Hensley, Robert J., Jr.

English

North Carolina Central University (NCCU), School of Law: History and Scholarship Digital Archive

North Carolina Central Law ReviewVolume 6Number 2 Volume 6, Number 2 Article 184-1-1975Photographic Evidence: Or, Is a Picture ReallyWorth a Thousand Words in North CarolinaCourtroomsRobert J. Hensley Jr.Follow this and additional works at: https://archives.law.nccu.edu/ncclrPart of the Courts Commons, and the Criminal Law CommonsThis Note is brought to you for free and open access by History and Scholarship Digital Archives. It has been accepted for inclusion in North CarolinaCentral Law Review by an authorized editor of History and Scholarship Digital Archives. For more information, please contact jbeeker@nccu.edu.Recommended CitationHensley, Robert J. Jr. (1975) "Photographic Evidence: Or, Is a Picture Really Worth a Thousand Words in North CarolinaCourtrooms," North Carolina Central Law Review: Vol. 6 : No. 2 , Article 18.Available at: https://archives.law.nccu.edu/ncclr/vol6/iss2/18PHOTOGRAPHIC EVIDENCEto be an attorney one must be a judge, then he does not have to be.The effect of this decision will be to change the Justice Court Systemin California. Henceforth, all criminal tribunals where there is a poten-tial jail sentence, will have to be presided over by an attorney judge.This decision does not affect the lay judge in deciding civil cases orin criminal cases where there is not a possibility of a jail sentence. Thedecision does permit a defendant or his counsel to waive the require-ment of an attorney judge. To meet these requirements, the Californiacourt system will have to be changed to docket the criminal cases thatthis decision covers under attorney judges. New attorney judges mayhave to be elected to meet this demand.The most distinguishing characteristic of the Gordon case is that thecourt has decided that time and the perplexity of criminal trials havechanged the requirements of due process in criminal trials. The com-plexity of criminal trials today requires a judge to be able to understandand differentiate among the fine points of law which may distinguishone case from another. The ability to make this determination comesfrom a combination of common sense and formal legal training.Due process requires more than common sense determinations of le-gal questions. Due process requires a judgment pursuant to the law.A common sense judgment that is not pursuant to the law is arbitraryand violates due process. Some non-attorney judges through personalresearch and learning may acquire the expertise necessary to conducta trial that meets constitutional requirements. However, there shouldbe some safeguard against non-attorneys without these capabilities.This can be done only by requiring judges to meet higher standardsas the court has done here. This court has taken a positive step for-ward in refining the law and assuring the accused that, in the future,he will receive a fair, impartial and competent trial from a tribunal thatis in step with the requirements of modern day due process.JULIAN T. PIERCEPhotographic Evidence: or, Is a Picture Really Worth a ThousandWords in North Carolina Courtrooms?A recent case handed down by the North Carolina Supreme Courtmay have a profound impact on the law governing admissability ofphotographs for other than illustrative evidence. In State v. Foster',I. State v. Foster, 284 N.C. 259, 200 S.E.2d 782 (1973).1Hensley: Photographic Evidence: Or, Is a Picture Really Worth a Thousand WPublished by History and Scholarship Digital Archives, 1975350 NORTH CAROLINA CENTRAL LAW JOURNALthe Court held that photographs of fingerprints could be introduced assubstantive evidence in a criminal prosecution for burglary. Althoughconfining the opinion specifically to photographs of fingerprints', Hus-kins, J., has opened the door to reversal or modification of North Caro-lina case law that has stood substantially intact since 1929.1The present case involved one Foster, who had been convicted offirst degree burglary in a lower court on the testimony of a fingerprintexpert. The expert's testimony was based upon photographs of latentfingerprints found on a flowerpot at the scene of the crime. The ori-ginal fingerprints, preserved on a three-by-five white index card, hadbeen misplaced by the clerk of the lower court subsequent to the firsttrial. The lower court allowed both the testimony of the expert andthe photographs to be admitted as substantive evidence. Foster ap-pealed, contending that the photographs were incorrectly admitted assubstantive evidence, consequently rendering the expert's testimonybased on such evidence incompetent.The prime controversy in the Foster case arose as a result of theatrophy of one of the two rules under which photographic evidence hadhistorically been admitted in North Carolina courts. Under one rule,photographs could be admitted as substantive evidence-as mute wit-nesses submitted to the jury for their conclusions. Another rule calledfor the use of photographs to be limited to the illustration of the testi-mony of a duly sworn witness.4 Most present day writers discount thedichotomy, 5 suggesting that the two rules are merely separate sides ofthe same coin. Problems began to surface in North Carolina, however,when the latter "rule" was stressed to the exclusion of the former be-ginning with the 1929 decision of Honeycutt v. Cherokee Brick Com-pany.'Honeycutt concerned an action for injuries resulting from plaintiff'sfalling into a ditch on defendant's property. 7 Photographs were takentwo years after the accident, at a time when the offending ditch hadbeen eliminated. The Court held the photographs not relevant to theinjury sustained by the plaintiff, but allowed their use in explaining thetestimony of the witness.8 Clark, J., dissented from the opinion, ar-guing that any competent photograph should be submitted to the juryfor its consideration and weighted by other facts placed in evidence.92. Id. at 272, 200 S.E.2d at 792.3. Honeycutt v. Cherokee Brick Co., 196 N.C. 556, 146 S.E. 227 (1929).4. McKELVEY, EVIDENCE, § 378 (5th ed. 1944).5. STANSBuRY, TiE NORTH CAROLINA LAW OF EVIDENCE, § 34 (Brandies rev.1973); McCoRMICK, EVIDENCE, § 214 (2d ed. 1972) [hereinafter cited as McCoRMICK].6. Honeycutt v. Brick Co., 196 N.C. 556, 146 S.E. 227 (1929).7. Hampton v. The Norfolk and Western R.R., 120 N.C. 534, 27 S.E. 96 (1897).8. Id. at 537, 27 S.E. at 97.9. Id. at 540, 27 S.E. at 98.2North Carolina Central Law Review, Vol. 6, No. 2 [1975], Art. 18https://archives.law.nccu.edu/ncclr/vol6/iss2/18PHOTOGRAPHIC EVIDENCEDavis v. Railroad Co.1 ° in 1904, gave Clark (then C. J.) a chanceto express his view in a majority opinion. Speaking of photographs ofthe injuries of the victims, he ruled that photographs "convey informa-tion to the jury and court with an accuracy not permissible to spokenwords if their admission is properly guarded as to the time and mannerwhen taken.""1Pickett v. Atlantic Coast Line Railroad Co.12 and Hoyle v. City ofHickory3 served to keep in balance the two rules of admissability.Both opinions involved water damage to real property. In the firstcase, photographs of damaged land were held admissable to illustratethe testimony of a witness. 4 The Hoyle case, however, held that thephotographs themselves were competent as explanatory of other testi-mony and were, therefore, to be regarded as substantive. 5Two years after the Hoyle decision, Allen, J. modified the Court'sstance by holding that photographs were admissable as substantive evi-dence when shown to be a true representation of that which they pur-port to depict.' 6 In no uncertain terms, the Court was returned to theearlier opinions expounded by Clark that permitted almost any compe-tent photograph to be submitted into evidence.State v. Jones'7 presented a novel application of photographic evi-dence and served to further the illustrative rule. The case revolvedaround several photographs of various items which a witness testifiedcould be assembled into an illegal distillery. Since it was necessaryto introduce the photographs themselves into evidence, the Court rou-tinely ruled them competent to illustrate the witness's testimony. TheCourt, in this instance, held that the photographs were somewhat akinto charts and diagrams used for explanatory purposes.' Clark, C. J.,defending his position that competent photographs should be admittedas substantive evidence, wrote in a concurring opinion that the dangerof equating photographs with charts and diagrams could possibly rele-gate the former to the position of merely illustrating the testimony ofwitnesses in succeeding controversies.' 9Indeed, the Chief Justice's fears were about to materialize. In theten years between Jones and Honeycutt, only one case allowed photo-10. Davis v. Railroad Co., 136 N.C. 115, 48 S.E. 591 (1904).11. Id. at 116, 48 S.E. at 591.12. Pickett v. Atlantic Coast Line R.R., 153 N.C. 148, 69 S.E. 8 (1910).13. Hoyle v. City of Hickory, 167 N.C. 619, 83 S.E. 738 (1914).14. Pickett v. Atlantic Coast Line R.R., 153 N.C. at 149, 69 S.E. at 9.15. Hoyle v. City of Hickory, 167 N.C. at 622, 83 S.E. at 739.16. Bane v. Atlantic Coast Line R.R., 171 N.C. 328, 88 S.E. 477 (1916).17. State v. Jones, 175 N.C. 709, 95 S.E. 576 (1919).18. Id. at 710, 95 S.E. at 578.19. Id.3Hensley: Photographic Evidence: Or, Is a Picture Really Worth a Thousand WPublished by History and Scholarship Digital Archives, 1975352 NORTH CAROLINA CENTRAL LAW JOURNALgraphs to be introduced as substantive evidence. State v. Lutterloh2 °involved the admission of photographs to show the width and topog-raphy of the roads where a traffic accident occurred. In addition tothe substantive content, the photographs were also allowed to be usedfor illustrative purposes by witnesses to convict a "colored" man ofmanslaughter by automobile. Curiously enough, in an immediatelysubsequent case,2' the Court held that photographs of the scene of thecrime could only be used to illustrate the witness's testimony. Like-wise, two years later, the Court reaffirmed its position by allowingphotographs of the relative positions of the deceased, the slayer, andthe witnesses in a murder trial to be used to illustrate the testimonyof the witnesses.2"The fact situations in Lutterloh, Mitchem, and Matthews arguablycould support either position-admission as substantive or illustrativeevidence. However, departure from the dichotomy came inexplicablyand with a finality that was to last for forty-five years with the decisionof Honeycutt v. Cherokee Brick Company."The photograph involved in Honeycutt showed the unprotected gearsof a mud machine in which a worker had been crushed to death. Thelower court judge had admitted the photograph as substantive evidencegiving mute witness as to the inherent danger of operating the machine.On appeal, the Supreme Court held the admission of the photographas error and reversed the decision of the lower court. In analyzing theHoneycutt case, Gardner in his cogent article, "The Camera Goes toCourt, '2 4 reports that appellant's counsel cited only cases favoring theillustrative rule, stating that no others could be found. Counsel for ap-pellee cited no cases on the point. The Court's opinion was based onlyon the cases cited by appellant; consequently, a case that should haveclearly been controlled by Davis and Lutterloh was controlled by theirantitheses-Pickett and Jones.5Following the doctrine outlined in Honeycutt, the use of photographsonly for illustrative purposes has been sustained in the following in-stances: to show the machine which injured the plaintiff; 26 to show thescene of the crime;27 to show the body of the deceased; 21 to show thewounds on the body of a murder victim;" to show a traffic accident20. State v. Lutterloh, 188 N.C. 412, 124 S.E. 190 (1924).21. State v. Mitchem, 188 N.C. 608, 125 S.E. 190 (1924).22. State v. Matthews, 191 N.C. 378, 131 S.E. 743 (1926).23. Honeycutt v. Brick Co., 196 N.C. 556, 146 S.E. 227 (1929).24. Gardner, The Camera Goes to Court, 24 N.C.L. RaV. 233, 242-43 (1946).25. Id. at 243.26. Kelly v. Raleigh Granite Co., 200 N.C. 326, 156 S.E. 517 (1930).27. State v. Perry, 212 N.C. 533, 193 S.E. 727 (1937).28. Queen City Coach Co. v. Lee, 218 N.C. 320, 11 S.E.2d 341 (1940).29. State v. Gardner, 228 N.C. 567, 46 S.E.2d 824 (1948).4North Carolina Central Law Review, Vol. 6, No. 2 [1975], Art. 18https://archives.law.nccu.edu/ncclr/vol6/iss2/18PHOTOGRAPHIC EVIDENCEscene;"' and to show the positions of and damages to automobiles aftercollision.3  This line of cases, however, is not unbroken. State v.Cade32 in 1939 attempted to qualify Honeycutt by holding, throughBarnhill, J., that photographs could be admitted into substantive evidencein the absence of a specific objection to restrict the photograph to illus-trative purposes. The implications -are clear--only where the picturesare irrelevant to the controversy, or where the opposing party's counselis so incompetent as to not recognize the importance of limiting theevidentiary nature, of a photograph would the Cade qualification bemeaningful.Until State v. Foster, the Cade case marked the end to the develop-ment of North Carolina case law regarding the admission of photo-graphs into evidence. With Foster comes the opportunity for NorthCarolina to align herself with the majority of her sister states in thisarea. Such a change has been suggested by authorities on evidence."Foster is a definite break in the chain of precedents proceeding fromthe Honeycutt decision. It proposes one of the two following alterna-tives: either a return to the early days of photographic evidence inNorth Carolina when such evidence could be admitted under either oftwo rules-as substantive or illustrative evidence; or, in accordancewith many prominent writers,34 abolish entirely the distinction betweenthese two rules and admit all competent photographs as substantive evi-dence to be qualified and weighted by a jury.Although the Foster opinion specifically confines itself to photo-graphs of fingerprints,35 it fails to elucidate how one is to distinguishphotographs of fingerprints from photographs of any other part of thebody, when shown by testimony to be a fair and accurate depiction ofthe subject. Furthermore, why should one limit admissable photo-graphs to parts of the body? Why should one not include photographsof other easily identifiable (unique, if one must) animate 'and inani-mate objects within the scope of substantive evidence?The answers to the above questions become clear when one ex-amines certain anomolies inherent in North Carolina's evidence rules.For example, X-rays are readily admissable into evidence. The infor-mation on the plate cannot be seen or verified with the naked eye; yet,it has been held that a physician can testify substantively to the extent30. Hawes v. Atlantic Refining Co., 236 N.C. 643, 74 S.E.2d 17 (1953).31. State v. Norris, 242 N.C. 47, 86 S.E.2d 916 (1953).32. State v. Cade, 215 N.C. 393, 2 S.E.2d 7 (1939).33. McCoRMICK, § 214; 3 WIGMORE, EVIDENCE, § 790 (Chadbourn rev. 1970)[hereinafter cited as WIGMORE]; 2 Scotr, P-OmTOGRoPmC EVIDENCE, § 1022 (2d ed.1969) [hereinafter cited as Scor].34. MCCORMICK, § 214; WiGMORE, § 790; Scorr, § 1022.35. State v. Foster, 284 N.C. at 272, 200 S.E.2d at 792 (1973).3535Hensley: Photographic Evidence: Or, Is a Picture Really Worth a Thousand WPublished by History and Scholarship Digital Archives, 1975354 NORTH CAROLINA CENTRAL LAW JOURNALof a patient's injuries, such opinion being taken from X-rays not evenintroduced into evidence.3 6  In addition, evidence gained by the useof scientific instruments is admitted upon a showing that the instrumentand the procedures for operating it are recognized as standard by ex-perts in the field. Presently, we treat the camera as producing lessaccurate evidentiary information than the microscope, spectrometer, orgas chromatograph. In the least this is inconsistent, as the resultseach of these instruments can be affected by defective structural ele-ments or by design of the operator. These are precisely the short-comings of the camera. If the results of one kind of instrument areadmitted into substantive evidence upon their being shown as fair andaccurate representation, why are the results of another instrument withapproximately the same degrees of precision, relegated to the same evi-dentiary positions as mere charts and diagrams?Finally, the inconsistency of not allowing competent photographs tobe used as substantive evidence at trial is pointed out by Gardner's ex-ample of absurdity fostered by the illustrative rule:If a defective eye with a damaged optic nerve conveys an impression(gained in twilight or under other deceptive conditions) to a diseasedbrain, even after the eroding effects of weeks have advanced theprocess of forgetting, the owner of the eye-though he may be a simplesoul of limited intelligence and even more limited vocabulary-will bepermitted to describe in court what he thinks that he remembershe saw; but if a camera with cold precision and absolute fidelity re-cords the view permanently and with minute accuracy that view iskept from the jury, perhaps (under the Honeycutt case), or its use issharply circumscribed (under the "illustration" rule).37Perhaps the Court by its opinion in State v. Foster has opened thedoor to a more realistic approach regarding admissability of photograph-ic evidence at trial. At the present time, very few jurisdictions hold withNorth Carolina that photographs can only illustrate testimony of a wit-ness.3 8 The great majority of jurisdictions throughout the country (andindeed, throughout the world, in common law countries)39 permit theadmissibility of photographs for substantive purposes, subject to ashowing that they truly represent that which they depict.4"36. State v. Norris, 242 N.C. at 54-55, 86 S.E.2d at 921 (1953).37. Gardner, The Camera Goes to Court, 24 N.C.L. REv. 233, 245 (1946).38. But cf. Foster v. Bilbruck, 20 Ill. App. 2d 173, 155 N.E.2d 366 (1959).39. See Wigmore, § 792, n.1 for a listing of English, Canadian, and Philipino courtcases.40. See e.g., Santa Clara Val. Water Conservation Dist. v. Johnson, 41 Cal. Rptr.846, 231 Cal. App. 2d 366 (1964); Lepri v. Town of Branford, 152 Conn. 210, 205A.2d 486 (1964); Coyner Crop Dusters v. Marsh, 90 Ariz. 157, 367 P.2d 208 (1961);LaVallie v. General Insurance Co. of America, 17 Wis. 2d 522, 117 N.W.2d 703 (1962);Veneble v. Stockner, 200 Va. 900, 108 S.E.2d 380 (1965).6North Carolina Central Law Review, Vol. 6, No. 2 [1975], Art. 18https://archives.law.nccu.edu/ncclr/vol6/iss2/18PHOTOGRAPHIC EVIDENCE 355The decision in State v. Foster would probably have been necessi-tated in the near future because of an increasing reliance of police de-partments on photographs of fingerprints of suspects transmitted fromother jurisdictions through photocopy machines connected by telephonelines. This, however, should not be the prime motivating force towardbringing North Carolina rules regarding photographic evidence into ac-cord with sister jurisdictions. The first step has been made: picturesof fingerprints can be admitted as substantive evidence. The SupremeCourt of North Carolina should, in future cases, extend the Foster doc-trine to any photograph which is shown to be a true representation ofwhat it purports to depict. The jury, defendant, and prosecution alldeserve the clearest, most lucid forms of evidence at their disposal inNorth Carolina courtrooms.ROBERT J. HENSLEY, JR.7Hensley: Photographic Evidence: Or, Is a Picture Really Worth a Thousand WPublished by History and Scholarship Digital Archives, 19758North Carolina Central Law Review, Vol. 6, No. 2 [1975], Art. 18https://archives.law.nccu.edu/ncclr/vol6/iss2/18

Photographic Evidence: Or, Is a Picture Really Worth a Thousand Words in North Carolina Courtrooms

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Photographic Evidence: Or, Is a Picture Really Worth a Thousand Words in North Carolina Courtrooms

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