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California Paralegal Services Los Angeles Evidence:
Foundations, Objections, and Sample Records for Specific Types of Evidence
JUDGE'S PERSPECTIVE: The common objection that an "insufficient foundation" has been laid for the pending question must include a statement of what is missing from the foundation. See Parlier v Fireman's Fund (1960) 178 CA2d 357, 2 CR 906. This is a common-sense rule to ensure that the judge understands the point of the objection.
BUSINESS RECORDS FOUNDATION REQUIRED
To admit business records, you must establish an exception to the hearsay rule (see Evid C §1271) and authenticity of the records (see Evid C §§ 1271, 1561-1562), by showing that:
Writing was made in regular course of business (Evid C §1271(a));
Writing was made at or near the time of the act, condition, or event (Evid C §1271(b));
Custodian or other qualified witness identifies the document and how it was prepared (Evid C § 1271(c));
Writing appears trustworthy, based on source of information and method of preparation (Evid C § 1271(d)); and
Copy produced in court is a true copy of the records as kept at the place of business. Evid C §1561(a)(2).
See Sanchez v Hillerich&Bradsby Co. (2002) 104 CA4th 703, 128 CR2d 529 (attorney's declaration that contained no information about how reports were prepared or on what source of information they were based, or any evidence that reports were trustworthy did not provide foundation for their admissibility as business records).
SAMPLE RECORD: Business Records
Q: I am handing you a document now marked as Defendant's Exhibit E for purposes of identification. Would you please read the document and tell us whether or not you recognize it?
A: Yes, I do.
Q: Could you tell us what it is?
A: It's the accident report I prepared as a result of this accident. [Identifies document and who prepared it.]
Q: Why did you prepare this?
A: It is the procedure at our company that an accident report will be prepared any time an employee is injured on the job. [Shows writing was made in course of business.]
Q: Who has the responsibility for preparing those reports?
A: I do.
Q: Was that also true at the time of the accident involving Mr. Gray?
A: Yes.
Q: Is there a procedure you follow in preparing a report such as Exhibit E?
A: Yes.
Q: Could you describe for us what that procedure is?
A: As soon as I learn of an accident, I immediately go to the accident site to talk to the injured employee, if that is possible, and to any witnesses to the accident. I then record in my report what each of these people tells me. I also take a camera with me to photograph anything that might be helpful in recording what happened. [Shows ordinary course of business.]
Q: Did you follow that procedure in preparing this Exhibit E?
A: Yes, I did. [Shows that writing made as a record of an event and mode of preparation.]
Q: How long was it after the accident that you arrived at the accident site?
A: Within the hour.
Q: How much later was it that you had prepared this report?
A: I did the entire report on the same day. [Shows that writing made near time of event.]
Q: How accurate is this record with respect to recording what you observed and heard at the accident site?
A: Very accurate. [Shows trustworthiness.]
Q: After this accident report, Exhibit E, was prepared, what did you do with it?
A: The original went into the file that I maintain on all accident reports. A copy of it went to my boss.
Q: Has this report, Exhibit E, been altered or modified in any way since the day you prepared it?
A: No.
EXCITED UTTERANCE (HEARSAY)
HEARSAY DEFINED
Hearsay evidence is a statement (Evid C §1200):
Made by someone other than a witness while testifying at the hearing; and
That is being offered to prove the truth of the matter stated.
FOUNDATION REQUIRED
Hearsay is not admissible unless you provide facts that satisfy one of the hearsay exceptions
(Evid C §1200(b)); the most common exceptions are, e.g.:
Business records (Evid C §§1270-1272);
Statements of an adverse party (Evid C §§1220- 1227);
Prior statements of witnesses (Evid C §§1235- 1238);
Spontaneous statements or excited utterances (Evid C §§1240-1242); and
Statements of mental or physical state (Evid C § §1250-1252).
SAMPLE FOUNDATIONAL REQUIREMENTS—EXCITED UTTERANCE
Statement that (Evid C §1240; see Rufo v Simpson (2001) 86 CA4th 573, 590, 103 CR2d 492; People v Gutierrez (2000) 78 CA4th 170, 181, 92 CR2d 626 (writing may qualify as spontaneous declaration)):
Purports to narrate, describe, or explain an act, condition, or event perceived by declarant; and
Was made spontaneously while declarant was under stress of excitement caused by such perception.
SAMPLE RECORD: Excited Utterance
[This example is from a homicide case.]
Q: Did the other bystander say anything about what was happening while it was happening?
A: She sure did. [Shows time of utterance.]
Q: Where was she looking at the time she spoke?
A: Right at the defendant and the victim.
Q: Please describe her tone of voice.
A: She was shouting. Her voice was shaking. [Shows that declarant was excited.]
Q: How did she look?
A: Agitated. Angry. Like I said, she was shaking and pointing at the two guys. [Shows that declarant was excited.]
Q: What did she say?
A: "My God. He's pushing him into the bay!" [Shows that statement was about event.]
Further Research: See Evid C §§1240-1242; (spontaneous and contemporaneous statements).
MEDICAL RECORDS
FOUNDATION REQUIRED
To admit medical records, you must provide the same foundation as for business records, i.e., by showing that:
Writing was made in regular course of business (Evid C §§1271(a), 1561-1562);
Writing was made at or near the time of the act, condition, or event (Evid C §1271(b));
Custodian or other qualified witness identifies the document and how it was prepared (Evid C §§ 1271(c), 1561-1562);
Writing appears trustworthy based on source of information and method and time of preparation (Evid C §§1271(d), 1561-1562); and
Copy produced in court is a true copy of the records as kept at the place of business. Evid C §§1561, 1562.
SAMPLE RECORD: Medical Records
Q: What is your occupation?
A: I am the Records Manager of medical records at Valley Hospital. [Shows witness is qualified.]
Q: What are your duties as the hospital's Records Manager?
A: Primarily, to file the records of each patient so that they can be located later if needed, to make sure that the records are not seen or taken by unauthorized persons, and also to see that all the central parts of the record have been completed by the doctors, nurses, and other personnel of the hospital before the records are filed. [Shows trustworthiness and regular course of business.]
Q: Are you here in court today in response to a subpoena duces tecum served on you as the custodian of records of Valley Hospital?
A: Yes, I am.
Q: What documents did the subpoena require you to bring with you?
A: The medical records of James Gray.
Q: Do you have those records with you?
A: Yes, I do.
Q: Where did you get them?
A: From the medical records library at Valley Hospital.
Q: Are these the original records for Mr. Gray as they are kept by the hospital, or are they copies?
A: These are the original records. [Identifies records.]
Q: Did you search for all the records that were described in the subpoena?
A: Yes, I did.
Q: Are these all those records?
A: So far as I could tell.
Q: Are you familiar with the method by which these records were prepared?
A: Yes.
Q: Who prepares or writes the entries on the various pages that make up these records?
A: The entries are made by the nurses, doctors, and other hospital personnel who see the patient. [Shows regular course of business, and who prepared record.]
Q: Were these entries made at or near the time of the acts, conditions, and events recorded?
A: Yes, they were. [Shows writing made at or near time of event.]
Q: Were these records prepared by those persons in the ordinary and regular course of business?
A: Yes. [Shows prepared in regular course of business.]
MODELS/MAPS/DIAGRAMS
FOUNDATION REQUIRED
Model
A model must substantially and approximately represent what it purports to represent. People v Kynette (1940) 15 C2d 731, 755, 104 P2d 794; People v McDaniel (1976) 16 C3d 156, 174, 127 CR 467.
Map
A map must be a faithful representation of area depicted. People v Glab (1936) 15 CA2d 120, 124, 59 P2d 195.
COMMON WAYS TO LAY FOUNDATION
Judicial notice (maps);
Stipulation; and
Witness testimony.
TYPICAL WITNESS
Lay Witness
Witness who uses the visual aid to illustrate testimony.
Expert Witness
Witness who is familiar with matter depicted.
FREQUENT OBJECTIONS AND AUTHORITIES RE ADMISSIBILITY
Evidence Admitted
Pistol similar to that used in crime (People v Ham (1970) 7 CA3d 768, 779, 86 CR 906);
Reconstructed model of bomb (People v Kynette (1940) 15 C2d 731, 755, 104 P2d 794);
Use of mannequin to illustrate bullet trajectories (People v Robillard (1960) 55 C2d 88, 98, 10 CR 167);
Map of area of homicide. People v Sassounian (1986) 182 CA3d 361, 400, 226 CR 880.
Excluded as Irrelevant
Introduction of gun for illustrative purposes (error when dissimilar to gun used in alleged crime (People v Vaiza (1966) 244 CA2d 121, 126, 52 CR 733));
Map drawn by counsel. People v Jones (1962) 205 CA2d 460, 467, 23 CR 418.
Excluded Under Evid C §352
Scale model of tract (excluded as misleading (County of San Mateo v Christen (1937) 22 CA2d 375, 378, 71 P2d 88));
Illustrative skeleton (excluded, apparently as unduly prejudicial). Dameron v Ansbro (1918) 39 CA 289, 298, 178 P 874.
Admitted Over Evid C §352 Objection
Scale model. Church v Headrick & Brown (1950) 101 CA2d 396, 414, 225 P2d 558.
SAMPLE RECORD: Authenticating Map
Q: Were you present at the intersection of Market and Hyde Streets on July 4, 2007, when a car hit a child?
A: Yes, I was. [Shows opportunity to perceive.]
Q: While you were at the scene, did you observe whether there were painted crosswalks for people walking across Market Street?
A: Yes, I did. [Shows personal knowledge.]
Q: And did you also observe whether there were traffic lights governing the flow of pedestrian traffic on Hyde Street crossing Market Street at that location?
A: Yes, I did.
Counsel: Your Honor, may I approach the witness with an exhibit?
Court: You may.
Q: Mr. Jones, I'm handing you an exhibit marked as Defendant's Exhibit C for purposes of identification. For the record, the exhibit is a map bearing the heading "Market Street." Would you please take the time to review this exhibit and then tell us whether or not it fairly and accurately shows the location of the sidewalk and traffic lights at the intersection of Market and Hyde Streets at the time of the accident there on July 4, 2007?
A: Yes, it does. [Authenticates map.]
[At this point, the exhibit can be offered into evidence.]
MOTION PICTURES/VIDEO RECORDINGS
RELEVANCY
To demonstrate and/or clarify testimony of witnesses;
To record and report experiments or demonstrations; and
In some instances, to show underlying circumstances or injuries, e.g., bank security recording of actual bank robbery or video recording of party's confession.
FOUNDATION REQUIRED
Content must fairly and reasonably depict material facts in dispute or facts substantially similar to those facts. People v Carpenter (1997) 15 C4th 312, 386, 63 CR2d 1; Greeneich v Southern Pac. Co. (1961) 189 CA2d 100, 107, 11 CR 235.
Computer animation of events is admissible without foundation that computer animation is generally accepted in the scientific community. People v Hood (1997) 53 CA4th 965, 62 CR2d 137.
COMMON WAYS TO LAY FOUNDATION
Stipulations; and
Witness testimony:
Lay; and/or
Expert.
Typical Witness
Person having personal knowledge of facts in dispute, who testifies that film or recording fairly depicts those facts or facts substantially similar to them.
Generally, witness is not actual maker of film or recording, unless special technique is used.
FREQUENT OBJECTIONS AND AUTHORITIES RE ADMISSIBILITY
Objection—Irrelevant
Film of train running over crossing relevant in determining train crew's reaction time. Greeneich v Southern Pac. Co. (1961) 189 CA2d 100, 107, 11 CR 235.
Objection—Filming Was Surreptitious and Misleading
Evidence excluded: Investigator got plaintiff drunk and fraudulently induced plaintiff to ride horseback. Redner v WCAB (1971) 5 C3d 83, 93, 95 CR 447.
Evidence admitted: Movies of plaintiff that minimized effect of injuries created a conflict in evidence for jury to reconcile. Harmon v San Joaquin L & P Corp. (1940) 37 CA2d 169, 173, 98 P2d 1064.
Further Research: See Civ Proc During Trial §§ 13.94-13.98.
PHOTOGRAPHS
FOUNDATION REQUIRED
Content of photograph must fairly depict material facts in dispute or facts substantially similar to those facts. Berkovitz v American River Gravel Co. (1923) 191 C 195, 201, 215 P 675; PG&E v Hacienda Mobile Home Park (1975) 45 CA3d 519, 530, 119 CR 559.
COMMON WAYS TO LAY FOUNDATION
Stipulation;
Request for admission; and
Witness testimony.
TYPICAL WITNESS
Typical witness is someone having personal knowledge of the facts in dispute, who then testifies that photograph fairly depicts those facts. See, e.g., People v O'Brien (1976) 61 CA3d 766, 780, 132 CR 616 (photograph of reenactment). See also People v Smith (1963) 223 CA2d 394, 407, 36 CR 119.
Generally, witness is not actual photographer, unless special photographic technique is used or fairness or content of photograph is seriously contested.
FREQUENT OBJECTIONS AND AUTHORITIES RE ADMISSIBILITY
Evidence Admitted
Photos of plaintiff's decedent's corpse in wrongful death case held relevant to issues (Olson v Meacham (1933) 129 CA 670, 673, 19 P2d 527);
Admission of photographs of highway taken 2 years after collision of automobiles upheld as competent evidence to show condition of highway (Barone v Jones (1947) 77 CA2d 656, 661, 176 P2d 392);
Photograph of similar but not identical equipment admissible (People v Slocum (1975) 52 CA3d 867, 891, 125 CR 442);
Changes in photographed area did not render photograph inadmissible (Bateman v Doughnut Corp. (1944) 63 CA2d 711, 718, 147 P2d 404);
Photograph of accident reconstruction admissible (Wilson v City & County of San Francisco (1959) 174 CA2d 273, 277, 344 P2d 828);
Photographs of working conditions consisting of asbestos dust in plant were admissible without foundation of date or place of photograph. Smith v ACandS, Inc. (1994) 31 CA4th 77, 92, 37 CR2d 457 (disapproved on other grounds in Camargo v Tjaarda Dairy (2001) 25 C4th 1235, 1242, 108 CR2d 617).
Excluded as Irrelevant
Photos of plaintiff's decedent's corpse in wrongful death case held not relevant to issues (Krouse v Graham (1977) 19 C3d 59, 137 CR 863); and
Photo of location not involved in dispute held inadmissible without foundation of substantial similarity. PG&E v Hacienda Mobile Home Park (1975) 45 CA3d 519, 530, 119 CR 559.
Admitted Over Evid C §352 Objection
Photos of murder victim admissible to show victim's injuries, savagery of attack, and defendant's mental state at time crimes were committed (People v Heard (2003) 31 C4th 946, 4 CR3d 131);
Photos of murder victim admissible to show intent, malice, and felony (People v Jentry (1977) 69 CA3d 615, 626, 138 CR 250);
Photo of murder victim relevant to show location and manner in which victim was killed (People v Harris (1989) 47 C3d 1047, 1095, 255 CR 352). See also People v Perry (2006) 38 C4th 302, 42 CR3d 30; People v Price (1991) 1 C4th 324, 3 CR2d 106.
Videotape showing murder victim's mutilated genitals not unduly prejudicial (People v McDermott (2002) 28 C4th 946, 998, 123 CR2d 654). See also People v Sanchez (1995) 12 C4th 1, 63, 47 CR2d 843; People v Allen (1986) 42 C3d 1222, 1255, 232 CR 849.
Further Research: See generally 2 Witkin, Evidence, Demonstrative, Experimental, and Scientific Evidence §§9-15, 18; Trial Objections §31.4.
Excluded Under Evid C §352
Inflammatory picture's prejudicial effect outweighs probative value (People v Love (1960) 53 C2d 843, 854, 3 CR 665; Akers v Miller (1998) 68 CA4th 1143, 1147, 80 CR2d 857);
Gruesome color photos of murder victims held cumulative and unduly prejudicial (People v Smith (1973) 33 CA3d 51, 69, 108 CR 698);
Photo of nursing home patient's severe bedsore excluded in action against physician for elder abuse. Akers v Miller (1998) 68 CA4th 1143, 80 CR2d 857.
SAMPLE RECORD: Authenticating Photograph
Q: Let me hand you a document marked as Plaintiff's Exhibit 10 for purposes of identification. Do you recognize this document?
A: Yes.
Q: Would you tell us what it is?
A: It's a picture I took of my car several days before the accident. [Identifies photograph and shows that witness has personal knowledge.]
Q: When was this picture taken?
A: April 18, 2007. It was on my birthday.
Q: Could you tell us whether or not Exhibit 10 accurately and fairly depicts the physical condition of your car just before the collision on April 20, 2007?
A: Yes it does. [Shows that photo fairly depicts condition at issue.]
Q: Was there any change in the condition of your car between the time that this photograph was taken and the time of the collision on April 20, 2007?
A: No.
JUDGE'S PERSPECTIVE: Opposing counsel frequently object that the foundation for a photograph must include such items as the type of camera used, the type of film and size of lens, the identity of the photographer, the time of day, and the lighting conditions. This information is, in fact, generally not required for the exhibit to be admitted.
SAMPLE RECORD: Evid C §352 Objection
Proffering
Counsel: Your Honor, we would ask that People's Exhibit 6, the photograph taken of the decedent at the scene of his death, be received in evidence.
Opposing
Counsel: Objection, your Honor. May we approach the bench?
[At this point, all counsel go to side bar.]
We would object to admission of this exhibit, your Honor, on the grounds that it is irrelevant or, in the alternative, that its very slight probative value is substantially outweighed by the undue prejudice that it will create. As you can see from looking at the photograph, it graphically depicts with considerable color and great detail the effect of the decedent being shot in the face with a shotgun at close range. There is no dispute in this case that the decedent was shot by the defendant.
The issue is whether that shooting was a result of self-defense. Because the photograph contains nothing to help the jury resolve that issue, we ask that it be excluded as irrelevant.
If the prosecution can make any colorable argument of relevancy, we request that the court exercise its discretion under Section 352 to exclude the photograph, because its display to the jury is very likely to generate undue and unfair prejudice against the defendant.
Proffering
Counsel: Your Honor, we believe the photograph should be admitted into evidence because it shows how close the defendant was to the decedent when the shot was fired. In addition, the angle of the shot indicates that it came from slightly to the side, rather than directly from the front, contradicting defendant's theory that the decedent was lunging at the defendant when the shot was fired.
Court: I am going to exclude the exhibit. After looking at the exhibit itself and hearing the argument of counsel, I have determined that the exhibit's probative value is slight and is substantially outweighed by the danger of undue prejudice to the defendant.
Further Research: See Civ Proc During Trial §§ 13.91-13.93, 13.117.
REAL EVIDENCE
"REAL" EVIDENCE DEFINED
Physical evidence is something that is:
Historical, not created for trial; and
Substantive, tending to prove an issue in the case.
Examples: Gun used in a murder, surgical instrument removed from plaintiff's abdomen.
FOUNDATION REQUIRED
Foundation is necessary to show that the real or physical evidence is:
Relevant (Evid C §350);
What it purports to be; and
In the same relevant condition as during the incident or period in question. People v Wong (1973) 35 CA3d 812, 835, 111 CR 314.
COMMON WAY TO LAY FOUNDATION
Typically, testimony of witness is used to:
Identify the object; and
Determine that it is in the same relevant condition.
SAMPLE RECORD: Gun in Murder Case
[The witness is the investigating detective.]
Q: Do you recognize defendant's Exhibit G for identification, Detective Kerr?
A: Yes I do.
Q: What is it?
A: It's the handgun I found at the end of the pier.
Q: How do you know that?
A: Well, it looks just the same and it's got my initials and the date of the incident right here where I scratched them into the grip that day. [Gun is what counsel purports.]
Q: Please tell us whether or not it looks to be in the same condition as when you found it.
A: It looks just the same, like I said. [Gun in same condition.]
Counsel: Your Honor, we ask that defense Exhibit G be received in evidence.
RECORDINGS
RELEVANCY
Recorded prior statement of party or witness; and
Recorded reenactment of underlying circumstances.
FOUNDATION REQUIRED
Recording must accurately report material facts in dispute or facts substantially similar to those facts.
COMMON WAYS TO LAY FOUNDATION
To lay foundation, introduce:
Stipulations; and
Witness testimony.
Typical Witness
Person having personal knowledge of facts in dispute, who testifies that recording accurately reports those facts or facts substantially similar to them. Allen v Leonard (1969) 270 CA2d 209, 219, 75 CR 840 (evidence excluded).
OBJECTION TO EVIDENCE UNDER EVID C § 352
Admitted
Recording admitted over objection that it contained gruesome depiction of pain. See People v Welch (1972) 8 C3d 106, 114, 104 CR 217.
Excluded
Recording should have been excluded as cumulative. See Weisbart v Flohr (1968) 260 CA2d 281, 293, 67 CR 114.
ADMITTED OVER OBJECTION THAT PORTIONS ARE INAUDIBLE
The following support admissibility:
Brief absence of sound during moving reenactment did not prejudice defendants because defendants could testify to what was said during lapse (People v Dabb (1948) 32 C2d 491, 499, 197 P2d 1);
Mostly inaudible tape that contained some understandable dialogue did not require exclusion. People v Polk (1996) 47 CA4th 944, 951, 54 CR2d 921; People v Hall (1980) 112 CA3d 123, 126, 169 CR 149.
Further Research: See Effective Intro of Evidence, chap 11 (authentication), for sample questions.
WRITINGS
FOUNDATION REQUIRED
You must show that:
Writing is what you say it is (Evid C §§1400- 1401);
If you use a copy, you fall under an exception to the secondary evidence rule (see Appendix B, above);
If writing includes hearsay, you meet requirements for an exception to the hearsay rule. See Rufo v Simpson (2001) 86 CA4th 573, 591, 103 CR2d 492 (letter, diary entries). See also Excited Utterance, above.
SAMPLE RECORD: Authenticating a Contract
Q: During the course of this meeting, which you attended, was any sort of document prepared?
A: Yes, there was. [Shows that witness has personal knowledge of the document.]
Q: Who prepared the document?
A: Mr. Molton.
Q: Did Mr. Molton say anything with respect to what the document was at the time he was preparing it?
A: Yes.
Q: What did he say?
A: He said he was putting together a short memorandum of understanding that both he and Mr. Rue could sign to confirm their agreement. [Shows content of the document.]
Q: When you were at this meeting, did you see the document that Mr. Molton prepared?
A: Yes, I did.
[At this point, attorney hands a copy of the document to opposing counsel.]
Q: With the court's permission, I would ask that this document be marked as plaintiff's Exhibit 1 for purposes of identification.
[Counsel hands original document and copy to clerk, who then marks it, hands a copy to judge, and returns original to counsel.]
Counsel: Your Honor, may I approach the witness with the exhibit?
Court: Go ahead.
Q: I am handing you a document that has now been marked Plaintiff's Exhibit 1 for purposes of identification. Would you please review this document and then tell us whether you recognize it?
[Counsel generally returns to table while witness looks at document.]
A: Yes. It is the memo that Mr. Molton prepared at the meeting. [Identifies document.]
Q: Did you see Mr. Rue sign his name to this memorandum?
A: Yes, I did.
Q: Is that his signature at the bottom of the exhibit?
A: Yes, it is.
Q: Did Mr. Molton also sign this document, Exhibit 1, in your presence during that meeting?
A: Yes, he did. That is his signature at the bottom of the document.
SAMPLE RECORD: Authenticating a Letter
Q: Let me hand you a document that has been marked as Plaintiff's Exhibit 2 for purposes of identification. Would you tell us whether you recognize this document?
A: Yes, I do.
Q: What is it?
A: It is the letter I mailed to Mr. Rue immediately after our telephone conversation on June 12, 2006.
Q: Whose signature is that on the bottom?
A: It's mine.
X-RAYS
RELEVANCY
To show present and past physical conditions; and
To provide comparison between normal body and injured body.
FOUNDATION REQUIRED
The standards applicable to X-rays are the same as those applicable to authenticating normal photographs:
X-ray was taken of person and conditions that are subject of dispute; or
X-ray depicts conditions that are substantially similar to those conditions; and
The manner in which films were taken must indicate reliability.
Sim v Weeks (1935) 7 CA2d 28, 40, 45 P2d 350.
COMMON WAYS TO LAY FOUNDATION
Stipulation;
Testimony of witness; and
Judicial notice of general acceptance of standard X-ray techniques as a method of portraying the condition of the human body. Reynolds v Struble (1933) 128 CA 716, 725, 18 P2d 690.
Typical Witness
Treating doctor;
Radiologist;
X-ray technician;
Medical expert witness; or
Custodian of medical records.
FREQUENT OBJECTIONS AND AUTHORITIES RE ADMISSIBILITY
Objection—Lack of Personal Knowledge
Counsel may object that the doctor ordering, but not actually performing, the X-ray lacks sufficient personal knowledge to authenticate the genuineness and reliability of the resulting film.
This objection generally will be overruled when X -rays are routine and doctor has overall familiarity with patient or taking of that X-ray.
Evidence Admitted Over Objection
Doctor who requested X-rays could testify regarding posture of plaintiff
(Simpson v Steinhoff (1933) 131 CA 660, 663, 21 P2d 960);
X-rays of normal pelvis were admissible for comparison.
DeMartini v McDonnell (1936) 14 CA2d 405, 406, 58 P2d 170.
Objection—Improper Opinion Testimony
Counsel may object that custodian, technician, or medical provider authenticating film lacks adequate expertise to express an opinion regarding medical significance of film. See, e.g., Lamb v Moore (1960) 178 CA2d 819, 824, 3 CR 507.
SAMPLE RECORD: Authenticating X-Rays (Treating Doctor)
Q: Dr. Smith, did you conduct a physical examination of Mr. Jones in your office on April 11, 2007?
A: Yes, I did. He came in complaining of injuries to his arm.
Q: As part of your examination, did you order that an X-ray be taken of his arm?
A: Yes, I did. [Shows that X-rays were of Mr. Jones's arm.]
Q: And was an X-ray film actually prepared on the same day?
A: Yes, it was.
Q: Who prepared it?
A: It was prepared by the radiologist who works in the clinic where my office is located.
Q: And when was it that you first saw the X-ray film that was prepared by the radiologist?
A: The same day. I called the radiologist and told him what I needed. I then sent Mr. Jones next door to the X-ray facility, with instructions to bring the completed X-ray film back immediately for me to review. He was back in about 30 minutes, and I then reviewed the films. [Shows that X-rays were of Mr. Jones's arm.]
Q: Did you bring that X-ray film with you to court today?
A: Yes, sir.
Q: How do you know that the film you brought with you is the same film?
A: Several reasons. First, the film, at the time it was prepared, had a small insert in the corner that recorded Mr. Jones's name and the date. That information is actually part of the photograph itself. When I looked at the film when I received it back from the X-ray facility, I looked at this insert to make certain that they had sent me the right film. This film has Mr. Jones's name on it, with the date of April 11, 2007. In addition, when I was done examining the film on April 11, I placed it in the office chart for Mr. Jones, as is my normal practice. It is my office procedure to have all X-rays stay with the file, so that they are always available for review. When I went to get Mr. Jones's file this morning, so that I could produce it in response to the subpoena I received to be here, the X-ray was located in the file. Finally, I've looked at the film, and I remember it as being what I reviewed when Mr. Jones was in my office. [Shows reliability.]
[At this point, counsel can have the document introduced into evidence.]
JUDGE'S PERSPECTIVE: The major difficulty with X-rays isn't getting them into evidence—it's getting the witness to be able to explain them in a meaningful way.
Most courts and jurors simply do not understand what the witness is talking about when he or she points to various imperceptible shadows, opacities, irregularities, and the like on a particular film. Counsel should work carefully with the witness in this area.
