Chapter 14
Photographic, Recorded, and
Computer-Generated Evidence
Criminal Evidence
6th Edition
Norman M. Garland
Photographs, Recordings, and
the Like as Evidence
o 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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Forms of Evidence Admitted on
Same Basis as Photographs
o Photocopies
o Motion picture films
o Video and audio recordings
o X-rays
o Computer-generated images
projected on a screen or printed onto
paper
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FRE Definitions
o 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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To Introduce a Photograph or
Recording in Evidence
Legal steps
o Show relevancy
o Lay the foundation
o Satisfy the best evidence rule
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Substantive Versus
Demonstrative Evidence
o 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.
o 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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The Judge’s Discretion
o 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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Pictorial Testimony
o 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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Silent Witnesses
o 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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Videotapes and Motion
Pictures
o 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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Xerographic, X-ray, and
Computer-Generated Output
o 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.
o 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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How Photographic Evidence
Can Be Used
o To show the scene of any incident,
including the crime scene.
o To demonstrate a theory as to how events
occurred or might have occurred.
o To record behavior of a party or witness.
o To document surveillance of an
individual.
o To record police lineups, identification
procedures, and the act of identification
itself.
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How Photographic Evidence
Can Be Used
o To record activities of those being
investigated for driving under the influence,
including the administration of field sobriety
tests.
o To record interviews of suspects, victims, or
witnesses.
o To record depositions or to preserve
testimony.
o To record criminal confessions.
o To record or generate crime re-enactments
and accident re-creations.
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First Rule of Admissibility:
Foundation for Relevancy
o Photographic or recorded evidence, to
be admissible, must have some nexus,
or connection, with the facts of the
case.
o In other words, the evidence must be
relevant.
o Showing relevance is the first step in
laying a foundation for the admission of
any item of evidence.
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The Rule of Relevancy
o 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.
o The operative language is “any
tendency.”
o The evidence need only help make the
fact somewhat more or less probable.
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The Balancing Test, Again
o The next step in the foundational
inquiry is the balancing test,
sometimes referred to as legal
relevancy.
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Judicial Weighing (in)
o If demonstrative, such evidence must be
carefully presented so that it enlightens
the jury without overwhelming the
members or inflaming their passions.
o 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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Nude Photographs
o 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.
o 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.
o However, those images that are not pertinent to
the case may be excluded for reasons of wasted
time, cumulative evidence, and undue delay.
o Thus it is best that the private areas of the body be
covered.
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Second Rule of Admissibility:
Foundation for Authentication
o 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.
o Thus, the second rule of admissibility is:
o The photograph or recording must be a
true and accurate representation of the
matter depicted.
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Proof of Accuracy
o There is no presumption that a photograph
or recording is a true and accurate
depiction of the scene contained within it.
o There must be a witness who can testify that
the scene depicted or the sounds
reproduced are true and accurate.
o 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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A Talking Document?
o 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.
o The photograph speaks for itself,
therefore it does not require someone to
describe what is contained within the
photograph.
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A Photographer Is Not
Necessary to Verify Accuracy
o The attesting witness may be anyone familiar
with the scene, or the matter depicted, who can
authenticate or verify the accuracy of the
evidence.
o The attesting witness does not have to be the
photographer or have to have been present
when the photograph was taken.
o 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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What the Police Need to
Record
o The equipment and procedures used.
o The rationale for each choice and
procedure.
o The conditions at the time the
photograph or video was shot.
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Photographs as Evidence
o There is no legal requirement that any
particular type of camera be used.
o It matters little whether the photograph was
taken with an inexpensive, simple
disposable camera, or an elaborate,
complicated one.
o The main requirement is that the photograph
be an accurate representation.
o No doubt the better the camera, the greater
the detail; but distortions can occur
regardless of the equipment used.
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An Exception . . .
o 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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The Photographer
Need Not Be an Expert
o 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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A Need for Special Knowledge
o 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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Foundation by the Chain of
Possession or Custody
o 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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Establishing the Chain of
Custody: Photographs
The officer places the film in an envelope on
which the following should appear:
o The case or file number
o Name of the photographer
o The date the photographs were taken
o The name of the person to whom the film was
released to be developed
o The date the film was released
o The date the prints and negatives were
returned and by whom
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The Foundation by Distinctive
Characteristics of the Photograph
o 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.
o 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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Placing an Object in the Crime
Scene for Identification
Three Matters to Consider:
o What should be used?
o Where should it be placed?
o What identification data should be
included?
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What Should Be Used for
Identification Purposes?
o The most practical object is an
identification card, or stiff paper.
o 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.
o A business card giving the officer's name
and department placed in the close-up
scene is also acceptable.
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Where Should the
Object be Placed?
o The identification card should be
strategically placed in the scene
photographed or videotaped.
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Posed Photographs and
Videotapes
o When circumstances dictate, an effort
is made to reconstruct the scene as
close as possible to its original state.
o This is referred to as a “posed” or
“artificially reconstructed” crime
scene.
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Appropriateness of Posed
Scenes
o When people, automobiles, and other
objects are placed to conform to
witnesses’ descriptions of the original
crime or collision, difficulties often
result.
o Posed or artificially reconstructed
scenes may be admitted when the
positions of persons and objects as
described are undisputed.
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Methods of Presentation
in the Courtroom
o Photographic Prints as Evidence
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Methods and Techniques for
Presenting Photographic Prints
o The generally accepted size is an 8by 10-inch enlargement.
o This size print has certain advantages.
o It is large enough to bring out sufficient
detail.
o It is easy for the jurors to handle.
o It fits into the court file conveniently.
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Methods and Techniques for
Presenting Photographic Prints
o 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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Hi-Tech Comes to the
Courtroom
o DVD players, MP3 players, cell phone cameras and
the like are all readily available to display images.
o Video cameras may be linked directly to a
projector to transmit the image onto a screen in the
courtroom.
o 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.
o Computer generated animations can be projected
onto overhead screens or onto a video screen in
front of the jury box.
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Preparing Photographs, Videos
and Computer Output for Trial Use
o Review the photographs, videos, recordings
and computer generated evidence that the
prosecution plans to introduce.
o 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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Film, Videotape, Software, and
Equipment to Be Used
o With respect to videos and photographs,
the main objective is to get as good a
representation of the thing photographed
or filmed as possible.
o This can be best accomplished by
standardizing the camera, video
recorder, film, and video tape used.
o Through standardization, officers become
familiar and proficient with the
equipment.
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X-ray Photographs
o X-ray photographs involve a technical
field and depict that which is not
visible to the eye.
o These photographs must be introduced
through an expert witness, usually the
person who took the photographs.
o The competency of the witness as well
as the accuracy of the equipment will
have to be established.
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