The opinion of the court was delivered by: SCALERA
Following conviction by a jury on two counts of uttering and publishing a forged endorsement on a United States Government check, defendant moved for judgment of acquittal and a new trial.
The evidence indicated that two United States Government checks, one in the amount of $148 made payable to Charles Dennis, and another in the amount of $174 made payable to Edward Griffith, were cashed at a supermarket in New Castle, Pennsylvania. When each check was cashed, a Regioscope photograph was taken of the check and the person who presented it for payment. George Kennedy, a New Castle police officer, identified the defendant as the person in the photograph of the Dennis check, and said he believed, though he was not positive, that defendant was the person in the photograph of the Griffith check.
When the checks did not arrive when due, Dennis and Griffith notified the Check Claims Division of the United States Treasury Department. The Division sent Dennis and Griffith a check claim form which they answered and returned.
Defendant presents three propositions in support of his motion.
Defendant objects to the admission into evidence of the two Regioscope photographs. The exhibits were actually a photograph on a photograph: a photograph of a check superimposed on a photograph of a man. The checks are the two United States checks in evidence. The man, identified at trial as the defendant, is the one who presented the checks for payment.
The government introduced the Regioscope photographs through Thomas A. Joseph, an owner and operator of the supermarket where the checks were cashed. Joseph testified that a customer who wanted to cash a check would go the cashier's office in the front of the store. An employee would stamp an identification number on the face of the check, place the check on a ledge and simultaneously photograph it and the customer. The customer would endorse it in the presence of the employee and receive payment.
The equipment used in taking the Regioscope photographs was installed in the store by Filmdex, an independent contractor. Filmdex supplied and developed the film used in the store camera and also made periodic inspections of the equipment. The system was installed, Joseph testified, "to get rid of bad checks."
Though he could not be positive, Joseph said the checks were probably cashed by a long-time employee named Viola Toshe. He testified that Toshe's primary function was to cash checks, and that she understood how the Regioscope equipment was operated. He did not oversee her work and did not see her cash the checks. Toshe died prior to trial.
When the government notified him that the checks were paid over a forged endorsement, Joseph asked for and received from Filmdex the Regioscope photos. Because the identification number on the face of the checks pictured in the photographs were the same as those stamped on the checks that were admitted into evidence, Joseph said he was able to testify that the photographs were taken when the checks were cashed. When asked whether the photographs were taken in his store, Joseph answered in the affirmative, noting there were items in the photographs that could be found only in his store.
Generally, photographs have been considered only as a supplement to a witness, a pictorial illustration of the witness' testimony. Under this view, a photograph is admissible only when a witness testifies that it is an accurate representation of what he has personally observed. McCormick on Evidence, p. 531 (2d Edition, 1972). This position is illustrated in a number of cases involving photographs taken by a bank surveillance camera. Courts have admitted these photographs only when witnesses have testified that they accurately depict what was happening in the bank at the time the photographs were taken. United States v. Wilkins, 477 F.2d 323 (8th Cir. 1973); United States v. Hobbs, 403 F.2d 977 (6th Cir. 1968); United States v. Kelley, 334 F. Supp. 435 (S.D.N.Y.1971).
This view is overly restrictive. Photography long ago progressed to the point where the courts can rely on its work. One could even argue that a properly authenticated photograph is more reliable than the oral ...