Predicates 2013 Update: Documentary and Demonstrative Evidence p.8

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XXV. THERMOGRAMS

A. PREDICATE:

The foundational elements are as follows:

1) The operator was a qualified thermography technician.

2) The operator filmed a certain part of the person’s body at a certain time and place.

3) The thermogram is of the person claimed.

4) The equipment used in preparing the thermogram was in sound working order and met all state-of-the-art industry standards.

5) Witness with knowledge (doctor or technician) testifies that the thermogram fairly and accurately reflects the condition of the patient’s body which it purports to show.

B. EXCLUSION:

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

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

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

XXVI. VIDEOTAPES

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.

B. EXCLUSION:

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

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

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

C. COMMENTARY:

The term “videotape” is included within the term “photograph” in Tex. R. Evid. 1001. Therefore, the predicate for admission is the same.

XXVII. VIDEOTAPE DEPOSITIONS

A. PREDICATE:

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

B. EXCLUSION:

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

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

C. COMMENTARY:

In relation to videotape depositions, chain of custody is not a necessary element to establish a foundation for admissibility as it is with other videotapes because the stenographic records tends to prove the verity of the videotape.
66 A.L.R. 3d 637 (Use of videotape to take depositions for presentation at civil trial in state court).

XXVIII. VIEWS

A. PREDICATE:

1) Witness who is familiar with the place or object, the subject of the view, and explains his familiarity.

2) Witness recognizes the place or object, the subject of the view, and testifies that the scene or object the subject of the view is a place or object in issue and is what it purports to be.

3) The place or object, the subject of the view, must currently be in the same or substantially similar condition as it was at the relevant time.
4) The view must be relevant to an issue in the case.

B. EXCLUSION:

1) The trial judge should control the ultimate decision of allowing or disallowing the view. The judge has broad discretion to allow or disallow the view even where all parties consent to the view. However, the judicially-created rule in Texas is that if one party objects, the trial court must deny the view. Taylor v. American Fabritech, Inc., 2004 WL 555681, fn. 27 (Tex. App. – Houston [14 Dist.] 2004)(permanent publication pending; subject to revision or withdrawal); City of Pearland v. Alexander, 468 S.W.2d 917, 926 (Tex. Civ. App. – Houston [1 Dist.] 1971), rev’d on other grounds, 483 S.W.2d 244 (Tex. 1972) (noting that while the Texas Supreme Court has not directly passed on the matter since 1941, it is generally considered the rule in Texas that a view is permissible at the discretion of the trial judge “only with consent of all parties to the suit”).

2) It should be noted that there is a line of authority which holds that there is simply no right to have a jury view in this state. One court has even held that it is a reversible error for counsel to request a view while in the jury’s presence. Davis v. Huey 608 S.W.2d 944, 954 (Tex. Civ. App. – Austin 1980) rev’d on other grounds 620 S.W.2d 561 (Tex. 1981); See also Bradshaw v. White, 294 S.W.2d 736, 739-740 (Tex. Civ. App. – Austin 1956), writ refused n.r.e.; 76 A.L.R. 2d 766 (1961); 4 McDonald & Carlson Tex. Civ. Prac. Sec. 21:43 (1st ed. 2003); 71 Tex. Jur. 3d Sec. 110 (2004).

3) City of Pearland, supra (Court properly refused jury view of tract taken for sewage disposal plant in eminent domain proceeding, where party objected to view.)

XXIX. VOICEPRINTS

See Sound Spectrograms, Sec XXI

XXX. X-RAYS

A. PREDICATE:
For purposes of admission, x-rays are treated as photographs. Jones v. State, 111 S.W. 3d 600, 606 (Tex. App. – Dallas 2003) rev. ref. Generally, proof may include:

1) The operator was a qualified x-ray technician.

2) The operator filmed a certain part of the person’s body at a certain time and place.

3) Proof that the X-ray is of the person, a part of that person, or an object lodged in the anatomy of that person.

4) Absence of significant change in the subject and proof that the person X-rayed or his or her condition was the same when the X-ray was taken as it was at the time the injury occurred.

5) Technical testimony concerning reliability of the equipment and proper operation thereof.

B. EXCLUSION:

The Best Evidence Rule (Tex. R. Evid. 1002) is made applicable to x-rays because of the definition of the term “photograph” in Tex. R. Evid. 1001(2). However, other rules limit this application. For example, under Tex. R. Evid. 703, an expert can give an opinion on matters not in evidence if the matters are of a type reasonably relied upon by experts in the field. Additionally, Tex. R. Evid. 803(6) provides that opinions and diagnoses contained in records of regularly conducted activity, such as hospital records, are admissible.

C. COMMENTARY:

Today, it is not ordinarily necessary to prove that the X-ray procedure is accurate.
This testimony is ordinarily obtained from a qualified expert such as a physician who testifies in court or by deposition.
Remoteness in time does not affect the evidentiary value of an X-ray so long as testimony indicates that the condition portrayed was essentially unchanged from the time of injury to the time of the X-rays.
Your sponsoring witness must still be able to positively testify that the x-ray is of the particular body member which it purports to show because the self-authenticating affidavit will not contain that information.
Tex. R. Evid. 902(10)(b) provides a recommended affidavit to be used as follows:

AFFIDAVIT FORM:

No._______

J. DOE § IN THE _________
§
v. § COURT IN AND FOR
§
J. ROE § ___ COUNTY, TEXAS

AFFIDAVIT

Before me, the undersigned authority, personally appeared ____, who, being by me duly sworn, deposed as follows:
My name is ____, I am of sound mind, capable of making this affidavit, and personally acquainted with the facts herein stated:
I am the custodian of the records of ____. Attached hereto are ___ pages of records from _____. These said ___ pages of records are kept by ____ in the regular course of business, and it was the regular course of business of ____ for an employee or representative of _____, with knowledge of the act, event, condition, opinion, or diagnosis, recorded to make the record or to transmit information thereof to be included in such record; and the record was made at or near the time or reasonably soon thereafter. The records attached hereto are the original or exact duplicates of the original.
______________

Affiant
SWORN TO AND SUBSCRIBED before me on the ____ day of _____, 20__.
My commission expires:

XXXI. Social Media and Electronic Communications

In order to admit social media and electronic communications as evidence under the Texas Rules of Evidence, a three-part predicate test must first be established. The three part test is:
Relevancy
Authenticity
Not subject to any exclusion.

First, relevancy is defined as “relevant evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more or less probable than it would be without the evidence.”

TRE 401-402. Second, the evidence must be authenticated in that the evidence must be what the proponent claims the evidence to be. TRE 901 (a). Third, the evidence must not be subject to exclusion such as improper character evidence or inadmissible hearsay. TRE 404(a) and TRE 802. In making a determination as to whether the
social media evidence is relevant, the trial court should consider whether a reasonable person with some experience would find the evidence helpful in determining the truth or any fact of consequence. Hernandez v. State, 327 S.W.3d 200, 206 (Tex.App.—San Antonio 2010, pet. ref’d). The trial court should look to the purpose for which the evidence is being offered and determine whether there is a direct connection evidence being offered and the proposed use. Reed v. State, 59 S.W.3d 278, 281 (Tex.App.—Fort Worth 2001, pet. ref’d). In a recent Texas Appellate Court case, photographs from the social media website MySpace were admitting into evidence. Tienda
v. State, No. 05–09–00553–CR, 2010 WL 5129722, at *4–5 (Tex.App.-Dallas Dec. 17, 2010) (not designated for publication). Over the defense objections, the court admitted the photographs after the prosecution laid the proper predicate. Circumstantial evidence was also used to authenticate the photographs. This evidence was also authenticated by the introduction of the user’s commonly known nickname, username, registered email address,
user identification number, stated physical location, and numerous other photographs identified by time and date stamps. Id..

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