Predicates 2013 Update: Documentary and Demonstrative Evidence p.3

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VII. DEMONSTRATIONS OR EXPERIMENTS (IN AND OUT OF THE COURTROOM)

A. PREDICATE:

1) Establish the training, experience, and other qualifications of the witness in the field of the subject of the experiment.
2) Establish that all necessary facts regarding the conditions or occurrence in question are in fact already in evidence or will later be introduced with permission of the court.
3) Establish that the principle involved has received general scientific acceptance in the field to which it belongs, both as a general principle and as specifically applied to the subject of inquiry.

The judge may judicially notice a widely accepted principle upon a proper timely request by counsel.

4) The proposed experiment or demonstration must be calculated to aid the trier of fact in understanding, simplifying, or clarifying evidence or issues.
5) There must be a showing that such evidence is supplemental to and not cumulative of the testimony of other witnesses.
6) The proposed experiment or demonstration must meet the basic evidentiary tests of relevancy and materiality.
7) Most importantly, counsel must establish that the conditions under which the experiment or demonstration is made are substantially similar to those existing at the time in issue (e.g., the time of the cause of action) and have the witness explain any dissimilarities and make adjustments and corrections for any dissimilarities. Dissimilarities affect the weight of the evidence, not admissibility. Ramseyer v. General Motors Corp., 417 F.2d 859, 864 (8th Cir. 1969); see also 29A Am. Jur. 2d Evidence, Sec. 1003, (2003); 29A Am. Jur. 2d Evidence, Sec. 1013 (2003); University of Texas at Austin v. Hinton, 822 S.W.2d 197, 203 (Tex. App. – 1991); Pitcock v. B&W, Inc., 476 S.W.2d 83, 93 (Tex. Civ. App. – Houston [1 Dist.] 1971).

This does not mean that the tests must be performed under identical circumstances, but any variation must be brought to the attention of the court. Robinson v. Morrison, 272 Ala. 552, 133 So. 2d 230 (1961) (admissibility of experimental evidence to show visibility or line of vision); Horn v. Hefner, 115 S.W.3d 255, 256 + (Tex. App. – Texarkana 2003) (experiment’s conditions should be substantially similar, but need not be identical to actual event that is the subject of litigation).

8) If a testing device or other equipment is used, show that:
a. the type of device used is reliable and/or accepted as dependable for such use by an appropriate body of scientific thought and by studies, experiments and field use;
b. the method of operation of the device and the particular device used are of an accepted type and in good working order;
c. the operator of the device was competent to use the device by training and experience; and
d. that the particular test was correctly done.
9) Where a physical substance is involved, connect the substance tested with the occurrence in question, e.g., explain chain of custody.

B. EXCLUSION:

1) The probative value of the demonstration or experiment is substantially outweighed by the danger of unfair prejudice;
2) The probative value of the demonstration or experiment is substantially outweighed by danger of confusion of the issues or misleading the jury or undue surprise; or
3) The probative value of the demonstration or experiment is substantially outweighed by danger that it will cause undue delay, waste of time, or needles presentation of cumulative evidence. Tex. R. Evid. 403.
4) An out-of-court experiment should be excluded if done outside the presence of the opposing party and there is not a substantial similarity between conditions existing at the time of the occurrence which gives rise to the litigation and those in existence at the time the experiment is conducted for demonstration purposes. Fort Worth & Denver Ry. Co. v. Williams, 375 S.W.2d 279, 281-283 (Tex. 1964).
It would appear that some courts are not as strict regarding admissibility of in-court experiments due to the fact that opposing counsel is allowed opportunity to cross-examine regarding dissimilarities. See Hartford Fire Ins. Co. v. Christian, 395 S.W.2d 53 (Tex. Civ. App. – Corpus Christi 1965), writ ref’d n.r.e. (In action on a hurricane policy, a meteorologist was permitted to superimpose radar film on a map to track the path of hurricane Carla.) See also Tx. Jur. 3d Evidence Sec. 474.
5) If the jury conducts tests during deliberations, and these tests produce new evidence, the tests are improper. See 31 A.L.R. 4th 566 (2004).

C. COMMENTARY:

The court has wide discretion in allowing experiments, demonstrations, and tests, and the standard of review is abuse of discretion. Ramseyer v. General Motors Corp., 417 F. 2d 859, 864 (8th Cir. 1969); Garza v. Cole, 753 S.W.2d 245, 247 (Tex. App. – Houston [14 Dist.] 1987).

VIII. DESTRUCTIVE TESTING

A. PREDICATE:

1) Adequate opportunity for the defendants to photograph or otherwise record the chattel’s condition prior to the destructive testing.
2) Notice to the opposing party of the time, place and manner of the testing with reasonable opportunity for the opposing party and experts to observe the testing procedures.
3) The opposing party’s right to conduct or participate in similar tests with the chattel.
4) Provision for discovery of the proponent’s results.
5) Proper allocation of costs.

B. EXCLUSION:

1) The probative value of the destructive testing is substantially outweighed by danger of confusion of the issues, or misleading the jury, or undue surprise; or
2) The probative value of the destructive testing is substantially outweighed by danger that it will cause undue delay, waste of time, or needles presentation of cumulative evidence. Tex. R. Evid. 403.

C. COMMENTARY:

The court has wide discretion in allowing experiments, demonstrations, and tests, and the standard of review is abuse of discretion. General Motors Corp. v. Turner, 567 S.W.2d 812, 820-821 (Tex. Civ. App. – Beaumont 1978) rev’d on other grounds, 584 S.W.2d 844 (Tex. 1979); Ervay-Canton Apts. v. Hatterick, 239 S.W.2d 150, 152 (Tex. Civ. App. – Fort Worth 1951), writ ref’d n.r.e.
Courts have been granted wide discretion in ordering destructive testing. Cameron v. District Court of 1st Judicial Dist., 193 Colo. 286, 565 P. 2d 925 (1977) (propriety of discovery order permitting destructive testing of chattel).
Some reports of testing made in the regular course of business may be admissible. Midwestern Wholesale Drug, Inc. v. Gas Service Co., 442 F.2d 663, 665 (10th Cir 1971); Rosado v. Wyman, 322 F.Supp. 1173, 1180-1181 (1970), aff’d 437 F.2d 619 (2d Cir. 1971), aff’d, 402 U.S. 991, 29 L.Ed 2d 157, 91 S.Ct. 2169 (1971). (Admissibility as against reliability/hearsay objection). See also 5 New York Practice Series Sec. 9:20 (Fed. R. Evid. 901(B)(9)(2004).
Common law and the Uniform Business Records as Evidence Act may make independent test results admissible when a proper foundation is laid, providing a custodian or other qualified witness testifies to its identify and preparation. Weis v. Weis, 147 Ohio St. 416, 424-426, 34 Ohio Ops. 350, 72 NE2d 245 (1947). (Admissibility, as against hearsay objection, of hospital reports which included blood and urine tests performed by third parties.) See also Lambert v. Goodyear Tire and Rubber Co., 79 Ohio App. 3d 15, 26-27 (1992), appeal dismissed on joint application of parties, 594 NE 2d 625 (Table)(1992); Challoner v. Day & Zimmermann, Inc., 512 F.2d 77, 83-84, vacated on other grounds, 423 U.S. 3, 46 L.Ed.2d 3. 96 S.Ct. 167 (5th Cir. (Tex.) 1975); Day & Zimmermann v. Strickland, 483 S.W.2d 541, 544-546 (Tex. Civ. App. – Texarkana 1972), writ ref. n.r.e.; 19 A.L.R. 3d 1008, Sec. 4 (1968).

IX. DIAGRAMS, CHARTS, MAPS, DRAWINGS AND TIMELINES

A. PREDICATE:

1) The diagram, chart, map, drawing or timeline 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 diagram, chart, map, drawing or timeline is an accurate depiction of that area, object, or notation.

B. EXCLUSION:

1) The probative value is substantially outweighed by the danger of unfair prejudice; or
2) The probative value is substantially outweighed by the danger of confusion of the issues or misleading the jury; or
3) The probative value is substantially outweighed by the danger that it will cause undue delay, or needless presentation of cumulative evidence. Tex. R. Evid. 403.

C. COMMENTARY:

Admissibility of charts is within the trial court’s discretion and will not be disturbed absent a showing of abuse of discretion. Speier v. Webster College, 616 S.W.2d 617, 619 (Tex. 1981).
The best evidence rule does not apply to diagrams and charts because admissibility rests upon its adoption by the witness. United States v. Feaster, 341 F.Supp. 524, 531-532 (S.D. – Ala. 1972); aff’d 494 F.2d 871 (5th Cir.) cert. den., 419 U.S. 1036 (1974).
Charts may be admissible or usable, even if they happen to summarize testimony. Speier v. Webster College, supra; Uniroyal Goodrich Tire Company v. Martinez, 977 S.W.2d 328, 342 (Tex. 1998) cert. den., 526 U.S. 1040, 119 S.Ct. 1336 (1999).
Maps, diagrams and drawings follow the same principles as photographs in that the item must be reasonably accurate and properly authenticated.
Drawings can be prepared by a witness during testimony to illustrate conditions, locations or directions. MacDonald v. Skinner, 347 S.W.2d 950, 953 (Tex. Civ. App. – El Paso 1961), dism’d. agr.
It is proper and legitimate to introduce documents, maps, plats and diagrams to explain and/or clarify a witness’s testimony. Mayfield v. State, 848 S.W.2d 816, 819 (Tex. App. – Corpus Christi 1993), pet ref’d; See also 9 A.L.R.2d 1044, Sec. 10 (1950); 18 Tex. Jur. 3d Criminal Law, Sec. 269, (2004).
Timelines may be used by witnesses to clarify a sequence of events over the defendant’s objection. Uniroyal Goodrich Tire Co. v. Martinez, 977 S.W.2d 328, 342 (Tex. 1998), cert. den., 526 U.S. 1040, 119 S.Ct. 1336 (1999). However, it must represent actual conditions reflecting your witness’s testimony. Texas Co. v. Harrison, 193 Okla. 185, 141 P.2d 802 (1943); 9 A.L.R.2d 1044 Sec. 5 (1950).
When a drawing is made by a person not testifying, the drawing is admissible if its accuracy meets the court’s satisfaction. State v. Hartman, 256 N.W. 2d 131, 137 (S.D. 1977); See also State ex rel State Highway Dept. v. Kistler – Collister Co., 88 NM 221, 225-226, 539 P.2d 611 (1975).
While the diagram may be made by counsel, it must not be used to lead the witness. Allely v. Fickel, 243 Iowa 105, 49 N.W. 2d 544, 545-546 (1951); 29 A Am. Jur. 2d Evidence Sec. 989 (2003); 9 A.L.R.2d 1044 Sec. 9+ (1950).
Accident reports and other diagrams are admissible even when based on the descriptions of others or totally upon hearsay. J.M. Crom v. County of Cameron, 310 S.W. 2d 664, 667 (Tex. Civ. App. 1958): See also Pressley v. Jennings, 227 Ga. 366, 375-376, 180 S.E. 2d 896 (1971).

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