Predicates 2013 Update: Documentary and Demonstrative Evidence p.2

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V. COMPUTER GRAPHICS/ANIMATION

A. PREDICATE:

1) The computer graphic/animation depicts a certain area, object, notation, scene, etc.

2) The witness is familiar with that area, object, notation, scene, etc. and explains his or her familiarity with the source and accuracy of the input data.

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

B. EXCLUSION:

1) Input data is invalid.

2) The probative value of the computer graphic is substantially outweighed by the danger of unfair prejudice, danger of confusion of the issues or misleading the jury, or it will cause undue delay, waste of time, or needless presentation of cumulative evidence.

3) The computer graphic is hearsay.

C. PRE-TRIAL MOTION:

1) Proponent should give advance notice of his intent to use computer-generated evidence. Comment, Guidelines For the Admissibility of Evidence Generated By Computer For Purposes of Litigation, 15 U. Cal. Davis L. J. 951, 961 (1982); 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).

2) Proponent should advise the court in a legal brief or motion prior to an admissibility hearing as to the nature of the exhibits, the procedure, the background data, foundation material, the name and credentials of the expert who created it, and the applicable law.

D. COMMENTARY:

Note that once the underlying testimony is admitted into evidence, the computer animation that depicts the testimony and version of events may be admitted as demonstrative evidence that “summarizes” the testimony. Failure to object to the underlying testimony or opinion has been held to waive any objection to the video animation depicting the testimony or opinion. See North American Van Lines, Inc. v. Emmons, 50 S.W.3d 103, 129-131 (Tex. App. – Beaumont 2001), reh’g overruled (2 pets.), rev. den. (2 pets.); 4 ATLA’s Litigating Tort Cases, Sec. 42:7 (2003); 36 Tex.Jur.3d Evidence Sec. 472 (2004); TX Practice Guide, Personal Injury 2d, Ch. 12 VII (2004).
Computer-generated graphic presentations have become increasingly popular at trial in recent years. Trial lawyers often use them in an effort to summarize and present their clients’ evidence in a more succinct fashion than traditional modes of presentation. In fact, in today’s technology-driven society, jurors often pay more attention to computer-generated slide shows, graphics and charts than to oral testimony. The graphics are created for demonstrative or evidentiary purposes and burned onto CDRom, DVD, or input into a slideshow presentation format such as Microsoft Powerpoint for use in every facet of trial.
The most effective means of attacking computer-generated animation is by attacking the input data.
Accordingly, when these graphics are being created, be certain that sufficient attention is given to verification of the data which is given to the computer operator to be used as the basis for generating the graphic.
If the computer-generated animation is sought to be excluded on grounds of hearsay, the proponent might argue that the computer simulation is demonstrative evidence illustrative of the witness’s testimony and thus not offered to prove the truth of the matter asserted. See North American Van Lines, supra.
The proponent might also argue that the computer simulation is analogous to hypothetical questions in that they are made up of a combination of assumed or proven facts and circumstance and are stated in such a way that they constitute a coherent and specific situation upon which the opinion of an expert is asked.
See Lory Dennis Warton, Litigators Byte The Apple: Utilizing Computer-Generated Evidence at Trial, 41 Baylor L. Rev. 731 (1989).

VI. “DAY IN THE LIFE” FILMS

A. PREDICATE:

1) Witness is familiar with the scene, etc. that is portrayed on the videotape and explains the basis for his familiarity.

2) Witness recognizes the scene, etc. that is portrayed on the videotape and testifies that the videotape is a “fair,” “accurate,” “true,” or “good” portrayal of the persons, objects, devices, places, processes, etc. shown. See S.D.G. v. State, 936 S.W.2d 371, 381 (Tex. App. – Houston [14 Dist.] (1996) pet. den. (predicate for introduction of videotape is: 1) proof of its accuracy as a correct representation of the subject at a given time, and 2) its relevance to a material issue.) See also Dunn v. Bank – TEC South, 2003 WL 22438710 (Tex. App. – Amarillo 2003)(publication pending; subject to revision or withdrawal.)

B. EXCLUSION:

1) The probative value of the “day in the life” film is substantially outweighed by the danger of unfair prejudice, see Thomas v. C.G. Tate Construction Company, 465 F.Supp 566, 568-571 (D.S.C. 1979) (tape contained numerous audible and visual expressions of pain, including grunts and grimaces, and plaintiff was available to testify); or

2) The probative value of the “day in the life” film is substantially outweighed by danger of confusion of the issues or misleading the jury; or

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

4) Hearsay.
a. The defendant may object on the ground of hearsay, stating that the film presents assertions made out of court, offered in evidence to prove the truth of the matters contained therein.
b. An audio portion of a videotape depicting mesothelioma victim in hospital four days prior to death was admissible under “then existing state of mind” exception to hearsay rule in asbestos products liability action. Pittsburg Corning Corp. v. Walters, 1 S.W.3rd 759, 771 (Tex. App. – Corpus Christi 1999)(admitted under Tex. R. Evid. 803(3).)
c. In Grimes v. Employees Mutual Liability Ins. Co., 73 FRD 607, 610 (D. Alaska 1977) the Court held that, although the film did contain elements of hearsay, it was admissible under the exception in FRE 807. The Court felt that the film permitted the jury to consider evidence which was more authoritative on the material issues of pain and suffering and loss of the enjoyment of life than any other evidence which the plaintiff could produce through reasonable efforts. The decision also held that the trustworthiness of the film was guaranteed by having the plaintiff and other witnesses present at trial so the defense could cross examine if it so desired. Further, Grimes made it clear that it was important to reveal the intention to offer the film sufficiently in advance of trial so defendants would not be surprised.

CAVEAT: Federal Rule 807, on which the ruling in Grimes was based, is not incorporated into most state Rules of Evidence, including Texas, although sound reasoning should produce the same result. Note also that in Grimes, the court pointed out that liability was to be established prior to allowing the jury to view the film, and the court may have held differently if liability was yet an issue in the case. See Thomas v. C.G. Tate Const. Co., 465 F.Supp. 566, 569 (D.S.C. 1979).

C. COMMENTARY:

Probative value has been held to outweigh prejudicial effect in very graphic “day in the life” films. See e.g., Air Shields, Inc. v. Spears, 590 S.W.2d 574, 580 (Tex. Civ. App. – Waco 1979), writ ref’d n.r.e. (Film showing a blind plaintiff getting around in his house and yard when he was 2 and 6 years old admitted with Court stating that “the pictures are factual and bear directly on questions concerning plaintiff’s life as a blind person and in no way could be calculated to improperly influence the jury.”); Apache Ready Mix Co. v. Creed, 653 S.W.2d 79 (Tex. Civ. App. – San Antonio 1983), writ dism’d. (Silent videotape film showed 11-year old semicomatose, quadriplegic plaintiff during rehabilitation treatments, in hospital bed, in a wheelchair, and in other nursing care situations. Court admitted the film stating that the shock of seeing the plaintiff in person before the jury may have been greater than the “soundless sterility of the video screen” and that the film was not prejudicial).
If, however, the tape does have a tendency to prejudice or inflame, the court will examine it with great care to determine whether its probative value exceeds its prejudicial effect. Pisel v. Stamford Hospital, 180 Conn. 314, 323-324, 430 A.2d 1, 8 (1980) (admitting videotape which, “while not pleasant viewing, fairly presented to the jury Miss Pisel’s condition and the type of care she was required to receive”); Bannister v. Town of Noble, Oklahoma, 812 F.2d 1265, 1270 (10th Cir. 1987)(court should examine film outside the presence of jury to determine whether probative value outweighs prejudice – admission of film upheld).
Prime candidates for exclusion are tapes which zoom in for close-up shots of agonized grimaces or tears or carry painful groans or screams on the sound track. Thomas v. C.G. Tate Construction Co., Inc., 465 F.Supp. 566, 568 (D.S.C. 1979).
If the attempt to conjure sympathy results in an unrepresentative view of the plaintiff’s condition for any reason, it will be excluded on that ground. Foster v. Crawford Shipping Co., Ltd., 496 F. 2d 788, 791 (3rd Cir. 1974). See also Transit Homes Inc. v. Bellamy, 282 Ark. 453, 671 S.W.2d 153, 158-159 (1984) overruled on other grounds, Peters v. Pierre, 858 S.W.2d 680 (1993) (excluding “day in the life” tape where pre-existing quadriplegic injuries were more pronounced than those received in the accident at issue).
The fact that the tape depicts matters elsewhere covered in the medical or other testimony does not render it objectionable as cumulative. A tape, like photographic evidence in general, can be cumulative only of other photographic exhibits but not of testimony. See Ashley v. Nissan Motor Corp., 321 So. 2d 868, 872-873 (La. App. 1975) overruled on other grounds; see Case v. Arrow Trucking, 372 So.2d 670, 677 (1979); Grimes v. Employees Mutual Liability Ins. Co.,supra; Jones v. City of Los Angeles, 20 Cal. App. 4th 436, 445-446 (1993) (em>Grimes).
The predicate for admitting a “day in the life” film is no different than that for any other videotape. It must be shown to accurately depict the people and scenes shown.
The trial court is given wide discretion in determining the admissibility of “day in the life” films. Air Shields, supra.
The general rule is that “day in the life” films are admissible if relevant to any issue in the case.
Careful consideration should be given to whether a “day in the life” film should be narrated or not. If narrated, the tape must be presented in open court by the narrator from the stand so as to afford the other side an opportunity to cross-examine. The tape can be done silently or with ambient sound and then narration dubbed in at a later time.
Videotapes depicting “a day in the life” should only be admitted when, for some specific articulable reason, the tape conveys the observations of a witness to the jury more fully or accurately than the witness can convey to them through the medium of conventional, in-court examination. Bolstridge v. Central Main Power Co., 621 F.Supp. 1202, 1204 (D. Me. 1985). But see Ellingwood v. Stevens, 564 So.2d 932, 936 (Ala. 1990)(declining to adopt “inflexible rule” for admission of videotapes set forth in Bolstridge).
Defendant cannot complain of allegedly improper “day in the life” film admitted into evidence where defendant introduced evidence of a similar character, including a surveillance video of plaintiff. Wal-Mart v. Hoke, 2001 WL 931658 (Tex. App. – Houston [14 Dist.]) (Not designated for publication, but may be cited with notation “not designated for publication.” See Tx. R. RAP Rule 47.7).
See also 29A Am.Jur.2d Evidence, Sections 980, 987 (2003); 32A C.J.S. Evidence Sec. 999 (2004); C.D. Varner & J.M. McGee, Worth A Thousand Words: The Admissibility of Day-In-The-Life Videos, 35 Tort & Ins. L.J. 175 (1999).

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