Predicates: DOCUMENTARY AND DEMONSTRATIVE EVIDENCE

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XVI. MOTION PICTURES

A. PREDICATE:

1) The operator was qualified to take a motion picture film.

2) The operator used certain equipment in good working order to film the activity.

3) The operator used proper procedures to film the activity.

4) The operator accounts for the custody of the film and the developed movie.

5) The developed movie was a good reproduction of the activity.

B. EXCLUSION:

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

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

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

C. COMMENTARY:

• Motion pictures, whether in color or black and white, and whether with or without sound, are admissible and are said to be treated the same as pictures and x-rays. Fort Worth & Denver Ry. v. Williams, 375 S.W.2d 279, 282 (Tex. 1964); Horn v. Hefner, supra; 8A Tex. Jur. 3d Automobiles Sec. 754 (2004).
  
• However, the predicate for motion pictures is more akin to x-rays than still photographs because the competency of the operator and machine must be established.
  
• Some trial attorneys prefer to present very detailed testimony about the equipment, especially the lens used and such technical matters as the speed of the film and the lens aperture. A general description of the equipment is sufficient.

XVII. OVERHEAD PRESENTATION

A. PREDICATE:

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

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

3) In the witness's opinion, the presentation is an accurate depiction of that area, object, or notation.

B. EXCLUSION:

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

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

XVIII. PHOTOGRAPHS

A. PREDICATE:

1) Witness is familiar with the object, scene, etc. that is depicted in the photograph and explains the basis for his familiarity.

2) Witness recognizes the object, scene, etc. that is depicted and testifies that the photograph is a fair, accurate, true, or good depiction of what it purports to be at the relevant time.

• The predicate is laid by "yes" answers to these questions where conditions have not been materially changed between the time of the event in question and the time of the photograph. Ft. Worth & D.C. Ry. Co. v. Kiel, 195 S.W.2d 405, 195 S.W.2d 405, 411 (Tex. Civ. App. - Ft. Worth, 1946), writ ref'd n.r.e.; Duff v. Yelin, 721 S.W.2d 365, 373 (Tex. App. - Houston [1 Dist.] 1986) aff'd, 751 S.W.2d 174 (1988); 29A Am.Jur.2d Evidence Sec. 965-966 (2003); 9 A.L.R. 2d 899 (1950), superseded in part by 41 A.L.R. 4th 812, superseded in part by 41 A.L.R. 4th 877.

If the photograph is taken long after the events in question, a further precedent may be necessary in showing either:

1) That there has been no substantial change over time, or

2) Explaining and identifying the changes. McKee v. Chase, 73 Idaho 491, 501 253 P2d 787, 792 (1953); Fisch v. Transcontinental Ins. Co., 356 S.W.2d 186, 191 (Tex. Civ. App. - Houston 1962), writ ref.; Texas Emp. Ins. Ass'n. v. Agan, 252 S.W.2d 743, 748 (Tex. Civ. App. - Eastland 1952), writ ref.; Briones v. Levine's Dept. Store, Inc., 435 S.W.2d 876, 882 (Tex. Civ. App. - Austin 1968), aff'd, 446 S.W.2d 7 (1969); 29 A Am. Jur.2d Evidence, Sec. 968 (2003).

The differences must be identified and the testimony must identify the parts of the photograph which are irrelevant to the case. Southeastern Eng'r and Mfg. Co. v. Lyda, 100 Ga. App. 208, 209-210, 110 S.E. 2d 550 (1959). Remoteness in time alone, without changed conditions, does not affect admissibility.

B. EXCLUSION:

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

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

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

• The decision to admit or exclude photographic evidence is within the broad discretion of the trial judge. Duff v. Yelin, supra
  
• If a photograph is merely calculated to arouse passion or create prejudice, it should be excluded. See Heddin v. Delhi Gas Pipeline Co., 522 S.W.2d 886, 889-890 (Tex. 1975). (In condemnation case, posed photograph showing carcasses of dead animals resulting from a pipeline rupture had little relevance or probative force and were inadmissible.)

C. COMMENTARY:

• The foundation witness, in addition to testimony regarding accuracy, must state what the photograph depicts. Conflicts as to the photograph's accuracy in showing what is stated do not render the photograph inadmissible because correctness becomes a jury question. Dofner v. Branard, 236 S.W.2d 544, 547 (Tex. Civ. App. - San Antonio 1951), writ ref n.r.e.; Jenkins v. Associated Transport, Inc., 330 F.2d 706, 710 (6th Cir. 1964).
• Whitley v. State, 635 S.W.2d 791 (Tex. App. - Tyler 1982), no writ (photograph depicting inside of skull admitted to clarify a pathologist's description of cause of death.)
• Long delays simply go to the weight, not the admissibility, of the photograph if the changes are fairly explained. McCasland vs. Henwood, 213 S.W.2d 555, 558 (Tex. Civ. App. - Texarkana 1948), writ ref'd n.r.e.; Dallas Ry & Terminal Co. vs. Durkee, 193 S.W.2d 222, 226-227 (Tex. Civ. App. - Dallas 1946), writ ref'd n.r.e. See also 29A Am.Jur. 2d Evidence Sec. 968 (2003).
• Photographs of a "substantially similar" object, scene, or condition are admissible if the differences are explained. Miller v. Patterson, 537 S.W.2d 360, 363-364 (Tex. Civ. App. - Fort Worth 1976), no writ.
• The witness need not have been present and need not have taken the photograph. Dofner vs. Branard, 236 S.W.2d 544, 546-547 (Tex. Civ. App. - San Antonio 1951), writ ref'd n.r.e.; Southwestern Bell Telephone Co. v. Griffith, 575 S.W.2d 92, 100-101 (Tex. Civ. App. - Corpus Christi 1978), writ ref'd n.r.e.; Higgins v. Arizona Sat. & Loan Assoc., 90 Ariz. 55, 66, 365 P2d 476, 484 (1961).
• Additional problems arise with posed photographs, i.e., where places and objects have been placed in position. If a photograph merely portrays people's positions as determined from testimony, they may be admissible. This, of course, places them in the category of illustrations and most courts follow a restrictive view of photographs which merely conform to the proponent's witness testimony. Lynch v. Missouri-K-T-Ry. Co., 333 Mo. 89, 96, 61 S.W. 2d 918, 921 (1933).

XIX. PHYSICAL EVIDENCE: ARTICLES AND OBJECTS

A. PREDICATE:

1) The object has a unique characteristic.

2) The witness observed the characteristic on a previous occasion and identifies the exhibit as the object.

3) As best as he or she can tell, the object is in the same condition as it was when he or she initially observed the object.

B. CHAIN OF CUSTODY:

The foundation for chain of custody must be laid during the testimony of each link in the chain:

1) The witness initially received the object at a certain time and place.

2) The witness safeguarded the object; the witness testifies to circumstances making it unlikely that substitution or tampering occurred.

3) The witness ultimately disposed of the object (retention, destruction, or transfer to another person).

4) As best he or she can tell, the exhibit is the object he or she previously handled and is in the same condition as it was when he or she initially received it. See Avila v. State, 18 S.W.3d 736, 739-740 (Tex. App. - San Antonio 2000).

Note that any gaps in the chain of custody or care of the evidence goes to the weight to be given the evidence, not to its admissibility. Wortham v. State, 903 S.W.2d 897, 900 (Tex. App. - Beaumont 1995) rev. den.

C. EXCLUSION:

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

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

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

4) The article or object is not in the same condition as it was when the witness initially received it. a chain of custody cannot be established, and it is likely that substitution or tampering occurred.

D. COMMENTARY:

• The trial court has considerable discretion regarding the degree to which "chain of custody" must be established. Garcia v. Sky Climber, Inc., 470 S.W.2d 261, 266-267 (Tex. Civ. App. - Houston [1 Dist.] 1971), writ ref'd n.r.e.
• If there is not evidence that an object offered is either the same or in a state substantially similar to the condition it was in at the time of the event in question, then the predicate may include a "chain of custody" and a showing of lack of opportunity for abuse, changes, etc. Imperial Cas. & Indemn. Co. of Omaha, Neb. v. Terry, 451 S.W.2d 303, 307 (Tex. Civ. App. - Tyler 1970), no writ.
• When objects or articles can be brought into court and exhibited, it is more satisfactory than a mere description of them by witnesses that have inspected them outside of court. Hays v. Gainesville St. Ry. Co., 8 S.W. 491, 494 (Tex. 1888); Imperial Cas. & Indem. Co. of Omaha v. Terry, 451 S.W.2d 303, 306 (Tex. Civ. App. - Tyler, 1970), no writ.
• The introduction of an object submitted as being similar to the one used in an incident is admissible as demonstrative evidence to aid the jury in understanding the oral testimony deduced at trial. See Simmons v. State, 622 S.W.2d 111, 113-14 (Tex. Crim. App. [panel op.] 1981); Posey v. State, 763 S.W.2d 872, 875 (Tex. App. - Houston [14 Dist.] 1988), rev. den.; Fletcher v. State, 902 S.W.2d 165, 167 (Tex. App. - Houston [1 Dist.] 1995) rev. den.; Orrick v. State, 36 S.W.3d 622, 625-626 (Tex. App. - Fort Worth 2000); 29 A Am. Jur. 2d Evidence, Sec. 994 (2003).

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