EvidenceProf Blog

Editor: Colin Miller
Univ. of South Carolina School of Law

Wednesday, July 3, 2013

Is a Police Sketch More Like a Writing or More Like a Photograph?

Under § 24-10-1002 of the Georgia Code, Annotated, Georgia's Best Evidence Rule, provides that

To prove the contents of a writing, recording, or photograph, the original writing, recording, or photograph shall be required.

§ 24-10-1002, however, is part of the new Georgia Rules of Evidence, which replaced Georgia's prior Evidence Code. Under § 24–5–4(a) of that Code, the Best Evidence Rule merely covered writings and did not cover recordings or photographs. So, where did that leave police sketches? Let's take a look at the recent opinion of the Supreme Court of Georgia in Boothe v. State, 2013 WL 3287139 (Ga. 2013), which was decided under Georgia's prior Evidence Code.

In Boothe, the prosecution introduced photocopies of two police sketches of the alleged perpetrators of a murder. Those sketches were drawn by a sketch artist based upon information provided by an eyewitness. After they were convicted, the defendants appealed, claiming that the prosecution violated the Best Evidence Rule by failing to produce or account for the nonproduction of the original police sketches at trial.

The Supreme Court of Georgia wasn't so sure, noting that

Former OCGA § 24–5–4(a) did not define the term "writing," and the State argues that the sketches do not constitute "writings" for purposes of the old best evidence rule. This appears to be a question of first impression for Georgia's appellate courts. In cases where former § 24–5–4(a) has been applied, the "writing" appears to have been a document containing words....Photographs were not considered writings....

The court then did acknowledge, however, that,

On the other hand, a sketch, like a handwritten document, is produced by a writing implement and is based on the artist's subjective interpretation of information supplied to the artist as she draws on the page. And as Appellant points out, a California court has concluded that a police sketch was a writing for purposes of that state's best evidence rule, although the statute there defined the term "writing" expansively. See People v. Garcia, 201 Cal.App.3d 324, 328 n. 1, 247 Cal.Rptr. 94 (1988).

Ultimately, the court did not resolve the issue, concluding that

whether a police pencil sketch is a "writing" under the old best evidence rule is a close question. And we need not decide that question to decide this case, because even assuming that the sketch copies were inadmissible under former 24–5–4(a), any error in admitting them was clearly harmless.

Justice Melton dissented from the majority opinion, finding that

In order to conclude that the former best evidence rule has no application to the police sketch copies here, we would have to accept the unreasonable proposition that police sketches are more akin to "photographs" than "writings."...Indeed, as the majority correctly concedes, "a [police] sketch, like a handwritten document, is produced by a writing implement and is based on [a sketch] artist's subjective interpretation of information supplied to the artist as she draws on a page.” (Emphasis supplied.)...In other words, a person actually has to write something down in order to create the sketch. With respect to a photograph, on the other hand, one obviously need not "write" anything down to produce it, as a photograph is a direct image captured by a mechanical device that is created entirely independently of any writing implement being placed on a page by one's hand. For these reasons, I do not believe that it can be stated in any reasonable way that a sketch is more like a “photograph” than a "writing" under former OCGA § 24–5–4(a)....This is especially true where, as here, the statute itself does not specifically limit or define the meaning of the term "writing." 

Moreover, Melton would have found that the admission of the photocopies was not harmless error because the rest of the prosecution's case against the defendants consisted solely of circumstantial evidence.

I agre with Justice Melton. Simply put, a writing is something created by the human hand. A photograph is something taken by a camera, a machine. Because a police sketch is something created by the human hand and is subject to all of the faults of a human being, it is a writing.



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But, what is "the original" of a police drawing? The original drawing (vs. copies of it)??

Or, is the original the verbal description and instructions given to the artist by the eyewitness? If so, the eye-witness would have to be show to be unavailable under one of the BER exceptions.

But, my concern is that an artist's drawing of a description given to the artist by another may be hearsay. Rather than just transcribing the description, the artist drew it. The writing (of sorts) of an out of court statements of the eyewitness is offered for the truth of what the eyewitness said, and thus meets the definition of H/S.

But, I guess the drawing could be deemed non-hearsay under the identification exemption (801(d)(1)(c).

Food for thought.


Posted by: Fred Moss | Jul 8, 2013 9:41:09 AM

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