MOTOR VEHICLES, VIOLATIONS ‑- PHOTOGRAPHIC EVIDENCE, ADMISSIBILITY OF IN COURT ‑- STATE PATROL

MOTOR VEHICLES, VIOLATIONS ‑- PHOTOGRAPHIC EVIDENCE, ADMISSIBILITY OF IN COURT ‑- STATE PATROL.

Photographs of traffic violations are admissible in evidence at the trial of the offender and may be publicly displayed for safety education purposes, but for the latter purpose, means of identification of the individual offender should be obliterated and in no case should such pictures be released for publicity purposes while the accused is awaiting trial for the offense.

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                                                                   March 4, 1954

Honorable James A. Pryde
Chief, Washington State Patrol
Legislative Building
Olympia, Washington                                                                                               Cite as:  AGO 53-55 No. 220

Dear Sir:

            By letter, as previously acknowledged, you have requested the advice of this office upon questions concerning the use of photographs of traffic violations, taken from a camera-equipped patrol car.  For convenience we have paraphrased your questions as follows:

            (1) Are such photographs admissible as evidence at the trial of the traffic offender?

            (2) Can such photographs be used for purposes of safety education in newspapers, on television, and at public meetings?

            In our opinion, photographs of traffic violations are admissible in evidence.  They may be displayed publicly for safety education purposes after removal therefrom of means for identification of the individual offender; except that in no case should pictures of an offense be released for these purposes while the accused is awaiting trial on such offense.

             [[Orig. Op. Page 2]]

                                                                     ANALYSIS

            1. The admissibility of photographs as pictorial confirmation of the observations of a witness is now beyond question.  Scott, Photographic Evidence (1942); 3 Wigmore, Evidence (3rd Ed.) 178, sec. 792 et seq.; Motion Pictures in Evidence, 15 Ind. L. J. 408; Fablio v. Diesel Oil Sales Co., 1 Wn. (2d) 234, 95 P. (2d) 788; U.S. v. Moran, 194 F. (2d) 623.  Their use as an aid to the court has been encouraged in this state.  Kelly v. City of Spokane, 83 Wash. 55, 145 Pac. 57.  In most cases, of course, photographs are cumulative evidence which support the testimony of some witness as to the facts.  They may be valuable as corroborating evidence when the testimony of the arresting officer is challenged.

            In any event, the admissibility of photographs is determined by the same criteria as other such evidence.  They must be relevant, and authenticated and identified by a competent witness or witnesses.  Admission or exclusion then rests largely with the discretion of the trial court, and its ruling ordinarily will not be disturbed unless that discretion has been abused.  Fablio v. Diesel Oil Sales Co., supra.

            The admissibility of motion pictures is governed by the same general rules.  20 Am.Jur. 618, Evidence, sec. 738.  The foundation for their use may be considered more carefully by the courts, because they are not always so clear as still pictures in regard to size, relative position, and velocity.  In determining whether or not to offer a motion picture as evidence in a particular case, the following statement of the New York court in Boyarsky v. G. A. Zimmerman Corp., 270 N.Y.S. 134, 240 App. Div. 361, should be kept in mind.

            "If moving pictures are sensational only and unnecessary, the court should refuse to permit such evidence, particularly where the facts may be described or the evidence submitted in another form and thus avoid the delay and difficulty which will result from their introduction.  If their use is solely for the purpose of advertisement or in an effort to obtain publicity, they should not be allowed in evidence."

            2. The only apparent legal objection to the use of such photographs for purposes of safety education is the possibility of a violation of the "right of privacy," which may give rise to a tort action for damages.  Our state has no statute on such actions.

             [[Orig. Op. Page 3]]

            The right has been recognized in other states, and defined in 138 A.L.R. at p. 25 as:

            "* * * The unwarranted appropriation or exploitation of one's personality, the publicizing of one's private affairs with which the public has no legitimate concern, or the wrongful intrusion into one's private activities, in such manner as to outrage or cause mental suffering, shame, or humiliation to a person of ordinary sensibilities."

            Some general rules appear from the cases, although the law is not yet well settled.  The right does not prevent dissemination of legitimate news or educational information, especially where the individual has acted in a way likely to cause notoriety.  Garner v. Triangle Publications, 97 F. Supp. 546; Metter v. Los Angeles Examiner, 95 P. (2d) 491.  Truth, however, may be no defense.  Brents v. Morgan, 221 Ky. 765, 299 S.W. 967, 55 A.L.R. 964.  "Mugging" of arrested persons for police files and limited distribution among police agencies probably does not violate the right.  77 C.J.S. 403, 41 Am.Jur. 945, 138 A.L.R. 89, 168 A.L.R. 461.

            Our court has not yet adopted or rejected the right of privacy.  SeeLewis v. Physicians and Dentists Credit Bureau, 27 Wn. (2d) 267, 177 P. (2d) 896.  However, inHodgeman v. Olsen, 86 Wash. 615, 624, 150 Pac. 1122, after holding that photographs of a pardoned prisoner could be distributed to police agencies, the court said:

            "* * * As intimated in the last paragraph of the opinion inHillman v. Star Publishing Co., 64 Wash. 691, 117 Pac. 594, 35 L.R.A. (N.S.) 595, the relation to the public of one who has been convicted of crime is such as to forfeit whatever right of privacy he may be said to have ever possessed.  This is true, at least, to the extent that the protection of society requires such forfeiture.  * * *  But it does not follow that a wanton distribution of these pictures to persons other than police officers and the like, and for no other purpose than to harass a pardoned criminal  [[Orig. Op. Page 4]] and injure him in his business, might not constitute a wrong, an excess of official duty or privilege, for which some remedy might be found.  * * *"

            In view of that admonition, such photographs should be used and distributed with caution.

            It is clear that such pictures should not be publicized if a criminal prosecution for the offense is pending.  Otherwise, the rights of the individual might be prejudiced.  Difficulty might arise in the selection of unbiased jurors, particularly in the case of a comparatively serious charge, where the pictures had been given wide newspaper and television coverage.  Such an effect is possible, even though the defendant might not be directly identified in the pictures.

            We would also advise that photographs should be used in safety education programs only when means of identifying the individual offender have been removed or obliterated.  This course should preclude the possibility of tort liability without unduly hampering your commendable purpose in attempting to reduce traffic accidents by safety education.

            Your file of exhibits is returned herewith.  We hope the foregoing will be of assistance to you.

Very truly yours,

DON EASTVOLD
Attorney General

RALPH M. DAVIS
Assistant Attorney General