Presenting Nontestimonial Evidence

• Author: Edward L. Birnbaum/Carl T. Grasso/Ariel E. Belen
• Pages: 247-302

NONTESTIMONIAL

EVIDENCE

CHAPTER 28

PRESENTING

NONTESTIMONIAL

EVIDENCE

§28:01 New York Trial Notebook 28-2

NONTESTIMONIAL

EVIDENCE

I. OVERVIEW

§28:01 What Is Nontestimonial

Evidence?

Non-testimonial evidence is evidence other than

sworn testimony given by a witness live in court or

by deposition. Such evidence may consist of:

• Documents including:

• Pleadings and discovery responses

[§28:50 ff].

• Demonstrative evidence including:

• Photographs [§28:70 ff];

• Moving pictures [§28:100 ff];

• Charts and graphs (§28:110 ff);

• Drawings and diagrams [§28:110 ff];

• Tangible things [§28:120 ff];

• Displays [§28:130 ff];

• Demonstrations [§28:130 ff]; and

• Jury views of premises, accident scenes,

or things [§28:160 ff].

§28:02 Requirements for Admission

The two basic requirements for admission of non-

testimonial evidence are authenticity and relevance.

Non-testimonial evidence may be placed before

the jury only after an adequate foundation is presented

to establish its authenticity. Certain types of non-

testimonial evidence are “self-authenticating,” e.g.,

certified hospital records, or discovery responses

sworn to by a party. Some non-testimonial evidence

may be introduced through the exercise of judicial

notice or by stipulation of the parties [see Ch 18].

§28:03 Publishing Non-testimonial

Evidence to the Jury

The whole concept behind non-testimonial evidence

is for the jury to see it (or hear it, or feel it, or even smell

or taste it). Before the jury may be permitted to see

such materials, the materials must have already been

admitted into evidence. For example, if documents

or photographs have been authenticated by a witness,

counsel may then ask the court for permission to

“publish” them to the jury, i.e., pass them among the

jurors so they may see for themselves. This is still

often done, but in recent times, more and more often,

such materials are blown up on huge photoboards, or

appear as part of PowerPoint demonstrations, and are

presented by counsel as early as they can get away

with, including during opening statements. Before

such blowups or computer presentations may be shown

to the jury, the materials contained must have been

cleared with the court; if the materials have not already

been ruled admissible, courts may allow them to be

used subject to laying a foundation during trial. This

is facilitated if the other side knows that the evidence

will eventually be admitted, and so does not object.

Opposing counsel may require a quid pro quo; namely,

that they also be permitted to use demonstrative

evidence in like manner, without objection.

§28:04 Available to Jury During

Deliberations

While testimony from the witness stand is

fleeting, documents, photographs or other tangible

things admitted into evidence are ever present and

are available in the jury room during deliberations.

CASE EXAMPLE:

• Krute v. Mosca, 234 AD2d 622, 650 NYS2d

862 (3d Dept 1996) (video surveillance of

supposedly disabled plaintiff showed him

moving large rocks; a large rock of the

type in the video and a bathroom scale were

properly admitted into evidence; although

the record did not reflect the rock was ever

actually placed on the scale during either

party’s case, the appellate court assumed

the jurors had done so during deliberations,

which would have been perfectly proper).

Take advantage of this—marshal the exhibits so

that they will remind the jurors of the story they told.

Items not admitted into evidence may not be

taken into the jury room. [Maslinski v. Brunswick

Hospital Center, Inc., 118 AD2d 834, 500 NYS2d

318 (2d Dept 1986).]

[§§28:05–28:09 Reserved]

II. DOCUMENTS

A. GENERAL POINTS

§28:10 Definition

Historically, the term “document” has referred

to information recorded on paper, or that can

28-3 Presenting Nontestimonial Evidence §28:13

NONTESTIMONIAL

EVIDENCE

be reduced to paper (for example, microfilm

or microfiche). Some stretch the definition to

include things relating to information recorded on

paper, for example photographs or films relating

to test reports. [See Schozer v. William Penn

Life Insurance Co., 84 NY2d 639, 620 NYS2d

797 (1994) (applied best evidence rule, normally

considered to pertain to documents, to an x-ray).]

In recent years, the term “document” has come

to include records of data of any sort, including

computer data banks, magnetic tapes, disks (both

“hard” and “floppy”), CDs, DVDs, and flash drives.

[See Briar Hill Apartments Co. v. Tuperman, 165

AD2d 519, 568 NYS2d 50 (1st Dept 1991) (printouts

of computerized data bank records were admissible

under business records exception to hearsay rule;

retrieval of records by pressing appropriate keys on

computer was no different in its legal consequence

than a clerk retrieving business records from a file

cabinet); but see Dyer v. 930 Flushing, LLC, 118

AD3d 742, 742, 987 NYS2d 206, 206 (2d Dept 2014)

(while computer printouts are admissible as business

records if the data was stored in the normal course of

business, “the computer printout [defendant’s articles

of organization] submitted by defendant in support of

its motion [to change venue] was inadmissible, since

it was not certified or authenticated by the head of

the New York State Department of State (see CPLR

2307, 4518(c), and it was not supported by a factual

foundation sufficient to demonstrate its admissibility

as a business record.”).]

§28:11 Dealing With Large

Documents

Lengthy, cumbersome documents are occasionally

placed into evidence. Admitting a lengthy document

may be necessary, if the document is an undivided

whole that cannot be taken apart (e.g., a thick, official,

beribboned government agency report).

Some counsel seek to impress the jury with the

sheer size of records they introduce. Some plaintiffs’

counsel feel that introducing medical records many

inches (or feet!) thick will underscore to the jury

the suggestion that the injury must be very serious

to have required such extensive treatment records.

Counsel should realize that while some jurors may

be impressed, others who may not think plaintiff’s

injury is that serious will look on a huge stack of

records as merely another indication of overreaching.

IN PRACTICE: Use Excerpts

Time constraints, not to mention concerns of

boring the jury, will restrict use in the courtroom of

voluminous documents. If the witness introduces

a thick wad of paper into evidence, be sure he

or she will be able to go quickly to the parts of

importance. Make blowups or transparencies of

pertinent pages. Show the blowup to the witness,

have him or her testify that it is a genuine excerpt

from the larger document already in evidence,

and move for the blowup’s admission—so the

jurors will be able to examine the excerpt during

deliberations.

If the other side confronts you with a voluminous

document that you have not seen before, request a

continuance to examine the document. The Court of

Appeals in Matter of Leon RR, 48 NY2d 117, 421

NYS2d 863 (1979), counseled that “fundamental

fairness” dictates that the proponent should give

his or her adversary notice of intent to introduce

a “massive document,” and if no notice is given,

the trial court, on timely application, should in its

discretion grant a reasonable continuance. [See In

re Guardianship of Miguel S., 140 AD2d 202, 528

NYS2d 55 (1st Dept 1988) (although the “better

practice” would have been to give the other side

notice and an opportunity to examine a voluminous

file, there was opportunity to examine the file

during the trial and the trial court vigilantly limited

testimony based on it).]

§28:12 Portions of Document Illegible

Relevant legible parts of a record need not

necessarily be excluded merely because other parts of

the record are illegible. [Campbell v. Manhattan and

Bronx Transit Operating Authority, 81 AD2d 529,

438 NYS2d 87 (1st Dept 1981) (exclusion of legible

portion of hospital record dealing with patient’s

inability to give history due to intoxication required

a new trial; good practice would dictate that illegible

portion be redacted to avoid confusing jury).]

§28:13 Document May Be Admissible

as an Admission

In some circumstances, documents may be

admissible as admissions against the party which

generated the document. In DiCamillo v. City of