By Joshua W. Mermis and Justin W. Safady

New courtroom technology requires the trial attorney to understand, now more than ever, the difference between “substantive evidence” and “demonstrative evidence.”

On September 25, 2011, at an oil fracking well site in Atascosa County, Texas, just south of San Antonio, a large fire ignited and destroyed seven hydraulic fracturing pumps and trailers—causing over $9 million in damages. The pump engines were manufactured by ABC Engines Germany, a German corporation, and purchased through a third party by Mission Well Services, an oil-drilling company. (The engine-manufacturing and oil-drilling companies’ names have been altered for this article.) Mission Well ultimately sued ABC Engines America, Stewart & Stevenson LLC, and ABC Engines Germany in Atascosa County District Court. Both ABC Engines Germany and Stewart & Stevenson were dismissed on summary judgment, leaving ABC Engines Germany (ABC) as the lone defendant.

What is Fracking? For those attorneys outside of Texas, North Dakota, and Pennsylvania, hydraulic fracturing (or fracking) is a process used to stimulate or increase the productivity of an oil and gas well by pumping proprietary fluids down a well bore to fracture the hydrocarbon-bearing rock formation. To pump the high volume of fluid required at the high pressure necessary involves specialized equipment. The heart of the operation is the array of pump units that move the fluids. Each pump is a large piece of equipment that is mounted on a semi-truck trailer. The pump is powered by a stand-alone engine, which is typically a powerful, commercial diesel unit capable of generating hundreds of horsepower.

The plaintiff contended that the fire originated when a stream of diesel fuel sprayed against a hot engine and ignited. The fire spread to a pool of fuel on the ground. The allegation was that the source of the fuel stream and pool was a leaking connection in the high-pressure fuel system of the ABC-manufactured engine. But more importantly, the plaintiff had an eyewitness to the alleged diesel fuel leak.

During the trial, the plaintiff put forth testimony from a Mission Well employee eyewitness. He stated that as he was walking down the stretch of 14 frack-pump trailers, out of the corner of his eye he saw a “pencil-thin” stream of red liquid spew out of the subject engine, igniting when it hit a hot piece of machinery nearby. The plaintiff also had experts opine that the fire started from a faulty leaking ABC engine—specifically within the high-pressure fuel system. The experts used photographs and post-fire-damaged machinery to attempt to prove the claims. However, ABC presented another story.

A Series 4 ABC engine had never leaked. And the ability of an eyewitness to see a pencil-thin stream, specifically of red diesel fuel, spew out of an engine 20 feet away through a narrow space between two semi-trailers would have been impossible. Additionally, the ABC engine was just one piece of machinery on these semi-trailers, surrounded by multiple hoses carrying alternative sources of flammable liquid. ABC needed to show the jury that the plaintiff’s story was nearly impossible. This article discusses the use of evidentiary tools that likely ultimately won the trial.

Using Demonstratives During Trial and the Stark Contrast Between Presenting “Substantive Evidence” and “Demonstrative Evidence”

Demonstrative evidence comes in many forms. It might be a large blown-up poster board photograph, a PowerPoint of key witness statements, a large white paper on which to handwrite important facts with a black marker, an animation showing how an eyewitness likely saw an event, or even a simulation of what might have occurred during an accident. It is very important to note that demonstrative evidence is so useful precisely because it’s often not admissible. There are generally two types of evidence: substantive and demonstrative. Substantive evidence is typical evidence, used to make a certain fact more or less probable. Demonstrative evidence is instead used to explain and illustrate substantive evidence.

While the jury cannot take non-admissible demonstrative evidence back into the deliberation room, the effect that certain demonstratives have on a trial cannot be understated. While a substantive piece of evidence must pass many different levels of evidentiary rules, demonstrative evidence is left up to a court’s discretion. In Texas and most jurisdictions, unless a demonstrative’s probative value is substantially outweighed by the danger of unfair prejudice, it should be allowed in front of the jury. Tex. R. Evid. 403. Below are samples of how to use certain types of demonstrative evidence.

Computer-Generated Animations Are Helpful Demonstratives

During the fracking fire trial, the defense team used computer-generated animations to show the jury what Mission Well’s eyewitness would have been able to see from his angle of view. One of the important points against the eyewitness’s testimony was just how close the fracking pump trailers are lined up next to each other—sometimes just 2 feet apart—and just how far inside that narrow line of vision ABC’s engine was operating. Without an animation showing what the eyewitness would have seen that day at the frack site, the jury would have never understood how improbable the allegation was. The animation showed just how difficult it would have been to spot a pencil-thin stream of liquid spewing inside simply while walking past one of those narrow spaces between trailers. An animation can bring the jury to an accident site far away from the court house, in the same conditions in which the incident took place. This is invaluable.

Animations are different from simulations. While animations are demonstrative evidence “rely[ing] on other material testimony for relevance;” simulations are substantive evidence based on computer-generated models and reconstructions. See Clark v. Cantrell, 529 S.E.2d 528, 535 (S.C. 2000); Commonwealth v. Serge, 896 A.2d 1170, 1175 (Pa. 2006). Because animations are demonstrative evidence, their foundational requirements are much simpler. If it is relevant, the probative value outweighs unfair prejudice and confusion, and if it’s based on substantive evidence, it is allowed. Ponce v. M/V Altair, 493 F. Supp.2d 880, 885 (S.D. Tex. 2007); Lorraine v. Markel Am. Ins. Co., 241 F.R.D. 534, 559 (D. Md. 2007); Byrd v. Guess, 137 F.3d 1126 (9th Cir. 1998); Fed. R. Evid. 401, 403, 901(a). Some courts have ruled that if an animation is differentiated enough from an accident’s facts, it will not confuse a jury, and it is therefore allowed as demonstrative evidence when it would not necessarily be allowed as substantive evidence. Altman v. Bobcat Co., 349 Fed. Appx. 758, 764 (3rd Cir. 2009).

The California Supreme Court has differentiated animations and simulations, broadly allowing animations as demonstrative evidence to help illustrate a point but not draw conclusions from no supporting substantive evidence. People v. Duenas, 281 P.3d 887, 900 (Cal. 2012). In most jurisdictions, it is not an error for a court to allow demonstrative animations unless the demonstrative was so clearly and egregiously in violation of Federal Rule of Evidence 403. But many jurisdictions require jury instructions on the weight that any particular animation should be given—and most courts, when an instruction is not required, will give one if an objection is made. Clark, 529 S.E.2d at 537; Hinkle v. City of Clarksburg, 81 F.3d at 425 (4th Cir. 2006). In New York State court, it is a clear error to allow an animation unless the foundation is properly laid and the jury is instructed on the animation’s usefulness. Kane v. Triborough Bridge & Tunnel Authority, 778 N.Y.S.2d 52, 54 (NY. Sup. Ct. App. Div. 2004).

Use animations to your strategic advantage as demonstrative evidence. Show the jury what your expert is trying to convey. Portray an event in light of other substantive evidence that you might present. The possibilities with demonstrative animations are endless and will only improve as technology improves. While the jury will not likely take the animation into the deliberation room, the impression it made in the courtroom could be lasting. The case law cited above will need to be watched over the coming years, however, because technology will probably allow computers to show jurors details that we might not yet think of.

Social Media Evidence—Including Videos—Can Be Difficult to Admit Substantively but Simple to Use as Demonstrative Evidence

Sometimes evidence comes from an electronic source on the internet (Facebook, Twitter, Instagram, Snapchat, or YouTube). Some states have very high burdens for admitting this type of evidence, while others have a lower bar. One example of a difficult jurisdiction is Maryland. To authenticate social media in Maryland, that party must show that the evidence was not falsified or tampered with through testimony of the owner or creator of the website or page, information received directly from the website, or from searching the hard drive of the alleged creator’s computer. Griffin v. State, 19 A. 3d 415, 423 (Md. 2011). This is a high burden and an expensive burden. Alternatively, in Texas, a proponent must show through expert testimony, circumstantial evidence, or direct witness testimony that a reasonable juror would understand the evidence is what the proponent claims it is. Tienda v. State, 358 S.W.3d 633 (Tex. Crim. App. 2012); also see Jones v. State, 466 S.W.3d 252, 262 (Tex. App. 2015). The Texas burden is much lower than the Maryland burden. Because certain states might have this high burden, instead of trying to get the evidence in as substantive evidence, attempt to get it in as demonstrative evidence.

In the fracking fire trial, one of the challenges was showing the jury what the drill site looked like at the time of the fire. A video showing Mission Well employees on a different fracking site, walking around and rapping about fracking, was found on YouTube. The video showed what a typical frack site looked like, including how large the pump trailers are and how closely they operate. The video was offered as demonstrative evidence, with the only objections available coming from Texas Rules of  Evidence 401 and 403. Its relevance to show a typical fracking site to a jury that had never seen one was clear, but there were obvious concerns on prejudice. The rapping was explicit and showed employees “goofing off” around millions of dollars of dangerous machinery during a work day. However, the video was allowed without sound. This is only because it was offered as demonstrative evidence and not substantive evidence.

Large-Format Photographs and PowerPoints Are Vital to What a Jury Will Focus on in the Deliberation Room

Using admissible substantive evidence in large format form is equally helpful. For example, in the fracking fire trial, photographs of a typical fracking pump trailer were used by both the plaintiff and defendant to show the jury what these behemoths looked like before the fire. The photo was agreed on and admissible evidence—meaning that a jury would be able to take it into the deliberation room. But the photo was merely one of hundreds of exhibits and pieces of evidence that a jury would have in that room while deciding the fate of the trial. One way to have an effect is to blow up a photo or exhibit that has already been deemed admissible and show it to a jury in a larger format.

The plaintiff did just that, blowing up the sample hydraulic fracking pump trailer into a large-format poster photograph. However, they altered it by cropping the photograph. The plaintiff showed only the ABC engine portion of the pump components. The defendant brought forth a large-format version of the entire photograph, which showed large amounts of snaking fuel and oil hoses below the engine—precisely what the plaintiff cropped out. This was so crucial because of the plaintiff’s contention that the only source of red liquid in the area that the eyewitness saw spewing was diesel from the engine. But that was not true. Hydraulic oil flowed through at least one of those snaking hoses below the engine. That hydraulic oil is red, and it is flammable. And most importantly, ABC did not manufacture those hydraulic oil lines, nor did it install the lines on the Peterbilt semi-trailer holding the pump and its engine.

Use substantive evidence as demonstrative evidence. And use the arguments against prejudice to your advantage. Because the court for the fracking fire trial did not find the cropped photo prejudicial, the defendant needed to show the full photograph. The jury likely deliberated over that very point after closing arguments. The whole picture showed that the engine was not the only source of flammable red liquid. And making it large format helped point out that crucial fact to the jury.

Once evidence is already admitted as substantive evidence, it can be turned into large-format evidence and used as demonstrative evidence—with the extra benefit of being taken back into the deliberation room with a jury. Speier v. Webster College, 616 S.W.2d 617, 618 (Tex. 1981); Uniroyal Goodrich Tire Co. v. Martinez, 977 S.W.2d 328, 342 (Tex. 1998); Houston Lighting & Power Co. v. Klein I.S.D., 739 S.W.2d 508, 519 (Tex. App. 1987, no writ). A great example from the fracking fire trial that is a bit more robust than a photograph is a large-format version of an ABC inter-company PowerPoint slide. An internal ABC PowerPoint and report were created showing the reliability of the ABC Series 4 engine. That evidence was exchanged during discovery with the plaintiff.

During trial, a deal was made to allow that report and PowerPoint in as evidence because the plaintiff used a separate part of the report as a witness exhibit. Once that internal PowerPoint became admissible evidence, the defense team immediately turned the PowerPoint slides into large-format posters. These posters showed the jury the ABC Series 4 engine’s perfect record. It had never leaked. If this had not been turned into a large-format poster and put in front of the jury in the courtroom, the jury might have overlooked it in a sea of hundreds of exhibits while deliberating.

Three Ways to Authenticate What Would Otherwise Be Hearsay

Many pieces of crucial evidence are hearsay unless they are properly authenticated. During the fracking fire trial, a key piece of evidence was data from the on-site hydraulic fracturing data van. Almost every large drilling site has a data van set up to monitor all of the equipment and drilling apparatuses, including the plumping trailers and their engines. Data from the Mission Well data van showed no drop in pressure in the ABC engine that the plaintiff alleged leaked and started the fire. The defendant’s experts relied on the data van data as important evidence to show that the engine never leaked fuel. Additionally, because the plaintiff alleged that the fuel leakage was “a pencil-thin stream of liquid,” the engine would have had to have been losing pressure dramatically. The plaintiff argued that the data van data was inadmissible hearsay because it only included 1 hour and 47 minutes of available data from the day of the incident and no one knew where the data was from. Here are three ways that the data van data was admissible that would apply to many jurisdictions.

The Documents Are Self-Authenticated by the Plaintiff’s Production in Response to ABC’s Requests

A party’s production of a document in response to a request for production authenticates the document for use against that party at trial. Tex. R. Civ. P. 193.7. The only exception to the rule is if that party objects to the authenticity of the document within 10 days after the party has notice that the document will be used as evidence. The objection must have a good-faith legal basis.

The Documents Are Authenticated by Admission Against Interest by the Other Party

A party’s admission against interest is sufficient to authenticate a document. E.P. Operating Co. v. Sonora Exploration Corp., 862 S.W.2d 149, 154 (Tex. App.   1993, writ denied). In E.P. Operating, a document was authenticated through the following testimony: “Q: That’s one of your-all’s internal documents at one of these various companies, isn’t it? A: Correct.” Id. The court ruled that because the admission during questions was against the party’s own interest, because the party was trying to keep the harmful memorandum document out of evidence, the admission itself was enough to support the document’s authentication. Id.

For the data van data in the fracking fire trial, the plaintiff’s corporate representative was asked in her deposition where the data originated. She responded by saying that it was internal data from company-owned monitoring equipment. Because the plaintiff wanted to keep the harmful data showing no pressure drop out of evidence, it was an admission against the plaintiff’s own interest.

Testimony that a Document Is What the Proponent Claims It Is by a Witness with Knowledge Authenticates That Document

Under Texas Rule of Evidence 901(b)(1), testimony that an item is what it is claimed by the proponent to be by a witness with knowledge supports authentication of that document. For the data van data in the fracking fire trial, as a corporate representative witness in Texas, the witness was required to have knowledge of the questions that she was asked. When asked about the data van data, she explicitly explained what the data was and how it measured the machinery on the fracking site. This was enough to authenticate the document because the defense was using it to show machinery performance during the incident.

All three of these authentication methods are helpful as the other side tries to keep out a harmful document that it produced during discovery.

Conclusion

Multiple different types of demonstrative evidence helped propel the defense team to a full verdict in the fracking fire trial. The animations provided by defense experts that put the eyewitness’s line of sight into doubt, the modeling that showed a breakdown of the ABC engine’s high-pressure fuel line to cast doubt on a leaking connection, the large-format internal ABC PowerPoint that showed the Series 4 engine’s perfect track-record of no reported leaks, the large-format photograph showing hydraulic oil lines carrying flammable red liquid below and separate from the ABC engine, and the frack rapping video showing a typical Mission Well worksite all led to that full defense verdict. Demonstrative evidence is vital to engaging a jury and illustrating crucial substantive evidence. Demonstratives are equally helpful for propping up weak substantive evidence. Because the burden on getting demonstrative evidence in front of a jury is so much lower than that of substantive evidence, it’s a tool that should be used often at trial. Pay attention as well to evidence that has already been admitted that needs to be further pointed out to a jury, especially when there are hundreds of exhibits.

In addition to demonstrative evidence, use the other party’s harmful documents against it. The data van data in the fracking fire trial was crucial evidence that the defense experts could use to say that the ABC Series 4 engine was working perfectly fine on the day of the incident, and there was no leak. If that evidence was not allowed in front of the jurors, they would not have been able to see the lack of any pressure drop, and there would have been no direct evidence that the engine did not leak. Use the evidentiary rules to your favor. Study them, learn them, and be armed with them during your trial. Even if the odds are stacked against your case, and even if there is a reputable eyewitness who says your defendant is guilty and he saw it with his own eyes, if you win the evidence battle in the courtroom, you might just win your trial.

This article was originally featured in the April 2019 issue of “For The Defense” published by DRI