This section is from the book "Complete Self-Instructing Library Of Practical Photography", by J. B. Schriever. Also available from Amazon: Complete Self-Instructing Library Of Practical Photography.
I. ADMISSION NOT SUBVERSIVE OF RIGHT OF CROSS-EXAMINATION.
629. Photographs are not inadmissible as evidence on the ground that they deprive the adverse party of right of cross-examination.
II. WHEN ADMISSIBLE. A. Ordinary Photographs.
() As Primary Evidence. While it has been held that photographs never rank higher than as secondary evidence, they are undoubtedly primary evidence (and as such admissible) upon issues directly involving their character or quality. With reference to character is the displaying or selling of obscene pictures, while of quality, in an action brought by a photographer for the value of his services.
Best Evidence. It may even be said that photographs constitute the best evidence possible of the physical appearance of human beings, animals, or conditions that have ceased to exist. Photographs of deceased persons are introduced in court. to show wounds inflicted by murderers; healthy appearance of deceased; physical characteristics of deceased; probabilities of future physical development; characteristics, vigor, disposition and temperament of deceased. Photographs of animals are introduced to show their appearance when alive, while the use of photographs of different conditions which have ceased to exist may be classed under the headings: Appearance of railroad wrecks caused by collisions; appearance and conditions of streets after storms; as well as the previous physical appearance of a person.
() As Secondary Evidence. It may be laid down, as a general rule, that, subject to the rules governing the admissibility and introduction of secondary evidence, photographs are competent, though in some cases slight, evidence of the identity, appearance and physical characteristics of the object which they delineate, whether such objects be animate or inanimate. Photographs, however, are inadmissible when better evidence can be, or has been, produced. One very important point which should be remembered is, that photographs taken two years before death are not too remote, in cases where it is necessary to prove the identity of persons, to be admitted as evidence. A photograph taken from another photograph may be used as evidence.
633. (5) As explanatory or illustrative evidence.
(a) In general, the most common use of photographs as evidence is to enable witnesses to make their testimony clear, and to enable judges to understand it better. For these purposes photographs are used in making comparisons of handwriting and in illustrating descriptions of localities. Photography assists materially in making clear one's description of scenes of assault, murder, or accident. They are also very important evidence to introduce in action for injury. Photographs which are not instructive should not be used.
(B) Enlarged Photographs - Stereoscopic Views - Transparencies From Negatives. When additional instruction is given by the court it is permissible to use either photographs which are on a larger scale than the originals, or stereoscopes and stereoscopic views or transparencies from negatives. The magnifying of handwriting makes it more easy for the jury to examine the evidence, while if the photograph itself has not been enlarged it is permissible for the jury to use a magnifying glass when examining photographs; but where possible to do so, it is far better to enlarge the photograph that is to be introduced as evidence. B. Necessity of Proving Accuracy. 635. The right to introduce photographs in evidence is always dependent upon the making of preliminary proof of their accuracy. Photographs must be shown to be accurate representations. This proof may be made by any person of good eyesight, who is familiar with the persons, places or things represented by the photographs.
III. WHEN ADMISSIBLE.
636. Photographs cannot be made the media of getting improper evidence before, or for playing upon the passions of, the jury. Photographs of persons in the nude are improper and not admissible. The reproduction of tableau planned to intensify dramatic effect of witness' testimony is also inadmissible, but a photograph of the scene of a tragedy, made and offered in good faith, is not rendered inadmissible by the fact that it contains figures to indicate the respective positions of the principals. Photographs appealing to passions of jury, and neither necessary nor instructive, are inadmissible, but photographs otherwise proper as evidence are not inadmissible because calculated to awaken sympathy.
IV. DISCRETION AS TO ADMISSION OR EXCLUSION.
637. It has been held that it is within the discretion of the trial judge to admit or exclude photographs offered in evidence. He is the one to decide whether a photograph is instructive. This discretion, however, usually extends only to the matter of the verification.