Home Forums Hunting & Shooting Hunter's Campfire Defendant not too bright

I just finished taking proofs in a jury trial on a fellow charged with shooting three deer out of season. Part of the evidence offered by the Prosecutor were photos taken of the Defendant and his buddy with two of the deer. The date imprinted just as clear as day on the front of the 8x10 glossy photos was five days before season opened! I suspect that the jury will not be out long on this one.

A few years ago I worked with some game wardens, in an area with a bag limit of one deer per season. We stopped in at the home of a notorious deer jacker, and he had a nice buck hanging in his garage. We stepped into the garage where he and his young son were skinning it out. The game warden I was with remarked that that was a nice buck. The little nipper piped up and said, "If you thinks that's nice, you should see the others dad's got hanging up out in the woods!". Probably no ice cream for that kid that night!

I found that when I was a prosecutor, most defendants were in court because of their basic stupidity. Luckily for the criminal justice system, most criminals are very good at what they do.
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Acy,
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<br>The date stamp on a photo is hearsay. Without evidence that the date set on the camera was accurate at the moment the pictures were taken, it is clearly inadmissible. Was the defense attorney in a coma when the pictures were offered?! What was the evidence that the date was accurate? Who set the date? When was it set? Was the camera within that person's control from the time of the setting of the date to the moment the pictures were taken? What did the State offer to certify the accuracy of the camera's calendar? Did the defense object to anything?
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<br>And by the way, what court is this taking place in?

Waders,
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<br>Amen to the hearsay. Digital cameras in general were becoming a problem when I left.
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The whole case is hearsay of sorts until the evidense is substanciated.

Ten Bears,
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<br>Here is a better definition of hearsay:
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<br>Black's Law Dictionary. 5th Edition is:
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<br>"Hearsay evidence is testimony in court of a statement made out of court, the statement being offered as an assertion to show the truth of matters asserted therein, and thus resting for its value upon the credibility of the out-of-court asserter. Evidence not proceeding from the personal knowledge of the witness, but from the mere repetition of what he has heard others say. That which does not derive its value solely from the credit of the witness, but rests mainly on the veracity and competency of other persons. The very nature of the evidence shows its weakness, and it is admitted only in specified cases from necessity. "
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<br>In this case, the out of court "statement" is the date on the photograph, being offered for the truth of the matter asserted, which is an inference that the date represented is indeed the correct date and time that the photograph was taken.
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<br>Hope that clarifies.
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All they would need to do is bring in the photo tech, and then you've got circumstantial evidence, for whatever the jury thinks its worth.
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<br>Regards, sse

Sse,
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<br>The problem with hearsay is that unless the evidence is admitted by the judge, the jury does not get to hear it. In this case, there is no photo tech, because the picture was taken with a digital camera. You are dealing with a date that was imposed on the image.
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Clear as mud. Thanks anyways, I would think that the guy using the camera would be able to testify that the date was or wasn't correct(?).

2nd_Amen - Well, problem or solution depending on where you stand.
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<br>You're right if the photos are a digital product. But, it has been common for many years that some processing outfits offer, or automatically, imprint a date on the front of the photo from a conventional 35 mm negative. This would be the date of processing, which leads one to conclude that the photo was still taken before the season started. Any other method would be unreliable to say the least.
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<br>Regards, sse

Ten Bears and Sse,
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<br>I agree with you both. As an ex-prosecutor, I liked to see them go to jail...
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Without some admissions by the defendant (aka confession) or some other eye-witness to the dead animal, the date of processing is irrelevant, even if the photo was developed prior to opening day.
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<br>Without other evidence, who can say whether the deer was taken illegally this year or lawfully last year? Maybe the deer was lawfully taken out-of-state. Of course we haven't seen the photo, but maybe something in it establishes that the deer came from a specific locale, AND at a time when the season was closed.
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<br>Without more (and I'm telling you there HAS to be more or the prosecutor would not have bothered to file charges) a photo depicting a hunter, a dead deer, and a date stamp prior to hunting season, is not enough to survive a defense motion to dismiss at the end of the State's case.
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<br>That's my $0.02, and it's worth every penny!

Waders - At least for me, I wasn't judging the sufficiency of the case. You raised the admissibility of the photo. Properly offered, it will come in. Then somebody has some 'splainin' to do.

Not knowing the facts of the case, and going off of a mere assumption, one would certainly assume that the prosector had sufficient evidence to file the complaint. More than likely, this was a case was someone was bragging of killing some deer and Game&Fish investigated based upon a tip. The photographs are more than likely merely a small part of the evidence, and it is merely coincidental that the date is on the photographs. I would certainly suspect that the photos are not the brunt of the state's case.
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<br>Darn criminal defense attorneys . Sometimes they think that the constitution is more than just a document. . (That's the technicalities that non-lawyers become upset over).
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<br>Waders makes fine points about preservation of constitutional rights and rushes to judgment. However, as he well knows as a defense attorney, and I as a prosecutor, the public hears only a biased and slanted side of a case (depending upon who is telling the story). Hear it from one side, and the person is getting railroaded. Hear it from the other, and the person is a POS who needs to be punished to the fullest extent of the law. That's why our Criminal Justice system is an adversial one, so that the truth can hopefully be obtained. I for one, would want Wade representing me if I were ever criminally charged. He seems to be one who believes in the preservation of rights, not just to save the criminal (because that is not the true goal always), but to preserve our system of innocent until PROVEN guilty. Many Defense attorney's believe their goal is to merely walk the defendant through the system.
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Wade,
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<br>I agree that the date stamp requires a foundation. I didn't feel the need to lay a foundation over the internet at the time I posted. Hunt and peck doesn't lend itself well to long posts:-).
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<br>In short- The photographer/owner of the camera testified regarding the accuracy of the date on the camera. She set the date herself. As to exactly when the date was set, whether someone may have borrowed the camera after the date was set and before these photos were taken and certification of the accuracy of the camera's calendar mechanism- those may go to the weight (probably little given the quality of the testimony regarding the date on the camera being the date the photos were taken), but not to the admissibility of the date stamped photos.
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<br>The photographer was the friend's mother. The friend, who was also involved in the poaching, had pled guilty earlier and agreed to testify as part of the plea agreement. He also recalled the date on the pictures to be accurate.
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<br>The court is 81st District in Tawas, MI.

Well, it was nice any way to give us Attorneys/Judges a little thread to talk shop.
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<br>Sounds to me like the hearsay problem was overcome, and since the Judge posted this, I would say problem solved.
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