Lawyers Manual - Unified Court System

208 Elizabeth Cronin
assault cases where, by the time the case comes to trial, the injuries have healed.
It is essential that the photographs be taken as soon as possible after the injuries
are inflicted. This means that police or medical personnel should have the
means to take the pictures as soon as the victim is safe and comfortable. Some
police departments provide their officers with cameras that they take on patrol.
Photographs can be taken of the injuries from various angles and at different
time periods. 10 Victims of domestic violence are beneficiaries of advancing
technology such as high intensity Polaroid cameras or, more recently, digital
cameras, which can be used by law enforcement and emergency rooms. 11
Under New York law, photographs of injuries are admissible as long as
they are offered to prove a material issue in the case or illustrate other relevant
evidence. 12 Even large color photographs of a homicide victim, including
autopsy pictures, have been held to be admissible despite claims by the defense
that they were inflammatory. 13 As long as the photographs are not offered to
“arouse the emotions of the jury and to prejudice the defendant,” they should be
admitted. 14 Photographs of the victim’s injuries must be offered after a proper
foundation is laid by a witness who viewed the item photographed, like a police
officer, and can say that the photograph accurately reflects how the item or
scene or person appeared when it was taken. 15
Photographs can be offered to prove an element of the crime charged, to
help an expert witness and even to disprove a possible defense. For example,
photographs of a victim’s injuries taken at the outset and then at different times
during the healing process can be relevant in a felony assault charge to show the
victim has suffered a permanent disfigurement such as scarring. 16 Photographs,
by showing the nature of the injuries, can be used to prove the intent of the
defendant to cause physical injury or to counter a defense of consent. 17 They
may also be relevant to the severity of the injuries. 18 In addition, photographs
of the victim showing significant injuries to her face, head and shoulder may
negate any colorable justification defense. 19
Also, photographs may be helpful for expert witnesses, especially medical
witnesses. The expert can rely on the photograph to formulate an opinion. 20 It
may become very important to have the medical witness testify about the colors
of bruising in the photo to narrow the time frame of the occurrence of the injury
and perhaps eliminate a possible defense. If a wound is in a particular stage of
healing, the medical expert can discuss how long the wound was there, perhaps
what instrument would have caused it and the prognosis. Such medical testimony
is especially relevant where the victim has suffered broken bones and the expert
is reviewing past x-rays. An expert may also be able to describe the pain a person