chart generally accepted for use in astronomy was not generally accepted for use in dating photographs
How later courts described this case
- chart generally accepted for use in astronomy was not generally accepted for use in dating photographs
- expert astronomer’s opinion, as to date of photograph, should have been excluded when based in part on use of a sun chart, which, although previously used to measure the height of lunar mountains, had never before been used to date a photograph
- applying Frye test to testimony by astronomer purporting to date a photograph by measuring lengths of shadows on the photo
- “Having alleged an agency relationship as the basis for its standing in the suit, [plaintiff] cannot slough off that relationship at will”
Written by the judges who cited it.
The opinion
*760 FAIRCHILD, Circuit Judge,
dissenting.
The critical question is whether the district judge abused his discretion in admitting Ciupik’s expert testimony, which was based on calculations made from a photograph originally used by defendant in support of his allegedly perjurious alibi testimony and a chart marking the sun’s path as viewed from Chicago on the twenty-second day of each month. See United States v. Cyphers, 553 F.2d 1064, 1072 (7th Cir. 1977), cert. denied, 434 U.S. 834 , 98 S.Ct. 142 , 54 L.Ed.2d 107 (1977). Because I would hold that he did not abuse his discretion in admitting this evidence, I respectfully dissent.
I disagree with the majority’s conclusion that the chart lacked “circumstantial guarantees of trustworthiness.” The chart represents easily verifiable data regarding the position of the sun at one hour intervals on the twenty-second day of each month as observed from 42° North, the latitude of Chicago. As Ciupik testified, the chart has been verified by tables giving the azimuth of the sun for various times and dates for various locations, and by the analogue computer at the Planetarium, which marks the way the sun crosses the sky day by day. Ciupik testified that he had used the chart hundreds of times and found it accurate. Surely it was reasonable for the district judge to conclude that any possible inaccuracies in the chart would have been discovered during the fifteen years the chart has been in use.
The majority finds no real fault with the theory explained by the expert that the altitude and azimuth of the sun can be computed from right triangles as described by Ciupik. That the method is not known to have been applied to a photograph before scarcely establishes that it is unsound.
Ciupik did not claim perfect accuracy in concluding that the picture was taken April 13 or August 31. He suggested a margin of error of several days. As noted by the majority, the lines on the chart correspond to the altitude and azimuth of the sun only on the twenty-second day of each month. Ciupik felt that he could interpolate between these days. In any event, his calculations, made on the chart, put the date well before April 22 or after August 22, a very substantial difference from May 12.
The majority questions the application of this theory to the photograph in question, stating that Ciupik failed to take into account any possible slope in the ground when he constructed the right triangle of the dog’s shadow. Yet Ms. Kniebusch testified that her yard was only slightly sloped, if at all, because she had rolled it with an iron roller.
The majority also expresses concern over the accuracy of the assumed east-west bearing of the south wall of the house. It is evident from cross-examination of Mr. Ciupik that his testimony came as no surprise. Defense counsel had interviewed him concerning his calculations several days before he testified. It follows that if defense counsel had any concern about the slope of the ground or the true bearing of the wall, he had an opportunity to obtain evidence on those facts.
Judge Bartels has very meticulously suggested several other problems in obtaining precise measurements. Any inaccuracies would then have to account for a difference of twenty-nine days if the picture was actually taken on May 12. It seems to me these possibilities of inaccuracies are insufficient to demonstrate an abuse of discretion in admitting the evidence.
Regardless of Ciupik’s testimony, there was ample evidence that Walter’s testimony that he spent the afternoon and evening of May 12, 1974 with Stanley was untrue. The witnesses whose testimony convicted Stanley of passing counterfeit money at the Burger King that afternoon testified again at Walter’s trial. These included Peter McGhee, who identified Stanley as the man he chased after the Burger King incident, and Robert Fusello, who saw Stanley at his drugstore between 6:00 and 7:30 p. m.
Walter had also testified at Stanley’s trial that other pictures were taken the same afternoon in front of his mother’s home. Two neighbors testified that these pictures were taken long after May 12.
*761 Moreover, the photograph examined by Ciupik was taken south, or back of the house looking toward the south wall. No expert is needed to demonstrate that it was taken well before noon. The direction of the shadows make that plain to all. Again, Walter’s testimony that it was taken in the afternoon is untrue.
Of course, to convict of perjury, the government must convince the trier of fact not only that the testimony was untrue, but that defendant knew it was false. Ciupik’s testimony was significant in the process of persuasion because the more palpably untrue a defendant’s testimony can be shown to be, the more readily his knowledge of falsity can properly be inferred. Hence, the importance of the question whether the expert’s opinion and the chart on which he based it were properly admitted. I would hold that the district judge did not abuse his discretion in admitting them and would affirm.