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 can result in stricken testimony or a mistrial, Presumably, this would apply 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.

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