PHYSICAL EVIDENCE

            All trials boil down to what can be proven by one side or the other by competent evidence. This may be the smoking gun, itself; a photograph of the firearm; or a person who offers sworn testimony of having seen the gun in someone's hand with smoke coiling out of the barrel. What follows is a portion of the published materials written by Mr. Monroe for a seminar given by him to a large group of Tennessee Trial Lawyers.

A.        Admissibility

Physical evidence, like all other forms of evidence must first be relevant pursuant to the Tennessee Rules of Evidence ( hereafter "T.R.E.") Rule 401, That means that the evidence must have some tendency to make the existence of a fact that is of consequence to the determination of the action more or less probable that it would be without that evidence. The physical evidence must also be authenticated. Authentication simply means that evidence has been presented sufficient to the Court to support a finding by the trier of fact that the item in question is what its proponent claims it to be. See T.R.E. 901 (a). Note that Rule 901 goes on to give a number of illustrative examples of authentication or identification which would conform with the requirements of the Rule. T.R.E. 902 lists a number of types of evidence, mostly of the documentary type, that are self-authenticating, meaning that extrinsic evidence of their authenticity is not required as a condition precedent to their admissibility.

B.        Demonstrative Evidence

By statute, T.C.A. '20‑9‑303 provides that

In the trial of any civil suit, counsel for either party shall be permitted to use a black board, models or similar devices, also any picture, plat or exhibit introduced in evidence in connection with the counsel's argument to the jury for the purpose of illustrating the counsel's contentions with respect to the issues which are to be decided by the jury provided, that such counsel shall not, in writing, present any argument that could not properly be made orally.

           As noted specifically in the statute, there is no requirement that such demonstrative evidence have been introduced into evidence as an exhibit.

Summaries ‑ T.R.E. 1006

T.R.E. 1006 provides that the contents of voluminous writings, recordings, or photographs which cannot conveniently be examined in Court may be presented in the form of a chart, summary or calculation. The originals or duplicates must be made available for examination or copying by other parties, and the Court may order that the originals be produced in Court.

Example, The case of Alexander v. Inman , 903 S.W.2d 686 (Tenn. App. 1995) perm. app. denied, involved a claim relating to the reasonableness and necessity of legal services and expenses. Evidence of duplication of services was presented by way of charts that summarized the time records of the attorneys involved in the matter. The charts were prepared by a CPA who testified that the data for the charts came from the attorneys' own time records. Counsel for the involved attorneys objected to the charts on the grounds of relevance, but were actually sustained on the basis of potential unfair prejudice under T.R.E. 403. Plus, the trial Court further found that the summaries lacked trustworthiness and would not substantially assist the trier of fact pursuant to T.R.E. 702 and 703. The Court of Appeals found that the summaries should not have been excluded. The Court stated that the charts were "straightforward compilations" of the attorneys' own time records that had already been found to be business records under T.R.E. 803(6). The Court went on to note that the time records themselves were apparently voluminous and not easily susceptible to convenient examination and analysis by the jury. Thus, under T R.E. 1006, the summaries of the records would have substantially assisted the jury in making their determination. Id. at 702,

In Cole v. State, 512 S.W.2d 598 (Tenn. Crim. App. 1974), cert. denied, the Court found that a diagram prepared by an investigating officer of a scene of an accident was admittedly not to scale, and not correct as to other detail, but held that the jury could judge the credibility of the officer's testimony as well as the quality of the drawing in weighing his testimony. The trial judge's decision to allow the diagram to be exhibited would not be disturbed Id. at 602. See also State v. Delk, 692 S.W.2d 431 (Tenn. Crim. App. 1985).

In addition to demonstrative aids, actual demonstrations or exhibitions may be presented to the trier of fact. In State v. Underwood, 669 S.W.2d 700 (Tenn. Crim. App. 1984), cert denied, the Court of Criminal Appeals upheld a re‑enactment by the Sheriff and another officer of the defendant's demonstration to them of how he had committed the crime. The Court stated that such evidence was admissible within the discretion and control of the trial judge, and noted that such evidence was in the nature of a declaration against interest (referring to the original demonstration by the defendant). Id. at 704.

In the civil context, a plaintiff in a tort case may exhibit an injured body part and demonstrate how it has affected his ability to move. See Arkansas River Packet Co. v. Hobbs 105 Tenn. 29 (1900)(knee injury), In a more recent case, the Tennessee Court of Appeals approved the anticipated testimony of a lay witness as to her maximum attainable speed between two points in her vehicle. The Court noted that experimental evidence is generally admissible if it is relevant and probative. The probative value of the experiment can be ascertained by determining whether the experiment is identical or similar to the conditions of the litigated transaction. The Court further noted that the plaintiffs ability or capability to do this experiment was not something that required scientific, technical or other specialized knowledge, such as to trigger the requirement that it be offered by way of expert proof The Court noted that the fact that a lay witness conducted the experiment merely goes to the weight of the evidence, not its admissibility. Unfortunately for the plaintiff, the exclusion of that evidence was deemed harmless error. Id. at 118, 119.

Photographs and video tape evidence are routinely allowable, oftentimes in the criminal context even over Rule 403 type objections. See, e.g., State v. Cauthern, 967 S.W.2d 726 (Tenn. 1998) (video tape of crime scene); State v. Banks, 564 S.W.2d 947 (Tenn, 1978)(photos of crime victim). It should be noted that if a video has been narrated, the audio portion of the same may be objectionable.  See State v. VanTran, 864 S.W.2d 465 (Tenn. 1993). Here the Supreme Court noted that while the video portion of the crime scene tape was allowable, the trial Court should not have allowed the jury to bear the officer's narration, noting that the officer made numerous conclusory statements. The Court found such admission to be harmless error, In addition to the rationale noted above, narration of a video tape may well be hearsay, particularly if the narrator is describing what is being viewed. The better practice would be to have either the original narrator or someone else with knowledge to narrate the tape in open court, and would then be subject to appropriate objections and/or cross‑examination.

C.        Documentary Evidence

In this section, various issues involving writings are addressed, the same which are specifically addressed by the Tennessee Rules of Evidence. It is not intended to be exhaustive.

Incomplete Writings

T.R.E. 106 provides that when a writing or recorded statement or part thereof is introduced by a party, an adverse party may require the introduction at that time of any part or any other writing or recorded statement which ought in fairness to be considered contemporaneously with it, Compare, State v. Belser, 945 S.W.2d 776 (Tenn. Crim. App. 1996)(error found harmless in refusal to allow full text of excerpted statements to be presented). Note that this Rule is not limited to the remaining text of a single writing or statement but also allows an adverse party to require the introduction of some other writing or statement which should also be considered.

Writings Used to Refresh Memory

In part, T.R.E. 612 provides that if a witness uses a writing while testifying to refresh their memory for the purpose of testifying, an adverse party is entitled to inspect the writing, cross-examine the witness thereon, and to introduce into evidence those portions of the writing which relate to the testimony of the witness.

The proper manner of use of such a writing is to lay an appropriate foundation, with the witness testifying that they do not have sufficient recall, then showing the witness the writing for review, then taking back the writing and asking the witness to testify from their "refreshed" memory See Advisory Commission comment. If this procedure does not work, then counsel may have to resort to attempting to qualify the writing as a past recollection recorded pursuant to Rule 803(5). In that event, the content of the writing would be read to the jury, but would not be submitted as evidence itself, unless offered by an adverse party.

It should be noted that if a party attempting to use such a writing fails to deliver it to the adverse party upon their request, then "the Court shall make any order justice requires." The Rule then specifically refers to criminal cases in which failure to comply may result in testimony being stricken or even a mistrial, Presumably, such sanctions would also be applicable in the civil context.

Use of Learned Treatises

Pursuant to T.R.E. 618, an expert witness may be impeached through the use of published treatises, periodicals, or pamphlets on a subject of history, medicine, or other science or art, established as a reliable authority by the testimony or admission of the witness, by other expert testimony, or by judicial notice. Such items must have either been relied upon by the witness in their direct exam or called to the witnesses attention upon cross‑examination. Such treatises and the like may not themselves be received as substantive evidence. In a negligence action against a railway company, it was deemed error to allow portions of the Railroad Highway Crossing Handbook to be placed into evidence as an exhibit. The Court noted that the excerpts from the handbook were properly used to impeach the plaintiff=s expert witness, but should not have then been admitted as substantive evidence. See Emery v. Southern Railway, 866 S.W.2d 557 (Tenn. App. 1993).

Records of Regularly Conducted Activity

Commonly known as the "business records" exception, Rule 803(6) provides a hearsay exception for memoranda, reports, records, or data compilations in any form of acts, events, conditions, opinions, or diagnosis made at or near the time by or from information transmitted by a person with knowledge and a business duty to record or transmit such information if it is kept in the course of a regularly conducted business activity, and if it was the regular practice of that business to make such memorandum, report, etc. Those facts must be provided through the testimony of the custodian or other qualified witness, unless the source of information or method or circumstances of  preparation indicate lack of trustworthiness. The term "business" includes every kind of business, institution, associated, profession, occupation, and calling, whether or not conducted for profit,

Note that this Rule is essentially the same of the Uniform Business Records as Evidence Act, T.C.A. '24‑7‑111. Also note that there is a specific statute for hospital records, T. C.A. '68‑11‑40 1, et seq. The procedures outlined therein allow for hospital records to be admitted into evidence, either through the use of a records custodian, or even without such custodian dependent upon the procedures followed.

Public Records and Reports

T.R.E. 803(8) provides that unless the source of information or method or circumstances of preparation indicate lack of trustworthiness, records, reports, statements, or data compilations in any form from public offices or agencies which set forth the activities of such office or agency or matter observed pursuant to a duty imposed by law as to matters that there was a duty to report, such records and reports are admissible into evidence. The Rule specifically excludes matters observed by police officers and other law enforcement personnel.

Accident reports are specifically excluded from evidence pursuant to statute which provides in pertinent part "no reports or information mentioned in this section shall be used as evidence in any trial, civil or criminal, arising out of an accident   See McBee v. Williams, 405 S.W.2d 668 (Tenn App 1966).

D.        Common Objections to Physical Evidence and How to Refute Them

While there are numerous objections that might be applicable to any given piece of evidence, common objections to physical type evidence are that such items are not the "best evidence," or are "unduly prejudicial". The objections quoted and other related objections are addressed in the Tennessee Rules of Evidence at Rules 403 and 1001 ‑ 1008.

Contents of Writings, Recordings and Photographs

The "best evidence rule" or as it is sometimes referred to, the "original writing rule", is addressed at T.R.E. 1001 ‑ 1008. Traditionally, the best evidence rule was to the effect that the best evidence which exists of the fact of a writing sought to be proved must be produced, unless its absence is satisfactorily accounted for.  Sims v. Sims, 24 Tenn. 370 (1844), The old rule is still embodied in T.R.E. 1002 which states to prove the content of a writing, recording, or photograph, the original writing, recording or photograph is required, except as otherwise provided in these Rules or by act of Congress or the Tennessee legislature. Fortunately, the requirement of the "original" is softened by Rule 1003 which allows for the admissibility of duplicates. The Rule states "a duplicate is admissible to the same extent as an original unless a genuine question is raised as to the authenticity of the original."

The term "original" is defined in Rule 1001 (3) to include the writing or recording itself or any counterpart intended to have the same effect by a person executing or issuing it. An original photograph includes the negative or any print. If data are stored in a computer or similar device, any printout or other output readable by sight and shown to reflect the data accurately is an original. The advisory commission comments indicate that electronic imaging/scanned documents would also be considered writings or recordings for purposes of Rule 1001(l), and also notes that the general assembly has enacted the Uniform Photographic Copies of Business and Public Records as Evidence Act, T.C.A. '24‑7‑119 That Act provides, in summary, that when a business has maintained a writing, recording or photograph of any act, transaction, occurrence or event, and in the regular course of its business has caused that item to be stored in some manner, including microfilm, electronic image, or some other means by which the original can be reproduced, then the original itself may be destroyed in the regular course of business unless its preservation is required by law.  The Act then goes on to say that a reproduction, once satisfactorily identified, is as admissible in evidence just as the original itself would have been, whether the original is in existence or not.

A duplicate, which is generally admissible just as an original, is defined as "a copy produced by the same impression as the original, or from the same matrix, or by means of photography, including enlargements and miniatures, or by mechanical or electronic re‑recording, or by chemical reproduction, or by other equivalent techniques which accurately reproduce the original." T.R.E. 1001(4).

The original is not required, and other evidence of a writing, recording, or photograph is admissible pursuant to T.R.E. 1004, if

1.         Originals lost or destroyed ‑ all originals are lost or destroyed, unless the proponent lost or destroyed them in bad faith; or

2.         Original not obtainable ‑ no original can be obtained by any available judicial process or procedure; or

3.         Original in possession of opponent ‑ at a time when an original was under the control of the party against whom offered, that party was put on notice by the pleadings or otherwise that the contents would be a subject of proof at the hearing but does not produce the original at the hearing; or

4.         Collateral matters ‑ the writing, recording, or photograph is not closely related to a controlling Issue.

With respect to public records, T.R.E. 1005 provides that the contents of an official record or document may be proven by a certified copy in accord with Rule 902, or if testified to be correct by a witness who has compared it with the original. Thus, the copy must either be certified or must be proven by a records custodian. If a copy which complies with the foregoing standards cannot be obtained by reasonable diligence, then other evidence of the contents may be given.

Summaries as provided for in T.R.E., 1006, are addressed previously in these materials.

T.R.E. 1007 relates to the testimony or written admission of a party. The Rule provides that the contents of writings, recordings, or photographs may be proved by the testimony, deposition, or written admission of the party against whom they are offered, without accounting for non‑production of the original. The rationale behind this Rule appears to be that if the adverse party has acknowledged the content of some writing, recording or photograph by way of their own live testimony, deposition testimony or written admission, then such admissions by the adverse party amount to sufficient proof.  An example would be that if an adverse party admitted during the course of their deposition that a certain written document existed, and provided for a, b and c, then such content could be proved simply by virtue of that prior deposition testimony, without the necessity of producing the document itself

T.R.E. 1008 delineates the functions of the Court and jury with respect to the admissibility of other evidence of writings, recordings, and photographs. The Rule provides that when the admissibility of other evidence of contents of writings, recordings, or photographs under these Rules depends upon the fulfillment of a condition of fact, the question of whether that condition has been fulfilled is ordinarily for the Court to determine in accord with T.R.E. 104. However, when an issue is raised as to a) whether the asserted writing, recording or photograph ever existed, b) whether another writing, recording or photograph produced at the trial is the original, or c) whether other evidence of contents correctly reflects the contents, that issue is for the trier of fact to determine.

Exclusion of Relevant Evidence on Grounds of Prejudice, Confusion, or Waste of Time

            T.R.E. 403 provides that although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by consideration of undue delay, waste of time, or needless presentation of cumulative evidence. This formal Rule is the codification of that which existed previously by case law for both civil and criminal cases. See, State v. Banks, 564 S.W.2d 947 (Tenn. 1978)

When considering such evidence, or whether to object to such evidence, the first consideration is whether the evidence being offered is in fact relevant. If not, then the proper objection is that such evidence is irrelevant under Rule 402. Rule 403 presupposes that the evidence being offered is relevant, and at that point requires the Court to engage in a balancing test in which they must find that the probative value is substantially outweighed by the listed factors. In addition, with respect to the first consideration, there must be a danger of unfair prejudice. The mere fact that the evidence is prejudicial, in and of itself, is essentially meaningless since most all evidence is going to be prejudicial to one party or the other. By the plain terms of the Rule, one who is seeking to exclude evidence under this Rule has a substantial burden, and should not generally expect to have such motions sustained.

Frequent examples of discussion of Rule 403, in the physical evidence context, are found in criminal law cases where the prosecution often wishes to use photographs of the victim, crime scene, or even the victim's actual body parts. See, State v. Pike, 978 S.W.2d 904 (Tenn. 1998) (this was the local highly publicized Job Corps murder). In the trial relating to this particularly brutal killing, the actual skull of the victim was used as evidence at trial, with the medical examiner testifying that the skull had been reconstructed by a forensic anthropologist, and was then used by the medical examiner to show the amount of force that was applied to it as well as the weapon that was used. Pieces of asphalt were embedded in the skull. The Court found (with the Supreme Court adopting the Court of Appeals opinion on this issue), that the skull had been thoroughly cleansed and found that was no more prejudicial or gruesome than a model diagram would have been. The Court found that there was no question that the nature and type of injury sustained by the deceased and the manner in which the death occurred were relevant considerations by the jury. Id at 925. In another recent case involving explicit photographs of a rape victim, the Supreme Court noted that a photograph is admissible if it is relevant to an issue that is in dispute and if its probative value is not outweighed by its prejudicial affect.  State v. Vann, 976 S.W.2d 193, 1.02 (Tenn. 1998), Note the absence in the prior quote of the term "substantially". The Court went on to state that the decision of a trial judge to admit a photograph into evidence will not be overturned on appeal absent a clear showing of an abuse of discretion. Id. at 103. In the civil context, there may be occasions when photographs or video tapes, particularly of significant injuries, might be sought to be excluded under Rule 403. However, based on the tenor of the cases in the criminal context, the exclusion of such evidence appears rather unlikely.

In a case involving potential undue delay or waste of time, the Court of Appeals upheld a decision to preclude two lengthy (350 pages) sworn statements of an insured in a trial for insurance proceeds.  See, Doochin v. United States Fidelity and Guaranty Company, 854 S.W.2d 109 (Tenn. App. 1993), perm app denied. In Doochin, the insurance carrier on appeal asserted that it should have been able to introduce as exhibits the two lengthy sworn statements taken of its insured prior to trial. The trial judge had ruled that the statements could not be made exhibits, although the attorney for the insurance company was allowed to ask Mr, Doochin about the statements or could read the entire document into the record. The Court of Appeals upheld the decision on two bases. First, that statements were essentially depositions, and pursuant to Rule 32.01(2), while the evidence contained in the deposition may be read into the record, the Rule does not suggest that a deposition may be made an exhibit at trial. Further, the Court found that the decision to exclude the statements was proper pursuant to Rule 403. The Court noted that under that Rule, relevant evidence may be excluded if its admission would cause undue delay or waste of time. To ask each juror to read the 350 pages comprising plaintiff' s statements would have unduly delayed the trial. Id. at 112.

In considering the potential applicability of Rule 403, do not forget that the Rule is applicable beyond the issue of unfair prejudice, and includes several factors, the next most practical of which may be the consideration of needless presentation of cumulative evidence. This can be an issue when one party calls a number of witnesses to prove the same thing, particularly if it is not something that is highly disputed, or may also have application where a party is introducing numerous photographs or documents which may be either cumulative or confusing.

III.       OBJECTING TO THE ORAL TESTIMONY OF WITNESSES

A.        Competence and Reliability

1.         General Competence

From the outset, it should be noted that unless the Tennessee Rules of Evidence or statutes specifically note otherwise, every person is presumed competent to be a witness. (See, Rule 601 of the Tennessee Rules of Evidence). Of course, in order to testify in a court of record in the State of Tennessee, all witnesses must declare that they will testify truthfully by oath or affirmation. Such oath is expected to be administered in a manner that is calculated to "awaken the witness's conscience and impress the witness's mind with the duty to [tell the truth]  (Tenn. R. Evid. 603).

2.         Lay Witnesses

Before a lay witness may testify, the witness must have personal knowledge of the matter being testified about. However, such witness may use his or her own testimony to lay the proper foundation to prove personal knowledge. A lay witness may provide opinions in his or her testimony, or make inferences, so long as such opinions and inferences meet two tests. First, the opinions or inferences must be based upon the perception of the witness. Second, the testimony must be helpful to a clear understanding of the witness's testimony or the determination of a fact at issue. (Tenn. R. Evid. 701). As a practical matter, most objections regarding whether the opinions are helpful to a clear understanding of the witness's testimony are most often seen with expert witnesses. However, objections as to lay witness opinions are often seen.

Example: A witness at an accident scene testifies that an individual Involved in the accident was "drunk". This is an acceptable means of giving lay opinion testimony since the witness would probably have a difficult time otherwise explaining the condition of the allegedly intoxicated person without rendering an opinion. However, such witness can be expected to be required lay proper foundation before such an opinion can be given. Such foundation typically is prepared by allowing the witness to testify about his or her personal experiences with alcohol including the observations of others.

3.         Expert Witnesses

Unlike lay witnesses, expert witnesses may base their opinions on the factual findings of others. (Tenn. R. Evid. 602). It is for this reason that experts are sometimes allowed to stay in the courtroom to hear testimony of other witnesses which can, subsequently, support opinions of the expert. In order to have an expert remain in the courtroom, the attorney should take the position with the court (Rule 615(3) of the Tennessee Rules of Evidence) that such expert and his opinions are essential to the presentation of the parties cause. An attorney seeking to prevent the expert from staying in the courtroom may gain some success by showing that the expert has already rendered opinions by report, deposition, or otherwise, and that even if the expert forms new opinions at this late stage, it would be unfair to allow such opinions to be submitted to the trier of fact without the opportunity for proper discovery. At this point, the attorney seeking to keep the expert in the courtroom should point out to the court that pursuant to Rule 703 of the Tennessee Rules of Evidence, [t]he facts or data in the particular case upon which an expert bases an opinion or inference may be those perceived by or made known to the expert at or before the hearing." (Tenn. R. Evid. 703). However, an often overlooked objection is based upon whether the testimony even requires expert opinions. A close look at Rule 702 of the Tennessee Rules of Evidence discloses that an expert witness must satisfy two significant tests. First, scientific, technical, or other "specialized knowledge" must be needed to substantially assist the trier of fact to understand the evidence or to determine a fact in issue. Second, the witness must be qualified based upon his knowledge, skill, experience, training, or education. (Tenn. R. Evid. 702). The gray area of determining whether the expert's testimony will "substantially assist" the  jury is a question for the court. Such question to the court is generally considered under Rule 104(a) of the Tennessee Rules of Evidence regarding general admissibility of testimony. The basis of an expert's opinion must be of a type reasonably relied upon by experts in the particular field. (Tenn. R. Evid. 703). The court "shall disallow testimony in the form of an opinion or inference if the underlying facts or data indicate lack of trustworthiness." (Id.) If the appropriate foundations are met, an expert witness can testify with opinions that are based upon inadmissible hearsay. For example, a physician may base his opinion on reports of other professionals. (New Jersey Zinc Company v. Cole, 532 S.W.2d 246 (Tenn. 1975)).

In Tennessee, under the recent rules, a trial court must determine whether the evidence will substantially assist the trier of fact to determine a fact in issue and whether the facts and data underlying the evidence indicate a lack of trustworthiness.  The rules together necessarily require a determination as to the scientific validity or reliability of the evidence. Simply put, unless the scientific evidence is valid, it will not substantially assist the trier of fact, nor will its underlying facts and data appear to be trustworthy, but there is no requirement in the rule that it be generally accepted. 

A non-exclusive list of factors to determine reliability are useful in applying our Rules 702 and 703.  A Tennessee trial court may consider in determining reliability: (1) whether scientific evidence has been tested and the methodology with which it has been tested; (2) whether the evidence has been subjected to a peer review or publication; (3) whether a potential rate of error is known; (4) whether, as formerly required by Frye, the evidence is generally accepted in the scientific community; and (5) whether the expert=s research in the field has been conducted independent of litigation.

Although the trial court must analyze the science and not merely the qualifications, demeanor or conclusions of experts, the court need not weigh or choose between two legitimate but conflicting scientific views.  The court instead must assure itself that the opinions are based on relevant scientific methods, processes and data, and not upon an expert=s mere speculation.  The trial court should keep in mind that the preliminary question under Tenn.R.Evid. 104 is one of admissibility of the evidence.  Once the evidence is admitted, it will thereafter be tested with the crucible of vigorous cross-examination and counterveiling proof.  Wilson v. CSX Transp., Inc., 2003 Tenn App Lexis 221 *13.

Though there are limitations on lay witnesses providing testimony on certain ultimate issues (See Blackburn v. Mulph , 737 S.W.2d 529 (Tenn. 1987)), opinions or inferences given by an expert are not objectionable simply because they embrace the ultimate issue to be determined (Tenn. R. Evid. 704).

It is not objectionable for an expert witness to rely upon and base opinions upon statements contained within published treatises, periodicals, or pamphlets on a "subject of history, medicine, or other science or art, established as a reliable authority by the expert". (Tenn. R. Evid. 618). Likewise, such materials may be used to cross‑examine a witness. However, Rule 618 of the Tennessee Rules of Evidence specifically notes that such materials may not be received as substantive evidence. Therefore, any such materials should either not be made exhibits or be marked as exhibits for identification only.

4.         Bias or Prejudice

While there is no basis for making the immediate objection that a particular witness is not competent or reliable simply because the witness is biased or prejudiced, such witness may be attacked through cross‑examination, extrinsic evidence, or both in an effort to show that the bias or prejudice against a party or other witness exists. (Tenn. R. Evid. 616).

5.         Impaired Capacity

If a witness has his or her capacity impaired either at the time of the occurrence at issue, or while giving testimony, evidence of such impaired capacity may be given. (Tenn. R. Evid. 617). While the Tennessee Rules of Evidence only state that evidence of such impaired capacity may be given, some courts may find that the impaired capacity is to such an extent that the personal knowledge test may not be met and, subsequently, the witness may not testify.

B.        Objections During Examination of the Witnesses

1.         The Decision of Whether to Object

Both the beginning and the end of this chapter deal with various types of objections. However, the decision of whether an objection should be made is critical and, more often than not, a decision that must be made instantly. In determining whether or not to object to the oral testimony of a witness, consideration must be given to the results associated with making such an objection. Such consideration should take into account the balancing of several issues. Several important issues are listed below.

a.         The likelihood of the objection being sustained. One of the first considerations is whether the objection, made before a jury, will even be sustained. Except under certain circumstances, there is no advantage to being overruled on objections in front of a jury. Furthermore, such objections can easily upset a jury if the jury thinks that the objecting attorney is attempting to prevent the jury from receiving important information. This is not to mention the fact that a jury can become frustrated at an interruption of the flow of testimony. Furthermore, if an attorney consistently is overruled on his objections, having given little thought to the anticipated ruling of the court, the jury may begin to wonder about the attorney's level of skill.

b.         Waiting too long to object. Everyone has heard of letting the "toothpaste out of the tube." This is probably one of the most common mistakes made in objecting to oral testimony. Once the testimony is out, unless the testimony is so harmful that the record must be protected and a cautionary instruction given to the jury, it will probably be of little benefit to the objecting attorney to draw the jurors' attention to certain testimony that was just entered. This is particularly true if the objectionable testimony was in the middle of other admissible testimony or perhaps in the middle of a long stretch of testimony to which the jury was not paying close attention anyway. Human nature being what it is, a subsequent statement by the judge to the jury that they should discard such testimony will probably be of no benefit to the objecting attorney.

c.         Giving the jury what they want. One of the most important elements to be thrown into the immediate decision of whether an objection should be made is the element of giving consideration to what the jury wants. If the jury has heard a witness say the same thing over and over, the jury will probably be thankful to hear someone object to repetitive testimony. Of course, this works both ways. Perhaps a jury wants to hear certain testimony that is objectionable. While you do not want to ask a question that will result in evidence that is clearly objectionable, once such testimony comes out, even if totally unsolicited or unexpected, an effective response may simply be to submit that such testimony is relevant and is helpful to the jury to understand the whole picture.

d.         Protecting the record. Occasionally, even though testimony may have already come out, it is necessary to make an appropriate objection to protect the record for purposes of appeal or post trial motions. In these cases, where timely objection is critical, make a short, to the point objection, giving the basis of the objection with no argument, and ask to approach the bench. On these occasions, it is important to either ask the court reporter to get in a position where the objection and argument may be taken down or, alternatively, to ask the court to allow you to put the objection, argument, and ruling on the record during a break when the jury is not present.

e.         Depositions for proof.  Rules 30 and 32 of the Tennessee Rules of Civil Procedure control depositions and the use of depositions in court proceedings. Pursuant to Rule 32, any part or all of a deposition, so far as it is admissible under the Rules of Evidence, may be used at trial against any party that was present or represented at the taking of the deposition or against any such individual who had reasonable notice of the deposition. (T.R.C.P. 32.01). However, objection may be made at the trial or hearing to receiving in evidence any deposition or part of such deposition "for any reason which would require the exclusion of the evidence if the witness was then present and testifying." (T.R.C.P. 32.02). While the Rules of Civil Procedure seem to support the position that an objection to testimony in a proof deposition, such as the deposition of a doctor that is going to be read to the jury, may be made for the first time at trial; This is a dangerous argument. Courts are typically compelled by the counter argument that if the objection was not made during the taking of the deposition for proof, the attorney taking the deposition was not given the appropriate opportunity to fix any potentially inadmissable testimony, which is an opportunity that would have existed if the witness were testifying live. For this reason, it Is always the best practice to state the objection, and the basis of such objection, at the proper time during the taking of a deposition for proof.

C.        The Defensive, Elusive, or Hostile Witness

1.         The Out of Control Witness

Some witnesses are difficult to control. Whether the witness is simply being defensive, hostile, or is purposely being elusive, damage can be done if the witness is not brought under control. In some cases, the jury becomes upset with the witness and the witness's inability to act appropriately, or simple lack of desire to do so, and his or her actions will backfire on the witness. However, there are often occasions when testimony must be elicited from the witness, and allowing the witness to avoid answering questions will not work. In these instances the attorney should object to the conduct of the witness and ask that the court, pursuant to Rule 611(a) of the Tennessee Rules of Evidence, exercise control over the presentation of evidence. The attorney opposing such objection should note that Rule 611 (a) mandates that the court exercise control over the presentation of evidence and conduct of the trial "to avoid abuse by counsel." Arguably, the Tennessee Rules of Evidence do not require a witness to be cooperative.

2.         Leading Questions

Objections may be made to leading questions asked on direct examination other than as is necessary to develop testimony. Of course, leading questions can and should be used on cross examination. Leading questions are the best way to handle a defensive, elusive or hostile witness. Occasionally, a witness actually called by an attorney (such as an ex‑boyfriend or girlfriend of a party) is defensive or elusive. If this happens, rather than simply asking leading questions and hoping that opposing counsel does not object, it may be of benefit to go ahead and ask the court to determine that, pursuant to Rule 611 (c) of the Tennessee Rules of Evidence, the witness that has been called is a hostile witness and that, therefore, counsel desires to question the witness by leading questions

D.        Common Objections to Oral Testimony And How to Respond to Them

1.         Hearsay

a.         Definition. " 'Hearsay' is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted." (Tenn. R. Evid. 801(c)). Other than a litany of exceptions set forth under Rule 803 of the Tennessee Rules of Evidence, hearsay is not admissible. However, it is extremely common for attorneys to characterize everything that is said outside of court as "hearsay" and then to attempt to find out whether an exception exists. Even judges will typically tell a witness that "you can't testify about what someone else told you." A great many objections to hearsay would be overruled if the attorney attempting to offer such testimony would respond to the objection by pointing out that the testimony is either not being offered for the truth of the matter asserted or that the testimony is operative facts. Each of these is addressed below.

 V.        HEARSAY EVIDENCE

A.        What Determines Hearsay vs. Non‑Hearsay

In order to best make and manage objections in the realm of hearsay evidence, it is important both to anticipate proffered hearsay in advance of trial and to become adept at spotting hearsay evidence as it is offered at trial. A solid understanding of the definition of hearsay is therefore required. The Tennessee Rules of Evidence provide that, "Hearsay' is a statement, other than one made by the declarant while testifying at trial or hearing, offered in evidence to prove the truth of the matter asserted." Tenn.R.Evid. 801 (c). This deceptively simple definition is best understood by breaking it down into two parts.

1.         First, a declarant must have made an out of court statement. This statement' may be oral, written or in the form of non‑verbal conduct amounting to an assertion. The person originally making the Astatement@, the declarant must have intended to relate some information to the witness who is in court testifying.

2.         Second, this out of court statement must be offered in court to prove the truth of the matter asserted. This can be a difficult exercise in mental gymnastics while sitting at counsel table listening to a barrage of questions posed by opposing counsel. Basically, if the truth of the matter asserted in the statement is irrelevant to what is being proven, you do not have a hearsay issue. See Donald F. Paine, Hearsay in 10 Easy Steps, TENN. B.J. 31 (May/June 1997).

A classic example of this type of non‑hearsay comes up when a witness to a murder is on the stand to testify on behalf of the defendant who is claiming self-defense. The witness testifies that, just prior to the defendant killing the victim, he heard the victim say something to the effect of, "I am going to kill you," while simultaneously pulling and pointing a gun at the defendant. Both the oral and non­verbal assertions are statements intended to communicate the message that the declarant actually intended to kill the defendant.

These statements fail the second step of the analysis, however, because the truthfulness of the matter asserted in the statements is irrelevant. In order to show that the defendant killed in self‑defense, it is irrelevant whether or not the victim actually intended to kill the defendant as long as the defendant reasonably believed this to be the case. In this case the evidence should be admitted as relevant non‑hearsay.

Recognizing hearsay is never going to be simplified to a mindless task for any lawyer. However, using the basic analysis above, you should be able to begin to develop a feel for recognizing potential hearsay issues and quickly deciding whether or not the evidence offered does in fact amount to objectionable hearsay.

B.        Blocking Unreliable Hearsay

Effective trial lawyers must learn the skill of quickly recognizing hearsay in order to make timely objections and block unreliable evidence from being admitted against them. There are traditionally four considerations that lead to the exclusion of hearsay evidence. These are the possibilities of the statement's ambiguity, the declarant's insincerity, the declarant's unreliable memory, and the declarant's faulty perception of the subject of the statement. See Neil P. Cohen, et al., Tennessee Law of Evidence 491 (3d Ed. 1990). Without having the declarant in the court room, subject to cross‑examination by counsel and observation by the jury, it is not possible to overcome these traditional worries.

Being able to quickly spot and object to hearsay before it comes out of the witness' mouth is an important skill to develop. If a witness is allowed to blurt out a statement which would be excluded upon proper objection, the damage is often done regardless of any limiting instruction subsequently given to the jury by the Court.

One should not jump the gun on objecting to evidence being offered that is hearsay on its face. Evidence can be admitted in certain situations described below despite fitting the description of traditionally unreliable hearsay.

C.        Exceptions

The rules provide a number of exceptions to the hearsay rule which allow such evidence to come in despite being hearsay because the circumstances under which the statement was made tend to alleviate one or more of the traditional concerns listed above. See Neil P. Cohen, et al., Tennessee Law of Evidence 492 (3d Ed. 1990). The following is a brief overview of the exceptions to the hearsay exclusionary rule available under the Tennessee Rules of Evidence:

1 .        Prior Statement of Identification by Witness.

This exception allows testimony in the form of a prior statement of identification of a person by a witness. In order to have evidence admitted under this exception, the declarant must testify at the trial or hearing, thus making herself subject to cross-examination. This is treated as a traditional hearsay exception as opposed to non-hearsay under the Federal Rules. Tenn.R.Evid. 803 (1.1).

2.         Admission by Party‑Opponent.

This exception appears complicated at first glance, but, luckily, is relatively straightforward. After determining that the initial statement is indeed hearsay, it is wise to check to see if the statement falls within this exception. If the statement was made or attributable to the opposing party as described in the rule, it will be admitted as an admission. Tenn.R.Evid. 803(1.2).

An important distinction between this rule and its federal counterpart is that a vicarious admission (a statement made by a party opponent's agent in the scope of his agency) may come in under the Tennessee rule only if the statement was against the declarant/agent's interest at the time it was made. Again, this is treated as a traditional exception to the hearsay rule as opposed to non‑hearsay under the Federal Rules.

3.         Excited Utterance.

This exception, identical to its federal counterpart, simply allows statements, otherwise hearsay, to be admitted if the declarant's statement related to a startling event and was made while under the stress of excitement caused by the event. Tenn.R.Evid. 803(2). This exception exists because at least two of the traditional concerns with hearsay evidence are alleviated.

First, the declarant is unlikely to be insincere while under the stress of excitement caused by the startling event. Also, the reliability of the declarant's memory is a non‑issue because of the short amount of time separating the event and the statement concerning it.

4.         Then Existing Mental, Emotional, or Physical Condition.

Known as the state of mind hearsay exception, this exception allows testimony of a declarant's then existing (at the time of the statement) state of mind or physical condition. Tenn.R.Evid. 803(3). An important use of this exception by a skilled lawyer is to get in statements of the declarant's state of mind to prove present or future conduct.

For example, if a declarant said, "I really hate Johnny," this would get in through this exception for the purpose of proving that the declarant did something harmful to Johnny later on. This exception can not be used to prove conduct of a third party or past conduct of any party (except in wills cases).

5.         Statement for Purposes of Medical Diagnosis and Treatment.

Statements made for the purposes of medical diagnosis and treatment (medical history, symptoms or cause) are admissible under this exception. Tenn.R.Evid. 803(4). This exception exists because it alleviates one of the traditional concerns with hearsay. A declarant is presumed to be speaking truthfully and sincerely when giving statements to a physician for the purpose of diagnosis and treatment so that the chances of a proper diagnosis and effective treatment will be maximized.

It is important to note that in Tennessee the statement must be for both diagnosis and treatment as opposed to the Federal counterpart's diagnosis or treatment requirement. Therefore, the Tennessee requirement is more restrictive than the Federal and, as a result, statements made to experts in preparation for trial for the purpose of diagnosis only do not come in under this exception (although they may get in under other rules regarding the basis of expert testimony).

6.         Recorded Recollection.

A recorded statement, shown to be made or adopted by a witness at a point in time when the witness had accurate knowledge of the subject of the statement and this accuracy is reflected in the statement, may be admitted under this rule only if the witness is currently unable to testify fully and accurately. Tenn.R.Evid. 803(5). As with the prior identification exception, the declarant must testify at the trial or hearing in order to be subjected to cross‑examination.

7.         Records of Regularly Conducted Activity.

This is an often used exception when litigating in many areas of the law. Business records that are prepared at or near the time of the event recorded, by someone with personal knowledge and a duty to record in the regular course of that business' activities are admissible to prove the truth of the contents of those records. Tenn.R.Evid. 803(6). It is important that you pay close attention to the multiple declarants issue and either establish that each was under a business duty or find another exception for those who are not.

8.         Public Records and Reports.

Public records and reports prepared by public officials are admitted under this exception because of a presumption in favor of their reliability. Tenn.R.Evid. 803(8). One important exception to the exception is that police reports are inadmissible explicitly under this rule and by statute pursuant to T.C.A. ' 55‑10‑114(b).

9.         Records of Vital Statistics.

All records concerning birth, fetal deaths, deaths, marriages or divorces get in under this exception. Tenn.R.Evid. 803(9). The heightened presumption of reliability allows this particular flavor of official records to get in without the requirement that the record be prepared by a public official.

10.       Marriage, Baptismal, and Similar Certificates.

Certificates from these religiously based ceremonies are admitted under this exception because of their high probability of accuracy and the short time between the event and the preparation of the certificate eliminates concerns of the unreliable memory of the maker. Tenn.R.Evid. 803(12).

11.       Family Records.

This exception allows evidence of personal or family history contained in bibles, tombstones, portraits and the like to be admitted in to evidence to prove facts contained therein. Tenn.R.Evid.  803(13).

12.       Records of Documents Affecting an Interest in Property.

Copies of documents recorded in the real estate records are admissible under this exception to prove the original document contained identical language. Tenn.R.Evid.  803(14).

13.       Statement in Ancient Documents Affecting an Interest in Property.

This exception allows admission of documents affecting property rights (deeds, security interests, etc.) that are thirty years old or older. Tenn.R.Evid. 803(16). The documents do not have to be recorded as in the previous exception and are admitted because of a diminished likelihood that at the time of making, the documents were falsified in anticipation of the present litigation.

14.       Market Reports and Commercial Publications.

This is a straightforward exception allowing published market quotes, tabulations, etc. to be admitted due to the enhanced presumption of accuracy which must necessarily accompany such reports that are relied on by the public in making everyday financial decisions. Tenn.R.Evid. 803(17).

15.       Reputation Concerning Personal or Family History.

Evidence of reputation among family or community can be admitted under this exception to prove an individual's pedigree. Tenn.R.Evid. 803(19). This exception (as well as the family records exception, above) enables you to prove a person's pedigree by introducing hearsay.

16.       Reputation Concerning Ancient Boundaries.

In a dispute over property boundaries, evidence of the reputation of the boundaries in a community arising before the present controversy and existing for at least thirty years may be admitted under this exception. Tenn.R.Evid. 803(20).

17.       Reputation as to Character.

When used in conjunction with the Tennessee Rules of Evidence governing relevance, this exception opens the door for evidence of a person's reputation in the community as to character. Tenn.R.Evid. 803(22).

18.       Judgment of Previous Conviction.

This exception permits admission of prior convictions for offenses punishable by death or imprisonment for more than a year. Tenn.R.Evid. 803(22). This is presumably reliable because of the high burden of proof the prosecuting attorney had to overcome as well as the prior defendant's incentive to put on his best defense.

19.       Judgment as to Personal or Family History or Boundaries.

Prior judgments to which matters of personal or family history or boundaries were essential are an inherently more reliable manner of introducing evidence of such matters than other exceptions discussed previously and are admitted under this exception. Tenn.R.Evid.  803(23).

20.       Children's Statements.

This is an exception, limited to a small number of civil actions involving child dependency or neglect, which allows hearsay evidence to be admitted in the form of statements made by young children with respect to abuse or neglect, assuming the circumstances do not indicate a lack of trustworthiness. Children thirteen years of age or older must testify or be unavailable as discussed below in order to have the exception apply. Tenn.R.Evid. 803(25).

21.       Former Testimony.

This is the first of the four hearsay exceptions which require that the declarant be unavailable to testify. The rules classify a declarant as unavailable whenever the declarant is exempted from testifying by reason of privilege, refuses to testify, lacks sufficient memory of the subject matter of the previous statement, is physically incapable of testifying (death, illness, etc.), or the party wishing to introduce the statement is unable to bring about the declarant's attendance by process. Tenn.R.Evid. 804(a).

Assuming unavailability of the declarant, the former testimony exception allows sworn testimony, given by the declarant at a prior proceeding at which the party against whom the evidence is now offered had an opportunity and similar motive to examine the declarant, to be admitted into evidence. Tenn.R.Evid. 804(b)(1).

22.       Statement Under Belief of Impending Death.

The second of the hearsay exceptions requiring the unavailability of the declarant, this exception admits hearsay in homicide prosecutions in the form of statements made by homicide victims concerning the circumstances of their death made while under the reasonable belief that their death was imminent. Tenn.R.Evid. 804(b)(2). This exception will only be used by lawyers practicing in the criminal area, particularly prosecuting or defending homicide cases.

23.       Statement Against Interest.

The next hearsay exception which requires that the declarant be unavailable is the statement against interest exception. Statements made by declarants which, when made, were against certain of the declarant's interests may be admitted under this rule. Tenn.R.Evid.  804(b)(3). For example, the statement made by a non‑party declarant shortly after an accident that he caused the accident by running the red light could come in under this exception.

24.       Statement of Personal or Family History.

Finally, the last of the Tennessee hearsay exceptions, also requiring unavailability of the declarant, is the rule allowing statements of personal or family history of the declarant or someone very close to the declarant so long as the statement was made prior to when the controversy arose. Tenn.R.Evid. 804(b)(4). These statements are deemed reliable because, absent controversy, the declarant would be unlikely to lie about his own personal or family history or that of someone close to him.

D.        Refuting Hearsay Objections

The best way to refute hearsay objections is to deal with them before they are ever made. The examination, especially direct, of a witness by a well prepared attorney after proper discovery is extremely predictable. In preparing for the examination it is possible to foresee what evidence you will present which may be objected to on the grounds of hearsay.

After getting a good idea of the evidentiary issues you will likely run into at trial, you can begin to match the evidence you wish to present with the applicable hearsay exception or prepare to present the evidence in a way which enables you to avoid the hearsay issue altogether. For example, instead of asking your witness what he or she told the investigating officer at the scene of an accident about a certain fact, have the witness speak from personal knowledge and tell the jury directly about that fact. Objections on the grounds of hearsay are fairly common, however, the well‑prepared attorney should be able to thwart these objections through careful planning and foresight.

The author has made liberal use of update materials provided in Kay & Weissenberger, Tennessee Evidence 2004 Courtroom Manual, Anderson Publishing Company (2003).  The author greatly appreciates Kay & Weissenberger=s excellent work and recommends it to all who may have need of an excellent reference work.