When Is A Court Site Visit Evidence?

Is a physical site visit by a court evidence? Few circuits have addressed whether a factfinder during trial can make an inspection of a location material to a dispute. In reviewing a bench trial, the Federal Circuit found no error by the trial judge's inspection of the particular land at issue when the judge did so to “confirm" the plaintiff's evidence of "'severely' damaged" areas caused by the government's flooding, in Arkansas Game & Fish Commission v. United States, __ F.3d __ (Fed. Cir. Dec. 3, 2013) (Nos. 2009-5121, 2010-5029)

A recent Federal Circuit case highlights issues for consideration when a court may visit a particular location concerning the facts of a case. The information was used by the trial judge in the case to determine the value of the government "taking" of plaintiff's property under the Fifth Amendment.

Site View And Relevant Evidence

Allowing the factfinder at trial, be it judge or jury, to view the premises at issue is often left to the trial judge's discretion, as long as the view is relevant to the case. Indeed, the Advisory Committee Notes to FRE 401 defining relevant evidence briefly states that taking a view of the location at issue is admissible evidence. See ACN 401 (1975) ("Evidence which is essentially background in nature ... is universally offered and admitted as an aid to understanding. Charts, photographs, views of real estate, murder weapons, and many other items of evidence fall in this category.") (emphasis added). The FRE has explicit rules for dealing with charts, photographs or physical items as evidence in a case. What rules apply to a court's view of a location material to a case?

Temporary Land Flooding As A Fifth Amendment "Taking"

The case, which occasioned the court visit and reviewed by the Federal Circuit, involved a state commission's (Arkansas Game & Fish Commission) suit against the federal government for a Fifth Amendment "taking" of the commission's land. The taking consisted of periodic flooding of the property by the Army Corps of Engineers as part of a dam management plan for the region. Flooding over a six year period in the 1990s damaged trees and other natural features on the commission's preserve, which had been used for timber harvesting, among other recreation and conservation projects. The commission sought payment for “the damage done to the Commission’s property interest in its timber" which lay on the a flowage easement over the plaintiff's property. The trial court awarded the Commission about $5.7 million for the value of the timber resources, plus an additional $176,428.34 to restore the damaged land. Arkansas Game & Fish Commission, __ F.3d at __.

The government appealed to the Federal Circuit. The circuit reversed and "held that plaintiff Arkansas Game and Fish Commission failed to establish that increased flooding of its property ... constituted a taking ... under the Fifth Amendment." However, "The Supreme Court reversed, holding that government-induced flooding can qualify as a Fifth Amendment taking even if it is temporary in duration" and "remanded the case ... to determine whether the government's actions ... gave rise to a temporary taking" as found by the trial court, the Court of Federal Claims. Arkansas Game & Fish Commission, __ F.3d at __ (citing Ark. Game & Fish Comm'n v. United States, 637 F.3d 1366 (Fed. Cir. 2011); Ark. Game & Fish Comm'n v. United States, 568 U.S. _, _, 133 S.Ct. 511 (2012)).

An Issue On Remand

On remand by the Supreme Court, the Federal Circuit affirmed the judgment of the trial court. Part of the judgment challenged on appeal by the Commission contended that the trial court erred awarding only $176,428.34 of the 3 million it asked for in "remediation damages" to Commission "lands ...where invasive wetland plant species were able to gain a foothold due to the damage..." caused by the Corp of Engineering flooding and which needed to be eradicated if the land was to return to its prior condition. The trial judge provided so minimal an award because he concluded that the Commission had proved the funds were needed only for "regeneration" of native vegetation on 5% of the damaged land. In their cross-appeal, the Commission contended that it was entitled to regeneration costs for the remaining 95% of the property. Arkansas Game & Fish Commission, __ F.3d at __.

The Commission contended, in part, that the trial court had erred in this five percent judgment because "the trial court made improper use of information that the court obtained on a site visit during the course of the trial. The Commission complains that the court used its personal observations of the ... Area as a basis for denying relief" for the remaining 95% of the damaged property, having decided that these lands had not suffered sufficiently "heavy" damage. Arkansas Game & Fish Commission, __ F.3d at __.

Propriety Of The Site Visit

The Federal Circuit rejected the contention that the "site visit" was used improperly. It noted that the "the trial court made clear in its opinion that it relied on the site visit only to 'confirm[ ] that discrete portions" of the Commission's land would "require regeneration work,' i.e., to confirm the Commission's showing with respect to the other areas." The circuit also found that the Commission had "waived its right to object to the court's use of any relevant information" obtained on the "site visit." It noted that before hand the trial judge had "advised the parties that it was going to arrange for the presence or a court reporter during the site visit." The judge wanted to make sure that "What I see and hear by way of facts are going to be insofar as humanly possible spread on the record.'" Arkansas Game & Fish Commission, __ F.3d at __.

But the circuit was clear that the judge's view of the site was admissible evidence. As described by the circuit:

the decision to conduct a site visit is a matter that is subject to the discretion of the trial court. United States v. Gray, 199 F.3d 547, 550 (1st Cir. 1999); 22 Charles Alan Wright & Kenneth W. Graham, Jr., Federal Practice & Procedure § 5176.2, at 883–84 (2d ed. 2012). Having conducted such a visit in the exercise of its discretion and without objection from counsel, the court was free to make use of its observations, to the extent relevant, in its decision of the case. See Glassroth v. Moore, 335 F.3d 1282, 1289 (11th Cir. 2003) (“any kind of presentation to the jury or the judge to help the fact finder determine what the truth is and assimilate and understand the evidence is itself evidence”); Gray, 199 F.3d at 550 (a site visit or view is “within the category of admissible evidence”); 2 Jack B. Weinstein & Margaret A. Berger, Weinstein's Federal Evidence § 403.07[4] (J.M. McLaughlin ed. 2013) (“[T]he modern position is that the view does provide independent evidence.”); cf. Snyder v. Massachusetts, 291 U.S. 97, 121 (1934) (the “inevitable effect [of a site visit] is that of evidence, no matter what label the judge may choose to give it”).
Arkansas Game & Fish Commission, __ F.3d at __.


As the Federal Circuit suggests in Arkansas Game & Fish Commission, a site visit by a court may be treated like any other piece of evidence and subject to such restrictions as those requiring that evidence be relevant (under FRE 401 and 403). The case also illustrates a number of procedures that should be part of a site view. The purpose of the visit should be identified. In the Federal Circuit case, the circuit noted that the view was a necessary supplement to the evidence presented by the parties and that the parties have an opportunity to articulate any objections prior to the visit. If the site visit is made, the court should not dispense with trial formalities. It will still be necessary to have a complete record including court reporter present, the parties, so that the facts adduced on the visit are clearly "spread on the record" of trial and for later review.


Federal Rules of Evidence