Pictorial Testimony Theory and Silent Witnesses Theory in Law of Evidence

Taken from : Visual and Audio Evidence

Saji Koduvath, Advocate, Kottayam.

Introspection

  • 1. Photographs, videos etc. are ‘documents ‘. 
  • 2. There is difference between using a photograph (or a video) in evidence (i) for explaining matters or refreshing memory of a witness and (ii) using the same as a substantive evidence in court.
  • 3. The requirement of ‘proving the authenticity’, through proper witnesses, will be greater in the latter class (that is, for using the photographs or videos as a substantive evidence) .
  • 4. Depend upon the requirement of ‘proving the authenticity’, such evidences are divided into two divisions. The first category is: Pictorial Testimony Theory and the latter class is Silent Witnesses Theory.
  • 5. There is a change in the approach of the UK and US courts, as regards the nature of evidence to be adduced when a photograph or video is produced in court. The earlier decisions stood by the stand that ‘there should be some witness’. Now, the UK and US jurisprudence allows high degree of discretion to the courts to determine whether a document stands proved.

Definition of Evidence

According to the Indian Evidence Act, 1872, Section 3 –

  • ‘Evidence’ means and includes:
  • (1) all statements which the Court permits or requires to be made before it by witnesses, in relation to matters of fact under inquiry; such statements are called oral evidence;
  • (2) all documents including electronic records produced for the inspection of the Court, such documents are called documentary evidence.

Definition of Document

Section 3 of the Indian Evidence Act, 1872 defines ‘document’ as under:

  • “ ‘Document’ means
  • any matter expressed or described upon any substance by means of letters, figures or marks, or by more than one of those means, intended to be used, or which may be used, for the purpose of recording that matter.”
  • Illustrations:
    • A writing is a document;
    • Words printed, lithographed or photographed are documents;
    • A map or plan is a document;
    • An inscription on a metal plate or stone is a document;
    • A caricature is a document.

As could be seen from the illustration, ‘Document’ takes-in photographs.

By virtue of Section 65B of the Indian Evidence Act, any information contained in an electronic record which is printed on a paper, stored, recorded or copied in optical or magnetic media produced by a computer (computer output) shall be ‘deemed to be also a document’.

Besides the Evidence Act, term document has been defined in the General Clauses Act, 1897, and Indian Penal Code, 1860.  

Section 3(18), General Clauses Act defines document as under:

  • “Document shall include any matter written, expressed, or described upon any substances by means of letters, figures or marks, or by more than one of those means which is intended to be used, or which may be used for the purpose of recording that matter.”

Section 29, Indian Penal Code explains that the word document denotes any matter expressed or described upon any substance by means of letters, figures or marks or by more than one of those means, intended to be used, or which may be used, as evidence of that matter.

In Explanation 1, it is stated:

  • “It is immaterial by what means or upon what substance the letters, figures or marks are formed, or whether the evidence is intended for, or may be used in a court of justice, or not.”

Going by the definitions, ‘document ‘ includes not only all materials or substance upon which thoughts of a man are represented by writing or any other specious of conventional mark or symbol, but also records of information of some sort.

In P. Gopalakrishnan v. State of Kerala, AIR 2020 SC 1, it is observed that tape records of speeches [1] and audio/video cassettes [2]  including compact disc [3] were “documents” under Section 3 of the 1872 Act, which stand on no different footing than photographs and were held admissible in evidence. It is by now well established that the electronic record produced for the inspection of the Court is documentary evidence under Section 3 of the Evidence Act [4].

  • [1] (Also: Tukaram S. Dighole v. Manikrao Shivaji Kokate, 2010-4 SCC 329; Ziyauddin Burhanuddin Bukhari v. Brijmohan Ramdass Mehra, (1976) 2 SCC 17 )
  • [2] (See: Burhanuddin Bukhari v. Brijmohan Ramdas Mehra, 1976-2 SCC 17)
  • [3] (See: Singh Verma v. State of Haryana, 2016-15 SCC 485)
  • [4] (See: Anwar PV v. PK Basheer, 2014-10 SCC 473).

Photographs, Audio and Video Cassettes, CCTV footage, Electronic Documents etc.

It is clear that a document means something which conveys or affords information, notwithstanding the matter or medium on which it is exhibited, inscribed or contained.[1] Apart from a writing, picture, caricature, map or plan printed, lithographed or photographed on a piece of paper, document includes an inscription on a metal plate or stone. It also comprises:[2] Photographs including photographs of tombstones and houses,[3] Video recordings,[4] Audio and video[5] cassettes[6] or tape-recordings,[7] Moving cinematograph[8] film,[9 Electronic documents such as floppies, CCTV footages, CDs, DVDs, Chips, Hard discs, Pen drives,[10] e-mails[11]; Facebook messages[12]; Whatsapp messages[13].

  • [1] P. Gopalakrishnan @ Dileep Vs. State Of Kerala: KERLT 2018 4 1159, KERLJ 2018 4 189, KHC 2018 4 437
  • [2] P. Gopalakrishnan @ Dileep Vs. State Of Kerala: KERLT 2018 4 1159, KERLJ 2018 4 189, KHC 2018 4 437
  • [3] Lyell v. Kennedy (No.3) (1884) 50 L.T. 730
  • [4] State of Maharashtra v. Praful B. Desai, AIR 2003 SC 2053
  • [5] State of Maharashtra v. Praful B. Desai, AIR 2003 SC 2053; Santhosh Madhavan @ Swami Amritha Chaithanya v. State :2014 KHC 31; Taylor v. Chief Constable Cheshire:1987(1) All.ER 225
  • [6] Tukaram S. Dighole v. Manik Rao Shivaji Kokate (2010)4 SCC 329
  • [7] P. Gopalakrishnan v. State of Kerala, AIR 2020 SC 1; Tukaram S. Dighole v. Manikrao Shivaji Kokate, 2010-4 SCC 329; Santhosh Madhavan @ Swami Amritha Chaithanya v. State: 2014 KHC 31; Ziyauddin Burhanuddin Bukhari v. Brij Mohan Ramdas Mehra:  (1976) 2 SCC 17; Also See: Grand v. Southwestern and County Properties Ltd. (1975)Ch.185, (1974)2 All.E.R. 465; Rex v. Daye : (1908)2 K.B. 333, 340.  
  • [9] Senior v. Holdsworth, Ex parte Independant Television New Ltd. (1976) Q.B. 23)
  • [10] Rex v. Daye ((1908)2 K.B. 333, 340)
  • [11] Ambalal Sarabhai Enterprise v. KS Infraspace LLP Limited (AIR 2020 SC 307); Sailendra Kumar Goswami v. State of Assam, 2022 CrLJ 4694, 2022-237 AIC 506
  • [12] Sanjib Sarkar v. Rajasree Roy, AIR  2022 Cal- 12
  • [13] Rakesh Kumar Singla v. Union Of India, 2021-1 RCR(CRI) 704, 2021-3 Cri CC 452; Priyanka Singh v. State of Maharashtra, 2021 All MR(Cri)  1276, 2021-3 Cri CC 110, 2021-4 BCR(Cri) 393 etc..

Photo Identification (in Court)

Photo identification has been held to be valid in Umar Abdul Sakoor Sorathia v. Narcotic Control Bureau, (2000) 1 SCC 138, and Vasudevan v. The State, 1993 CrLJ 3151 (Ker). But in Sahadevan Sagadevan v. State by Inspector of Police, Chennai, AIR  2003  SC 215, the Apex Court did not accept  the identification through the photograph, after nearly 7 years. Similarly, in State (NCT of Delhi) v. Navjot Sandhu @ Afsal Guru, AIR 2005  SC 3820, ‘in regard to the identification of the photograph of deceased terrorist’, the  evidence was not accepted because it did ‘not inspire confidence, in view of the time lag of 8 months’.

In the case, Ponnappan v. State of Kerala, ILR 1994(3) Ker 370, a greedy man, SK., employed in Abu Dabi, took insurance policy for a large amount.  With a view to claim that amount, SK. and his fellows killed an innocent man, Chacko, while SK. was in Kerala, and blazed him in the car owned by SK. Police investigation revealed the conspiracy. SK. being absconded, he could not be tried.  The Kerala High Court (Ponnappan v. State of Kerala), in appeal, confirmed the conviction holding that Chacko was the person who was killed. It was on a photo identification (Pictorial testimony). The Court held as under:

  • “PW I identified the person in M.O. 9 photo as the person who was killed. There is no doubt that M.O. 9 is the photograph of Chacko, the film representative. It was contended that since P. W. I himself admitted that he had not observed the features or facial peculiarities of the person when he was inside the car, the identification made by him with the help of the photo is not of any use. We are of the view that even without noticing any translatable mark or feature of a person it could be possible to identify him later.”

Relevancy and Admissibility of Photo and Video Evidence

Photo or video evidence may be the most valuable evidence in the facts of certain cases. Under the ‘Best Evidence Rule’ it may have great importance, as stated in the following decisions:

  • Mohammed Rafiq Vs. Madhan, 2018-1 Mad LJ(CRI) 641;
  • Moti Rabidas Vs. The State of Bihar, 2015-145 AIC 435;
  • Vaman Narain Ghiya Vs. State of Rajasthan 2014-1 Raj Cri C 31;
  • State of MP Vs. Shankarlal, ILR 2010 MP 717;
  • P Rajagopal Vs. Inspector of police 2009-2 Mad LJ(Cri) 161;
  • Santhosh Baccharam Patil Vs. State of Maharashtra, 2002 All MR (Cri)997, 2003 BCR (Cri) 120.

Pictorial Testimony Theory and Silent Witnesses Theory

Photographs, audio and video cassettes etc. are, as shown above, ‘documents ‘.  Depend upon the requirement of proving the authenticity, as shown in Santhosh Madhavan @ Swami Amritha Chaithanya v. State: 2014 KHC 31, they are divided into two categories. They are:

  • (i)  aid a witness in explaining his testimony (Pictorial testimony theory) – (E.g. a doctor explains injury with the help of a photograph; identification of a deceased with photo.);
  • (ii) probative evidence of what those evidence depict (Silent witness theory) – (E.g. X-ray film showing a fracture; a photograph showing accused – in a crowd – armed with weapon, though the photographer did not see him; photograph of a scene of occurrence of a crime – which speaks for itself.)

Witnesses may, with their personal knowledge, state that a photograph is a fair and accurate representation of the fundamental facts appear therein. (E.g. a doctor explains injury with the help of a photograph.) In such a case, the evidence of the witness will be the primary matter rather than what is depicted in the photograph; and the photographer need not be examined in court, inasmuch as the photograph is admitted merely to aid a witness in explaining his testimony. They are, explained by Wigmore as, ‘nothing more than the illustrated testimony of that witness’. This principle gives rise to Pictorial testimony theory or communication theory.

But, when a photograph itself is taken as probative and substantial evidence of the matters appear therein, it acquires the glorified status of independent ‘silent witnesses’. In such cases, there should be cogent evidence before the court, to admit the photograph in evidence. (E.g. X-ray film showing a fracture; a photograph showing accused – in a crowd – armed with weapon, though the photographer did not see him.)

Silent Witness Theory – Which Speaks for Itself 

In Black’s Law Dictionary, 9th Edition, at page 1508, ‘Silent Witness Theory’ is mentioned as under:

  • “A method of authenticating and admitting evidence (such as a photograph), without the need for a witness to verify its authenticity, upon a sufficient showing of the reliability of the process of producing the evidence, including proof that the evidence has not been altered.” (Quoted in: Santhosh Madhavan @ Swami Amritha Chaithanya v. State :2014 KHC 31)

In Halsbury’s Laws of England, Fourth Edition, Vol. 1 7, at page 158, it is noticed as follows:

  • “224. Photographs. Photographs properly verified on oath by a person able to speak to their accuracy are generally admissible to prove the identity of persons, or the configuration of land as it existed at a particular moment (scientific deductions from them being made by a witness both skilled and experienced in such a task, or radar echoes or the contents of a lost document. In the High Court a photograph is receivable in evidence at the trial only when certain provisions have been complied with.” (Quoted in: Santhosh Madhavan @ Swami Amritha Chaithanya v. State :2014 KHC 31)

In Halsbury’s Laws of England, Fifth Edition,Vol.11, at page 723, it is stated as follows:

  • “958.  Photographs, films, records, tape recordings and video recordings. At common law, photographs properly verified on oath by a person able to speak to their accuracy were generally admissible to prove the identity of persons, or the configuration of land as it existed at a particular moment (scientific deductions from them being made by a witness both skilled and experienced in such a task), or radar echoes or the contents of a lost document. For the purpose of Civil Evidence Act 1995, ‘document ‘means anything in which information of any description is recorded and a similarly wide definition applies for the purposes of disclosure under the Civil Procedure Rules.  Thus photographs, films, records, tape recordings and video recordings are all admissible in evidence, subject, if appropriate, to the statutory safeguards with regard to hearsay evidence. Prior notice must be given of a party’s intention to put photographs and certain other items in evidence.
  • The court has power to order the photographing of property which is, or may become, the subject matter of proceedings.” (Quoted in: Santhosh Madhavan @ Swami Amritha Chaithanya v. State :2014 KHC 31)

Wigmore on Evidence, Chgadbourn Revision, Vol. III at page 220, it is observed as follows:

  • “Given an adequate foundation assuring the accuracy of the process producing it, the photograph should then be received as a so-called silent witness or as a witness which speaks for itself.” (Quoted in: Santhosh Madhavan @ Swami Amritha Chaithanya v. State :2014 KHC 31)

Proper Witness should be examined  to invoke ‘Silent Witness‘ Theory

When a photograph or video (as such) is used, a proper witness (not necessarily the photographer) must be examined to show that the photograph (or CCTV, film, CD, e-mails etc.) accurately represent what is depicted; and when, where, and under what circumstances the photograph was taken.

  • (See: State v. Tatum, 58 Wn.2d 73, 360 P.2d 754 (1961); State v. Newman, 4 Wn. App. 588, 484 P.2d 473 (1971), Wigmore on Evidence, Chgadbourn Revision, Vol.III at page 220; Santhosh Madhavan @ Swami Amritha Chaithanya v. State: 2014 KHC 31.)

In such cases the the photo or video stands as an independent and substantive piece of evidence which speaks for itself, e.g. photo of scene of occurrence of a crime.

In Santhosh Madhavan @ Swami Amritha Chaithanya v. State: 2014 KHC 31, the Kerala High Court examined the quantum of authentication required. It is held as under:

  • “It is simply this – that some witness (not necessarily the photographer) be able to give some indication as to when, where, and under what circumstances the photograph was taken, and that the photograph accurately portray the subject or subjects illustrated.  The photograph need only be sufficiently accurate to be helpful to the court and the jury.
  • In Taylor v. Chief Constable Cheshire, (1987)1 All.E.R.225, it was held as under: “The next case to which I would refer is the case of RV Fowden and White [1982] Crim LR 588. There two persons, the appellants, were alleged to have been photographed on a video film carrying out acts of theft. At their trial the Crown sought to call evidence from a police officer and a store detective who knew Fowden and While to say that the persons on the film were the accused.  The judge admitted that evidence of identity, against the contention for the defence that it was purely a matter for the jury, looking at the film, to determine the question of identity. 
  • On appeal it was held as under: ‘There was no difference in principle between a video film and a photograph or tape recording.  Although it was not strictly necessary to decide the point the Court was of the opinion there was no reason in principle why the Crown should not be able to call a witness who knows someone to look at a photograph and give evidence to the effect that he knows the person, and it is the accused.
  • However, in the circumstances of that particular case the court held: ‘ … the evidence should not have been admitted as the prejudicial value outweighed its probative effect, because the identifying witnesses knew the accused for a similar shoplifting case a week later, and accordingly the defence were deprived from testing the accuracy of the identification without causing prejudice and embarrassment ‘”

‘Pictorial Testimony’ Theory – Photographer Need Not be Testified

As shown above, ‘pictorial testimony’ theory is applied in matters like explanation by a doctor as regards injury on a victim with the help of a photograph, or identification of a deceased with photo. In such cases, the substantive evidence is not the photo; but it is the evidence of the witness.

It is explained in Santhosh Madhavan @ Swami Amritha Chaithanya v. State: 2014 KHC 31, that the photographer need not be examined under the ‘pictorial testimony’ theory. It is observed as under:

  • “Pictorial testimony theory or communication theory is based on the notion that any witness with knowledge that a photograph is a fair and accurate representation may testify to the fundamental facts. There is no requirement that the person who took the photograph should testify in order to authenticate the photograph.  It is enough that the individual testifying recognises the subject that is depicted in the photograph. Authenticity of the photograph is to be established like in the case of any other document. It must be noticed that documentary testimony theory only covers the admissibility of evidence and it does not refer to the evidence of the photographer as a fact finder. Under the silent witness theory, the following factors will have to be established:
    • “Under “silent witness” theory, testimony, establishing authenticity, integrity, and competency of video recording.
    • Photograph expert’s determination that video recording was not altered in any way, built-up or faked.
    • Continuous chain of custody established. Video camera or camcorder was checked and property operating.
    • Video recording is same as what witness saw on playback immediately after recording.
    • No material alteration, surreptitious editing, or fabrications have taken place.”

Pictorial Testimony Theory and Silent Witness Theory Compared

Pictorial testimony theorySilent witness theory
The photo or video is not taken as probative evidence. The photo or video is Probative & substantial evidence.
It is used as an Aid by a witness to explain his testimony (E.g. a doctor explains injury with the help of a photograph; identification of a deceased with photo.)It speaks for itself. (E.g. X-ray film showing a fracture; a photograph showing accused armed with weapon, though the photographer did not see him; photograph of a scene of occurrence of a crime).
No detailed enquiry on photo or video (Photographer need not be examined). A proper witness (not necessarily the photographer) must be examined.
Photo or video not stand as independent or substantive evidence.Photo or video stands as independent and substantive evidence.

Does Sec. 65B Evid. Act Make any Change as to Nature of Evidence to be adduced
No.
It is for Two reasons:

  • (i) Sec. 65A and 65B deal with ‘Admissibility’ (alone) of a Computer Output/Copy. If ‘truth’ is in question, it must be proved according to other provisions of the Evidence Act. Sec. 65A and 65B lay down –
    • “Sec. 65A: Special provisions as to evidence relating to electronic record:
    • The contents of electronic records MAY BE proved in accordance with the provisions of section 65B.”
    • “Sec. 65B: Admissibility of electronic records:
    • (1) … any information contained in an electronic record which is printed ….. or copied ….. shall be ADMISSIBLE in any proceedings ….. as evidence of any contents of the original … of which direct evidence would be admissible.”
  • (ii) Sec. 65B Evid. Act deals with ‘Computer Output’ (copy) and not ‘Electronic Record’ (original). Sec.65B lays down –
    • “Sec. 65B. Admissibility of electronic records:
    • (1) … any information contained in an electronic record which is PRINTED ….. or COPIED ….. (hereinafter referred to as the computer output) shall be admissible ….. as evidence of any contents of the original ….”

Silent Witness Theory as applied in UK

The law in UK, as to admission of a video (or any other ‘electronic evidence’), can be understood from the decision, State v. Stangle, 166 N.H. 407, 97 A.3d 634 (The State of New Hampshire v. Stephen Stangle, 2014). It allows the trial court ample discretion as to admission of such evidence and to play or show such evidence before the jury.

In this decision, State v. Stangle, it is pointed out that, in past, courts admitted videos, in evidence, when it was introduced to illustrate the testimony of a witness who observed the same scene viewed by the recording equipment.  The “foundational requirements” should have been complied with for admitting such videos. But, where there was no first-hand witness, courts had adopted the ‘silent witness’ theory (which speaks for itself) to admit video recordings. This theory allowed “the introduction of the recording as primary, substantive evidence of the events depicted”.

It was further pointed out in this decision –

  • Under this theory, “a witness need not testify to the accuracy of the image depicted in the photographic or videotape evidence if the accuracy of the process that produced the evidence is established with an adequate foundation.’’ (People v. Taylor, 353 Ill.Dec. 569, 956 N.E.2d 431, 438 (Ill.2011).
  • It was not “wise to establish specific foundational requirements for the admissibility of photographic [or video] evidence under the ‘silent witness’ theory, since the context in which the … evidence was obtained and its intended use at trial will be different in virtually every case.” Fisher v. State, 7 Ark. App. 1, 643 S.W.2d 571, 575 (Ark.Ct.App.1982).
  • It was enough to say, that adequate foundational facts must be presented to the trial court, so that the trial court can determine that the trier of fact can reasonably infer that the subject matter is what its proponent claims.

The law in US on Silent Witness Theory

In State v. Reeves, 2021 S.D. 64; 967 N.W.2d 144 (Supreme Court of South Dakota, US) observed, referring State v. Stangle (supra) as under:

  • “[16] Although we have not yet had occasion to analyze the foundational rules for authenticating automatic video distinctly from a video recorded by a human actor, many courts across the nation have implemented the silent witness theory to hold that photographs and videos may be admitted into evidence without foundation from a witness who took the photograph or video. See, e.g., U.S. v. Rengifo, 789 F.2d 975 (1st Cir. 1986); State v. Stangle, 166 N.H. 407, 97 A.3d 634 (N.H. 2014); State v. Luke, 464 P.3d 914 (Haw. Ct. App. 2020). However, “jurisdictions differ on what evidentiary showing is required to satisfy the ‘silent witness’ standard.” Stangle, 97 A.3d at 637. Generally, there are two categories of approaches employed. Some states implement a flexible, fact-based approach to allow a judge to tailor the authentication process to the individual case; in contrast, others use various “multi-factor test[s] for determining the admissibility of photographs or videos.”
  • [17] The New Hampshire Supreme Court addressed the silent witness theory in State v. Stangle, 166 N.H. 407, 97 A.3d 634 (N.H. 2014) and declined to adopt a formulaic, factor-based approach to authentication. The Court reasoned that: ‘it is not wise to establish specific foundational requirements for the admissibility of photographic (or video) evidence under the ‘silent witness’ theory, since the context in which the evidence was obtained and its intended use at trial will be different in virtually every case. It is enough to say, that adequate foundational facts must be presented to the trial court, so that the trial court can determine that the trier of fact can reasonably infer that the subject matter is what its proponent claims. This allows the trial court to consider the unique facts and circumstances in each case—and the purpose for which the evidence is being offered—in deciding whether the evidence has been properly authenticated.”

Conclusion

From the aforesaid UK and US decisions it is clear that the ground for invoking ‘silent witness’ theory, in UK and US, is – ‘no first-hand witness available’; and therefore, such evidence is allowed to be given ‘without foundation from a witness who took the photograph or video’.

It is obvious that there is a change in the approach of the UK and US courts, as regards the nature of evidence to be adduced when a photograph or video is produced in court. The earlier decisions [State v. Tatum, 58 Wn.2d 73, 360 P.2d 754 (1961); State v. Newman, 4 Wn. App. 588, 484 P.2d 473 (1971) ] stood by the stand that ‘there should be some witness, not necessarily the photographer, who was able to give some indication as to when, where, and under what circumstances the photograph was taken, and that the photograph accurately portrayed the subject illustrated’. The Kerala High Court substantially adhered to these principles in Santhosh Madhavan @ Swami Amritha Chaithanya v. State: 2014 KHC 31.

In this juncture, it is apposite to point out that the UK and US jurisprudence allows high degree of discretion to the courts to determine whether a document stands proved (to the satisfaction of the judicial mind), in the facts and circumstance of a case. But, in India, we are (more) circumscribed by the ‘Evidence-Laws’ and precedents.

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