Raleigh, North Carolina
Courtroom clerks will tell you that as a rule, condemnation cases involve more exhibits than any other type of litigation, civil or criminal. The only issue in these cases involves the value of the land, and the challenge for the trial lawyer is to be able to effectively demonstrate to the jury why your experts know more about the value than the opposing experts. To do that, most lawyers rely on a wide variety of courtroom exhibits. This evidence takes the form of exhibits such as photographs or models that are prepared for the jury and are referred to as demonstrative evidence. Kenneth S. Broun, Brandis and Broun on North Carolina Evidence, § 252 (5th Ed. 1998).
I. Considerations Under the North Carolina Rules of Evidence.
As a general rule, prepared exhibits are admissible in evidence, subject to requirements and limitations provided by the evidentiary rules in Chapter 8C of the North Carolina General Statutes. Requirements and limitations under Chapter 8C include whether the evidence is relevant, whether it has been properly authenticated, and whether it is overly prejudicial. N.C. Gen. Stat. §8C, Rule 402, Rule 403 and Rule 901.
Pursuant to N.C. Gen. Stat. 8C, Rule 402, evidence must be relevant to be admissible. In the context of condemnation proceedings, any evidence that aids the jury in fixing a fair market value of the land, and its diminution, is relevant. See Barnes v. State Highway Commission, 250 N.C. 378, 109 S.E.2d 219 (1959). This includes demonstrative evidence, such as maps, plats, photographs, video pictures and aerial photographs. See generally, State Highway Commission v. Rose, 31 N.C. App. 28, 228 S.E.2d 664, cert. denied, 291 N.C. 448, 230 S.E.2d 766 (1976) (stating that this type of demonstrative evidence has been particularly helpful in condemnation cases). However, it is well settled law that the amount of compensation is to be determined as of the time of the taking. Therefore, exhibits that depict conditions of the subject property that are too remote in time from the taking date, or that depict conditions arising after the taking date, are not relevant, and therefore are inadmissible. Metropolitan Sewerage District of Buncombe County v. Trueblood, 64 N.C. App. 690, 308 S.E.2d 340 (1983), cert. denied, 311 N.C. 402, 319 S.E.2d 272 (1984) (photographs depicting construction by the taking authority after the taking date were not relevant to the issue of compensation and therefore were not admissible).
Demonstrative evidence must also be sufficiently authenticated and identified by a witness in order to be admitted into evidence. Broun, supra at §252; see also N.C. Gen. Stat. §8C, Rule 901. While the witness establishing the authenticity of the exhibit need not have prepared the exhibit, he must testify that it accurately represents what he has observed or matters to which he is familiar. Broun, supra at §252. Failure to properly authenticate a prepared exhibit has been held reversible error. See Gragg v. Barnes, 9 N.C. App. 240, 175 S.E.2d 774 (1970) (reversible error for trial court to admit aerial photo or tax map without authentication). Discretion rests with the judge to exclude the exhibit if there is conflicting evidence regarding its accuracy, or if significant changes occurred between the time of the event and the time the exhibit was made. Broun, supra at §252; see also, Duke Power Co. v. Busick, 23 N.C. App. 276, 208 S.E.2d 867 (1974) (court did not err in condemnation proceeding by admitting maps containing inaccuracies where court gave appropriate limiting instruction to the jury).
In addition, if the risk of prejudice to the opposing party outweighs the relevancy of the exhibit, or if the exhibit is calculated to mislead the jury, the trial court should exclude it from evidence. State Highway Commission v. Conrad, 263 N.C. 394, 398, 139 S.E.2d 553, 556 (1965) (stating that map of proposed subdivision should not be admitted where it is calculated to mislead the jury to allow damages for improvements not in existence) (citation omitted); State v. Johnson, 282 N.C. 1, 191 S.E.2d 641 (1972) (holding that map showing non-existing subdivisions should not have been admitted where risk that map would mislead the jury outweighed its evidentiary value).
II. Substantive v. Illustrative Evidence
In the past, North Carolina allowed demonstrative evidence to be used for illustrative purposes only. Broun, supra at §252. Therefore, with limited exception[1], demonstrative exhibits were admitted into evidence for the restricted purpose of assisting a witness in explaining his or her testimony and to make the testimony more intelligible to a jury. Id. A demonstrative exhibit could not be used as substantive evidence, meaning that the jury could not consider it as direct evidence introduced for the purpose of proving the fact at issue. Traditionally, however, limited exception allowed maps made pursuant to an official authority or duty to be admitted as substantive evidence. Id. at `229 and `252. Now, the rule limiting the use of demonstrative exhibits has been modified to allow certain photographic exhibits to be admitted as substantive, direct evidence. Id. Specifically, the North Carolina General Statutes now provide that “[a]ny party may introduce a photograph, videotape, motion picture, x-ray or other photographic representation as substantive evidence upon laying a proper foundation and meeting other applicable evidentiary requirements.” N.C. Gen. Stat. §8-97 (1986).
Regardless of whether the demonstrative exhibit is used for illustrative or substantive purposes, all such exhibits are admissible in evidence, subject to the limits imposed by the North Carolina Rules of Evidence. Moreover, whether the demonstrative exhibit is used as illustrative or substantive purposes, it is still subject to inspection by the jury. Therefore, while in theory there seems to be a considerable significance between admitting the exhibit as direct evidence of the fact sought to be proven, rather than admitting the exhibit merely as a means of explaining witness testimony, in reality “the jury is quite likely to be influenced by what they see, without being overly concerned about whether [the exhibit] precisely illustrates what they hear.” Broun, supra at §252
III. Demonstrative Evidence in Condemnation Proceedings.
Because of the nature of a condemnation proceeding, use of demonstrative evidence is imperative in order to aid the jury in fully visualizing the property, understanding its highest and best use, and if a partial taking is involved, visualizing the impact the taking will have on the remaining property. It can also be an important tool to show the jury the weakness in your opponent’s evidence, such as use of inadequate land comparables.
Photographic Evidence. Appellate cases that have addressed use of demonstrative evidence in a condemnation proceeding generally allowed such evidence to be used for illustrative, but not substantive, purposes. See e.g. Barnes v. State Highway Commission, 250 N.C. 378, 109 S.E.2 219 (1959). However, as discussed in Section II, photographs, videotapes and other photographic representations are now admissible as substantive evidence upon laying a proper foundation and meeting other applicable evidentiary requirements. N.C. Gen. Stat. §8-97. Therefore, in the context of a condemnation proceeding, photographic representations of the subject property, land comparables or other relevant subject matter should be admissible as direct, substantive evidence of the facts at issue, provided that the demonstrative exhibit is properly authenticated, is accurate, and meets other evidentiary standards.
Notwithstanding, it is important to remember that the damages in a condemnation case are proscribed by the statute and relate only to the date of taking. Occurrences or events that may affect the value and that arise after the taking are not cognizable. City of Greensboro v. Sparger, 23 N.C. App. 81, 208 S.E.2d 230 (1974). Thus, if the photographs depict the condition of the land after the taking authority has begun construction, the photographs may not be admissible for any purposes, substantive or illustrative. See Metropolitan Sewerage District of Buncombe County v. Trueblood, 64 N.C. App. 690, 308 S.E.2d 340 (1983), cert. denied, 311 N.C. 402, 319 S.E.2d 272 (1984) (photographs tending to show damages resulting from taking authority’s construction activities after the taking date were prejudicial and inadmissible); but cf. State Highway Commission v. Rose, 31 N.C. App. 28, 228 S.E.2d 664, cert. denied, 291 N.C. 448, 230 S.E.2d 766 (1976), (photographs that depicted changes brought about by the taking properly admitted where court gave appropriate limiting instruction).
Non-Photographic Evidence. N.C. Gen. Stat. §8-97 does not expressly provide that maps, models, diagrams and other non-photographic exhibits may be used as substantive evidence. As a general rule, maps, diagrams, models and similar prepared exhibits have been held admissible for illustrative purposes only, and have not been held admissible as substantive evidence in condemnation proceedings. See e.g. Barnes v. State Highway Commission, 250 N.C. 378, 109 S.E.2 219 (1959). In Barnes, the Commission took approximately one-fourth of the petitioner’s land for an expressway. At the time of the taking, the petitioner’s land was undeveloped, consisted of open fields and woodlands, and was not subdivided. After the taking, the petitioners had a civil engineer complete maps of the property depicting subdivisions with lots. At the hearing, petitioners offered the maps as substantive evidence that their property was capable of being used as a subdivision. The trial court allowed the maps to be introduced to illustrate the expert’s testimony that the property could be used as a residential subdivision, but refused to admit the maps as direct evidence in that regard. Barnes, 250 N.C. at 387, 109 S.E.2d at 226. On appeal, the North Carolina Supreme Court stated that the maps were properly used as illustrative evidence, but that the trial court correctly excluded the exhibits as substantive evidence. Barnes, 250 N.C. at 391, 190 S.E.2d at 228.
Although Barnes indicates that, as a general proposition, unofficial maps, diagrams and the like are admissible for illustrative purposes in a condemnation proceeding, this rule may not always apply. Rather, the admissibility of demonstrative, evidence, even when used for the limited purpose of illustrating witness testimony, depends on the circumstances under which it if offered. See State Highway Commission v. Conrad, 263 N.C. 394, 139 S.E.2d 553 (1965); State v. Johnson, 282 N.C. 1, 191 S.E.2d 641 (1972).
In State Highway Commission v. Conrad, 263 N.C. 394, 139 S.E.2d 553 (1965), as in Barnes, at the time of the taking the property was unimproved, and it had not been subdivided. The landowner offered testimony regarding the value of the land as if subdivided and sold by lot, and likewise offered a map prepared by his son that depicted the proposed subdivision. The trial court refused to admit the map. On appeal the landowner argued that the map should have been admitted to illustrate the witnesses’ testimony that the unimproved property was capable of subdivision. The North Carolina Supreme Court disagreed, and held that under the facts of the case it was not error to exclude the map, even for illustrative purposes. The Court based its holding on the following factual circumstances:
(1) both parties had conceded that the highest and best use of the property was for a residential subdivision;
(2) the map was prepared by the landowner’s son, and there was no showing that he was a civil engineer or that the map was prepared from an actual survey; and
(3) the jury was permitted to view the property and the boundaries were pointed out and the nature of the property observed.
State Highway Commission v. Conrad, 263 N.C. at 398, 139 S.E.2d at 556-557.
In State v. Johnson, 282 N.C. 1, 191 S.E.2d 641 (1972), the North Carolina Supreme Court again disallowed the use of subdivision maps for illustrative purposes. The maps in Johnson portrayed the land as a finished subdivision, although it was only in the beginning stages of subdivision at the time of the taking. At trial, the court allowed use of the maps for illustrative purposes. The trial court did, however, instruct the jury to consider the maps for no other purpose, and to disregard any designation or information shown on the map unless it illustrated the witnesses’ testimony. Johnson, 282 N.C. at 19, 191 S.E.2d at 654.
On appeal, the North Carolina Supreme Court held that the trial court erred by admitting the maps for illustrative purposes notwithstanding the limiting instructions to the jury. As to the first map at issue, the Court noted that the highest and best use for the area of land it portrayed was not disputed. Johnson, 282 N.C. at 17-18, 191 S.E.2d at 653. As to the second, the Court reasoned that the probability that the map, which showed non-existent subdivisions, would mislead the jury into valuing nonexistent improvements created a risk that outweighed its illustrative value. Johnson, 282 N.C. at 19, 191 S.E.2d at 654.
The Barnes, Conrad and Johnson decisions show that although maps and similar demonstrative exhibits are, as a general rule, allowed for illustrative purposes, their admissibility is still dependent on the circumstances and facts of each case. These cases suggest that the map offered should be prepared by an engineer and made from an actual survey. Even then, admission of map may be improper if it is calculated to mislead the jury into allowing damages for improvements not in existence, even if the trial court gives the jury a limiting instruction.
Notwithstanding the general rule limiting such exhibits use to illustrative purposes, a long standing exception has been made for maps made pursuant to an official authority or duty. Broun, supra at §229; see also, Lackey v. Tripp, 63 N.C. App. 765, 306 S.E.2d 464, cert. denied, 309 N.C. 821, 310 S.E.2d 350 (1983) (stating that private maps are admissible only as illustrative evidence while official maps may be admitted as substantive evidence). Thus, official maps may be introduced as substantive evidence in some instances. Broun, supra at §229, citing Wilson Lumber Co. v. Hutton, 152 N.C. 537, 68 S.E. 2 (1901) (official plat to land grant); Meekins v. Miller, 245 N.C. 567, 96 S.E.2d 715 (1957) (similar); Gastonia v. Parrish, 271 N.C. 527, 157 S.E.2d 154 (1967) (map made part of zoning ordinance).
CHECK LIST
Based on the above, the following check list may he helpful to prepare arguments for and/or against the admissibility of exhibits at trial in a condemnation action:
1. Does the exhibit offered accurately depict the condition of the property immediately before and/or after the date of the taking?
2. Was the exhibit prepared by a civil engineer or other appropriately qualified professional?
3. Is the exhibit prepared from the results of an actual survey?
4. Does the exhibit seek to support testimony regarding the highest and best use of the property and if so, is the highest and best use in dispute?
5. Has the exhibit been properly authenticated and a proper foundation laid for its admissibility?
6. Is the exhibit being introduced as substantive, direct evidence to prove a fact, or is it only offered to illustrate a witness’ testimony? If the former, does N.C. Gen. Stat. §8-97 apply or is it an official map?
7. If the exhibit is being used for illustrative purposes only, would its admission into evidence nevertheless mislead or otherwise prejudice the jury?
8. Has the Court made the appropriate limiting instructions regarding the jury’s consideration of the exhibit?
IV. Sources of Demonstrative Exhibits.
There are a number of sources that can be used to develop demonstrative exhibits. Below is a suggested list of types of exhibits and the sources for obtaining them.
1. Tax Map(s). These are available at the county or city tax office.
2. Topographic Maps. These may be developed by a surveyor or blueprinter.
3. Aerial Photographs. These often can be obtained from the State Geographic Information Service or DOT. You can also have your own taken by a professional.
4. Overlays. Using aerial photographs with a series of overlays can help illustrate significant aspects of the property. For example, if your client’s property is of the type that is in high demand and there is little land of its type available in the county, use overlays to emphasize the point. Use the overlays to black out one by one the types of property in the county or city that are already unavailable, due to zoning, previous development, or otherwise, for the use for which your client’s property is best suited. This will illustrate that because of supply and demand, your client’s property is highly valuable.
5. Photographs of Subject Property. These can be taken professionally of course, but photos taken by the client are also often effective.
6. Photographs of Land Comparables. Prepare photographs of your land comparables, as well as the land comparables used by the opposing party’s experts.
7. Existing Master Plan for Development of Subject Property. Master plan drawings are used to illustrate the highest and best use of the Subject Property before the taking.
8. Maps from Actual Zoning file. These are located at the City Planning Department (Zoning). They are useful to illustrate the zoning on which the owner of the property relied to base its development plans showing the highest and best use for the property. It is also helpful to obtain a zoning map of the immediate area.
9. City Comprehensive Plan. A city’s Comprehensive Plan can be pertinent to highest and best use if the Subject Property was part of an area earmarked for dense development as designated by the Plan.
10. Certified Copies of Minutes from Meetings of Government Planning Committees. Whether information in the minutes is relevant is case specific. When pertinent, have some of the relevant pages blown up and dry-mounted for trial.
11. Hypothetical Master Plan. To prove the value of the Subject Property at its highest and best use prior to the taking, create a hypothetical master plan that illustrates how the Subject Property could have been developed absent the taking. The actual taking precludes this plan from ever being realized; however, it is necessary in order to give credence to how the damages are calculated. This hypothetical master plan should be as close to actual facts as possible so that the jury can feel comfortable with the amount of damages claimed.
12. Environmental Impact Statement of the Project. These are available to the public from the condemning authority.
13. Exhibits Showing Traffic Counts. An important part of the case may be the issue of traffic, more specifically, how the taking will impact the flow of traffic in front of the Subject Property. It may be that the taking so severely impacts the flow of traffic so that the level of development at the property’s highest and best use is rendered impossible. In such instances, it is helpful to use an illustrative exhibit showing the estimated traffic counts. Often the government agency such as DOT may have already developed such a map.
14. Graphic Simulations of Traffic Conditions in both “Before” and “After” Conditions. When traffic flow is relevant, have a traffic engineer review available traffic documents and the hypothetical master plan in order to generate simulations of what the traffic flow would look like under both the “Before” and “After” situations.
15. Pictures and Articles from Magazines and Newspapers. The area being condemned may have been experiencing regionally or even nationally recognized growth. Using articles from newspapers or cover pictures from magazines as blown up exhibits at trial may have an impact by suggesting that the highest and best use asserted for the Subject Property is both reasonable and possible.
16. Damages Charts. When using several appraisers, to illustrate the amount of damages calculated by each of the expert witnesses, prepare charts based upon information provided by the expert witnesses. Have the charts blown up and dry-mounted. In addition, have a blank chart. As each expert witness completes his or her testimony, have him or her write the amount of damages according to their testimony. In closing, show the chart to the jury, reminding them that different appraisers came up with a range of numbers that support your claim of the amount of damages.
17. Videotapes. As a general rule, videotapes are admissible for illustrative purposes, and in some instances as substantive evidence. See generally, City of Statesville v. Cloaninger, 106 N.C. App. 10, 415 S.E.2d 111, disc. rev. denied, 331, N.C. 553, 418 S.E.2d 664 (1992) (affirming use of videotape as illustrative evidence where a proper foundation was laid for its authenticity and admissibility). Cloaninger provides a good overview of the foundation required to allow a videotape to be used as an exhibit.
18. Blow Up Exhibits. Many of the foregoing exhibits are most effective when blown up and dry mounted to be displayed to the jury. A particularly effective tool is to use the left side of the blow up to depict the entire exhibit, while using bullet points or other graphics on the right side of the blow up to highlight and emphasize important points contained in the exhibit. Kinkos, The Presentation Shop and similar graphic design businesses offer these services.
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[1] An exception has allowed maps made pursuant to an official duty or authority to be admitted as substantive evidence for decades in North Carolina. Broun, supra at §229 and §252.
