Photographs for Cross-Examination Are Excluded When Not Produced Prior to Trial – Scales v. Benne

The Illinois Appellate Court recently affirmed a trial court’s exclusion of photographs during a Cook County trial. The issue in Sylvester Scales v. Joseph Benne, No. 1-10-2253 (2011), was whether or not the photographs were barred from evidence because the plaintiff’s attorney had not produced them to opposing counsel prior to the start of the trial.

The personal injury lawsuit involved a pedestrian accident in which the parties were disputing whether the defendant’s car had struck the plaintiff, or whether the plaintiff had walked into the defendant’s car. At the time of the car accident, Joseph Benne’s car was in the left-turn lane at the intersection of North and Clybourn Avenues and Sylvester Scales was walking in the same area. At trial, Benne testified that he heard a “thud” on the side of his car; the assumption being that this noise represented the impact with Scales.

Benne also testified that the the turn-lane at the North and Clybourn intersection was long enough to accommodate six cars and that at the time of the car accident his vehicle was fourth or fifth in line. This testimony is significant because vehicles only owe pedestrians a duty if they are within the crosswalk. So if the defense can show that the pedestrian accident occurred four or five car lengths southeast of the crosswalk, then it can show that the defendant driver did not owe a duty to the pedestrian.

In order to refute this testimony, Scales’s attorneys intended to use two photographs of the intersection taken from GoogleMaps and MapQuest and a photograph depicting the make and model of Benne’s car taken from However, Benne’s attorney moved to have the photographs excluded on the grounds that Scales’s attorney had not produced them until that point. The judge granted the defendant’s request and the plaintiff was unable to use the three photographs. The Cook County jury went on to enter a verdict in favor of Benne; Scales’s attorney appealed this verdict based on argument that the outcome would have been different if the court had allowed the use of the three photographs at trial.

In Illinois, the rules of evidence are governed under various Illinois Supreme Court Rules. During the discovery phase, both parties answer and produce documents under Illinois Supreme Court Rule 213 and Illinois Supreme Court Rule 237. However, prior to the beginning of trial, both parties are required to answer Illinois Supreme Court Rule 214 and produce any and all documents they intend to use at trial.

Scales argued that the plaintiff had alluded to the existence of the photographs in his answer to Rules 213 and 237 and therefore did not need to include them in his response to the defense’s Rule 214 requests. Scales points to the court’s ruling in Southern Illinois Airport Authority v. Smith, 267 Ill. App. 3d at 207, in which it held that disclosure is not required for “documents to be used solely in cross-examination that are within the public domain and equally available to both parties.” Since Scales obtained all three photographs from public internet sites they were within the public domain. However, the court in Southern Illinois Airport Authority goes on to state that the disclosure exception would not apply if the documents were used to refute or bolster the witness’s testimony. Because Scales had planned to use the photographs to refute Benne’s testimony, he would have been required to disclose them prior to the start of the trial.

Likewise, the appellate court rejected Scales’s other argument that Rule 213(g) allows “a cross-examining party [to] elicit information, including opinions from the witness” without making a disclosure under Rule 213. However, the appellate court opined that “documents are not mere information, especially documents used substantively” and therefore this exception does not apply to Scales’s three photographs.

The court held that the trial judge had acted within his discretion in barring the use of Scales’s photographs during Benne’s cross-examination. The court held that Scales was in clear violation of the Rule 214 requirements for disclosure of documents and that because the element of surprise seemed to be the main motivation for this violation, the court would not make an exception.

Kreisman Law Offices has been handling Cook County pedestrian accident cases for individuals and families for more than 35 years in and around Chicago, Cook County and surrounding areas, including Elk Grove Village, Oak Park, River Forest, Hanover Park, Chicago’s Hyde Park, Markham, and Countryside.

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