Wednesday, November 10, 2010
Color Me Surprised: Court Of Appeals Of Idaho Finds No Problem With Color Biased Photos Under Best Evidence Rule
To prove the content of a writing, recording, or photograph, the original writing, recording, or photograph is required, except as otherwise provided in these rules or by statute.
An "original" of a photograph includes the negative or any print therefrom. If data are stored in a computer or similar device, any printout or other output readable by sight, shown to reflect the data accurately, is an "original."
So, let's say that in a case determining whether children should be placed in protecting custody, the prosecution seeks to present several photographs of injuries to the children produced from data downloaded from a camera to a computer system and printed out at the police station. And let's say that the parents presented testimony from an expert witness who testified that the colors of the prints were not "neutrally balanced" and reflected color biases toward red and yellow hues. Are these photographs "originals," or do they fail the test laid out in Rule 1001(3) because they do not reflect the data accurately? According to the recent opinion of the Court of Appeals of Idaho in Idaho Dept. of Health and Welfare v. Doe, 2010 WL 4342147 (Idaho App. 2010), these photographs are "originals," but I question the way that the court reached its conclusion.
The facts in Doe were as stated above, with the "[p]arents argu[ing] that such color abnormalities made the pictures inaccurate representations of the injuries-specifically that they made the injuries appear worse than they were." In rejecting this argument, the magistrate judge held that
the expert today has testified that the color saturation in these photos may have made the red colorings in these photos more intense than they may have appeared to be naturally. And frankly, through [other] testimony, I can tell that the printer's left lines within various areas of the photos that they wouldn't be.
What the photos do depict are the injuries that the officers observed. We used to in trials always have black and white photos because you might inflame the prejudice of the jury and at the time when that was going on, we also had rulings right and left that, however, if it was in front of a judge, it wouldn't matter because they could somehow keep themselves from being overly impressed by the imagery of color photography.
These photos are admitted and demonstrated to depict the wounds that have been adequately described [by] the witnesses as being accurate the night they were taken and the Court would note that regarding the red tone in the photos that goes to the weight of the exhibit.
In affirming the magistrate on intermediate appeal, the district court found that the magistrate had not abused its discretion in admitting the prints as original photographs where it found by exercise of reason and application of the correct standards that the prints accurately reflected the injuries....
On appeal, the Court of Appeals of Idaho then
conclude[d] that the magistrate did not err in admitting the photographs into evidence as "originals." The court recognized that while the photos may have been somewhat discolored, such distortion went to the weight of the evidence and did not automatically render the photos inaccurate. This Court took a similar approach in State v. Curry, 103 Idaho 332, 339, 647 P.2d 788, 795 (Ct.App.1982), where an expert admitted on cross-examination that the color or shade of an object in a photograph the state wished to admit may have been inaccurately depicted depending on how the development process was carried out. We concluded that testimony in this regard went to the weight of the evidence-thus inferring that its admissibility was not affected.
With due respect to the Court of Appeals of Idaho, the situations in Doe and Curry were not at all analogous. In Curry, the defendant allegedly used a sledgehammer in a robbery of a drugstore, and a witness
testified that the metal head of the sledgehammer had blue coloration when new, as evidenced by traces of blue paint still upon it. On direct examination he was shown a photograph depicting marks made on the block wall in the proximity of the hole in the rear of the drugstore. He then expressed his opinion that a blue object had struck the wall, leaving a blue mark similar to the coloration of the sledgehammer. On cross-examination, [the witness] admitted that the color or shade of blue in the photograph may have been inaccurately depicted, depending on how the development process of the photo was carried out. [The defendant] argue[d] that, in light of this testimony, the trial court abused its discretion in originally allowing the admission of the testimony concerning the similarity in coloration. [The Court] d[id] not agree. It [wa]s apparent that the jury could disregard the testimony or assign it its proper weight in light of the cross-examination.
In other words, in Curry, the defendant merely raised the question of whether the shade of blue in the photograph might possibly have been inaccurately depicted. He presented no evidence and certainly no conclusive evidence that the shade of blue in fact was inaccurately depicted. Thus, even if the defendant raise a Best Evidence issue (which he didn't), it is easy to see why the court (would have) rejected it and found that the defendant's argument at best went to the weight of the evidence.
Conversely, in Doe, there was strong evidence that there were color biases toward red and yellow hues, and the court itself even acknowledged that the photos weren't quite right. Now does this fact mean that the photos did not accurately reflect the "original" photographs? I don't know, but I do know that Curry does not provide the answer.