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.

Although not specifically involving physical evidence, there are cases relevant in the civil context involving Rule 403 relating to other accidents, traffic violations and criminal convictions. In Woodson v. Porter Brown Limestone 916 S.W.2d 896 (Tenn. 1996), evidence was offered that the defendant employer knew of its driver's poor eyesight, knew that he did not wear glasses, knew of his prior accidents, and nevertheless entrusted him to drive their truck. Proof involving the other accidents was that the driver had been involved in nine prior accidents, including at least two rear‑end collisions. Plaintiff offered that evidence to establish that the employer was negligent in entrusting its vehicle to such driver. The trial Judge had agreed that the evidence was probative on the essential elements of the claim of negligent entrustment, but excluded it under Rule 403 finding that it was "so good that its prejudicial." The Supreme Court disagreed with the trial judge's conclusion that the probative value of that proof was "substantially outweighed by the danger of unfair prejudice" pursuant to T.R.E. 403, and held that the plaintiff should have been allowed to introduce that evidence in its case in chief. The Supreme Court suggested that on retrial, the trial judge should give a detailed limiting instruction advising the jury as to the use of that evidence. The suggested instruction is as follows:

You have heard evidence regarding prior accidents regarding Mr. Morris while employed by Porter Brown. You may consider that evidence only as it relates to plaintiffs claim that Porter Brown entrusted Mr. Morris to drive their truck even though they knew he was an incompetent driver. In other words, you may consider that evidence only on the negligent entrustment claim against Porter Brown. Do not consider it for any purpose whatsoever in your evaluation of whether Mr. Morris's negligence was the proximate cause of this accident.

916 S.W.2d at 908, footnote 11.

In the case of Herbert v. Breazeale, 902 S.W.2d 933 (Tenn. App. 1995), perm. app denied, the plaintiff sought to introduce proof of a post‑accident arrest for driving while intoxicated. Prior to trial, the trial judge had granted defendant's motion in limine which sought to prevent reference by the plaintiff to any traffic violation or criminal violation of the defendant which occurred after the subject accident. The Court sustained the defendant's motion, finding that any such instances occurring after the incident were irrelevant and that the prejudice to the defendant would overcome any probative value they might have. On appeal the plaintiffs contended that they were proceeding pursuant to T.R.E. 608(b) involving specific instances of conduct, and that that Rule prevailed over the provisions of Rule 403. Plaintiffs counsel stated that they were only seeking to cross‑examine the defendant about an alleged false statement that he made in his deposition concerning his driving record, that being that he had not had any traffic violations since the subject accident. In a fairly lengthy discussion, the Court of Appeals found that Rule 608(b) also required that the Court determine if the probative value of such evidence outweighs it prejudicial affect. Accordingly, the Court of Appeals found that the trial Court had properly exercised its discretion in excluding the proffered evidence.

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 demeanor, qualifications, or conclusions of experts, the court need not choose between two conflicting, yet legitimate, scientific views. The court must be assured that any opinion is based on related scientific methods, data, and processes, 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.

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