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 <during trial> may be presented in the form of a chart, summary, or calculation. <On motion of any party, the Court may order that>~[t]he originals, or duplicates, shall be made available for examination or copying, or both, by other parties at reasonable time and placeT <and> The cetJft mar e:=tJer <that they be produced> iFJ cet:lf=t <for trial and, if appropriate, admitted into evidence>. The work of the Committee was plagued by scheduling difficulties. Three originally appointed members were never able to participate and one attended one meeting. 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.