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9 Law Notes (N.Y.) 165
December, 1905

    Photographs in Evidence.

  1. It is, of course, well settled now that photographs, when properly verified, are admissible in evidence for a variety of purposes. As stated by the court in State v. Miller, 43 Oregon 325, "Generally, they may be used to identify persons, places, and things; to exhibit particular locations or objects where it is important that the jury should have a clear idea thereof, and the situation may thus be better indicated than by testimony of witnesses, or where they will conduce to a better or clearer understanding of such testimony. They may also be employed to detect forgeries, and to prove documents where the original cannot be readily produced."

  2. Photographs are also admissible for the purpose of proving or disproving a resemblance between persons where the question of such resemblance is pertinent to the issues involved in a case. One of the purposes for which they are frequently used is to illustrate and make clearer the testimony of handwriting experts. They are also used frequently to show the scenes of accidents and tragedies in order to give juries a better understanding of the appearance of localities than they would be able to get from the unaided testimony of the eyewitnesses. When used for the last purpose, a photograph is a convenient and economical substitute for a view by the jury of the locus in quo.

  3. That the usefulness of photographs as evidence is not confined to the purposes we have enumerated is, however, abundantly shown by the reports. The brief summary which we give below of cases in which photographs were admitted, and of cases in which they were offered but excluded, affords striking evidence of the ingenuity and resourcefulness of our trial lawyers, and of their disposition to overlook nothing that would tend to strengthen their cases.

  4. In Com. v. Morgan, 159 Mass. 375, it was held proper to admit a photograph for the purpose of showing that when it was taken the defendant wore side whiskers, and thus of contradicting witnesses who had testified to the contrary.

  5. In Com. v. Fielding, 184 Mass. 484, where the defendant was charged with having burned an insured building, with intent to defraud the insurer, it was held that photographs were admissible under the following circumstances: " At the trial, photographs representing the building that was burned, after having been properly verified, were put in evidence by the Commonwealth. Two of them also included a dwelling house owned and occupied by the defendant, that had been partially destroyed by fire some time previous to the burning of the building which was the subject of the indictment. They also showed two dwelling houses adjoining the premises, from which witnesses at the trial testified that they had observed certain acts of the defendant at or about the time of the fire. The location of these houses in reference to the burnt building became important, as showing the opportunity for observation of the witnesses who had described the movements and conduct of the defendant, and the photographs would materially aid the jury in understanding the case."

  6. In a prosecution for murder, it was held that a photograph of the deceased was admissible for the purpose of showing the nature and location of the wounds inflicted by the murdered. (Franklin v. State, 69 Ga. 36.) And in Smith v. Territory, (Okla. 1902) 69 Pac. Rep. 805, it was held that a similar photograph was admissible, though it was taken after the body of the deceased had been removed from the scene of the homicide to the residence of a relative. In State v. Miller, 43 Oregon 325, however, it was held erroneous to admit a photograph which did not accurately reproduce the appearance of the wounds, and which presented a gruesome spectacle of a disfigured and mangled corpse, very well calculated to arouse indignation in the jury.

  7. It is true not only in criminal prosecutions, but also in civil actions for personal injuries, that a photograph is inadmissible when it is neither necessary nor instructive, and is offered merely for the purpose of inflaming the sympathies of the jury. (Cirello v. Metropolitan Exp. Co., 88 N.Y. Supp. 932.) For instance, in an action by a husband for personal injuries sustained by his wife, where the damages recoverable were limited to the husband's loss of his wife's services and society, and to expenses for nursing and medical attendance, it was held erroneous to admit photographs which showed the injured member in various aspects. as they were calculated to divert the minds of the jury from the legitimate elements of recovery to thoughts of the mental and physical suffering which the wife had endured. (Selleck v. Janesville, 104 Wis. 570.)

  8. In Guhl v. Whitcomb, 109 Wis. 69, which was an action for personal injuries sustained by a nineteen-year-old girl, the court scathingly rebuked the trial court for permitting the introduction of "photographs showing rear views of the plaintiff's person, nude from below the shoulder to mid-thigh." The reason for the rebuke was, of course, that if the condition of the plaintiff's private parts was material to any of the issues involved in the trial, it should have been made the subject of expert testimony, after a private examination made out of court by experts.

  9. It has been held several times that a photograph of the scene of a tragedy, taken after the occurrence thereof, made and offered in good faith, is not rendered inadmissible by the fact that it contains human figures to indicate the respective positions of the principals, provided its accuracy is proved. (Straw v. State, 83 Ga. 92; State v. O'Reilly, 126 Mo. 597. See, also, State v. Kelley, 46 S. Car. 55.) Indeed, it was held in People v. Jackson, 111 N.Y. 362, that such a photograph was admissible, though "the arrangement was not exact " but was mere "matter of description and served to indicate in a general way the impression left on the mind of the witness." It has been held, on the other hand, that the photographic reproduction of a tableau, planned to heighten the dramatic effect of the testimony of a witness in a murder trial, is inadmissible. In deciding that the admission of photographs of this nature was reversible error, as being injurious to the defendant, the court said, in Fore v. State, 75 Miss. 727: "The photographs, and all the evidence touching them, should have been excluded. They were not simply reproductions of the scene of homicide. They were photographic representations of tableaux vivants carefully arranged by the chief witness of the State, whereby his version of the tragical occurrence should be brought vividly before the mind's eye of the jury, and be impressed upon the jury as the view of the actual occurrence, and not as the mere statement of the facts of that occurrence as detailed by the witness. Their effect, if not their purpose, was, by photographic processes, to strengthen and bring out in striking and captivating fashion the version of the difficulty as given the jury in this witness's evidence." And in an action for personal injuries, where the defendant offered in evidence certain photographs of the scene of the accident, the appellate court, in holding that they were properly excluded by the trial court, said: " To be admissible, photographs should simply show conditions existing at the time in question. But photographs taken to show more than this, with men in various assumed postures, and things in various assumed situations, in order to illustrate the claims and contentions of the parties, should not be admitted. An examination of the excluded photographs shows that they fall within the latter class. They would serve merely to illustrate certain theories of the defendant as to how the accident happened." (Babb v. Oxford Paper Co., 99 Me. 298.)

  10. Not the least interesting of the cases are those which relate to the use of photographs to prove the physical appearance and condition of human beings. In a prosecution against the secretary of a benevolent institution for injuring by neglect the health of a child who was an inmate of the institution, it was held admissible to introduce photographs of the child taken before he went to the institution and two weeks after he left it. (Cowley v. People, 83 N. Y. 464.) On the trial of an indictment for murder, where the plea was self-defense, a photograph of the deceased was admitted for the purpose of showing his physical characteristics. In holding that the evidence was admissible, the appellate court said: "Where self-defense is the plea, the physical characteristics of the slain are, obviously, a proper matter of proof. Whether he was a man of a large and powerful physique or an athlete, or puny and feeble or inferior in size and strength, it was a material fact to strengthen or rebut, according to the nature of the evidence, the claim of the defendant that he believed he was in great danger of bodily harm when he was assailed." (People v. Webster, 139 N. Y. 73.) And in Com. v. Keller, 191 Pa. St. 122, it was held that a full-length photograph of the deceased was admissible for the purpose of rebutting testimony that the prisoner was a smaller man than the deceased, the witness who identified the photograph and testified to its accuracy being represented in it standing by the side of the deceased. In an action on an insurance policy, where it appeared that the insured died suddenly about ten days after making her application for insurance, it was held competent to introduce, for the purpose of showing her healthy appearance, a photograph of her which was verified as accurately representing her appearance at the time of the application. (Schaible v. Washington L. Ins. Co., 9 Phila. (Pa.) 136.) In Brown v. Metropolitan L. Ins. Co., 65 Mich. 307, it was held, on the other hand, that a photograph of the insured was not admissible for the purpose of showing her "healthy appearance." It may be that the decision upholding the admissibility of the photograph was correct, as the effect of the evidence was merely to show the healthy appearance of a person at a definite time. It would seem, however, that the use permitted in Taylor, etc., R. Co. v. Weaver, 88 Tex. 642, was unjustifiable. In that case, which was an action for negligently causing the death of a child seven years old, a photograph showing his physical development at the age of five was admitted, as tending to show the probabilities of future growth and further development It is still harder to understand the reasons which actuated the court in Pritchard v. Austin, 69 N. H. 367, where, in an action to set aside a will because of undue influence exercised on the testator by his wife, photographs of both were admitted, as tending to show the "character, vigor, temperament, and disposition" of each. Possibly, though, in that case, the court, on inspection and comparison of the photographs, concluded that they told a story graphically that mere words could express but feebly.