PHOTOGRAPHS
1. Admissibility of Photographs
§ 1(a). Generally
§ 1(b). Authentication
§ 1(c). Best Evidence Rule
§ 1(d). Enlargements
§ 1(e). Posed Photographs
§ 1(e). Unfair Prejudice
2. Indentification Through Photographs
§ 2(a). Suggestive Procedures
§ 2(a)(i). Presence of Other Witnesses
§ 2(a)(ii). Hearing
§ 2(b). Opinion Testimony
Bibliography
See also: AERIAL PHOTOGRAPHS; DEMONSTRATIONS AND EXPERIMENTS
IDENTIFICATION–Out of Court Identifications; MUG SHOTS; REENACTMENTS; VIDEOTAPES AND FILMS
1. Admissibility of Photographs
1(a). Generally
Photographs may be admitted to illustrate the testimony of a witness, or as independent evidence.{footnote}Straight v. State, 397 So.2d 903 (Fla. 1981).Check 74 ALR2d 928 (photograph of decedent in wrongful death action); 94 ALR3d 357 (photographs of stolen property){/footnote} Whether to admit photographic evidence is left to the sound discretion of the trial court.{footnote}Dabney v. Montgomery Ward & Co., 761 F.2d 494 (8th Cir. 1985), cert. denied, 474 U.S. 904, 106 S.Ct. 233, 88 L.Ed.2d 232 (1985).{/footnote}
1(b). Authentication
Most courts will allow a photograph to be authenticated by testimony of a person familiar with what has been photographed. The witness must testify that the photograph is an accurate depiction of the subject,{footnote}United States v. Blackwell, 694 F.2d 1325 (D.C.Cir. 1982)
People v. Corbett, 68 A.D.2d 772, 418 N.Y.S.2d 699 (4th Dept. 1979).{/footnote} whether or not the witness is the one who took the photograph or was even present when the photograph was taken.{footnote}United States v. Clayton, 643 F.2d 1071 (5th Cir. 1981); United States v. McNair, 439 F. Supp. 103 (E.D. Pa. 1977); People v. Bowley, 59 Cal.2d 855 (1963).Check 9 ALR2d 899.{/footnote} [There must be an identification of when and where the photographs were taken.] [Check]United States v. Stearns, 550 F.2d 1167 (9th Cir. 1977); [Check] United States v. Blackwell, 694 F.2d 1325, 1331 (D.C.Cir. 1982).There must be a showing that the subject of the photograph is in the same or similar condition as it was at the time of the events at issue in the case.{footnote}Berkovich v. Hicks, 922 F.2d 1018 (2d Cir. 1991)(photograph of scene taken four years after incidenct not probative of location of street signs); Williams v. Stewart, 2 Ill. App. 3d 528, 275 N.E.2d 659 (4th Dist. 1971)(automobile).{/footnote} Photographs may also be exlcuded where the perspective in the photograph gives a distorted view of the subject.{footnote}United States v. Dombrowski, 877 F.2d 520, 525 (7th Cir. 1989); United States v. Akers, 702 F.2d 1145, 1149 (D.C. Cir. 1983).{/footnote} Where the weather is relevant, outdoor photographs must be taken in weather and season similar to that at the time in question.{footnote}Tedrowe v. Burlington Northern, Inc., 158 Ill. App. 3d 438, 511 N.E.2d 798 (1st Dist. 1987)(photographs of railroad crossing taken in different season than when accident took place).
But see Warner v. Chicago, 72 Ill. 2d 100, 378 N.E.2d 502 (1978)(photograph intended merely to illustrate sidewalk defect admissible despite absence of snow ).
[Check] United States v. Dombrowski, 877 F.2d 520 (7th Cir. 1989).{/footnote}
Some courts require that the actual photographer testify as to the manner in which the photograph was taken (camera angle, lighting, film speed), how the photograph was developed, and the chain of custody of the negative.{footnote}Annot., 9 A.L.R.2d 899.{/footnote}
§ 1(c). Best Evidence Rule
The best evidence rule, which provides that the content of a writing must be proven through the original unless it is unavailable, has been extended to photographs.{footnote}FRE 1002, 1004.{/footnote} Note, however, that since photographs are generally used merely to illustrate a witness’ testimony rather than to “prove the content,” the best evidence rule is rarely called into play. An original will be required only where the photograph is offerd as having independent probative value.{footnote}People v. Doggett, 83 Cal. App. 2d 405, 188 P.2d 792 (1948)(photograph of defendant committing crime).{/footnote} See also BEST EVIDENCE RULE.
1(d). As Hearsay
Very old photographs have been held admissible under the exception for ancient documents and family histories.{footnote}In re Egbert Estate, 306 N.W.2d 525, 527 (Mich. App. 1981).{/footnote}
§ 1(d). Enlargements
Enlarged photographs are admissible, and distortions caused by enlargement may be explained through expert testimony.{footnote}Chicago G.W.R. Co. v. Robinson, 101 F.2d 994 (8th Cir. 1939), cert. denied, 307 U.S. 640, 83 L.Ed. 1520, 59 S.Ct. 1037. Annot., 72 ALR2d 308. {/footnote}
§ 1(e). Posed Photographs
Posed photographs have been held admissible, despite the danger of suggestiveness.{footnote}Chicago G.W.R. Co. v. Robinson, 101 F.2d 994 (8th Cir. 1939), cert. denied, 307 U.S. 640, 83 L.Ed. 1520, 59 S.Ct. 1037. Annot., 19 ALR2d 877. {/footnote}
§ 1(e). Unfair Prejudice
Photographs will be excluded where their prejudicial effect outweighs their probative value.{footnote}Navarro de Cosme v. Hospital Pavia, 922 F.2d 926 (1st Cir. 1991)(photograph of stillborn fetus properly excluded); Walker v. Norris, 917 F.2d 1449 (6th Cir. 1990)(photograph of decedent’s body admissible to show pain and suffering caused by stab wounds); Dabney v. Montgomery Ward & Co., Inc., 761 F.2d 494 (8th Cir.), cert. denied, 474 U.S. 904, 106 S.Ct. 233, 88 L.Ed.2d 232 (1985); Hale v. Firestone Tire & Rubber Co., 756 F.2d 1322 (8th Cir. 1985)(color photographs of plaintiff’s injuries admissible where extent of injuries an issue in the case).{/footnote} Photographs will not be admitted if their sole purpose is to inflame the jury’s emotions.{footnote}People v. Corbett, 68 A.D.2d 772, 418 N.Y.S.2d 699 (4th Dept. 1979).{/footnote} It is sometimes held prejudicial error to allow the prosecution in a criminal case to exhibit extremely gruesome photographs of the victim to the jury.{footnote}People v. Gibson, 56 Cal. App. 3d 119 (1976).
But see United States v. Cline, 570 F.2d 731 (8th Cir. 1978)(photograph of decedent’s body admissible to illustrate testimony and impeach defendant’s testimony); State v. Wright, 265 So.2d 361 (Fla. ___)(allegedly gruesome photographs are admissible if relevant, even where not necessary to resolve any factual dispute); Annot., 73 ALR2d 769 (error in exclusion of photographs).Check 53 ALR2d 1102 (colored photographs).{/footnote} [Civil cases]{footnote}Ferrier v. Duckworth, 902 F.2d 545 (7th Cir. 1990).{/footnote} See also PREJUDICE; INJURIES.
2. Indentification Through Photographs
Pre-trial photographic identifications may be admitted under the hearsay exception for out-of-court identifications generally.{footnote}Gilbert v. California, 388 U.S. 263, 18 L.Ed.2d 1178, 87 S.Ct. 1951 (1967)[Check]; United States v. Clemens, 144 App. D.C. 235, 445 F.2d 711 (D.C.Cir. 1971)[Check].{/footnote} See IDENTIFICATION–Out of Court Identifications. See also MUG SHOTS.
2(a). Suggestive Procedures
A conviction based on an in-court identification which follows an improperly suggestive photographic identification will be reversed where there is a substantial likelihood of irreparable misidentification by virtue of the suggestiveness of the procedures used.{footnote}Simmons v. United States. 390 U.S. 377, 19 L.Ed.2d 1247, 88 S.Ct. 967 (1968); United States v. Merkt, 794 F.2d 950 (5th Cir. 1986).
Annot., 39 ALR3d 1000.{/footnote} A conviction ordinarily cannot be based on simply an out-of-court identification of a defendant when only the defendant’s photograph was shown to the witness, or the defendant’s photograph is the only one which generally resembles the person described by the witness.{footnote}United States v. Bubar, 567 F.2d 192 (2d Cir. 1977); United States v. Wilson, 787 F.2d 375 (8th Cir. 1986).{/footnote} In such instances, there must be an independent idenification.{footnote}United States v. Milhollan, 599 F.2d 518 (3d Cir. 1979); United States v. Workman, 470 F.2d 151 (4th Cir. 1972); United States v. Gantt, 199 App.D.C. 249, 617 F.2d 831 (D.C. Cir. 1980).{/footnote}
2(a)(i). Presence of Other Witnesses;
Photographic spreads should be reviewed by only one witness at a time so as to avoid suggestive influences.{footnote}United States v. Bagley, 772 F.2d 482 (9th Cir. 1985).{/footnote}
2(a)(ii). Hearing
Whether to hold an evidentiary hearing as to the suggestiveness of a photographic identification is matter left to the trial court’s discretion.{footnote}United States v. Smith, 546 F.2d 1275 (5th Cir. 1977).{/footnote}
2(b). Opinion Testimony
Experts on photographic comparison are qualified to give expert opinions identifying a subject in a photograph.{footnote}United States v. Sellers, 566 F.2d 884 (4th Cir. 1977).{/footnote} A lay witness may give an opinion on the identity of the person in a surveillance photograph as the accused if under the circumstances such an identification by that witness would be helpful to the jury.{footnote}United States v. Robinson, 804 F.2d 280 (4th Cir. 1986).{/footnote} See also IDENTIFICATION.
Bibliography
Waltz, Criminal Evidence 422-24 (1975).