§ 27.02 Photographs

• Jurisdiction: United States

§ 27.02 Photographs

[A] "Pictorial Communication" Theory

A foundation for the admissibility of photographs is laid by establishing that the photograph is an "accurate and faithful representation" of the scene or object depicted.³The foundational witness need not be the photographer—anyone who saw the scene can testify.⁴ These foundational requirements are based on what is known as the "pictorial testimony" theory of admissibility.⁵ Under this theory, the authenticating witness adopts the photograph as her own testimony.⁶ In other words, the witness could have described the scene depicted in the photograph in her testimony but, instead, she adopts the photograph as part of her description. The same rule applies to digital photographs.⁷

[B] "Silent Witness" Theory

One shortcoming of the "pictorial testimony" theory is that it does not work with X-rays.⁸ Nor with surveillance photographs or any type of photograph where no witness saw the scene or object depicted. Here, nobody can testify that the photograph accurately reflects that scene. Consequently, a second theory of admissibility arose: the "silent witness" theory, by which the process that produced the photo is authenticated.⁹This theory is consistent with Rule 901(b)(9), which recognizes the authentication of a result produced by an accurate process.¹⁰ Surveillance tapes¹¹ and ATM photographs¹² have been authenticated in this way. Photographs may also be authenticated circumstantially.¹³

[C] Posed Scenes

Photographs of reconstructed scenes sometimes present problems. If there is no dispute about the staged or posed scene reflected in the photograph, admissibility is the rule. If the photograph represents a one-sided version of the case, it may be objectionable as misleading, an issue for trial court discretion under Rule 403.¹⁴

[D] Digital Enhancement

Digital photography poses additional issues because electronic data can be manipulated, and detection may be difficult.¹⁵ The advantage of this type of evidence is that such photographs can be enhanced. For example, in one case, computer enhancement of digital photographs of a bloody handprint on a bed sheet were admitted at trial.¹⁶However, a proper foundation establishing the reliability of the process must be laid.¹⁷

[E] Gruesome Photographs

A properly authenticated photograph may nevertheless be inadmissible if other considerations outweigh its probative value—for example, the photograph may be misleading or unduly prejudicial, a Rule 403 issue that often involves gruesome crime scene photographs.¹⁸ More often than not such photographs are admissible.¹⁹

Photographs that illustrate a coroner's testimony or depict the number and location of stab wounds, which are indicative of purposeful conduct, have more probative value than run-of-the-mill crime scene pictures.²⁰ The number of photos and their cumulative nature are also important factors under Rule 403 analysis. An offer to stipulate to the cause of death does not result in automatic exclusion, especially if the photographs are relevant to issues in dispute beyond defense counsel's stipulation.

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Notes:

^[3] See United States v. Patterson, 277 F.3d 709, 713 (4th Cir. 2002) ("The necessary foundation for the introduction of a photograph is most commonly established through eyewitness testimony that the picture accurately depicts the scene in question or expert testimony that the picture was generated by a reliable imaging process."); United States v. Clayton, 643 F.2d 1071, 1073 (5th Cir. 1981) (photographs were "identified by all the bank employees present at the robbery as accurate depictions of the scene").

^[4] See United States v. Clayton, 643 F.2d 1071, 1074 (5th Cir. 1981) ("A witness qualifying a photograph need not be the photographer or see the picture taken; it is sufficient if he recognizes and identifies the object depicted and testifies that the photograph fairly and correctly represents it.").

^[5]...