Following a jury trial in the Lake Superior Court appellant Lester Bergner was convicted of sodomizing
The principal evidence in this case consisted of State's Exhibits 1 and 2 which are photographs depicting the act of fellatio by a female child on an adult male. The photographs show the child lying between the man's legs with her face, head, and upper body clearly visible. Only the lower body of the male — from the chest to the knee — can be seen, however. The man is partially clothed in a bathrobe.
In May, 1977 appellant's ex-wife, X, went to appellant's home to look for these photographs after having been told of their existence by appellant's son, W. Although appellant was not home at the time, X apparently searched the darkroom located in the home and discovered the photographs in a box on a shelf. The photographs were later turned over to Detective Mitchell of the Highland Police Department.
At trial X identified her four-year old daughter, Y, and appellant as the persons depicted in the photographs. Her identification of appellant was based upon her recognition of appellant's lower body, a hernia scar on his abdomen, and his bathrobe. She
Detective Mitchell verified having received the photographs from X. He subsequently arrested appellant, and during booking procedures requested appellant lower his trousers far enough to reveal the hernia scar. Mitchell stated the scar he observed was "consistent with" the one depicted in the photographs.
Barry Mones was qualified as an expert photograph examiner for the F.B.I. His analysis of the photographs revealed they were "authentic and ... not composites or altered." He also testified the photographs and their respective negatives were taken on Polaroid black and white film.
The only witness called by the defense was Carol Bergner, appellant's current wife. She noted a number of physical discrepancies between appellant and the male in the photographs and stated, in her opinion, the photographs were not of her husband.
At the close of the testimony the State moved to have appellant examined by a doctor, presumably to secure impartial identification evidence. The trial court denied this motion but suggested an even more novel procedure: the court ordered appellant to lower his pants and display his lower abdomen and thighs to the jury. Neither prosecution nor defense objected to this procedure which the trial judge characterized as "a rather unusual thing for the court to do." The jury convicted appellant of the crime of sodomy and this appeal followed.
I. Were two photographs erroneously admitted on improper foundation evidence where no witness testified the photographs were true and accurate representations of what they purported to depict?
II. Did the trial court err in permitting appellant's ex-wife to testify in violation of the marital privilege?
III. Was the evidence sufficient to support the verdict?
I. PHOTOGRAPHIC EVIDENCE
Whether the two photographs depicting the sexual act were properly admitted into evidence presents a novel question and a case of first impression for Indiana courts. Appellant argues the photographs were inadmissible because the State failed to establish the proper foundation for their admission as required by existing Indiana law. This assertion is patently correct, but the State contends the photographs were admissible under the so-called "silent witness theory" of photographic evidence and urges us to adopt this theory.
A. CURRENT INDIANA LAW
Indiana courts traditionally have stressed three requirements for the admission of photographic evidence. First, an adequate foundation must be laid. Our courts have consistently held this requires the testimony of a witness who can state the photograph is "a true and accurate representation of the things it is intended to depict." Wilson v. State, (1978) Ind., 374 N.E.2d 45; Boone v. State, (1978) Ind., 371 N.E.2d 708; Green v. State, (1976) 265 Ind. 16, 349 N.E.2d 147; Murry v. State, (1979) Ind. App., 385 N.E.2d 469. See McCurdy v. State, (1975) 263 Ind. 66, 324 N.E.2d 489 (photos properly excluded for failure to satisfy this requirement); Johnson v. State, (1972) 258 Ind. 648, 283 N.E.2d 532 (same).
Relevancy is the second requirement for the admission of photographic evidence in Indiana. Like all evidence, a photograph must meet the usual relevancy standard, i.e., it must tend to prove or disprove a material fact. Smith v. Crouse-Hinds Company, (1978) Ind. App., 373 N.E.2d 923. In applying this standard to photographic evidence, our courts ask whether a witness would be permitted to testify as to the subject matter portrayed in the photograph. Simpson v. State, (1978) Ind., 381 N.E.2d 1229; Crane v. State, (1978) Ind., 380 N.E.2d 89.
Finally, some Indiana cases require the photographs aid jurors' understanding of other evidence. See Whitfield v. State, (1977) 266 Ind. 629, 366 N.E.2d 173; Patterson v. State, (1975) 263 Ind. 55, 324 N.E.2d 482; McPherson v. State, (1978) Ind. App., 383 N.E.2d 403. Whether this is truly a requirement for the admission of photographs in Indiana is not totally clear. Some cases seem to elevate it to the level of a requirement, McPherson, supra, while others merely recite it as a part of the relevancy test, Whitfield, supra.
B. THE SILENT WITNESS THEORY
Although all three requirements for the admission of photographic evidence are important, in this case we are singularly concerned with the foundation requirement. Indiana's approach to the admission of photographs, as guided by the current foundation requirement, falls within what has been characterized as the "pictorial testimony theory" of photographic evidence. III J. Wigmore, Evidence § 790 (Chadbourn rev. 1970). This theory categorizes photographs with maps, models and diagrams, and thus treats photographs purely as demonstrative evidence. As such, a photograph is not evidence in itself, but is used merely as a nonverbal method of expressing a witness' testimony and is admissible only when a witness can testify it is a true and accurate representation of a scene personally viewed by that witness. McCormick, Evidence § 214 (1972); 2 C. Scott, Photographic Evidence § 1001 (1969).
The "silent witness theory" for the admission of photographic evidence permits the use of photographs at trial as substantive evidence, as opposed to merely demonstrative evidence. Thus, under the silent witness theory there is no need for a witness to testify a photograph accurately represents what he or she observed; the photograph "speaks for itself." III J. Wigmore, Evidence § 790 (Chadbourn rev. 1970). The theory may be best explained by examining some of the contexts in which it is commonly applied.
One of the most frequent, and often unintentional, utilizations of the silent witness theory occurs when X-rays are admitted into evidence. Obviously, no witness can testify he or she saw what an X-ray depicts, thus rendering the pictorial testimony theory logically inapplicable.
A context in which the silent witness theory has been expressly employed involves cases in which Regiscope photographs are introduced into evidence. A Regiscope is simply an automatic camera which takes a simultaneous picture of a check being offered for cashing and of the person presenting it. Regiscope photographs are often admitted as substantive evidence in forgery prosecutions despite the inability of the clerk who cashed the check to remember the particular transaction or individual. Typically, the courts require a showing of authenticity which includes an identification of the defendant as the individual depicted and a showing of the proper functioning of the camera and processing of
The silent witness theory has also been adopted in cases involving bank robbery photographs. These are photographs taken during the course of a robbery by automatic or hidden cameras and are admitted as substantive evidence upon a sufficient showing of the reliability of the procedures used in taking and developing the photographs. E.g., United States v. Taylor, (1976 5th Cir.), 530 F.2d 639 (photographs taken after defendant locked all bank personnel in safe held admissible as substantive evidence). See Murry v. State, (1979) Ind. App., 385 N.E.2d 469, in which Judge Shields stated a photograph taken during a robbery could have been properly admitted had there been testimony indicating when the film was installed, when the pictures were taken, or whether the camera was activated at any other times.
We have presented the above cases and their foundation requirements because we think it important to note how these various courts have stressed the need for authentication or verification of the photographs. We think it equally important to note the courts have recognized that the verification requirement should be understood in a relative sense. See generally Annot. 9 A.L.R.2d 899 (1950). In other words, these courts have not blindly followed the formal, traditional requirement of admitting photographs solely as demonstrative evidence. Instead, these jurisdictions have analyzed the theory behind the traditional requirements, and have recognized the probative potential of photographic evidence. As a result, these courts view photographic evidence in a modern, realistic light and admit photographs where their authenticity can be sufficiently established in view of the context in which the photographs are sought to be admitted. We think this creative analysis and refusal to follow traditional standards merely because such standards exist is laudable as the highest form of a progressive judiciary.
Our consideration of the authorities and the arguments in both the State's and the appellant's excellent briefs leads us to an inescapable conclusion. We hereby accept the State's invitation and adopt the silent witness theory for the admission of photographic evidence as the law in Indiana.
In so doing, we cannot help but note the good company in which we find ourselves. The following jurisdictions, when presented with the issue we now decide, have also adopted the silent witness theory: United States v. Gray, (1976 8th Cir.) 531 F.2d 933; United States v. Taylor, (1976 5th Cir.) 530 F.2d 639; Watkins v. Reinhart, (1942) 243 Ala. 243, 9 So.2d 113; State v. Kasold, (1974) 110 Ariz. 558, 521 P.2d 990; People v. Bowley, (1963) 59 Cal.2d 855, 31 Cal.Rptr. 471, 382 P.2d 591; People v. Doggett, (1948) 83 Cal.App.2d 405, 188 P.2d 792; Oja v. State, (1974) Fla.App., 292 So.2d 71; Franklin v. State, (1882) 69 Ga. 36; Cook v. Clark, (1971) Iowa, 186 N.W.2d 645; State v. Young, (1973) Me., 303 A.2d 113; Sisk v. State, (1964) 236 Md. 589, 204 A.2d 684; Hartley v. A.I. Rodd Lumber Co., (1937) 282 Mich. 652, 276 N.W.2d 712; People v. Withers, (1961) Mo., 347 S.W.2d 146; King v. State, (1922) 108 Neb. 428, 187 N.W. 934; People v. Byrnes, (1974) 33 N.Y.2d 343, 352 N.Y.S.2d 913, 308 N.E.2d 435; State v. Hunt, (1979) 297 N.C. 447, 255 S.E.2d 182;
Likewise, the relevancy requirement must be met when photographs are admitted as substantive evidence. The requirement that a photograph aid the jury in understanding other evidence remains effective, if at all, only when photographs are used for demonstrative purposes. By its nature, this requirement relates only to demonstrative evidence and has no logical applicability when photographs are used substantively.
The foundation requirements for the admission of photographs as substantive evidence under the silent witness theory are obviously vastly different from the foundation required for demonstrative evidence. However, we feel it would be wrong to lay down extensive, absolute foundation requirements. Every photograph, the context in which it was taken, and its use at trial will be different in some respect. We therefore hold only that a strong showing of the photograph's competency and authenticity must be established. Whether a sufficiently strong foundation has been laid is left to the sound discretion of the trial court, reviewable only for abuse. However, we stress our use of the adjective "strong." Photographs tend to have great probative weight and should not be admitted unless the trial court is convinced of their competency and authenticity to a relative certainty.
Despite our reluctance to formulate absolute standards for the admissibility of photographs as substantive evidence, we feel compelled to require proof the photograph has not been altered in any significant respect. This is necessary to avoid the dangers of misrepresentation or manufactured evidence which are possible through composite or retouched photographs. Additionally, we suggest a few non-mandatory guidelines for the admission of photographs under the silent witness theory. The date the photograph was taken should be established in certain cases, especially where the statute of limitations or the identity and alibi of the defendant are in question. In cases involving photographs taken by automatic cameras, such as Regiscopes or those found in banks, there should be evidence as to how and when the camera was loaded, how frequently the camera was activated, when the photographs were taken, and the processing and chain of custody of the film after its removal from the camera. See Murry v. State, (1979) Ind. App., 385 N.E.2d 469.
In adopting the silent witness theory we are cognizant of two problems which arise when photographs are used as substantive evidence. The first involves the potential for distortive and misrepresentative images present in any photograph. The second concerns the inability to "cross-examine" a photograph being used as a silent witness.
Photography is not an exact science. The image a camera produces on film can be affected by a variety of things that may lead to distortion and misrepresentation. The quality of the camera and lens, type of film, available light, focal length of the lens, use of lens filters, or even the perspective from which the photograph is taken can play a part in producing a truly representative photograph. See 1 C. Scott Photographic Evidence, §§ 151-587 (1969). However, assuming any misleading qualities of a photograph are not so egregious as to result in an inadequate foundation, complaints concerning a photograph's distortion go only to the weight to which a photograph is entitled, not admissibility. III Wigmore, Evidence § 792 (Chadbourn rev. 1970); Comment, Photographic Evidence — Is There a Recognized Basis for Admissibility? 8 Hast.L.J. 310, 311 (1957). In addition, we note the testimony of an eyewitness is subject to many failings. Essentially, a
The second problem posed by our adoption of the silent witness theory concerns the inability to "cross-examine" the photograph.
Having adopted the silent witness theory, we must now determine whether the photographs involved in this case were properly admitted. There were three main grounds used by the State to establish the foundation. They clearly demonstrate a sufficient degree of authenticity for the admission of the photographs.
First, there was expert testimony to show the photographs had not been altered in any way. Barry Mones, the photographic examiner for the F.B.I., stated his examination and testing of the photographs revealed they were not retouched nor composites.
Second, the approximate date the photographs were taken was shown to be October, 1976. Appellant's ex-wife, X, testified to this based on her daughter's haircut in the picture. The haircut was memorable because it had been given, ineptly, by X's son. This evidence was corroborated by Barry Mones' testimony regarding the date of manufacture of the film. He stated Exhibit 1 was manufactured in August, 1966 or 1976, and Exhibit 2 was produced in January, 1964 or 1974. He also stated Polaroid film has a relatively short life, thus leaving an inference that the later dates are more likely the actual dates of manufacture.
Finally, there was strong testimony regarding the identification of the two persons in the photographs. X unequivocally identified her daughter, Y, and portions of the living room of the home she shared with appellant during their marriage. She also identified appellant on the basis of a robe she had purchased for him, and her knowledge of the general shape of his lower body and hernia scar. X's recognition of the scar was reinforced by the testimony of Detective Mitchell who stated appellant's scar was "consistent with" the one in the photograph.
Similarly, the New York Court of Appeals held admissible photographs depicting sodomy and intercourse between the defendant and his eleven year old daughter. People v. Byrnes, (1974) 33 N.Y.2d 343, 352 N.Y.S.2d 913, 308 N.E.2d 435. The court based its decision on the identification testimony of the child's mother and an expert opinion that the photographs had not been altered or doctored. "[A] fair conclusion is that the foundation testimony, even excluding that of the complainant, sufficiently authenticated the photographs by showing that they accurately depict what they purport to show, and that in themselves, the photographs were probative evidence of the crimes charged." Id. 352 N.Y.S.2d at 917, 308 N.E.2d at 438. Accord, State v. Kasold, (1974) 110 Ariz. 558, 521 P.2d 990.
Our evaluation of these authorities, analysis of the silent witness theory, and consideration of the facts of this case lead us to but one conclusion. The trial court did not abuse its discretion and thus committed no error in admitting the photographs as substantive evidence.
II. MARITAL PRIVILEGE
Appellant's second argument concerns the applicability of the marital privilege to the testimony of his ex-wife, X. It is his contention that X's identification of his hernia scar and lower body was based on knowledge gained by virtue of the marital relationship, and therefore, constituted privileged information which should not have been admitted.
Ind. Code 34-1-14-5 states husbands and wives are "incompetent"
Based upon this law, appellant argues his ex-wife's knowledge of his lower body and hernia scar "was gained by virtue of the very essence of the conjugal relationship between the spouses, i.e., the intimacy occasioned by acts of sexual intercourse during the marriage."
The first basis for our determination involves the testimony of Detective James Mitchell.
Secondly, any error in X's testimony was rendered harmless by virtue of appellant's display of his abdomen and thighs to the jury. This evidential exhibition, clearly viewed by all members of the jury and compared by them to the photographic exhibits, surely dispelled any doubts they might have had regarding the identification testimony. Seldom has a finder of fact had such a unique opportunity to view first hand such crucial, if not ultimate, evidence.
In light of the compelling nature of this evidentiary presentation, in addition to the testimony of Detective Mitchell, we hold any error in the admission of X's testimony harmless.
III. SUFFICIENCY OF THE EVIDENCE
Appellant's final assertion of error attacks the sufficiency of the evidence. More specifically, it is argued the identification testimony was insufficient to establish appellant was the male portrayed in the photographs. We disagree and, contrary to appellant's argument, think the evidence indicates more than appellant's opportunity to commit the crime.
The commission of the crime of sodomy cannot seriously be disputed. In graphic detail, State's Exhibits 1 and 2 photographically depict the prohibited sexual activity. The identity of the male in the photographs is not nearly as clear, however. Unlike all other cases our research has revealed, the facial features of the male are not visible. This deficiency has been more than overcome, however, by strong identification evidence, both circumstantial and direct.
The location of the sexual act was established to be the living room of appellant's house. Appellant was the only adult male who lived in or was given access to the home during the time the pictures were taken. The photographs were found in appellant's darkroom. Also, appellant was a professional photographer who possessed the equipment and expertise necessary to produce the photographs. This evidence, though circumstantial, tends to show appellant may have been the male depicted in the photographs.
This tendency is elevated to a near certainty once the personal identification evidence is considered. Both X and Detective Mitchell identified appellant's hernia scar as the one shown in the photographs. X also testified that she recognized the lower body of the male as her former husband's. Last, and certainly not least, the jury viewed appellant's thighs and lower abdomen, including the hernia scar. We think this evidence was more than sufficient to sustain the verdict.
MILLER, P.J., concurs.
YOUNG, J., dissents with opinion.
YOUNG, Judge, dissenting.
It is not proper to permit the photographs to be admitted into evidence under current Indiana law regarding the foundation for admissibility of photographs. The majority
Initially, there are significant distinctions in the examples of where the "independent silent witness theory" is said by the majority to be applied and its application in this case. In the cases supportive of the "silent witness theory" extreme care is taken to assure the veracity of the offered exhibit particularly with regard to the mechanical process by which the same is recorded. The foundation requirements regarding the camera angle, lighting, exposure, type of film, lens used, and other data should be readily determinable by expert testimony. The danger of accepting the "silent witness theory" without these safeguards is the possibility of misleading evidence. Posed photographs could result which would not fairly and accurately depict an act or occurrence.
The first example cited by the majority of unintentional utilization of the silent witness theory occurs when x-rays are admitted into evidence. As the majority allows in footnote 2, in Indiana x-rays are treated as scientific evidence, as contrasted to photographic evidence. Howard v. State, (1976) 264 Ind. 275, 342 N.E.2d 604; III J. Wigmore, Evidence § 795 (Chadbourn rev. 1970). Consistent with this rationale, Wigmore states that an instrument which furnishes an abnormal aid to the senses may be employed as a "source of testimonial knowledge." The x-ray as a source of testimonial knowledge is similar to other data on which a physician would base a diagnosis. Preliminary testimony is required to show the trustworthiness of the process and correctness of the particular instrument. Wigmore states that the concern here is the source of a witness' knowledge and not his mode of communication.
There are no Regiscope cases from Indiana cited by the majority nor do I locate any. It appears to me that those jurisdictions allowing the introduction of these types of photographs without the traditional foundation find the basis for trustworthiness in the procedure underlying the transaction. In State v. Tatum, (1961) 58 Wn.2d 73, 360 P.2d 754, and Sisk v. State, (1964) 236 Md. 589, 204 A.2d 684, the courts held as part of the foundation that the photograph accurately portray the subjects illustrated. In each case there was lengthy testimony regarding the underlying process. For example, the following description is taken from Sisk, 204 A.2d at 686-87.
In a Regiscope case, the process assures trustworthiness and authentication for the photograph, unlike the situation in this case.
The trustworthiness for photographs in bank robbery cases also relies on the process of recording. In United States v. Taylor, (1976 5th Cir.) 530 F.2d 639, the showing of reliability involved the following description of the process.
530 F.2d at 641-42 (citations omitted). It appears that if the proper foundation were laid as in Taylor, Indiana would allow such photographs to be admitted into evidence. See Murry v. State, (1979) Ind. App., 385 N.E.2d 469, 472. Here again, there is no showing in this case of a reliable trustworthy process by which the photographs were made and presented.
I agree that the verification requirement should be understood in a relative sense. Annot., 9 A.L.R.2d 899 (1950). "The proof which one should offer in verifying a photograph varies with the nature of the evidence which the photograph is offered to supply and the degree of possibility of error in the photograph." Id. at 900. The annotation reasons that different degrees of accuracy are required when the photograph is of a handwriting as compared to a photograph of a person for purposes of identification. The purpose for which a photograph is used determines the relative verification. When a photograph is used as substantive evidence, the need for certainty and accuracy is greater because there is no witness able to explain any distortions, inaccuracy or changes.
It may also be noted that except in sex offenses there is independent competent evidence of the crime. In the Regiscope cases there is evidence that a bad check has been passed when it is returned paid to the store. This is also true in a bank robbery case.
I would limit the use of the "silent witness theory" to cases where it is shown there is no possibility that the traditional foundation could be proved. It should be treated as an exception to the general rule, not as an alternative. The foundation required of other "exceptions" to the traditional rule has not been laid in this case and for that reason I would hold the photographs were improperly admitted.