Predicates 2013 Update: Documentary and Demonstrative Evidence p.4

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X. DOCUMENTS/HANDWRITING SUBMITTED FOR A COMPARISON

A. PREDICATE:

Tex. R. Evid. 901(b)(2) and (3), Requirement of Authentication or Identification.

Admissibility is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims. This can be accomplished by:

1) Non-expert opinion on handwriting. Non- expert opinion as to the genuineness of handwriting, based upon familiarity not acquired for purposes of litigation.

2) Comparisons by trier or expert witness. As to a comparison by an expert witness who acquires knowledge of the handwriting for the purpose of litigation, the specimen document being introduced for a comparison as demonstrative evidence must itself “have been found by the Court to be genuine” before it may be admitted for purposes of the comparison (i.e. must be admitted or proven to be genuine). This comports with pre-statutory case law in Texas. See e.g., Wade v. Galveston, H. & S. A. Ry. Co., 110 S.W. 84, 88 (Tex. Civ. App. – 1908), writ ref’d.

B. EXCLUSION:

1) The probative value of the demonstration of the documents/handwriting submitted for comparison is substantially outweighed by the danger of unfair prejudice; or

2) The probative value of the demonstration of the documents/handwriting submitted for comparison is substantially outweighed by danger that it will cause confusion of the issues or will mislead the jury; or

3) The probative value of the demonstration of the documents/handwriting submitted for comparison is substantially outweighed by the danger that it will cause undue delay, or needless presentation of cumulative evidence. Tex. R. Evid. 403.

C. COMMENTARY:

41 A.L.R. 2d 575 (mode and degree of proof required to establish genuineness of handwriting offered as standard or exemplar for comparison with the disputed writing or signature).
72 A.L.R. 2d 1274 (competency, as standard of comparison to establish genuineness of handwriting, of writings made after controversy arose).
80 A.L.R. 2d 272 (propriety of jury, or court sitting as trier of fact, making comparison of writing with standard produced witness).
Lenamond v. North Shore Supply Co., 667 S.W.2d. 283, 285 (Tex. Civ. App. – Houston [14 Dist.] 1984), no writ (properly admitted a credit application on the basis of the testimony of a lay witness who showed a familiarity with the defendant’s handwriting on the application); see also 31A Am.Jur.2d Sec. 131 (2003); Chance v. Chance, 911 S.W.2d 40, 67-69 (Tex. App. – Beaumont 1995), reh’g. overruled, writ den.

XI. INJURIES

A. PREDICATE:

1) Witness identifies the injured portion of the body.

2) Establish that the same injured part of the body was not injured prior to the time of the occurrence of the injury and has not been injured since the time of the occurrence of the injury.

3) Ask that witness exhibit the injury to the jury.

B. EXCLUSION:

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

2) The probative value of the demonstration of the injury is substantially outweighed by danger that it will cause confusion of the issues or will mislead the jury; or

3) The probative value of the demonstration of the injury is outweighed by danger that it will cause undue delay, or needless presentation of cumulative evidence. Tex. R. Evid. 403.

C. COMMENTARY:

Exhibition of an injury may not be turned into an inadmissible “demonstration” of the extent of an injury conducted to inflame the jury. Gray v. L-M Chevrolet Co., 368 S.W.2d 861, 865 (Tex. Civ. App. – El Paso 1963), writ ref’d n.r.e. (Denial of request for juror to feel plaintiff’s ‘sunk-in’ muscles was proper). See also 29A Am. Jur. 2d Evidence, Sec. 953 (2003).
The court may properly disallow proving an injury by demonstration where such damages have been fully developed through testimony by doctors and other experts. Young v. Texas & Pacific Ry. Co., 347 S.W.2d 345, 350 (Tex. Civ. App. – El Paso 1961), no writ. See also 82 A.L.R. 4th 980, Sec. 9b (1990); 29A Am. Jur. 2d Evidence, Sec. 953 (2003); Tex. Prac. Guide Pers. Inj. 2d. Ch. 12 VII (2004).
However, in most cases, the court will allow a demonstration to show the effect of an injury in an action for bodily injury, including demonstration to show lack of skin sensation or limitation in movement. See Fravel v. Burlington N.R.R., 671 S.W. 2d 339, 342-343, (Mo. App. 1984) cert. den., 469 U.S. 1159. (Plaintiff entitled to show jury his injured hip and its restricted mobility by having physician move the hips and by plaintiff walking before jury while physician pointed out tilted hip, attending scars, and restricted movement in the leg). See also “DEMONSTRATIONS” on pg. 6.
See also 82 A.L.R. 4th 980 (1990), supra; 66 A.L.R. 2d 1334, (1959m), supra; 29A Am. Jur. 2d Evidence Sec. 953 (2003), supra; CJS Evidence, Sections 798, 799 (2003); Mayfield v. State, 803 S.W.2d 859, 862-863 (Tex. App. – Corpus Christi 1991)(trial court did not abuse its discretion in allowing jury to see victim’s 12 to 13 inch abdominal scar since scar was not ugly, ghastly, or revolting.); Phillips v. State, 770 S.W.2d 824 (Tex. App. – El Paso 1988) (it was appropriate to show victim’s gunshot wounds as relevant to show intent and power, effect, and force of weapon used.

XII. MAPS, PLANS, AND PLATS

A. PREDICATE:

1) Witness is familiar with the area depicted and explains the basis for his familiarity.

2) Witness recognizes the area depicted and testifies that the map, plan, or plat is a fair, accurate, true, or good depiction of what it purports to be at the relevant time.

B. EXCLUSION:

1) The probative value of the demonstration of the maps, plans, and plats is substantially outweighed by the danger of unfair prejudice; or

2) The probative value of the demonstration of the maps, plans, and plats is substantially outweighed by danger that it will cause confusion of the issues or will mislead the jury; or

3) The probative value of the demonstration of the maps, plans, and plats is substantially outweighed by danger that it will cause undue delay, or needless presentation of cumulative evidence. Tex. R. Evid. 403.

C. COMMENTARY:

The basic predicate is much the same as for photographs. Dallas Ry. Terminal Company v. Durkee, 193 S.W.2d. 222, 226-227 (Tex. Civ. App. – Dallas 1946), writ ref’d. n.r.e.
They should be properly identified by the witness. Jarbert Company v. Hengst, 260 S.W.2d. 88, 94 (Tex. Civ. App. – Austin 1953), no writ. See also Prince v. Flukinger, 381 S.W. 2d 75, 77 (Tex. Civ. App. – Texarkana 1964); 44 Am. Jur. Proof of Facts 2d 707; Bunting v. McConnell, 545 S.W2d 30, 32-33 (Tex. Civ. App. – Houston [1 Dist.] 1976).
When illustrated by the testimony of the witness, maps, plans, and plats are all admissible. Capitol Hotel Company v. Rittenberry, 41 S.W.2d. 697, 709 (Tex. Civ. App. – Amarillo 1931), writ dism’d.
Maps, plans and plats, even if they are rough sketches, must be shown to be substantially accurate on the points sought to be illustrated. They are then admissible if they illustrate the witness’s testimony and make it more understandable for the jury. Jackson-Stickland Transport Company v. Seyler, 123 S.W.2d. 928, 931 (Tex. Civ. App. – Ft. Worth 1938), writ dism’d. by agr.; 9 A.L.R.2d 1044 (1950).
It is sufficient if the witness testifies that the lines and markings are substantially accurate, even though he did not make the map, plan, or plat. Griffith v. Rife, 12 S.W. 168, 169 (Tex. 1888).
Jackson-Stickland Transport Company v. Seyer, 123 S.W.2d. 928, 931 (Tex. Civ. App. – Ft. Worth 1938), writ dism’d. by agr. (Map made and identified by witness as showing physical facts observed at place of automobile accident shortly after accident happened did not constitute hearsay evidence and was not inflammatory or prejudicial).
Plats showing hypothetical subdivisions are not admissible to prove market value in condemnation cases. See State v. Harrison, 97 S.W.3d 810, 817-818 (Tex. App. – Texarkana 2003); City of Harlingen v. Estate of Sharboneau, 48 S.W.3d 177, 187-188 (Tex. 2001), mod. den. (concurring opinion).

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