THE TATE LAW FIRM
Mary Lynn Tate lynntatefalnfLxs.com
October 22, 2008
The Hon. Diane M. Strickland, Chair Boyd-Graves Conference 809 Oakwood Drive, S.W. Roanoke, VA. 24015
Re: Boyd-Graves study of the use and admission of demonstrative evidence
At your request it has been my pleasure to chair the committee to address issues related the use and admissibility of demonstrative evidence. In particular you indicated your expectation that we address the following:
1) the use/admission of summary exhibits and charts (taking into consideration the Federal Rule and N&W v. Puryear) [Norfolk & Western Railway Co. v. Puryear, 250 v. 559, 463 S.E.2d 442 (1995)] 2) the use of trial transcripts in closing 3) possible amendment of the scheduling order.
Our committee met by telephone conference on several occasions to discuss the issues for study set forth above. Although few members of the committee had personally experienced a problem in this area of inquiry, some had and we were made aware of problems encountered by others through canvassing our colleagues.
Abingdon Professional Centre, 110 Abingdon Place, Abingdon, VA. 24211 Phone: (276) 628-5185 Fax: (276) 628-5045 In addition to the items that you requested we address, we also discussed the following:
1. difficulties defining and admission of demonstrative v. substantive, real v. illustrative evidence 2. other Puryear "summaries" issues, i.e. damages, medical bills lists, etc. 3. preapproval procedures for use in opening 4. use of pleadings, transcripts, jury instructions 5. blow ups, projection and other visual exhibition of substantive evidence 6. artist renderings depicting actual injuries, cuts, fractures, etc. 7. models, visual aids (examples: normal x-ray to compare to actual x-ray, anatomical drawing, intersection sketch, etc.) 8. computer generated processes, animations, reconstructions
The committee considered a Virginia version of Federal Rule of Evidence 1006 which now provides: Rule 1006. Summaries
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, shall be made available for examination or copying, or both, by other parties at reasonable time and place. The court may order that they be produced in court. The admission of summaries of voluminous books, records, or documents offers the only practicable means of making their contents available to judge and jury. The rule recognizes this practice, with appropriate safeguards. 4 Wigmore § 1230.
A summary of current Virginia law was provided to the Committee through the generosity of Judge Cliff Weckstein and the hard work of his law clerks and is attached as part of the Committee's report.
While acknowledging the apparent occurrence of some erroneous rulings in connection with the use and admission of some types of demonstrative evidence and some apparent misapplications of the Puryear holding, the Committee felt that new rule(s), unless extremely well thought out, might hamstring counsel and the trial courts in unintended ways.
The Committee agreed that a Virginia version of FRE 1006 would be useful given some applications of Puryear and therefore recommends that the Conference adopt the following recommendation for adoption by the Court:
The contents of voluminous writings, recordings, or photographs which cannot conveniently be examined iFJ CetHt
Because of these circumstances and the seriousness of the issues involved, the Committee respectfully requests that the subject be included for study at a future Conference.
/s/ Mary Lynn Tate Mary Lynn Tate
c: Robert Ballou Brad Cann Phil Coulter Doug Rucker Alan Rudlin Andrew Sacks Hon. Cliff Weckstein To: Judge Weckstein Date: June 23, 2008
The following list of Virginia case summaries involve different types of demonstrative evidence. The Law of Evidence in Virginia defines "illustrative evidence" as evidence which "include[s] such items as models, maps, photographs or diagrams used by a witness to illustrate his or her verbal testimony and render his or her statements more meaningful for the jury." 1-1 The Law of Evidence in Virginia § 1-3. "Real evidence," on the other hand, "involves the exhibition of a physical object, which has itself been involved in the incident under litigation ... " Id.
"Demonstrative evidence" has been used to refer to both illustrative and real evidence in Virginia. See Kehinde v. Commonwealth, 1 Va. App. 342, 338 S.E.2d 356 (1986)(doll as "demonstrative" evidence); contrast Jones v. Commonwealth, 228 Va. 427, 441-42,323 S.E.2d 554,561-62 (1984)(bag of jewelry from crime scene as "demonstrative" evidence). To avoid confusion, the main categories will distinguish between real evidence and illustrative evidence and use the general term "demonstrative evidence" when referring to both real and illustrative evidence. The categories and subcategories are as followed:
1. Discretion of the Trial Court in Admitting Demonstrative Evidence 2. Illustrative Evidence in Opening Statements and Closing Arguments 3. Real Evidence 4. Illustrative Evidence a. Photographs b. Videotapes c. Crime Demonstrations d. Maps, Sketches, Charts, Diagrams . e. Oral Testimony as Exhibits f. Documents Not in Dispute
Case summaries are listed in reverse chronological order. Also, some cases are cited multiple times under different headings.
The following case holdings illustrate that the decision of whether proffered demonstrative evidence will be admitted into evidence is left to the sound discretion of the trial court, which is vested with "very considerable latitude." Curtis v. Commonwealth, 3 Va. App. 636, 642, 352 S.E.2d 536, 540 (1987) The trial court has no discretion, however, to admit "clearly inadmissible evidence." Norfolk & Western Railway Co. v. Puryear, 250 Va. 559, 563,463 S.E.2d 442,444 (1995). Demonstrative evidence is "inadmissible" if it is highly prejudicial and without significant probative value. Mackall v. Commonwealth, 236 Va. 240,254,372 S.E.2d 759, 768 (1988). An appellate court is not to intelfere unless there has been an abuse of discretion. Peoples v. Commonwealth, 147 Va. 692, 705, 137 S.E. 603,606-07 (1927).
o Mullins v. Commonwealth, 1996 Va. App. LEXIS 455 (1996)("Generally, the 'admission of items of demonstrative evidence to illustrate testimonial evidence is... a matter within the sound discretion of a trial court.' However such evidence is inadmissible if it is highly prejudicial and without significant probative value.")(quoting Mackall v. Commonwealth, 236 Va. 240, 254, 372 S.E.2d 759, 768 (1988)).
o Breard v. Commonwealth, 248 Va. 68, 82,445 S.E.2d 670,678 (1994)("Time and again, we have ruled that the admission into evidence of photographs depicting the victim and the crime scene is a matter resting within the sound discretion of the trial court").
o Curtis v. Commonwealth, 3 Va. App. 636, 642, 352 S.E.2d 536, 540 (1987)("[t]he use of charts lies within the sound discretion of the trial judge, who is allowed very considerable latitude with respect to the substance and form of the parties' presentation of the case. ").
o Norfolk & Western Railway Co. v. Puryear, 250 Va. 559, 463 S.E.2d 442 (1995) (explaining that "the admissibility of [written summaries of oral testimony] is not subject to the discretion of the trial court" because "[a] 'trial court has no discretion to admit clearly inadmissible evidence ... "')(quoting Coe v. Commonwealth, 231 Va. 83, 87, 340 S.E.2d 820, 823 (1986)).
o Jones v. Commonwealth, 228 Va. 427, 450,323 S.E.2d 554,566-67 (1984) ("We have held repeatedly that the admissibility of photographs depicting the body of a murder victim is a matter within the sound discretion of the trial court.").
o Peoples v. Commonwealth, 147 Va. 692, 705, 137 S.E. 603, 606-07 (1927)(explaining that "[a]rgument by means of illustration, such as exhibiting to the jury models, tools, weapons, implements, etc., is a matter of every day practice. A discretion is vested in the trial court to prevent an abuse of the use of such illustrations, and unless there has been such an abuse, [an appellate] court will not interfere.").
Virginia courts have permitted illustrative evidence to be used during closing arguments so long as those demonstrations! illustrations are supported by the evidence. See Certified T.V. & Appliance Co. v. Harrington, 201 Va. 109, 115, 109 S.E.2d 126, 130-31 (1959). The Supreme Court of Virginia recently ruled it permissible in Riverside Hospital v. Johnson to show the jury bar graphs and journal articles during opening statements. Riverside Hospital v. Johnson, 272 Va. 518,525,636 S.E.2d 416, 419 (2006). o Jackson v. Warden of the Sussex I State Prison, 271 Va. 434, 440, 627 S.E.2d 776, 784 (2006) (denying defendant's ineffective assistance of counsel claim where counsel did not object to prosecution's pillow demonstration during closing arguments because the Court held after reviewing the trial records that the Commonwealth's demonstration did not distort the evidence concerning the manner of the victim's death).1
o Riverside Hospital v. Johnson, 272 Va. 518, 525, 636 S.E.2d 416, 419 (2006) (holding it permissible to show bar graphs and journal articles, which were not introduced into evidence, to the jury during the opening statement. The defendants argued that statistics from the graphs and journal articles were impermissible because the articles were "not evidence." The Court rejected this argument explaining, "[A]n opening statement is argument of counsel, and does not involve admission of evidence." It further concluded that the trial court's decision to allow references to the bar graphs was "if error,[] harmless erroL").
o Jackson v. Commonwealth, 267 Va. 178,201-02,590 S.E.2d 520, 533 (2004)(holding that circuit court did not abuse its discretion in allowing the Commonwealth to display an "in-life" photograph of the victim during closing argument in the guilt phase of the trial for approximately seven seconds while not allowing the jury to take the photograph into the jury room).
o Certified T.V. & Appliance Co. v. Harrington, 201 Va. 109, 115, 109 S.E.2d 126, 130-31 (1959)(holding that it was improper speculation for plaintiff counsel's to use a mathematical formula during closing argument putting forth on a blackboard the claim of pain, suffering, mental anguish, and the percentage of disability suggested by him on a per diem or other fixed basis, but not error for counsel to place figures on a blackboard, which were supported by the evidence).
o Curtis v. Commonwealth, 3 Va. App. 636, 642, 352 S.E.2d 536, 540 (1987)(holding that the trial court did not err in allowing the Commonwealth to use a chart during closing arguments that had not been introduced into evidence where the chart represented a recitation in orderly form of unique similarities between three crimes and everything in the chart was supported by the evidence in the case).
o Phillips v. Fulghum, 203 Va. 543, 550, 125 S.E.2d 835,840 (1962)(holding that the use of a chart during the closing argument characterizing the plaintiff's injuries as "permanent" was proper and supported by the evidence where an expert testified that the plaintiff's condition was permanent unless corrected by surgery).
1 A successful ineffective assistance of counsel claim alleging the improper use of demonstrative evidence in a closing argument requires that the petitioner satisfy the two part Strickland test: that counsel's performance was deficient or that there is a reasonable probability that, but for counsel's alleged errors, the result of the proceeding would have been different. See Stricklandv. Wash, 466 u.s. 668, 687 (1984). o Peoples v. Commonwealth, 147 Va. 692, 705, 137 S.E. 603, 606-07 (1927)(determining that the trial court did not abuse its discretion in allowing the Commonwealth to demonstrate with a long- barreled revolver to the jury during the closing argument that it was impossible for the deceased to shoot herself where the pistol used was of the same caliber, kind, and size as the one formerly owned by the deceased).
In Whaley v. Commonwealth, the Supreme Court of Virginia held that the chain-of- custody standard announced in Robinson v. Commonwealth only applied to exhibits offered as a basis for a chemical analysis or the opinion testimony of an expert witness, as opposed to exhibits offered as demonstrative evidence. Whaley v. Commonwealth, 214 Va. 353, 356-57, 200 S.E.2d 556,558-59 (1973); see Robinson v. Commonwealth, 212 Va. 136, 183 S.E.2d 179 (1971). Although the Court of Appeals in Clark v. Commonwealth, applied the chain-of-custody standard from Robinson to a bag of cocaine offered as "demonstrative evidence," this bag appears to have been submitted for chemical analysis. Clark v. Commonwealth, 2000 Va. App. LEXIS 54 (2000)(" ...we find no error in the trial court's admission of the certificate of analysis .... "). An exhibit not offered for scientific analysis need only be "distinguished with reasonable certainty from others of its kind" to be properly authenticated. Washington v. Commonwealth, 228 Va. 535, 550-51, 323 S.E.2d 577,587-88 (1984).
o Vance v. Commonwealth, 2002 Va. App. LEXIS 42 (2002) (holding that appellant failed to establish how he was prejudice by the admission of jogging pants offered as demonstrative evidence for the limited purpose of showing they were worn at the time a rape was committed and to demonstrate the ease of removing underpants, rather than as a basis for scientific or expert evidence).
o Clark v. Commonwealth, 2000 Va. App. LEXIS 54 (2000)(affirming defendant's conviction and holding that chain of custody for a bag of cocaine, offered as demonstrative evidence, was not broken where it was left unattended for 20 minutes).
o Mullins v. Commonwealth, 1996 Va. App. LEXIS 455 (1996)(holding that trial court abused its discretion in admitting into evidence a bag of cocaine "for the purpose of showing [to the jury] what a baggy of white powder looks like" where another individual (and not the defendant) sold the bag to an undercover agent. The Court held that such evidence was prejudicial, given that it "went to the heart of the charged crime" and "the Commonwealth could have introduced empty baggies tied in a particular way" to make its point).
o Taylor v. Commonwealth, 17 Va. App. 271,437 S.E.2d 202 (1993)(determining that the trial court did not abuse its discretion in allowing a police officer to hold up the shirt a victim was wearing at the time of the shooting, which had an offensive smell, to show the location of bullet wounds in her back, while refusing to admit the shirt into evidence and allow it to go to the jury room because of its prejudicial effect). o Jones v. Commonwealth, 228 Va. 427, 441-A2, 323 S.E.2d 554, 561-62 (1984) (determining that bags of jewelry were properly authenticated as demonstrative evidenc§ where the bags were labeled with a description of the contents, the time and place of the discovery, and the case number, and an officer at trial identified the jewelry as corresponding to the description and item numbers on his inventory list). o Washington v. Commonwealth, 228 Va. 535, 550-51,323 S.E.2d 577, 587-88 (1984) (rejecting defendant's argument that the court erred in admitting a torn shirt into evidence without proving chain of custody where the Commonwealth did not seek to introduce it as scientific analysis of bloodstains, but rather as corroboration of the defendant's extrajudicial admissions to the police). The Court in Washington explained:
• "If the Commonwealth had sought to introduce a scientific analysis of the bloodstains, or of any other foreign matter found on the shirt, or of its own physical properties, proper foundation requirements would have included proof of a chain of custody and a showing with reasonable certainty that the item had not been altered, substituted, or contaminated prior to analysis, in any way that would affect the results of the analysis. See Robinson v. Commonwealth, 212 Va. 136, 183 S.E.2d 179 (1971). Here, however, the shirt itself was offered, without any scientific tests. In such a situation, chain-of-custody proof is required only in the case of a fungible exhibit, indistinguishable from others of its kind. If the exhibit has a unique characteristic by which it may be identified and distinguished with reasonable certainty from others of its kind, identification by that characteristic is sufficient proof of authenticity." o Smith v. Commonwealth, 219 Va. 554, 559, 248 S.E.2d 805, 808 . (1978)(holding that the chain-of-custody standard announced in Robinson applies particularly when a chemical analysis of an item is sought to be introduced into evidence). o Whaley v. Commonwealth, 214 Va. 353, 356-57, 200 S.E.2d 556, 558-59 (1973)(holding that the chain-of-custody standard announced in Robinson v. Commonwealth does not necessarily apply to physical exhibits offered as demonstrative evidence as opposed to exhibit offered as a basis for a chemical analysis or the opinion testimony of an expert witness).
• The Court in Whaley cited McCormick's Handbook of the Law of Evidence, Demonstrative Evidence, § 212, at 527 (2d ed. 1972) which states, "If the offered item possessed characteristics which are fairly unique and readily identifiable, and if the substance of which the item is composed is relatively impervious to change, the trial court is viewed as having broad discretion to admit merely on the basis of testimony that the item is the one in question and is in
a substantially unchanged condition .... J>
o Robinson v. Commonwealth, 212 Va. 136, 138-39, 183 S.E.2d 179, 180- 81 (1971) (holding that the panties, blouse, and pubic hair offered by the Commonwealth as a basis for the opinion testimony of FBI agents were not admissible since the Commonwealth failed to establish a vital link in the chain of possession, but explaining, "If they had been admitted only to establish what the victim was wearing when attacked, then we would agree with the Commonwealth's position. But the blouse and the panties were also admitted to supply a basis for the opinion testimony of the FBI agents. The mere fact the blouse and the panties were identified did not prove the chain of possession necessary to validate the FBI analysis of them.")
• In Robinson, the Court stated, "The basic rule for admitting [actual] demonstrative evidence is that the burden is upon the party offering the evidence to show with reasonable certainty that there has been no alteration or substitution of it. But the burden is not absolute that 'all possibility of tampering' be eliminated. However, '[the] requirement of reasonable certainty is not met when some vital link in the chain of possession is not accounted for, because then it is as likely as not that the evidence analyzed was not the evidence originally received.'" Robinson v. Commonwealth, 212 Va. 136, 183 S.E.2d 179 (1971)(quoting People v. Riser, 47 Cal. 2d 566, 580-81, 305 P.2d 1, 10 (1957)).
o Yeary v. Holbrook, 171 Va. 266, 198 S.E. 441 (1938)(finding no reversible error with trial court's decision to allow witnesses to position themselves on a view of a car accident scene for the jury to observe, although the Supreme Court of Virginia would have preferred that no witnesses be present at the view).2
• In Yeary, the Court stated, "We do not approve of the use of witnesses on a view, but inasmuch as the witnesses did not change their testimony in any material way and it affirmatively appearing that the full opportunity was given defendants to show to the jury any and every object and thing mentioned in the testimony, the judgment will not be reversed." Yeary v. Holbrook, 171 Va. 266,282,198 S.E.441, 448 (1938).
The following cases reveal that Virginia courts have repeatedly admitted non- inflammatory photographs of murder victims into evidence over defendants' objections in order to illustrate malice, premeditation and the degree of atrociousness of the crime. See Smith v. Commonwealth, 219 Va. 455, 467-68, 248 S.E.2d 135,143 (1978); see also Thomas v. Commonwealth, 244 Va. 1,20- 21,419 S.E.2d 606,617 (1992).
o Jackson v. Commonwealth, 267 Va. 178,202,590 S.E.2d 520,532-33 (2004)(concluding that two photographs of a victim's face and an enlarged photograph of her vaginal area were properly admitted since they were relevant to the issues of premeditation, intent, and malice).
o Breard v. Commonwealth, 248 Va. 68; 445 S.E.2d 670 (1994) (finding no abuse of discretion in the admission of photographs depicting murder scenes since the trial court reviewed all photographs before they were admitted and they adequately_portrayed the manner in which the defendant committed the offense).
o Thomas v. Commonwealth, 244 Va. 1,20-21,419 S.E.2d 606, 617 (1992)(affirming trial court's decision to admit a portion of the photographs offered by the Commonwealth to show the condition of the bodies of the victims and finding these photographs to graphically portray the bodies in a non-inflammatory way).
o Graves v. Commonwealth, 234 Va. 578, 363 S.E.2d 705 (1988) (indicating that the trial court properly admitted video tapes and still photographs depicting men engaged in drug transactions as demonstrative evidence in a case charging the defendant with conspiracy to distribute marijuana).
o Watkins v. Commonwealth, 229 Va. 469, 482, 331 S.E.2d 422,432-33 (1985)(affirming trial court's ruling admitting color photographs depicting victim's face from close range and a bloody gunshot wound since it tended to show premeditation and malice).
o Wise v. Commonwealth, 230 Va. 322, 330, 337 S.E.2d 715 (1985) (affirming the trial court's ruling that 3 color photographs of the murder victim's corpse as it was being lifted from a privy hole were not inflammatory).
o Jones v. Commonwealth, 228 Va. 427, 450, 323 S.E.2d 554,566-67 (1984) ("We have held repeatedly that the admissibility of photographs depicting the body of a murder victim is a matter within the sound discretion of the trial court.").
o Justus v. Commonwealth, 220 Va. 971,979-80,266 S.E.2d 87, 93 (1980)(ruling that the trial court did not err in allowing the Commonwealth to introduce in evidence (1) in the first stage of trial a black and white photograph of a nude victim to show that she was pregnant where the offense charged was murder while in the commission of or subsequent to rape and the photograph was used to contradict the defendant's testimony and (2) in the sentencing stage two color photographs of the victim to show that the defendant's conduct was outrageously and wantonly vile). o Waye v. Commonwealth, 219 Va. 683,692,251 S.E.2d 202,208 (1979)(holding that the admission of black-and-white photographs showing the victim's ~ody in the bathtub were properly admitted since the photographs "portrayed more graphically, but not more inflammatory ... the manner in which the killing of the victim was accomplished" and were relevant to establishing premeditation and malice by illustrating the degree of atrociousness of the crime.)
o Smith v. Commonwealth, 219 Va. 455, 467-68,248 S.E.2d 135, 143 (1978) (holding that photographs depicting contusions on the victim's neck, abrasions, and stab wounds were relevant and material to establish premeditation, malice, and the degree of atrociousness of the crime and "were no more inflammatory than the medical testimony detailing the results of the autopsy.").
o Evans v: Commonwealth, 215 Va. 609, 614, 212 S.E.2d 268,272 (1975) (holding that the admission in evidence of color photographs of the victim's body was within the sound discretion of the trial court).
o Saunders and Rittenhouse v. Bullock, 208 Va. 551, 558,159 S.E.2d 820, 826 (1968) (determining that a court, in its discretion, may admit photographs into evidence that show conditions different from those described by eyewitnesses as long as those differences are sufficiently explained to avoid distortion of the scene or confusion to the jury).
o Westry v. Commonwealth, 206 Va. 508, 513,144 S.E.2d 427, 431 (1965)(concluding that the admission of photographs of the victim's body afforded some corroboration of the medical testimony of a witness, and as such, were properly admitted to illustrate the malice with which the crime was committed or to show the degree of atrociousness of the crime).
o Martin v. Commonwealth, 184 Va. 1009, 1022,37 S.E.2d 43,49 (1946)("Objects connected with crime are often offered in evidence in criminal cases when related to issues in the case. An authentic photograph shows no more than would be disclosed by a view of the object itself. It may give a more accurate description of the appearance, nature and condition of the object than a mere verbal description dependent upon memory. The picture of the wounded body of a man in the repose of death should excite no more sympathy or prejudice than the exhibition of a living person with a bruised, broken and torn body.")
o Enoch v. Commonwealth, 141 Va. 411,437-38, 126 S.E. 222, 230 (1925)(affirming trial court's decision to admit into evidence lewd pictures of naked women taken from the accused when he arrested "to show the state of mind of the accused and the motive for the commission of the double crime of rape and murder."). B. Videotapes The Supreme Court ofVirgil1ia has held that a jury may take videotapes of a defendant's confession into the jury room during deliberations. Jackson v. Commonwealth, 267 Va. 178,590 S.E.2d 520 (2004).
o Kirby v. Commonwealth, 50 Va. App. 691, 654 S.E.2d 600 (2007)(holding that the trial court's decision to not allow the jury to replay defendant's videotaped confession while deliberating was harmless error under Virginia Code § 8.01-678 since replaying the videotape would not have added much to the deliberative process given the Commonwealth's stipulations to its content and the jury's previous viewing of it).
o Jackson v. Commonwealth, 267 Va. 178,590 S.E.2d 520 (2004)(holding that circuit court did not abuse its discretion in allowing the jury to take into the jury room a video tape of defendant's confession where it did not result in undue emphasis on defendant's confession since it was an "exhibit" available to the jury during deliberations pursuant to Virginia Code § 8.01-381).
oCuli v. Commonwealth, 2000 Va. App. LEXIS 237 (2000)(holding that the trial court did not err by making defendant's videotaped confession, which was previously shown to the jury a trial, available to the jury during deliberations and explaining that the risk that a jury may overemphasize a defendant's videotaped statement during deliberations exists with any exhibit and Virginia law does not require the trial judge to supervise the jury's review of evidence).
Virginia courts have held that crime demonstrations are proper if they are helpful to the jury in understanding testimony. See Mackall v. Commonwealth, 236 Va. 240, 254, 372 S.E.2d 759, 768 (1988). The aid or weapon used need not be identical to the real item if it is being used to explain testimony. See Barber v. Commonwealth, 206 Va. 241, 252,142 S.E.2d 484,492-93 (1965); see also Jackson v. Commonwealth, 267 Va. 178,203, 590 S.E.2d 520, 534 (2004). Regular rules of relevance and prejudice apply to demonstrative evidence. See Patrick v. Commonwealth, 2008 Va. App. LEXIS 231 (2008)(acknowledging that evidence should be excluded if the,prejudicial effect outweighs its probative value). Replicas of illegal substances as demonstrative evidence were deemed improperly admitted where their admissions were based on inadmissible hearsay evidence. Beckford v. Commonwealth, 2000 Va. App. LEXIS 409 (2000); Noel v. Commonwealth, 2000 Va. App. LEXIS 453 (2000).
o Jones v. Commonwealth, 2007 Va. App. LEXIS 265 (2007) (holding that the trial court properly allowed an expert to use a Smith & Wesson nine- millimeter pistol as demonstrative evidence although no weapon was recovered since the court explicitly advised the jury that the demonstration gun was being used solely to illustrate how that type of gun ejected shell casings). o Muhammad v. Commonwealth, 269 Va. 451, 519, 619 S.E.2d 16, 55 (2005)(recognizing that the use of demonstrative evidence to illustrate testimony is a matter entrusted to the sound discretion of the trial court and concluding that the trial court did not abuse its discretion in admitting the Commonwealth's demonstrative evidence utilizing a model of a trunk and a video demonstrating how a shooting could take place from the trunk to illustrate testimony since such evidence was relevant and helpful to the jury). o Jackson v. Commonwealth, 267 Va. 178, 203, 590 S.E.2d 520, 534 (2004 ) (concluding that the circuit court did not abuse its discretion in allowing the Commonwealth to use a pillow to demonstrate the length of time that the defendant held a pillow over the victim's face while instructing the jury that the pillow was not the actual pillow found at the crime scene). o Beckford v. Commonwealth, 2000 Va. App. LEXIS 409 (2000) (ruling that trial court erred in admitting dental stone imitation replicas of cocaine "cookies" as demonstrative evidence because their admissions were based on improperly admitted hearsay evidence, but still affirming the trial court's decision since the defendant failed to preserve his claims for appeal). o Noel v. Commonwealth, 2000 Va. App. LEXIS 453 (2000) (holding that the admission of simulated cocaine as demonstrative evidence was in error, since the foundation for admitting this evidence was based solely on inadmissible hearsay statements, yet harmless since the record contained overwhelming evidence of the defendant's guilt). o Mackall v. Commonwealth, 236 Va. 240, 254,372 S.E.2d 759,768 (1988) (affirming trial court's decision to allow a medical examiner to insert a knitting needle into a Styrofoam model of a human head to illustrate the trajectory of a bullet since this demonstration "probably shortened the time needed to describe the bullet's points of entry and exit and its course through the head and made it easier for the jury to understand the medical examiner's description."). o Kehinde v. Commonwealth, 1 Va. App. 342, 347, 338 S.E.2d 356,358 (1986) (finding no abuse of discretion in the trial court's approval of a young witness's use of a doll in a rape case to help clarify her explanation and ensure a common understanding between the witness and the jury with regard to the events that occurred). o Barber.v. Commonwealth, 206 Va. 241,252,142 S.E.2d 484, 492-93 (1965)(determining no abuse of discretion in allowing the Commonwealth to use a toy pistol for demonstrative purposes during cross-examination of the defendant to show that gunshot injuries to victim's head could not have been inflicted in the manner which the defendant claimed). o Peoples v. Commonwealth, 147 Va. 692, 705, 137 S.E. 603, 606-07 (1927)( determining that the trial court did not abuse its discretion in allowing the Commonwealth to demonstrate with a long- barreled revolver to the jury during the closing argument that it was impossible for the deceased to shoot herself where the pistol used was of the same caliber, kind, and size as the one formerly owned by the deceased).
Virginia courts have excluded inaccurate maps and sketches from evidence. See Appalachian Power Co. v. Anderson, 212 Va. 705, 711,187 S.E.2d 148, 154 (1972); see also Cowles v. Zahn, 206 Va. 743, 748,146 S.E.2d 200,204 (1966). In the recent decision of Patrick v. Commonwealth, the Court held that a map not drawn to scale was still admissible as demonstrative evidence since it aided the jury in understanding testimony. Patrick v. Commonwealth, 2008 Va. App. LEXIS 231 (2008). Courts have determined that illustrations not supported by the evidence, or more prejudicial than probative, are to be excluded. Newton v. Carpenter, 202 Va. 347, 352, 117 S.E.2d 109, 112-13 (1960); Portsmouth Transit Co. v. Brickhouse, 200 Va. 844, 848,108 S.E.2d 385, 388 (1959).
Charts, even those not being offered into evidence, must be supported by the evidence. Curtis v. Commonwealth, 3 Va. App. 636, 642, 352 S.E.2d 536, 540 (1987). The Court of Appeals has explicitly stated that flow charts relied on as demonstrative aids in divorce cases have "no independent probative value" since they are merely visual aids, which do not constitute real evidence. Anderson v. Anderson, 29 Va. App. 673,686-87,514 S.E.2d 369,376 (1999). Courts have excluded from evidence charts depicting similarities between crimes in cases in which the illustration has been deemed more prejudicial than probative. A.H. v. Rockingham Publ'g Co., 255 Va. 216, 224, 487-88 (1998). The circuit court's holding in Bowles v. Norfolk & Western Ry. suggests that a chart may be admitted into evidence as an exhibit so long as it illustrates more than a mere summary of oral testimony. Bowles v; Norfolk & Western Ry., 50 Va. Cir. 231 (1999).
o Patrick v. Commonwealth, 2008 Va. App. LEXIS 231 (2008)(holding that a diagram of a scene prepared by an officer was properly admitted into evidence even though it was not drawn to scale since it aided the jury in understanding the officer's testimony and the diagram was simply a "rough drawing made for the purpose of setting out certain measurements of the scene to give context to other evidence in the case." The Court also acknowledged that the use of relevant demonstrative evidence, including sketches and maps, to clarify testimony is both proper and common, although evidence should be excluded if the prejudicial effect outweighs its probative value).
o Esposito v. Esposito, 2002 Va. Cir. LEXIS 234 (2002)(determining that the husband met his burden of proving the receipt and nature of certain funds by a preponderance of the evidence by his testimony and proffered documents and not by his demonstrative flow charts). o Anderson v. Anderson, 29 Va. App. 673, 686-87, 514 S.E.2d 369, 376 (1999) (noting that a flow chart received as demonstrative evidence and relied upon by a husband in a divorce case "played no actual part in the events before the court" and "had no independent probative value" since the chart, which served merely as a visual aid, did not constitute real evidence). o Bowles v. Norfolk & Western Ry., 50 Va. Cir. 231(1999)(denying defendant's motion for new trial and holding that a poster size calculations chart prepared by the plaintiff's expert and presented to the jury as a trial exhibit was proper after concluding that the chart did not summarize his testimony; rather, it included the mathematical results of a formula he had given to the jury and was helpful in explaining to the jury how the formula worked). o A.H. v. Rockingham Publ'g Co., 255 Va. 216, 224, 487- 88 (1998)(concluding that the trial court did not abuse its discretion in an assault case by excluding a chart prepared by a police officer summarizing the facts in five previous assaults, where the assaults referenced on the chart were dissimilar from the case at bar). o Caprio v. Commonwealth, 254 Va. 507, 510, 493 S.E.2d 371,373-74 (1997)(holding that a chart proffered by an expert illustrating the results of 7 DNA tests was improperly admitted where the Commonwealth failed to notify and provide a copy of the chart to opposing party at least 21 days before trial as required by Virginia Code §19.2-270.5 and the Commonwealth's DNA calculations constituted DNA analysis within the meaning of the statute). o Eberwien v. Eberwien, 1995 Va. App. LEXIS 826 (1995)(holding that the trial court did not err in denying defendant's motion for a continuance since he failed to show that he was prejudiced by a blood spatter diagram offered by the Commonwealth the day before trial which differed from the diagram provided to him during discovery. The Court explained that the "[t]he evidence was introduced for demonstrative purposes only, and the real evidence did not change," and further noted that the defendant could have presented the first diagram to impeach the accuracy of the second diagram). o Norfolk & Western Railway Co. v. Puryear, 250 Va. 559,462 S.E.2d 442 (1995)(holding that a chart, which summarized a doctor's testimony regarding calculations of the plaintiff's periods of exposure to excessive noise of locomotives, was improperly admitted into evidence as an exhibit). o Curtis v. Commonwealth, 3 Va. App. 636, 642, 352 S.E.2d 536,540 (1987)(affirming trial court's decision to allow the Commonwealth to use a chart during closing arguments that had not been introduced into evidence where the chart represented a recitation in orderly form of unique similarities between three crimes and everything in the chart was supported by the evidence in the case). o Appalachian Power Co. v. Anderson, 212 Va. 705, 711,187 S.E.2d 148, 154 (1972)(holding that the admission of a plat into evidence constituted reversible error where the map did not accurately reflect all existing conditions of a piece of land and was used by witnesses "to refer to specific lots and to point out how and the amount by which they were damaged."). o Majorv. Hoppe, 209 Va. 193,202,163 S.E.2d 164,170 (1968) (concluding that the trial court did not err in permitting plaintiff to introduce a map accurately portraying a highway as it existed at the time of an accident and refusing to admit 2 aerial photographs, where the photographs did not accurately depict the road as it existed when the accident occurred). o Cowles v. Zahn, 206 Va. 743,748, 146 S.E.2d 200,204 (1966)(deciding not to discuss whether the trial court's actions in putting an exhibit of an incomplete diagram of the scene of the accident in evidence was reversible error since the case was reversed on other grounds, but instructing that "on a retrial of the case the trial court should not place in evidence as its exhibit an incomplete diagram of the scene of the accident). o Moore v. Warren, 203 Va. 117, 124, 122 S.E.2d 879, 885 (1961) (ruling that an officer's pencil sketch of the intersection and location of the vehicles, based on information gathered by the officer immediately after the collision, was admissible when offered by the defendant to impeach a prior diagram drawn by the same officer and to aid the officer in explaining what he saw when he arrived at the collision scene). o Newton v. Carpenter, 202 Va. 347, 352,117 S.E.2d 109, 112-13 (1960)(holding that trial court properly disallowed in evidence a plat made by a certified engineer to show to show the line of visibility into a particular driveway since plaintiffs had not proved that a boy who was injured came out of that driveway). o Portsmouth Transit Co. v. Brickhouse, 200 Va. 844, 848, 108 S.E.2d 385, 388 (1959)(holding it to be error to admit into evidence a map made by an engineer illustrating the results of an experiment showing an alleged line of vision of a bus driver who struck an infant; the Court explained, "The height of the person driving the bus involved in the accident was unknown, as was his sitting posture in the bus as it was in motion through the traffic. These uncertain elements could have made the actual view of the driver very different from the hypothetical view produced by the experiment. The experiment was based on elements and conditions some of which were and others of which could have been quite different from those existing at the time of the accident, and was therefore inadmissible in evidence."). o Appalachian Electric Power Co. v. Gorman, 61 S.E.2d 33, 39 191 Va. 344, 356-57 (1950) (holding that a "map was useful and material in illustrating how the taking of the easement and the construction and operation of the power line changed the present and immediate situation with respect to the development of [a particular] tract and thereby affected both the present and immediate future use of the entire tract.")
Virginia courts have held that written summaries of a witness's oral testimony may not be admitted into evidence and given to the jury as an exhibit, so that "it receives no more emphasis than other oral testimony." Horne v. Milgrim, 226 Va. 133, 138,306 S.E.2d 893,895 (1983); see also Norfolk and Western Railway C. v. Puryear, 250 Va. 559,463 S.E.2d 442 (1995). The Court in Scott v. Greater Richmond Transit Co. held that a record of past recollection recorded may not be introduced into evidence as an exhibit, although it may be read aloud to the jury. Scott v. Greater Richmond Transit Co., 241 Va. 300, 305,402 S.E.2d 214,218 (1991).
o Lewis v. Virginia Fork Produce, 44 Va. Cir. 17 (determining that the writings made by an adjuster summarizing atl operator's oral statements could be read during the adjuster's testimony as past recollection recorded but could not be submitted as an exhibit to be taken to the jury room)(citing Scott v. Greater Richmond Transit Co., 241 Va. 300, 402 S.E.2d 214 (1991).
o Bowles v. Norfolk & Western Ry., 50 Va. Cir. 231 (1999)(denying defendant's motion for new trial and holding that a poster size calculations chart prepared by the plaintiff's expert and presented to the jury as a trial exhibit was proper after concluding that the chart did not summarize his testimony; rather, it included the mathematical results of a formula he had given to the jury and was helpful in explaining to the jury how the formula worked)(citing Norfolk and Western Railyway Co. v. Puryear, 250 Va. 559, 463 S.E.2d 442 (1995)).
o Norfolk and Western Railway Co. v. Puryear, 250 Va. 559, 463 S.E.2d 442 (1995)(holding that written summaries of plaintiff's oral testimony were inadmissible into evidence as exhibits although they might have been used as aids in the presentation of his case because of the danger that summarized oral testimony may receive more emphasis than other oral testimony).
o Scott v. Greater Richmond Transit Co., 241 Va. 300, 305,402 S.E.2d 214,218 (1991)(disallowing written exhibits repeating oral testimony given at trial, either by a witness or by the reading of depositions, to be introduced into evidence as exhibits so that summarized oral testimony does not receive more emphasis than other oral testimony. The Court noted in this opinion that "[t]here is disagreement among other jurisdictions whether the document [repeating oral testimony] is admissible as an exhibit, or excluded and merely read aloud by the witness as his past recollection recorded.")(citing Wigmore, Evidence § 754, Chadbourn rev. ed. 1970; Blakely, Past Recollection Recorded: Restrictions on Use as Exhibit and Proposals for Change, 17 Hous. L. Rev. 411 (1980)).
o Fisherv. Commonwealth, 236 Va. 403, 413-414,374 S.E.2d 46,52 (1988)(holding that trial court did not abuse its discretion in permitting the jury to refer to a partial transcript of taped conversations relevant to the case during deliberations because defense counsel's vague "continuing" objection failed to meet the requirements of "reasonable certainty" required by Rule 5:25. The Court did acknowledge, however, that "subsequent recourse to a transcript during deliberations may create a danger that, by repetition, certain parts of the evidence will be overemphasized, at the expenses of purely oral testimony.").
o Horne v. Milgrim, 226 Va. 133, 138,306 S.E.2d 893,895 (1983)(''The deposition of an adverse party that is received in evidence as substantive proof is oral testimony, not an exhibit. Unless the court for good cause otherwise directs, it should be read to the jury, not submitted in written form, so that it receives no more emphasis than other oral testimony.").
o Marfield Meadows, Inc. v. Lorenz, 245 Va. 255, 264, 427 S.E.2d 363, 368 (1993)(approving the introduction of exhibits that summarized voluminous documentary evidence that are not in dispute).
Avocet Development Corp. v. McLean Bank, 234 Va. 658, 667, 364 S.E.2d 757,762 (1988)(approving introduction of exhibits summarizing voluminous documentary evidence not in dispute).