Photographic Evidence--Is There a Recognized Basis for Admissibility
![handle is hein.journals/hastlj8 and id is 324 raw text is: PHOTOGRAPHIC EVIDENCE-IS THERE A RECOG-
NIZED BASIS FOR ADMISSIBILITY?
By JOHN E. MOUSER AND JAMES T. PHILBIN
The admissibility of photographs in evidence is well established; the
basis of admissibility appears to be something less than well established.
The most clearly articulated basis for the admittance of photographs in
evidence is given by Wigmore in his analysis of a photograph as a witness'
pictured expression of the data observed by him.' The majority of deci-
sions dealing with the admissibility of photographs in evidence do not fully
recognize the pictured expression theory as expounded by Wigmore, and
are far from clear as to what theory they do recognize. This comment will
review, primarily, the California cases that appear to conflict with the pic-
tured expression theory, and will make a brief inquiry into the possibility
that a photograph may tell its own story.
A Photograph as the Pictured Communication
of a Qualified Witness
If, as Wigmore states, a photograph is a witness' pictured expression
of the data observed by him,2 it follows logically that in order to be admis-
sible it must be made a part of some qualified person's testimony. Wigmore
accordingly so states: .. . [I]n brief, it must appear that there is a witness
who has competent knowledge, and that the picture is affirmed by him to
represent it.'
Although there has been neither an express repudiation nor a clear rec-
ognition of a pictured expression theory by the California courts, there are
occasional decisions that tend to support his analysis. Generally, however,
the California courts base admissibility on the somewhat vague generality
that if it is shown that the photograph is a faithful reproduction of what
it purports to represent, it is admissible.' No clear definition has been given
as to what constitutes a showing that the photograph is a faithful repro-
duction of what it purports to represent, but those decisions that allow a
witness, not necessarily the photographer,5 to establish that the photograph
is a faithful reproduction are in accord with the pictured expression theory.
However, no cases have been found that specifically impose the require-
ment that there must be a qualified witness as a requisite for introduction
of photographs in evidence. It seems that the California courts recognize
1 3 WIGMOm, EvWDNCE § 792 (3d ed. 1940).
2 Ibid.
3 Id. at § 793.
4 Berkovitz v. American River Gravel Co., 191 Cal. 195, 201, 215 Pac. 675 (1923) ; People
v. Ah Lee, 164 Cal. 350, 352, 128 Pac. 1035 (1912) ; People v. Cunna, 107 Cal. App. 2d 382,
387, 237 P.2d 12 (1951) ; People v. Crooms, 66 Cal. App. 2d 491, 496, 152 P.2d 533 (1944) ;
People v. Glab, 15 Cal. App. 2d 120, 124, 59 P.2d 195 (1936) ; Sim v. Weeks, 7 Cal. App. 2d 28,
40, 45 P.2d 350 (1935).
5 Holland v. Kerr, 116 Cal. App. 2d 31, 37, 253 P.2d 88 (1953).
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Photographic Evidence--Is There a Recognized Basis for Admissibility
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