Sidebar: photograph examination

📄 Sidebar: photograph examination — Tuesday, April 25, 1995

Address:

C:\DEPT103\CRIMINAL\1995\APR\25\SIDEBAR-PHOTOGRAPH-EXAMINATION.DOC

TRIAL

▲ Day 61 of 167

◀ Cross-examination of Andrea Mazzola (morning, part 3) Cross-examination of Andrea Mazzola (morning, part 4) ▶

Date: Tuesday, April 25, 1995 • Utterances: 11

A brief sidebar in which prosecutor Hank Goldberg objected to defense questioning that asked a witness to interpret photographs of a car and testify about stains she had no independent recollection of seeing. Judge Ito overruled the objections, clarifying that the proper question was whether the photograph refreshed the witness's recollection about the car's configuration and whether the stains would have been visible with the door closed.

# 1 (The following proceedings were held at the bench:)

# 2 MR. GOLDBERG:

Your Honor, I object under evidence code section 352. Also calls for opinion and conclusion. All she's doing is interpreting photographs. She has no recollection of seeing--

# 3 THE COURT:

No. But that's--the clear issue here is whether or not she saw these stains.

# 4 MR. GOLDBERG:

She just got through saying she had no independent recollection seeing them.

KEY QUOTE

# 5 THE COURT:

He's entitled to ask, "Looking at this photograph, does it refresh your recollection as to configuration--the matter in which the car's assembled, would you have been able to see--can you tell me if you would have been able to see these stains with the door closed? Yes or no?"

# 6 MR. GOLDBERG:

Still calls for speculation.

# 7 THE COURT:

No.

# 8 MR. GOLDBERG:

She can't interpret photographs.

KEY QUOTE

# 9 THE COURT:

Does it refresh her recollection what the car looked like, he can ask that question.

# 10 MR. GOLDBERG:

Whether it refreshes her recollection? Okay.

# 11 (The following proceedings were held in open Court:)

Temperature

procedural

Key Quotes (3)

Lance A. Ito

He's entitled to ask, 'Looking at this photograph, does it refresh your recollection as to configuration--the matter in which the car's assembled, would you have been able to see--can you tell me if you would have been able to see these stains with the door closed? Yes or no?'

Ito reframes the permissible question precisely, distinguishing refreshed recollection from improper lay interpretation of a photograph.

Hank Goldberg

She just got through saying she had no independent recollection seeing them.

Goldberg's core objection — the witness disclaimed any memory of the stains, so asking her to opine on them via photo is speculative.

Hank Goldberg

She can't interpret photographs.

Encapsulates Goldberg's lay-opinion objection — the witness lacks expertise to draw conclusions from photographic evidence.

Evidence (1)

Informal

Photographs of a car showing stains, used to attempt to refresh the witness's recollection about visibility of stains with the door closed

discussed, subject of objection

Notable Exchanges (1)

Hank Goldberg•Lance A. Ito

Goldberg raises a cascade of objections — 352, opinion, speculation, improper photo interpretation — and Ito methodically overrules each, ultimately articulating the exact permissible form of the question.

strategic

Objections

4 objections (0 sustained, 4 overruled)

Proceeding 5800 • 11 utterances

Criminal Trial

Department 103