Break Frames | Home
60 Central Law Journal 406
May 26, 1905
Photographs as Evidence
By Sumner Kenner
It has been well said by an eminent writer, 1 that "that which we drink in at our ears, doth not so piercingly enter, as that which the mind doth conceive by sight." The profession has long recognized the fact that it is not an easy matter for even a well trained mind to get a clear conception of a place, or of a physical thing, from a description given in words.
It has been this fact that has caused the advocate to prepare maps, plans, or even models of lands, water courses and buildings, so that might obtain a full and clear view of the evidence, as well as to assist him in getting the court or jury to understand the evidence in its full force.
The science of photography has been a great assistance to the advocate, in the preparation and presentation of his cases, and it can now be said to be an established and important branch of the law of evidence. 2 The court in a Georgia case 3 said: "We cannot conceive of a more impartial and truthful witness than the sun, as its light stamps and seals the similitude of the object on the photograph put before the jury; it would be more accurate than the memory of witnesses, and as the object of al; evidence is to show the truth, why should not this dumb witness show it?".
The question, as to whether photographs are the best evidence, or merely secondary [**407**] evidence, has been the subject of much legal controversy, and some very ingenious arguments have been advanced upon this subject. One writer argues that all such evidence, should be considered the best evidence, as the photograph is really primary evidence, as much as the image formed on the retina of the eye; but this argument is hardly sound. But as is readily seen from the cases, this question must be decided from the facts and nature of each particular case.
Although it is doubtless true that in most cases photographs are merely secondary evidence, yet it is not always so. In cases where the photographs themselves are the subject of the controversy, as a trial for the offense of selling indecent and obscene photographs, it is clearly seen that the pictures themselves are manifestly primary evidence, 4 as is also the case where the original subject of the photograph cannot for any reason be produced, then the photographs become primary evidence. 5
But usually they are considered as secondary evidence, and if the object itself can be brought before the jury, or if the jury can view the location, then the photographs are not admissible, 6 unless admitted as explanatory evidence.
Steps Necessary before Introduction.Before photographs can be introduced in evidence, they must be properly identified, and their accuracy must be shown. This is firmly settled, 7 while some of the reported cases do not always show that the photograph offered in evidence was first authenticated, yet there is no case which holds that such proof is unnecessary. 8 In cases where pictures are admitted in evidence, to show the locality of an accident, or to show the place where a homicide has been committed, then it should be shown that there was no material change in the place during the interval which elapsed between the time the accident occurred, or the homicide was committed, and the time the place was photographed. 9
A very important use of photographs as evidence, and probably the most common one, is the use as explanatory or illustrative evidence, and their purpose is to enable the jury to better understand the testimony of the witnesses. Cases illustrating the use of photographs as explanatory evidence, can be found in the reports of every state. The application can be best understood by examining some of the reported cases.
Photographs of Places.The case of City of Huntington v. Lusch, 10 was an action for damages for personal injuries to the plaintiff, and for the death of his horse, caused by the animal becoming frightened at a stump in a city street, and running over the unprotected precipitous side of the street. The plaintiff introduced in evidence two photographic views of the place where the injury occurred, one of them showing the stump in question. The introduction of these views was objected to by the defendant, the ground of objection being that the photographs were not taken at or about the time of the injury, or when the things shown were situated as at that time, but that things were changed and shifted by interested parties and the photographs taken.
The plaintiff had testified that a day or two after the injury he passed along the road, and that then the stump was not in the street, but had been rolled into a vacant lot; but he further testified that when the photographs were taken the stump had been brought back, and was in the same place that it had been in at the time of the accident. The lower court permitted the photographs to be exhibited to the jury, in connection with all the other evidence in the case, but stated that the jury were not to be bound by the photographs; that they might apply the evidence with them. On appeal, the Appellate Court of Indiana, by Black J. said: "There being evidence to the effect that there was no material change in the appearance of the place of the injury, and that the photographs correctly represented the place at the time of the injury, the lower court did not err in admitting the photographs in connection with the other evidence in the case."
In the case of Turner v. Boston & M. R. Co., 11 being an action against the railroad company for injuries to an employee of another road from getting his foot caught in an unblocked frog, a photograph taken shortly after the accident, when there had been no change in the condition of the frogs, the verification of which had been waived, was held admissible to show that other frogs in the vicinity were unblocked, where evidence had been given on the part of defendant, from which it could be inferred that all the frogs were kept blocked, as well as that at which the accident happened.
In a Michigan case, l2 photographic views of premises alleged to have been injured by obstructing plaintiff's right of drainage, taken over a year after the cause of action arose, were held to be inadmissible in evidence, in the absence of proof of their accuracy.
In a Connecticut case, 13 photographs of a railroad crossing at which a person was killed, after they were shown to be correct representations of the crossing and its surroundings, were admitted in evidence, although there had been a change in the appearance of the locality made by the fall of leaves from the trees; as this was held to be open to explanation. But in an Illinois case, l4 photographs of the locality where a person was killed on a railroad crossing were rejected, the court holding that as one of the material questions was whether or not a view of the train which killed the deceased was obstructed by box cars standing on a side track and by other objects, and it appeared that the photographs were taken two months after the accident by a mere amateur photographer, and that the leaves had fallen from the trees in the meantime.
Photographs of Persons and Things.In a Pennsylvania case, 15 where the mutilated body was found the witness was allowed to testify that the face resembled a photograph of a person alleged to be the one found, though he had not known the man before death. But this case has been doubted in some respects, as being an extreme application of the rule.
An interesting application of the rule is seen in a Massachusetts case, where a photograph of a person accused of larceny showing that he wore side whiskers, was held to be admissible in evidence in rebuttal of witnesses for the defendant, who testified that he had not worn them since a time prior to the taking of the photograph, the question as to whether it was sufficiently verified being for the trial justice.
In a United States case, the same being a trial for the importation of women for the purposes of prostitution, photographs of the women alleged to have been imported, found in the possession of the defendant, were held to be admissible. 16
In the case of McClurg v. Brenton, 17 which was an action to recover damages for an alleged unlawful search of the plaintiff's premises, photographs of hounds used in tracking alleged criminals, were held not to be admissible in evidence. The court said: "As a seal to this eulogium, the witness produced photographs of the hounds, which were admitted in evidence. The particular point in controversy which these portraits were intended to illuminate is not pointed out by counsel, and our unaided efforts in that direction have proved fruitless. The testimony should have been excluded."
In the case of Alberti v. Railroad Company, 18 which was an action for the recovery of damages for a personal injury, the plaintiff's counsel offered in evidence a photograph of the plaintiff, showing the manner in which his limbs had been contracted. This photograph was admitted as evidence, after the testimony of a doctor, who testified that the photograph was taken in his presence, and that it correctly represented the condition of the limbs.
In criminal cases, photographs of wounds have been uniformly held to be admissible upon proper identification. 19
In bastardy cases, there is some dispute as to whether photographs of the putative father and of the child could be admitted, for the purpose of showing the likeness of the parent and child. In a Kansas case, 20 a photograph of the putative father when he was dead, when proved to be good likeness of him, was held admissible in evidence on an issue of paternity, for the purpose of comparison with the child in court.
In the case of Re Jessups Estate, 21 the court while holding that photographs of a putative father and an illegitimate child were not inadmissible for the purpose of showing resemblance between the two, remarked, that they were entitled to but little weight since, "great dissimilarity between kindred, and strong resemblances between strangers are matters of every day observation." It seems that many of the courts receive this kind of evidence with caution, for the reason stated by the California court.
Stereoscopic Views.When additional instruction is afforded thereby, it is permissible to use either photographs which are on an enlarged scale than the originals, or stereoscopes and stereoscopic views.
In an Illinois case, 22 a sterescopic [sic] view of a bridge and embankment was held to be admissible to show the need of a railing along the embankment. The photographer in that case testified that the view was correct, and that the process of taking the view was the same as in photography. And another photographer testified that the effect when the view was properly taken, and the picture was looked at through the the [sic] glass, was that of nature viewed with the eyes.
In the case of German Theological School v. Dubuque, 23 which was an action for damages caused by an overflow of water, the court admitted stereoscopic views of the property injured by the water, for the purpose of showing the condition of the property after the alleged injuries, for the purpose of establishing the amount of damages.
X-Ray Photographs.The courts of this country have at all times been willing to open their doors to all well considered scientific discoveries, which would assist in the presentation of the case, and which would facilitate the arrival at the truth. For this reason photographs made by the cathode or X-ray process will bc admitted as secondary evidence.
One of the first courts to recognize and admit such photographs as evidence was the District Court of Colorado. 24 In the able opinion of Lefevere, J., we find, "no science has made such mighty strides forward as surgery. It is eminently a scientific profession, alike interesting to the learned and the unlearned. It makes use of all science and learning. It has been of inestimable value to mankind. It must not be said of the law that it is so wedded to precedent that it will not lend a helping hand. Rather let the courts throw open the door to all well considered scientific discoveries. Modern science has made it possible to look beneath the tissues of the human body, and has aided surgery in telling of the hidden mysteries. We believe it to be our duty in this case to be the first, if you please, to so consider it, in admitting in evidence a process known and acknowledged as a determinate science."
Before the photographs will be admitted, the skill and competency of the one who took the picture may be inquired into, and its weight as evidence will depend to a great extent upon these circumstances.
In a Tennessee case, 25 one for personal injuries, the fact which the plaintiff wished to show in the development of his case was that the bones of his fractured legs had overlapped in healing, and to show this condition the court admitted in evidence an X-ray photograph of that part of the injured legs.
The Supreme Court of the State of Illinois recently decided a personal injury case, in which the question of the admissibility of X ray photographs was passed upon by that court. 26 The plaintiff in the case alleged that he was injured while riding on defendant's electric cars, as a passenger, by a collis[**410**]ion with another of defendant's cars. The injury complained of consisted of a displacement of the heart which had caused the walls of that organ to thicken. The court in allowing the evidence to go the jury said: "As the case may be again heard, it is necessary we should consider the insistence that the court erred in permitting the introduction in evidence of skiograph, or X-ray photograph, of a portion of the chest and the body of the appellee. The skiograph was made by an expert who testified that he was an X-ray expert, and was regularly engaged in taking such photographs for physicians; that he took the negative a which the photograph was developed, and that he developed the photograph; and that it was an accurate and correct representation. It was, intended to show by the skiograph that the appellee's heart had been displaced, that the walls of that organ had become thick, and that an abnormally heavy tissue had formed on the walls of his heart. The testimony of the X-ray expert who had taken the skiograph tended to show that the picture correctly represented the condition of the heart of the appellee.
Photographs taken by the X-ray process are admissible in evidence after proper preliminary proof of their correctness and accuracy has been produced. We think the testimony of the X-ray expert who made the skiograph was sufficient to justify the court in ruling that the picture should be admitted. "
Subsequently in the trial of the same case, the defendant produced another X-ray expert in its behalf. The witness gave testimony tending to show that the skiograph had not been properly taken, and expressed the opinion that the picture was of little or no value as a representation of the heart and other portions of the body of the plaintiff. Upon the testimony of this witness the court said: "The lower court was not asked to exclude the picture because of this adverse criticism, nor do we think the motion to exclude should have been granted had it been interposed."
It is the rule that the weight to be given to testimony of this kind, is a question solely for the jury.
Under a statute of the state of Illinois authorizing "papers read in evidence, other than depositions" to "be carried from the bar by the jury," the highest court of that state held, that "papers in evidence" clearly embrace photographs or skiographs offered and received in evidence, and that they may be taken by the jury, on their retirement, to consider and determine the cause.
In a criminal case in New York the prosecution claimed that a bullet struck the victim in the jaw, and split, one piece being deflected into the jaw and the other piece into the back of the head. The defendant claimed that the piece lodged in the back of the victim's head was not a fragment, but a whole bullet. To prove this, the defendant was allowed to introduce an X-ray photograph of the head and neck showing the lodgment of the bullet, and the testimony of the physician who took the photograph. 27
The courts of many states have admitted X-ray photographs as illustrative evidence, 28 and the use of this new science, seems to be looked upon with favor by the courts.
Fed. Rep. 373; Kansas City M.& B.R. Co. v. Smith, 90 Ala. 26; 52 Mich. 214; l Greenlf. Ev. 92; 2 Rice Ev. 1169; Tayl. Ev. 1613.
Franklin v. State, 69 Ga. 42, 49 Am. Rep. 748.
People v. Muller, 32 Hun. 209; Barnes v. Ingalls, 39 Ala. 193.
Ill. App. 398; 31 Wis. 512; 32 N. Y. Supp. 702.
7 D. R. Pa. 321; 118 Mass. 420; Perkins v. Buaas (Tex. Civ. App.), 32 S. W. Rep. 240; Bliss v. Johnson, 76 Cal. 597; Rogers' Expert Testimony, sec. 144; Matter of Foster's Will, 34 Mich. 23; Tome v. Parkersburg, etc., R.R. Co., 39 Md. 36.
Green v. Terwilliger, 56 Fed. Rep. 384; Locke v. Sioux City, etc., R. Co., 46 Iowa, 109; Goldsboro v. Central R. Co., 60 N.J. Law, 49; Crane v. Horton, 5 Wash. 479, Bruce v. Beall, 99 Tenn. 303; 81 Cal. 408; 83 N.Y. 464.
Minn. 379; 134 Mo. 85; 91 Ala. 112; 128 Ind. 97.
Keyes v. State, 122 Ind. 527; Blair v. Pelham, 118 Mass. 420; Cowley v. People, 83 N.Y. 464.
City of Huntington v. Lusch (Ind. App.), 70 N.E. Rep. 402.
Turner v. Boston & M. R. Co., 158 Mass. 261.
Liedlein v. Meyer (Mich.), 55 N. W. Rep. 367, 95 Mich. 586.
Dryson v. New York R. R. Co., 57 Conn. 9.
Cleveland, C. C. & St. L. R. Co. v. Monaghan, 140 Ill. 474.
76 Pa. 340.
United States v. Pagliano, 53 Fed. Rep. 1001.
McClurg v. Brenton, 123 Iowa, 368.
Alberti v. R. R. Co. (N.Y.), 6 L. R. A. 765.
Franklin v. State, 69 Ga. 42, 47 Am. Rep. 748; People v. Fish, 125 N. Y. 136, where photographs of the head and neck of the murdered man, showing the wound, when proved to be true representations of the location of the wound, were held admissible. 46 N. Y. 215; 128 Ind. 97.
Shorten v. Judd, 66 Kan. 43.
Re Jessups Estate, 81 Cal. 408, 6 L. R. A. 594.
Rockford v. Russell, 9 Ill. App. 229.
German Theological School v. Dubuque, 64 Iowa, 736.
29 Chi. Leg. News, 145.
(Tenn.), 41 S. W. Rep. 445.
Chicago, etc., Electric R. Co. v. Spencer (Ill.), 72 N. E. Rep. 797; 12 Ency. of Pl. and Pr. 691; Par. 56 of the Practice Act (3 Starr & C. Ann. St. 1896, p. 3064.)
15 Med. Leg. J. 246.
Mauch v. Hartford (Wis.), 87 N. W. Rep. 817; De Forge v. R. R. Co., 178 Mass. 59; Jameson v. Weld, 93 Me. 345; Tish v. Welker, 5 Ohio Dec. 725; Miller v. Dumon (Wash.), 64 Pac. Rep. 804; 22 Am. & Eng. Enc. of Law (2d Ed.), 775. Instructive notes on the question of photographs as evidence are to be found in Bouvier's Law Dictionary (Rawles Revision), on page 666, and in 35 L. R. A. 808, the latter being particularly exhaustive.