1. Criminal Evidence 6th Edition
Chapter 14 Photographic, Recorded, and Computer-Generated Evidence
Criminal Evidence 6th Edition
Norman M. Garland

2. Photographs, Recordings, and the Like as Evidence
Modern technology has generated a variety of forms of evidence which depict, or record both sounds and images, that are readily admitted as evidence on the same basis as photographs.
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3. Forms of Evidence Admitted on Same Basis as Photographs
Photocopies
Motion picture films
Video and audio recordings
X-rays
Computer-generated images projected on a screen or printed onto paper
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4. FRE Definitions
FRE 1001 defines writings and recordings as “letters, words, or numbers, or their equivalent, set down by handwriting, typewriting, printing, photostating, photographing, magnetic impulse, mechanical or electronic recording, or other form of data compilation.” Photographs include still photographs, X-ray films, video tapes, and motion pictures, but are not limited to just these examples.
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5. To Introduce a Photograph or Recording in Evidence
Legal steps
Show relevancy
Lay the foundation
Satisfy the best evidence rule
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6. Substantive Versus Demonstrative Evidence
If the visual aid is used by the jury in deciding facts, such as the number and location of wounds, then the visual aid would be used as substantive evidence.
On the other hand, if the visual aid is used solely to illustrate testimony given by a witness, then the visual aid is demonstrative evidence only.
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7. The Judge’s Discretion
As long as the pictorial image will assist the jury in understanding the testimony of a witness or will illuminate an idea, the judge has discretion to allow the jury to see the demonstrative aid.
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8. Pictorial Testimony
When a photograph is used as pictorial testimony, that is, used to illustrate a witness’s testimony, a sponsoring witness must testify that it is a fair and accurate representation of the subject matter, based on that witness’s personal observation.
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9. Silent Witnesses
Photographs, film or videotape, taken by an automatic camera, with no operator present, may be introduced to document the events recorded under the silent witness theory.
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10. Videotapes and Motion Pictures
Courts uniformly agree that the question of the admissibility of videotaped evidence is a matter of discretion for the trial court.
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11. Xerographic, X-ray, and Computer-Generated Output
Though such images may require more effort to authenticate, the “high tech” evidence of computer generated output, X-ray and xerography is also held to the same standards of admissibility as videos and photographs.
Computer-generated reproductions, summaries, or models of complex undertakings have gained acceptance in the courts, provided that the evidence is relevant, is not hearsay, and is supported by a proper foundation.
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12. How Photographic Evidence Can Be Used
To show the scene of any incident, including the crime scene.
To demonstrate a theory as to how events occurred or might have occurred.
To record behavior of a party or witness.
To document surveillance of an individual.
To record police lineups, identification procedures, and the act of identification itself.
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13. How Photographic Evidence Can Be Used
To record activities of those being investigated for driving under the influence, including the administration of field sobriety tests.
To record interviews of suspects, victims, or witnesses.
To record depositions or to preserve testimony.
To record criminal confessions.
To record or generate crime re-enactments and accident re-creations.
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14. First Rule of Admissibility: Foundation for Relevancy
Photographic or recorded evidence, to be admissible, must have some nexus, or connection, with the facts of the case.
In other words, the evidence must be relevant.
Showing relevance is the first step in laying a foundation for the admission of any item of evidence.
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15. The Rule of Relevancy
The rule of relevancy requires showing that an item of evidence has any tendency to make the existence of any fact of consequence more or less probable than it would be without the evidence.
The operative language is “any tendency.”
The evidence need only help make the fact somewhat more or less probable.
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16. The Balancing Test, Again
The next step in the foundational inquiry is the balancing test, sometimes referred to as legal relevancy.
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17. Judicial Weighing (in)
If demonstrative, such evidence must be carefully presented so that it enlightens the jury without overwhelming the members or inflaming their passions.
And when video, photographs, or computer animation is used to prove the existence of an object or a scenario, rather than as background information or a visual aid, the potential for unfair prejudice is even greater.
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18. Nude Photographs
The mere fact that a photograph may reflect a part of the body that would not ordinarily be exposed to public view does not make it inadmissible.
If the photographs are relevant to show the extent and location of injuries received and are not unduly prejudicial, they are admissible even though they are taken of a person in the nude.
However, those images that are not pertinent to the case may be excluded for reasons of wasted time, cumulative evidence, and undue delay.
Thus it is best that the private areas of the body be covered.
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19. Second Rule of Admissibility: Foundation for Authentication
The primary purpose of the introduction into evidence of a photograph or recording is to give a clearer understanding of what happened in a particular case and to assist the jurors in arriving at the truth.
Thus, the second rule of admissibility is:
The photograph or recording must be a true and accurate representation of the matter depicted.
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20. Proof of Accuracy
There is no presumption that a photograph or recording is a true and accurate depiction of the scene contained within it.
There must be a witness who can testify that the scene depicted or the sounds reproduced are true and accurate.
All that is required is testimony from a witness that a photograph, recording, illustration, or computer output is what the person offering it claims it to be.
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21. A Talking Document?
When a document, photograph, recording, videotape, or other like matter speaks for itself, this means that the witness attesting to its accuracy can only testify to its accuracy and should not describe the photograph or video or the contents of the writing.
The photograph speaks for itself, therefore it does not require someone to describe what is contained within the photograph.
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22. A Photographer Is Not Necessary to Verify Accuracy
The attesting witness may be anyone familiar with the scene, or the matter depicted, who can authenticate or verify the accuracy of the evidence.
The attesting witness does not have to be the photographer or have to have been present when the photograph was taken.
The witness must be familiar with the scene depicted in the photograph, and be in a position to testify that it is an accurate representation of that which the evidence purports to depict.
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23. What the Police Need to Record
The equipment and procedures used.
The rationale for each choice and procedure.
The conditions at the time the photograph or video was shot.
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24. Photographs as Evidence
There is no legal requirement that any particular type of camera be used.
It matters little whether the photograph was taken with an inexpensive, simple disposable camera, or an elaborate, complicated one.
The main requirement is that the photograph be an accurate representation.
No doubt the better the camera, the greater the detail; but distortions can occur regardless of the equipment used.
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25. An Exception . . .
Videotapes and computer generated output will require testimony to demonstrate reliability and accuracy; usually the services of an expert are required.
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26. The Photographer Need Not Be an Expert
There is no legal requirement that the photographer or videographer have any particular amount of experience in photography or film making for the evidence to be admissible.
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27. A Need for Special Knowledge
If the evidence is a computer generated output or an X-ray, the operator will usually be an expert, or someone with special knowledge of the equipment being used.
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28. Foundation by the Chain of Possession or Custody
Aside from a witness testifying to its accuracy, another method of authenticating a photograph or recording is to present evidence showing the photograph or recording has been in constant possession or custody of one or more persons and to show that the evidence is in the same condition as it was originally.
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29. Establishing the Chain of Custody: Photographs
The officer places the film in an envelope on which the following should appear:
The case or file number
Name of the photographer
The date the photographs were taken
The name of the person to whom the film was released to be developed
The date the film was released
The date the prints and negatives were returned and by whom
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30. The Foundation by Distinctive Characteristics of the Photograph
The most practical means of identifying a video tape or photograph as the one the officer took is to place an object with a distinctive characteristic within the crime scene before taking the photograph or filming the video.
The object placed in the scene should be clearly placed there for identification purposes and not be something which may be confused with a part of the crime scene.
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31. Placing an Object in the Crime Scene for Identification
Three Matters to Consider:
What should be used?
Where should it be placed?
What identification data should be included?
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32. What Should Be Used for Identification Purposes?
The most practical object is an identification card, or stiff paper.
When the photograph or video is taken close to the scene or article, such as a footprint, a small 3- by 5-inch card with proper notations is useful.
A business card giving the officer's name and department placed in the close-up scene is also acceptable.
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33. Where Should the Object be Placed?
The identification card should be strategically placed in the scene photographed or videotaped.
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34. Posed Photographs and Videotapes
When circumstances dictate, an effort is made to reconstruct the scene as close as possible to its original state.
This is referred to as a “posed” or “artificially reconstructed” crime scene.
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35. Appropriateness of Posed Scenes
When people, automobiles, and other objects are placed to conform to witnesses’ descriptions of the original crime or collision, difficulties often result.
Posed or artificially reconstructed scenes may be admitted when the positions of persons and objects as described are undisputed.
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36. Methods of Presentation in the Courtroom
Photographic Prints as Evidence
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37. Methods and Techniques for Presenting Photographic Prints
The generally accepted size is an 8- by 10-inch enlargement.
This size print has certain advantages.
It is large enough to bring out sufficient detail.
It is easy for the jurors to handle.
It fits into the court file conveniently.
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38. Methods and Techniques for Presenting Photographic Prints
Even more effective are overhead projections using transparencies, video projection, or computer assisted projection onto a screen large enough for everyone in the courtroom to see, or delivered to a monitor placed before the witness, jury, judge, and lawyers.
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39. Hi-Tech Comes to the Courtroom
DVD players, MP3 players, cell phone cameras and the like are all readily available to display images.
Video cameras may be linked directly to a projector to transmit the image onto a screen in the courtroom.
A computer may be used to transmit images from a video source or an image contained on a floppy disk, a CD-ROM, or the computer’s hard drive.
Computer generated animations can be projected onto overhead screens or onto a video screen in front of the jury box.
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40. Preparing Photographs, Videos and Computer Output for Trial Use
Review the photographs, videos, recordings and computer generated evidence that the prosecution plans to introduce.
Make certain that all the evidence needed is available and ensure that photographs have been properly printed, videos and other recordings have been properly edited, and computer output accurately portrays the situation.
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41. Film, Videotape, Software, and Equipment to Be Used
With respect to videos and photographs, the main objective is to get as good a representation of the thing photographed or filmed as possible.
This can be best accomplished by standardizing the camera, video recorder, film, and video tape used.
Through standardization, officers become familiar and proficient with the equipment.
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42. X-ray Photographs
X-ray photographs involve a technical field and depict that which is not visible to the eye.
These photographs must be introduced through an expert witness, usually the person who took the photographs.
The competency of the witness as well as the accuracy of the equipment will have to be established.
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