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Naïve Realism and Photographic Evidence

Evidence is multipurpose, having both inclusive as well as exclusive components. Photographs. Photographs have at least two purposes. First, to depict the condition of a person, place, instrumentality, or object. That’s their inclusive purpose. But photographs serve another purpose as well––to demonstrate what’s not depicted. That’s their exclusive purpose. What a photograph does not show––this can be as important as what it does show.

The extent of property damage after a car crash––there’s a range. There can be extensive crush damage showing clearly visible structural damage. Or there can be hardly a dent or scratch. The problem occurs when serious, long-lasting injuries arise but the visible property damage to the car is minimal. Entire seminars have been devoted to addressing this mismatch between chronic pain and minimal property damage.

Standard advice includes any number of methods. First. See if there’s damage to the undercarriage. There have been instances where the bumper looks intact but the steel behind, and under, the bumper is crushed. Second. Look at the damage to both vehicles. One car may have significant damage while the other appears relatively unscathed. Third. Photograph any injuries, such as cuts, bruises, or other visible signs of injury to the Plaintiff immediately following an incident. But these will only take you so far. The problem with a photo showing minimal property damage is that it implicates the phenomenon of “naïve realism.”

“Video, as compared with other forms of evidence, has unique persuasive power to communicate legally relevant facts. Video is more cognitively and emotionally arousing and vivid than other forms of evidence (Bell & Loftus, 1985; Sherwin, Feigenson, & Spiesel, 2006), giving jurors the impression that they are perceiving relevant information directly (Mnookin & West, 2013). This property of seemingly direct access leads perceivers to evaluate video with a naïve realism, the sense that what is being conveyed is a complete, objective reflection of events as they really are (Feigenson & Spiesel, 2009; Ross & Ward, 1996). This sense of realism may disincline perceivers to question how the images were constructed and what information is excluded from the display (Feigenson & Spiesel, 2009). Further, the fluency or ease with which video is processed enhances the sense that the content is true (Oppenheimer, 2008; Reber & Schwarz, 1999). In this way, perceivers go from viewing a video to believing it to be an authoritative, nonpartisan account of the events it represents (Sherwin, 2007).”[1]

As with videotape, so too with photographs. It’s too easy for a jury to conclude minimal property damage must necessarily equate to minimal injuries. Even when shown medical literature which states that chronic pain can arise from relatively moderate, low-speed impacts, jurors may choose to vote with their eyes. Recently, the Illinois Supreme Court, in Peach vs. McGovern, 2019 IL 123156 (Supreme Ct. of Illinois January 25, 2019), abolished the test of admissibility for postaccident property damage photos set forth in DiCosola (DiCosola vs. Bowman, 794 N.E.2d 875, 342 Ill.App.3d 530 (1st Dist. 2003)) and Baraniak (Baraniak vs. Kurby, 862 N.E.2d 1152 (1st Dist. 2007)), writing:

“The court concluded that the postaccident photos of the vehicles were simply not relevant unless a party offering the photographs presented expert testimony to connect the damage depicted in the photographs to plaintiff’s disputed injury claim. Id. We disagree. Postaccident photographs, just like testimony of witnesses describing an accident, are relevant to the issues of proximate cause and injury. McGrath v. Rohde, 53 Ill. 2d 56, 61 (1972); Ferro, 361 Ill. App. 3d at 743. Further, neither the photos nor the witness testimony need necessarily prove or disprove a particular medical condition in order to be admissible. See Ill. R. Evid. 401 (eff. Jan. 1, 2011)…If a jury is allowed to consider relevant testimony about vehicle speed and impact forces, a jury should be permitted to consider photographs that depict the damage, or lack thereof, done to the vehicles. See McGrath, 53 Ill. 2d at 61; Plank v. Holman, 46 Ill. 2d 465, 470-71 (1970) (finding that the truth-seeking process is best served by requiring direct evidence, rather than secondary evidence). These subjects are traditionally things jurors can understand, and experts have not been needed to supplement witness descriptions of events. McGrath, 53 Ill. 2d at 60-61; Plank, 46 Ill. 2d at 470-71. Illinois courts have long recognized the jury’s proper role in evaluating vehicle accident cases and the credibility of witnesses based on facts testified to and demonstrated by photographs…In the case at bar, the photos were introduced to determine whether plaintiff was telling the truth about his injuries when there was minor damage to the parties’ vehicles: plaintiff’s back bumper was dented, and defendant had a bent license plate, and the front bumper was cracked. As set forth above, the essential question in deciding the admissibility of postaccident photographs is whether the jury understands the evidence and can relate the vehicular damage depicted in the pictures to the injury without the aid of an expert. This is an evidentiary question to be resolved by the trial judge…”

The average passenger car weighs nearly 3500 pounds, or about 1.75 tons. The key question is: How will an accident affect a particular Plaintiff? The age, height, weight, gender, and physical condition of the Plaintiff and even the angle of the Plaintiff’s head, neck, and shoulders at the time of the crash––all can have an effect on the nature and extent of injury. Each Plaintiff is different––each will react differently to the sudden onset of an unexpected force. There is, of course, medical literature which describes how motor vehicle accidents can give rise to chronic pain: “In the exposed group over half of the subjects (55%) reported neck pain 17 years after the MVA, approximately half of the women and half of the men… A history of an MVA with sequelae of neck pain seems to be a predictor of long-lasting neck pain, which might explain the similarities observed in neck-injury cohort studies and population studies.”[2]

Steel, plastic, and fiberglass do not react in the same manner as human nervous, muscle, or bone tissue. While it may take up to 40,000 pounds of force to crack or bend reinforced steel, it will not take nearly that much force to cause a Plaintiff to experience a lifetime of chronic pain. Nor are bumpers designed to prevent injury to occupants. According to the National Highway Traffic Safety Administration: “The car bumper is designed to prevent or reduce physical damage to the front and rear ends of passenger motor vehicles in low-speed collisions. Automobile bumpers are not typically designed to be structural components that would significantly contribute to vehicle crashworthiness or occupant protection during front or rear collisionsIt is not a safety feature intended to prevent or mitigate injury severity to occupants in the passenger cars. Bumpers are designed to protect the hood, trunk, grille, fuel, exhaust and cooling system as well as safety related equipment such as parking lights, headlamps and taillights in low speed collisions.”[3]

At trial, with regard to property damage photos, the phenomenon of “naïve realism” has to be addressed. Perhaps it’s best to ask: What does a property damage photograph not show? The answer is clear. It does not show the single most important after-effect of a crash––the nature and extent of the injuries sustained by a particular Plaintiff.

[1] Yael Granot, Neal Feigenson, Emily Balcetis, Tom Tyler, In the Eyes of the Law: Perception Versus Reality in Appraisals of Video Evidence, Psychology, Public Policy, and Law © 2017 American Psychological Association 2018, Vol. 24, No. 1, 93–104 1076-8971/18/$12.00 http://dx.doi.org /10.1037/law0000137/https://www.apa.org/images/law-law0000137_tcm7-249899.pdf

[2] Lina Bunketorp, E. Stener-Victorin, J. Carlsson, Neck pain and disability following motor vehicle accidents––a cohort study, Eur Spine J. 2005 Feb; 14(1): 84–89.

https://www.ncbi.nlm.nih.gov/pmc/articles/PMC3476670/

[3] Bumper Q & A’s/https://one.nhtsa.gov/cars/problems/studies/bumper/index.html

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