A story idea of mine has the protagonist secretly photographing various nemeses of his (they are all high school kids, and the protagonist has caught them doing something illegal – A-class felony stuff, I can’t say more). Our Hero develops the photographs himself (photography is his secret hobby) and send the photos, which clearly shows the faces of the perpetrators, to the police incognito, to prevent any possible reprisals.
Could these photographs be admissible as evidence in court? Or could the defense argue that since the origin of the photographs is not known, they are suspect in nature and therefore inadmissible? Or maybe that the perpetrators have been denied the right to “cross-examine” their accuser, a violation of their Sixth (?) Amendment rights (I forget which Amendment covers this, please feel free to correct me on this.)
IANAL all my criminal legal knowledge comes from wastching "Law and Order"The photos probably would be enough to lead to further investigation(i.e. a search warrant) but a defense attorney would probably try to get the charges dismissed on “fake photograph” being the starting point, and them try the “not able to face thier accuser” stuff, the Accusers would be the investigating officers, though so the last one, probably wouldn’t fly with most judges, but would be worth the try in most lawyers books, I think.
If it is relevant (i.e. tending to have probative value), a photo will likely be admissible. However, if the prejudicial effect substantially outweighs the probative value, it will probably not be admissible. At least, this is the FRE approach.
IANAL either, but I work with Photoshop daily, and I can say I would never allow anything serious to be decided by a photo. You want to add someone to a picture - easy, if you know how to match tone and shadow and a lot of other fussy details. Delete someone from a photo? No problemo.
In fact, ad departments routinely move moutains in scenic shots. A recent Consumer Reports ran on their inside back page, where they have fun exposing ad practices, a photo from a real estate ad that included the disclaimer – I am not making this up – “Not actual mountain.”
Photographs are admissible into evidence with the proper foundation, which is usually testimony by the photographer or someone else familiar with the scene that the photo accurately represents the scene at the time in question.
In your hypo, if the only witness (your hero) is not available to testify, the photos probably would not go in. The only alternative would be some photgraphic expert testimony that the photos were not tampered with. I don’t know if this is possible, given the advances in photshop techniques.
Confusion between different standards of evidence. Evidence that doesn’t meet the standards for trial can be used to obtain a search warrant, and for sentencing, and so is admissible in hearings, but not trial. The warrant would still be valid.
Confusion about admissible evidence. Whether a photo is faked is a matter of fact for a jury to decide. Evidence is inadmissible upon findings of law. The sixth amendment argument might hold water, although I think the mere introduction of photos into court might satisfy that (I haven’t finished Con Law yet, nor Civil Procedure). Prejudicial effect is a very likely cause. The charges wouldn’t be dismissed unless the entire case was based on the photos, or if evidence came forward during the hearing that they were definitely faked.
The sixth guarantees that you will be confronted with the witnesses against you. It also guarantees a speedy trial and access to counsel, as well as the compulsory ability to gather witnesses friendly to your side.
The fifth amendment prohibits double jeapordy and being compelled to testify against oneself (obviously :)), and also recognizes due process.
The fourth amendment prohibits unreasonable search and seizure, which might be relevant if the photographer had to stand on private property (ie, to tresspass) to obtain the images.
It would help if the photographic negative were available. In a preliminary hearing the photographs could be appraised as genuine or not. I bet there are plenty of trial lawyers specializing in this aspect of evidence law–and plenty of judges who keep up-to-date on photography enough to decide cases, or instruct a jury accordingly.
I agree with NotBob13. A photograph in and of itself is not sufficient to convict anyone especially when presented anonymously. Whether it is admissible or not is moot since there are no corroborating evidence to support the claim. It is good enuf evidence for further investigation which could gather more evidence to try and convict.
Think about it. Surveillance photos are used in court all the time but it never ends up as the only peice of evidence.
Surviellance photos are kind of a special breed of animal, though. Ordinarily, a photo just shows, say, a crime scene after the fact. It has no probative value in and of itself, it is demonstrative evidence. It just helps the jury to understand some witnesses testimony, once the witness authenticates the photograph as being a fair and accurate representation of the scene in question at the time of the crime.
A surveillance photo that actually shows a crime being comitted arguably has probative value independent of any witness’ testimony. This type of photograph is sometimes called the “silent witness”. It’s not merely illustrating the testimony of a human witness; it’s probative evidence of whatever it purports to show. The Federal Rules of Evidence incorporate this in rule 909(b)(9) and allow photos produced by a “process or system that produces an accurate result” as authentic. If there is evidence to support a finding that the photos were produced by a process that created an accurate picture of a relevant scene, it can come in. If the only piece of evidence in a murder trial is a surveillance photo of me clearly murdering the cashier, that will probably be enough to convict me.
But if the only piece of evidence is a couple of photos from an anonymous source, then how do you know that you have an “accurate result”? Since we don’t know the source of the pictures, we don’t know that they’re not fake, or that critical photos haven’t been removed.
I think you’re misunderstanding me. I was responding to X-Slayer(ALE)'s post comparing the OP’s hypothetical to a surveillance camera. I’m not saying those things are the same, I’m saying they’re different.
Well, if the content of the photos showed something that wouldn’t or couldn’t have been known to a potential hoaxer (Like the aforementioned hypothetical high school kids carrying the head of a murder victim, with a slash mark over the right eyebrow that wasn’t mentioned to the press) I would think that that would help the photo’s overall credibility.
One might wonder, though, if the defense might call question to the fact that the photographer saw a crime being committed, but did nothing at the time to stop it. (Whether or not that even had any real bearing on the case)
Plus, there’s the theoretically irrelevant question of the location of the trial…a judge in Lynchberg, Texas might come up with a different ruling on the admissibility of the evidence than one in Hippieville, California.
On three occasions my photographs have been used by the police. I am now a newspaper editor and was for years a reporter/photographer. Once I photographed a robbery that I did not know was in progress (I was on the last few frames of my film and shot some people moving out of a house just to use up the film. It turned out that those people were not of the house - they were thieves). When I noted in the police log a couple days later that the house had been stripped, I took the photos to the police. Once I caught a robbery of a liquor store that was going on (people rushing out of the store backwards holding guns. I stopped my car leaned out the car window and shot) and I happened to catch the liscene plate and some physical characteristics which no one else noted. And lastly I photographed a hit and run, just before the car ran and from that the police were able to trace the car and driver.
On each of these three occasions, the police got confessions from the suspects by simply showing the photographs and neither I nor my photographs made it to court (although all the photos made it into the paper). I’m not sure if that is any help since the situation you have created is slightly different.
It should be noted that the three incidents I mentioned all happened before computer aided photograph manipulation was possible, so that may make a difference. And in each case I was willing to testify even though I was never asked to.
The police would (and still do) often ask to see my photos to see if their crime scene photographer missed anything. This was especially true if I beat them to the scene, which I did periodically.
i was watching some show either on a&e or else court tv about 3 weeks ago, and they said that most police agencies use pictures out the wazoo, either because the evidence is perishable or else, it may be something like a stolen purse which the owner of it would need well before crook is brought to trial, the owner might decline to assist in the punishment of the crook if it meant not getting the purse, with all of it’s valuable contents, back very soon.
of course, in a trial, a photographer can testify that he took a particular picture which could perhaps lead a jury in a particular way without harming one’s right of due process. IANAL
