declining to “lay down extensive, absolute foundation requirements” because “[ejvery photograph [or other recording], the context in which it was taken, and its use at trial will be different in some respect”
How later courts described this case
- declining to “lay down extensive, absolute foundation requirements” because “[ejvery photograph [or other recording], the context in which it was taken, and its use at trial will be different in some respect”
- declining to “lay down extensive, absolute foundation requirements” because “[e]very photograph [or other recording], the context in which it was taken, and its use at trial will be different in some respect”
- requiring proof that photograph was not altered and suggesting other non-mandatory guidelines for admission of photographs under silent witness theory
- adopting silent witness theory
Written by the judges who cited it.
The opinion
YOUNG, Judge,
dissenting.
I dissent.
It is not proper to permit the photographs to be admitted into evidence under current Indiana law regarding the foundation for admissibility of photographs. The majority *1021 correctly states the traditional rule for the admission of photographic evidence. They also state that this case is singularly concerned with the foundation requirement and suggest that the “independent silent witness” theory be adopted as an alternative to the current “pictorial testimony” theory. I would treat it as an exception and require more exacting standards of trustworthiness.
Initially, there are significant distinctions in the examples of where the “independent silent witness theory” is said by the majority to be applied and its application in this case. In the cases supportive of the “silent witness theory” extreme care is taken to assure the veracity of the offered exhibit particularly with regard to the mechanical process by which the same is recorded. The foundation requirements regarding the camera angle, lighting, exposure, type of film, lens used, and other data should be readily determinable by expert testimony. The danger of accepting the “silent witness theory” without these safeguards is the possibility of misleading evidence. Posed photographs could result which would not fairly and accurately depict an act or occurrence.
The first example cited by the majority of unintentional utilization of the silent witness theory occurs when x-rays are admitted into evidence. As the majority allows in footnote 2, in Indiana x-rays are treated as scientific evidence, as contrasted to photographic evidence. Howard v. State, (1976) 264 Ind. 275 , 342 N.E.2d 604 ; III J. Wigmore, Evidence § 795 (Chadbourn rev. 1970). Consistent with this rationale, Wig-more states that an instrument which furnishes an abnormal aid to the senses may be employed as a “source of testimonial knowledge.” The x-ray as a source of testimonial knowledge is similar to other data on which a physician would base a diagnosis. Preliminary testimony is required to show the trustworthiness of the process and correctness of the particular instrument. Wig-more states that the concern here is the source of a witness’ knowledge and not his mode of communication. 1 The x-ray is like other scientific data on which a physician relies in making a diagnosis. The foundation for such data is specialized and differs from traditional photographic evidence. I do not believe that an x-ray is evidence which could “speak for itself” and it has not been admitted on that rationale. The use of a photograph in this case is different from how an x-ray is used.
There are no Regiscope cases from Indiana cited by the majority nor do I locate any. It appears to me that those jurisdictions allowing the introduction of these types of photographs without the traditional foundation find the basis for trustworthiness in the procedure underlying the transaction. In State v. Tatum, (1961) 58 Wash.2d 73 , 360 P.2d 754 , and Sisk v. State, (1964) 236 Md. 589 , 204 A.2d 684 , the courts held as part of the foundation that the photograph accurately portray the subjects illustrated. In each case there was lengthy testimony regarding the underlying process. For example, the following description is taken from Sisk, 204 A.2d at 686-87 .
William Shraver, Chief Investigator for Montgomery Ward, was then called. He stated that he received the check from the Chief Cashier after it was returned unpaid; that he went to the cashier’s cage where there is located a Regiscope camera and removed the film therefrom and sent it, by mail, to the “Regiscope Company” in Fairfax, Va., with a description of the check and the Bates number thereon, and a request for a picture. The witness further testified that he had taken a course of instruction on the operational procedure of the Regiscope Company, which included a complete explanation of the camera and its functions and the company’s procedures for developing and storing the film, etc., so that he was “thoroughly familiar with their operation.” The Bates numbering machine is *1022 one so designed that each time the machine is stamped the number printed by it is changed one digit. The number is printed in the center of the top of the check and in the instant case is 136278. As requested by the witness, the “pictures” were returned to him by mail. The picture, which was later introduced into evidence, was “a complete photograph of a transaction of cashing the check. The bottom part of the photograph is a picture of the person cashing the check and the top part * * * is the check and the identification used to cash the check.” The Regiscope pictures are taken with a camera which contains two lenses; one points straight forward in the direction of the person cashing the check; the other points down in the direction where the check and the identification are laid on the base of the camera. The camera is operated by a single lever, which, when pushed, takes two pictures, simultaneously, on the same negative. The picture, State’s Exhibit 2, contains a picture of the check involved herein, which had been previously identified. The camera has a fixed focus; so the farther away a person is from the front of the camera, the smaller a person appears upon the picture. From his experience, it was witness’ opinion that appellant was against the counter just outside the cage window when the picture was taken. On September 28, 1962, the witness had a conversation with the appellant. After looking at the picture, State’s Exhibit 2, appellant stated that the person pictured thereon was he; that he had cashed a check “at Montgomery Ward that day,” but not the check on the picture; and that he did not care to tell “what the other check was.”
Upon cross examination, the witness stated that he was not present when the Regiscope picture involved was taken, or the negatives developed. His opinion at this time was different from that expressed at the first trial. He did not now believe that it would be possible for one cashier to photograph six different people with the same check (as he had testified at the first trial), nor did he believe it possible to photograph the same person with six different checks; because each person is required to produce a separate identification, and that identification is returned to each individual after each photograph is taken, and, should a different check than the one .actually presented be placed on the platform to be photographed along with the person who has presented the check, it would not match up with the identification used. In the witness’ opinion, for a Regiscope photograph to show a person other than the one intended to be photographed, the one so intended “would have to step completely away from the window and someone else step up to the window.”
Marian Stevens, who had been head cashier at the store for some 5 years, said she and her assistants cashed about 25 to 30 checks a day and they had operated the Regiscope machine on many occasions. She could not say whether it was she, or one of the assistants, who took the picture. The camera “sets right up front,” on the front counter, inside “her cage.” The camera can only be operated by one person at a time; it is movable, and is turned to one side when not being utilized; when being used, “we slide it in front of the window” and take a picture. The camera is only operated at one window, which is a small one “up top of a counter” (upon which a special light had been installed) so that the person whose picture is being taken is “right in front of you.” The witness stated the picture was “taken at Montgomery Ward. The Bargain Room is in the background, and that would be a picture of the person, the check, and their identification.”
Joseph E. Slattery, an employee of Filmdex Corporation known as Regiscope, explained in detail (and demonstrated to the court below) how the camera works, and he also explained how his company processes and stores the films. Much of his testimony corroborated and confirmed that of the witnesses Shraver and Stevens; consequently, only' the portions of *1023 his testimony that added to theirs will be set forth. Regiscope received the roll of films and the request for a picture (by specific number, name of company, name of bank and so forth). The witness did not develop the negatives himself, but he examined the roll of developed film in the film reader and found the negative of the “particular transaction.” An enlargement of it was made and sfent to Montgomery Ward as requested. The enlargement was a true representation of the negative. The witness also examined the transactions on the roll of film immediately preceding and following the subject one, and found them to be full and complete transactions; the first was a picture of a woman who cashed a Treasurer of the United States check; the latter a man who also cashed a Treasury check.
The film used in taking the Regiscope pictures is perforated on one side only, so the film “cannot be put in reverse” as this would tear the perforations. Hence, on the finished picture, the check is always above the person’s picture. The camera used at Montgomery Ward’s store has a fixed focus, with a depth of field of approximately three feet.
In a Regiscope case, the process assures trustworthiness and authentication for the photograph, unlike the situation in this case.
The trustworthiness for photographs in bank robbery cases also relies on the process of recording. In United States v. Taylor, (1976 5th Cir.) 530 F.2d 639 , the showing of reliability involved the following description of the process.
In the case before us it was, of course, impossible for any of the tellers to testify that the film accurately depicted the events as witnessed by them, since the camera was activated only after the bank personnel were locked in the vault. The only testimony offered as foundation for the introduction of the photographs was by government witnesses who were not present during the actual robbery. These witnesses, however, testified as to the manner in which the film was installed in the camera, how the camera was activated, the fact that the film was removed immediately after the robbery, the chain of its possession, and the fact that it was properly developed and contact prints made from it. Under the circumstances of this case, we find that such testimony furnished sufficient authentication for the admission of the contact prints into evidence. Admission of this type of photographic evidence is a matter largely within the discretion of the court, and it is clear that the district court did not abuse its discretion here.
530 F.2d at 641-42 (citations omitted). It appears that if the proper foundation were laid as in Taylor , Indiana would allow such photographs to be admitted into evidence. See Murry v. State, (1979) Ind.App., 385 N.E.2d 469, 472 . Here again, there is no showing in this case of a reliable trustworthy process by which the photographs were made and presented.
I agree that the verification requirement should be understood in a relative sense. Annot., 9 A.L.R.2d 899 (1950). “The proof which one should offer in verifying a photograph varies with the nature of the evidence which the photograph is offered to supply and the degree of possibility of error in the photograph.” Id. at 900 . The annotation reasons that different degrees of accuracy are required when the photograph is of a handwriting as compared to a photograph of a person for purposes of identification. The purpose for which a photograph is used determines the relative verification. When a photograph is used as substantive evidence, the need for certainty and accuracy is greater because there is no witness able to explain any distortions, inaccuracy or changes.
The more general use of photographs in court has been hindered by the feeling rather widely held, that so-called trick photography can distort the real facts. The truth is cameras do lie. . . The elimination of the dangers of false or “trick” photographs lies not in rigid rules excluding photographs generally but in the careful qualification of such photographs on their preliminary examination.
*1024 Gardner, The Camera Goes to Court, 24 N.C.L.Rev. 233, 235 (1946). This article, supporting the admissibility of photographs as substantive evidence, states that perhaps the .reason for the illustrative only rule is that few judges and lawyers are familiar enough to examine adequately and quickly the competency of a photograph. It then lists possible sources of distortion (recognized by the majority). Id. at 236-238. The “tendency to accept as true what is mirrored in photographs has wide and more important implications. It renders doubly important that the photographer have available for each picture such details as the position of the camera, the distance from the object, the angle and type of lens, the time of day, the date, and similar data . .” Id. at 238. An analysis of the rule allowing use of photographs as substantive evidence requires that its competency be shown prior to admission. As has been discussed above, the “tendency to accept as true what is mirrored in a photograph” requires very strict rules for admitting a photo as substantive evidence. In this case the photograph is to be used as the only substantive evidence of a crime without even the degree of authentication required in a Regiscope or bank robbery case.
It may also be noted that except in sex offenses there is independent competent evidence of the crime. In the Regiscope cases there is evidence that a bad check has been passed when it is returned paid to the store. This is also true in a bank robbery case.
I would limit the use of the “silent witness theory” to cases where it is shown there is no possibility that the traditional foundation could be proved. It should be treated as an exception to the general rule, not as an alternative. The foundation required of other “exceptions” to the traditional rule has not been laid in this case and for that reason I would hold the photographs were improperly admitted.
. Wigmore allows, as the majority points out, that the silent witness theory “may be” a more satisfactory rationale. Wigmore § 795, n. 1.