir. 1990); U.S. v. Selby, 33 F.3d 55 (6th Cir. 1994). See also 4 Federal Evidence Sec. 445 (S.W.2d Ed. (2003).

2) Records contain hearsay testimony.

Where proper predicate was not shown for admissibility of sources of business records, the offered sources, which were offered to prove the acts, events, or conditions recorded in the original business records that the exhibits purported to summarize, were objectionable as hearsay. Jackson v. Fontaine’s Clinics, Inc., 499 S.W.2d 87, 90 (Tex. 1973); Xonu Intercontinental Industries v. Stauffer Chemical Co., 587 S.W.2d 757, 760 (Tex. Civ. App. – Corpus Christi (1979); Finn v. Finn, 658 S.W.2d 735, 745 (Tex. Civ. App. – Dallas 1983), writ ref. n.r.e.

3) Predicate is not fully developed.

Norsul Oil & Mining Ltd. v. Commercial Equipment Leasing Co., 703 S.W.2d 345, 349 (Tex.App. – San Antonio 1985), no writ (Certificate and affidavit of secretary that stock transfer had occurred held inadmissible because secretary not employed with company at time of purported stock transaction).

4) The underlying preparation of the records lacks trustworthiness. Factors to consider include:

a. Habits of precision of record keeping.
b. Whether others rely on the records.
c. Whether a duty exists to record accurately.
d. Whether improper motivation for making the record existed. 5) The affidavit is defective.
Horn v. First Bank of Houston, 530 S.W.2d. 864, 865-866 (Tex. Civ. App. – Houston [14 Dist.] 1975), no writ; Land Liquidators of Texas, Inc. v. Houston Post Company, 630 S.W.2d 713, 714-715 (Tex. Civ. App. – Houston [14 Dist.] 1982); Fair Woman, Inc. v. Transland Management Corp., 766 S.W.2d 323, 323-324 (Tex. App. – Dallas 1989).

D. COMMENTARY:

The source of information or the method or circumstances of preparation must not indicate a lack of trustworthiness.
The burden is on the party against whom the evidence is offered to show lack of trustworthiness.
The custodian’s personal knowledge of the particular items or events that are the contents of the particular record is not required.
This rule does not require that the records be prepared by the business which has custody of them.
For a discussion of computer-generated business records, See Lory Dennis Warton, ‘Litigators Byte The Apple: Utilizing Computer-Generated Evidence at Trial, 41 Baylor L. Rev. 731 (1989); Fred Galves, Where the Not-So-Wild Things Are: Computers in the Courtroom, the Federal Rules of Evidence, and the Need for Institutional Reform and More Judicial Acceptance, 13 Harv. J.L. & Tech. 161 (Winter 2000).

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