Use of photographs of matchings in court

There has been considerable difference of opinion among investigators regarding the use of photographs in court to illustrate the matching of rifling marks, breechblock marks, extractor marks, ejector marks, etc. Some have given up the use of photographs and rely entirely upon a statement that they have examined the evidence bullet or shell and have compared the markings found on same to be identical (or nonidentical, as the case may be) with markings found on test bullets or shells, and upon this statement of their findings in the laboratory they offer an opinion. They argue that since they are qualified as experts to make such examinations it is not necessary that photographic records be made of what their examinations reveal. Furthermore, they state that photographs are likely to be misinterpreted, particularly by defense counsel, and that the jury may be misled more than informed. They point out that photographs (even large enlargements) have to be examined individually by each member of the jury and that this leads to confusion. And, furthermore, in many large police laboratories the work load is so heavy as to preclude the making of photographs in all cases, and if they are used in any cases they must always be used in order to meet questions of the defense counsel. Finally, they state that in many cases ā€˛sufficiently perfect" photographs cannot be produced, although to an experienced examiner the comparisons are of sufficiently good quality to enable an expert to form a correct opinion.

All experienced examiners will have much sympathy with these points of view. However, there is another side to be considered. How about the viewpoint of the intelligent and perhaps skeptical juror? Will he be satisfied with the unsupported word of the expert? And what is he to think when the experts do not agree? They may have honest differences of opinion. Some of them may be overzealous in their cause and in their opinions. And some are downright dishonest. In the past thirty years the author has met all of these types. As a juror be would want to be shown. And a good photograph accompanied by a full explanation of principles involved and a frank acknowledgement of such limitations as exist will have a much better effect on the jury than an unsupported statement of an expert who, in the majority of cases, is unknown to the members of the jury. Jurymen often may be uneducated, but few of them are dumb. And the more uneducated they are the more skeptical they are likely to be. It must be admitted that there are two sides to the question of whether photographs should be used in court.

In several cases in the author's experience good photographs of matchings have been a decisive factor. In a very early case which was appealed to the State Supreme Court the justices had photographs of twelve matchings of rifling marks to examine. All six lands and all six grooves on the fatal bullet could be matched against the corresponding lands and grooves on a test bullet. Such visual evidence is incontrovertible and the decision in the lower court was sustained.

In another case, in which a man had been killed by a charge from a shot gun, two experts testified that the fatal shell had been fired from a gun taken from the defendant. Photographs purporting to show identity of marks on the primer with those on test shells were introduced. No comparison microscope photographs of matchings were introduced, however; only enlarged photographs of the head of the shells. When these were examined (during cross-examination, at the request of the State's Attorney) it was discovered that in photographing one shell head the illumination had come from the right side while in the other the illumination had come from the left side! Since experts on both sides had testified that the illumination must always come from the same side and from the same angle, cross-examination along this line ceased abruptly! In the author's photographs of the fatal shell head and of the heads of several test shells it was very apparent that (1) there were repetitive markings which appeared on the heads of the test shells, and (2) these markings were quite different from the distinctive marking on the head of the fatal shell. In addition, an examination of the firing pin impressions on the fatal and test shells, with the aid of a binocular microscope, showed clearly that one impression had been made by a firing pin having a blunt (or flattened) end while the other had been made by a firing pin with a tapered (more pointed) end. Under visual examination with an ordinary microscope these differences were not observable. They could be seen only with three-dimensional (stereoscopic) vision. The firing pin impression on the fatal shell and the impressions on several test shells were photographed with a stereo-camera attached to a binocular microscope and the stereo-photomicrographs so obtained were shown to the jury, who acquitted the defendant on the first ballot. Here was a case, certainly, in which the use of photographs, properly taken and of proper type, were the deciding factor in a court case. Without them it would have been the unsupported statement of one expert against two experts.

The author readily admits that if several photographs are being circulated in the jury box while he is testifying about another which he is holding in his hand there is certainly going to be confusion and the members of the jury will be paying little attention to what he is saying, as he will be talking about one photograph while they are looking at another. If each juryman takes time to examine each of several photographs before the next one is shown (as he must if he is to derive any benefit from the photograph) the proceedings will be long drawn out and tedious. To avoid this and to insure that each juror has the best possible opportunity to benefit from visual demonstrations of matchings or similarities found, the author has frequently resorted to the use of lantern slides in addition to the enlarged photographs which are introduced in evidence so that they may be examined later by the jurymen at their convenience during their deliberations. The slides are left in court so that the jurymen may examine and compare them with the enlargements, as a matter of proper procedure. Each slide is given the same number as the corresponding photograph and it is explained that the slide (which is also a photograph) and the enlarged photograph have been made from the same negative. It is explained that the purpose of showing the slides is to avoid confusion by centering the attention of all of the members of the jury on a single photograph concerning which testimony is being given and to save time. Oftentimes, opposing counsel has asked questions concerning the photographs as they were being shown on the screen and this should be welcomed because it offers the expert additional opportunity to clear up matters for the jury.

If the photographs cannot be defended they should not have been shown in the first place. When a man's life (or future liberty) is at stake he is entitled to a fair and complete trial and the members of the jury are entitled to the best possible presentation of evidence, both pro and con.

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