Predicates: DOCUMENTARY AND DEMONSTRATIVE EVIDENCE
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XX. SCIENTIFIC EVIDENCE

A. PREDICATE:

1) Witness qualified to establish the theory's validity and the instrument's reliability.

2) The underlying theory is reliable and/or is generally accepted as valid and reliable.

3) Instrument was in good working condition and was used by witness qualified to conduct and interpret the test results.

4) Witness used the proper procedures.

5) Witness states the test results.

B. EXCLUSION:

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

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

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

C. COMMENTARY:

• If the theory and instrument are accepted, the judge will judicially notice those elements of the foundation upon a proper timely request by counsel.
  
• The foundation will often require two witnesses: an expert to establish the theory's validity and the instrument's reliability, and a technician qualified to conduct and interpret the test results.
  
• The practitioner should be aware of the Texas Supreme Court's most recent decisions interpreting Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 125 L.Ed. 2d 469 (1993) and its progeny. See E.I. duPont de Nemours and Co., Inc. v. Robinson, 923 S.W.2d 549, 556-557 (Tex. 1995)(adopting Daubert test and adding additional factors); see also e.g., DeLarue v. State, 102 S.W.3d 388 (Tex. App. - Houston [14 Dist.] 2003), rev. ref.; Perez v. State, 113 S.W.3d 819 (Tex. App.- Austin 2003), rev. ref.; 90 A.L.R. 5th 453, Sec. 24 (2001); 18 Tex. Jur. 3d Criminal Law Sec. 265 (2004). For a more thorough discussion of the procedural issues involved in admitting scientific evidence, please see Judge Harvey Brown, Procedural Issues Under Daubert, 36 Hous. L. Rev. 1133 (1999).

XXI. SOUND SPECTROGRAMS/VOICEPRINTS

A. PREDICATE:

1) The tape recordings used to produce the spectrograms are authentic. See predicate for tape recordings, p. 15.

2) The witness has the qualifications to explain sound spectrography's underlying premises and to conduct the test.

3) The underlying premises of sound spectrography are interspeaker variability and invariant speech.

4) Those premises are generally accepted as valid in the relevant scientific circles.

5) The instrument is the sound spectrograph and it is generally accepted as valid in the relevant scientific circles.

6) At a particular time and place, the witness conducted a voiceprint examination using the tape recordings mentioned in element #1.

7) The witness excerpted the cue words from both tapes and used a spectrograph to analyze the tapes of the cue words.

8) The spectrograph was in good working condition at the time.

9) The witness used the proper procedures.

10) The analysis produced two spectrograms which the witness identifies.

11) There are several points of similarity between the two spectrograms, and in the witness's opinion, the same voice produced the two spectrograms.

B. EXCLUSION:

1) The probative value of the sound spectrograms/voiceprints is substantially outweighed by the danger of unfair prejudice; or

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

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

4) The witness is not qualified under Daubert and its progeny to offer expert testimony on sound spectrograms and voiceprints.

C. COMMENTARY:

• The practitioner should be aware of the Texas Supreme Court's most recent decisions interpreting Daubert v. Merrell Dow Pharmaceuticals, Inc., supra and its progeny. See Sec. XX, supra. For a more thorough discussion of the procedural issues involved in admitting scientific evidence, please see Judge Harvey Brown, Procedural Issues Under Daubert, 36 Hous. L.Rev. 1133(1999) supra.
  
• For a list of publications regarding whether voiceprint identification is admissible, see Pope v. State, 756 S.W.2d 401, 409, n. 3 (Tex. App. - Dallas 1988), pet. ref. (applying Frye standard, superseded by Daubert); see also Jones v. State, 716 S.W.2d 142, 147 + (Tex. App. - Austin 1986) pet. ref. (also applying pre-Daubert standard).

XXII. SUMMARIES

A. PREDICATE:

1) The proof involves the contents of "voluminous writings, recordings, or photographs" which "cannot collectively be examined in court."

2) The originals, or duplicates, are made available to opposing counsel for examination at a reasonable time and place.

3) The person who prepared the chart or summary should be available in court to testify or explain it.

4) There should be a reasonable guarantee of the accuracy of any summaries or charts.

B. EXCLUSION:

1) The summary is not an accurate representation of its underlying documents.

2) The titles of the summaries should not themselves be prejudicial or connote an independent meaning.

C. COMMENTARY:

• Under Rule 1006, the summaries themselves and not the underlying documents, be they in chart form or otherwise, are the evidence which the trier of fact may consider. United States v. Skalicky, 615 F.2d 1117, 1120-1121 fn.5 (5th Cir. 1980), cert. den., 449 U.S. 832, 66 L.Ed. 2d 37. Thus, so long as the summaries are based upon admissible documents which have been previously made available on reasonable terms, the underlying documents themselves need not be offered into evidence. See also 50 A.L.R. Fed 319, Sec. 3 (1980); 5 Federal Evidence Sec. 584 (2d ed.)(2004).
  
• Counsel should disclose, not only underlying documents, but copies of all summaries/charts sufficiently in advance in order to obtain stipulations regarding accuracy and admissibility or to allow for a pretrial examination and rulings by the court.
  
• Lloyd v. United States, 226 F.2d 9, 16-17 (5th Cir. 1955) (In tax litigation, the use of the terms "overstated," "unreported" and "unpaid" in summary chart captions were questioned as conclusionary where the issue involved whether income was overstated, unreported, or unpaid.) See also 20A Fed. Proc., L.Ed. Sec. 48:1624 (2003); 35A Am.Jur.2d Federal Tax Enforcement Sec. 1245 (2003).
  
• The admissibility of summaries is a matter within the discretion of the court. Baines v. United States, 426 F.2d 833, 840 (5th Cir. 1970).
  
• One page summary of defendants' 87 pages of sales records offered by plaintiff was admissible as non-hearsay admission by party opponent. C.M. Asfahl Agency v. Tensor, Inc., 2004 WL 169737 (Tex. App. - Houston [1 Dist.] 2004)(permanent publication pending; subject to revision or withdrawal)(discussing Tex. R. Evid. 1006).

XXIII. TAPE RECORDINGS

A. PREDICATE:
1) Show that the recording device is capable of taking testimony;

2) Show that the operator of the device is competent;

3) Establish the authenticity of the correctness of the recording;

4) Show that changes, additions or deletions have not been made;

5) Show the manner of the preservation of the recording;

6) Identify the speakers;

7) Show that the testimony elicited was voluntarily made without any kind of inducement. See Seymour v. Gillespie, 608 S.W.2d 897, 898 (Tex. 1980). But see Larson v. Family Violence and Sexual Assault, 64 S.W. 3d 506, 511 (Tex. App. - Corpus Christi 2001), reh'g. overruled, rev. den (holding that the 7-prong test is unnecessary, based on plain language of Tex. R. Evid. 901).

B. EXCLUSION:

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

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

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

C. COMMENTARY:

• he Texas Supreme Court has held that some of the elements may be inferred and need not be shown in detail. The Court also held that specific objections are required to preserve error in admitting recordings improperly. Seymour v. R. L. Gillespie, 608 S.W.2d 897, 898 (Tex. 1980). See also Hinote v. Oil, Chemical and Atomic Workers, 777 S.W.2d 134, 146-147 (Tex. App. - Houston [14 Dist.] 1989), writ den; reh'g overruled.
• The rule of optional completeness applies to tape recordings introduced during trial. This rule provides that the adverse party may at any time introduce any other part or any other recorded statement which ought in fairness to be considered contemporaneously with it. Tex. R. Evid. 106 & 107

XXIV. TELEVISION TAPES

A. PREDICATE:
1) Witness is familiar with the scene, etc. that is portrayed on the television tape.

2) Witness explains the basis for his familiarity.

3) Witness recognizes the scene, etc. that is portrayed on the television tape.

4) Witness testifies that the tape 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 television tape is substantially outweighed by the danger of unfair prejudice. Tex. R. Evid. 403.

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

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

C. COMMENTARY:

• Where an issue exists as to whether the tape was broadcast, and perhaps the extent of broadcast, it is necessary to present the testimony of a witness with knowledge as to these matters. See Pritchard v. Downie, 326 F.2d 323, 326 (8th Cir. 1964).
  
• Where the fact of broadcast is irrelevant to the proponent. (e.g., the tape is offered because it depicts a relevant scene) then authenticating testimony can be provided by any witness with knowledge as to the fairness and accuracy of the depiction. See 41 A.L.R. 4th 812 (1985).
  
• See also Larson v. Family Violence and Sexual Assault., 64 S.W.3d 506, 511 (Tex. App. - Corpus Christi 2001) reh'g. overruled, rev. den. (video of newscasts); Phillips v. State, 770 S.W.2s 824, 825-826 (Tex. App. - El Paso 1988).

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