§ 4.09 THE VERIFICATION OF PHOTOGRAPHS

• Jurisdiction: North Carolina

§ 4.09 THE VERIFICATION OF PHOTOGRAPHS

[1] STILL PHOTOGRAPHS

Like other articles, still photographs must be authenticated or verified. In the past, some courts insisted that the photographer appear as the sponsoring witness. Modernly, the prevailing view is that any person familiar with the scene or object depicted may verify the photograph.

The foundational elements are as follows:

1. The witness is familiar with the object or scene.
2. The witness explains the basis for his or her familiarity with the object or scene.
3. The witness recognizes the object or scene in the photograph.
4. The photograph is a "fair," "accurate," "true," or "good" depiction of the object or scene at the relevant time.

Our fact situation is a civil tort action arising from a collision. The collision occurred at the intersection of A and Third Streets. The plaintiff calls a witness to verify a photograph of the intersection. The witness has already identified himself as Mr. Donald Adams. The accident occurred in 2016.

P WHERE do you work? (2)

W Downtown.

P WHERE downtown? (2)

W I'm a teller at the River City Bank branch on Third Street.

P WHERE is the bank located on Third Street? (2)

W I think it's the 400 block. The bank is between A and B Streets.

P HOW long have you worked there? (2)

W A good seven years.

P Your Honor, I request that this be marked plaintiff's exhibit number three for identification.

J It will be so marked.

P Please let the record reflect that I am showing the exhibit to the opposing counsel.

J The record will so reflect.

P I request permission to approach the witness.

J Permission granted.

P I now hand you plaintiff's exhibit number three for identification. WHAT is it? (3)

W It's a photograph of the intersection of A and Third Streets.

P HOW can you recognize it? (2)

W As I said, I've worked in that area for years.

P HOW often have you passed that intersection? (2)

W I couldn't give you a figure. I've been there hundreds of times.

P WHAT perspective or viewpoint does this photograph show? (3)

W Let's see. Third Street runs north-south. A Street runs east-west.

P WHICH corner are you on? (3)

W You're on the southwest corner.

P In WHICH direction are you facing? (3)

W You're facing north; you're looking up Third Street.

P HOW accurate is this photograph? (4)

W Very. It's a good, true depiction as far as I can tell.

P HOW accurately does it show the intersection as it was in 2016? (4)

W Well. It's a good photograph for that purpose. I worked downtown then, and I think it shows roughly how the intersection looked then.

P HOW, if at all, has the intersection changed since 2016? (4)

W Some of the business signs have changed; businesses come and go. However, the intersection itself really hasn't changed. As best I can recall, it's the same size, the street markings are the same, and traffic flows the same way.

P Your Honor, I now offer plaintiff's exhibit number three for identification into evidence as plaintiff's exhibit number three.

J It will be received.

P I request permission to hand the exhibit to the jurors for their inspection.

J Permission granted.

[2] MOTION PICTURES AND VIDEOTAPES

Like computers and audio recorders, motion pictures raise scientific evidence issues. Again, the validity of the underlying theory and the general reliability of motion picture and digital cameras are now so well accepted that the judge will judicially notice those two elements of the foundation. The Evidence law governing motion pictures parallels the law governing audio recorders in another respect; as in the case of audio recorders, the courts were initially very conservative in their treatment of motion pictures. The traditional view was that because of the possibility of distortion, the proponent had to lay a very strict foundation: the operator's qualifications, the good working condition of the equipment, the custody of the film, identification of the persons or objects depicted in the film, and testimony by someone present that the film accurately depicts the activity filmed. The law governing the admission of motion pictures has been liberalized in recent years. More and more courts have ruled that Federal Rule of Evidence 104(b) governs the sufficiency of the proof of the accuracy of films. Under Rule 104(b), the testimony of any person present when the activity occurred is sufficient to authenticate the film; and even without the testimony of such a person, the remaining foundation elements have sufficient probative value to verify the film.

A complete, traditional foundation includes these elements:

1. The operator was qualified to take a digital video movie.
2. The operator videoed a certain activity.
3. The operator used certain equipment to film the activity. Some trial attorneys prefer to present very detailed testimony about the equipment, such as the number of pixels per inch, the storage memory of the digital recorder, and the lens used. As the sample foundation indicates, a general description of the equipment is sufficient.
4. The equipment was in good working order.
5. The operator used proper procedures to video the activity. Here again some attorneys like to offer detailed testimony. Their foundation covers such technical matters as the lens used. General testimony is satisfactory.
6. The operator accounts for the custody of the recorded video.
7. The recorded video was a good reproduction of the activity.
8. The operator recognizes the exhibit as the video he or she took.
9. The video is still an accurate depiction of the activity.

The fact situation is a civil tort action. The plaintiff's theory is that the defendant, Polecat Motors, defectively designed the 2017 Sport Sprint. The plaintiff wants to introduce films depicting impact experiments with a 2017 Sport Sprint. The plaintiff calls the photographer who filmed the experiment. The photographer has already identified himself as Mr. Blair McIntosh.

P WHAT is your occupation? (1)

W I am a professional photographer.

P WHERE do you work? (1)

W I have my own studio at 1333 Front Street downtown.

P HOW long have you been a professional photographer? (1)

W For over 12 years now.

P HOW did you become a professional photographer? (1)

W I started working for another professional photographer in Denver right after graduation from high school.

P WHAT training have you had as a photographer? (1)

W I've taken 10 college level courses in photography and attended numerous seminars and training conferences.

P HOW long have you had your own professional photography business? (1)

W The last seven years.

P Mr. McIntosh, WHERE were you on the morning of August 17th of this year? (2)

W I was at Abbott Laboratories on C Street here in Fort Collins.

P WHY did you go there? (2)

W You asked me to go there to film some experiments.

P WHAT experiments? (2)

W It was an impact experiment with a 2017 Polecat Sport Sprint.

P WHAT did you do when you arrived at Abbott Laboratories? (2)

W I carried out my assignment. I introduced myself to the personnel conducting the experiment and proceeded to film their experiment.

P WHAT equipment did you use? (3)

W I used a Sony PMW 320. It is a lower-end state of the art HD digital camera. The PMW shoots onto a solid state media card called an SKS, which is 16 GB and can hold 54 minutes of film.

P HOW widely is this equipment used? (3)

W Lots of professional photographers, especially television news photographers, use the very same set of equipment. It's a very reliable set.

P WHAT condition was the equipment in when you filmed the experiment? (4)

W Good operating condition.

P HOW do you know that? (4)

W I didn't have any mechanical difficulty with the camera or lens during the filming, and I had just given my equipment complete maintenance a week before. I was able to check the video as I was recording, and it looked perfect.

P HOW did you film the experiment? (5)

W I checked my light meter to make certain that I had the right opening on the lens. Then I set the camera upon the tripod and focused until I had a clear image in my viewer.

P HOW long did it take you to film the experiment? (6)

W Only about 20 minutes.

P WHAT did you do after you filmed the experiment? (6)

W I disassembled my equipment and went back to my studio.

P WHAT did you do after you arrived there? (6)

W I downloaded the digital film from the SKS card onto a newly purchased flash drive.

P Did you view the digital video? (6)

W Yes. It turned out excellent. As far as I could tell, it was a fine, accurate depiction of the experiment.

P WHAT did you do after you viewed the video? (7)

W I burned the video onto a DVD and placed the DVD in its case. I marked the time and date of the video on the case, and placed it in my files.

P WHERE did you keep the DVD after that? (6)

W With one exception, it's been in my files the whole time.

P WHAT was that exception? (6)

W You and I viewed the DVD two weeks ago.

P WHO was present during the viewing? (6)

W Just the two of us. And the other attorney over there.

P Your Honor, please let the record reflect that the witness pointed to and identified the defense attorney.

J The record will so reflect.

P WHERE were you during the viewing? (6)

W I was present the whole time during this viewing.

P WHAT did you do with the DVD after the viewing? (6)

W I put it back in my files.

P Your Honor, I request that this be marked plaintiff's exhibit number five for identification.

J It will be so marked.

P Please let the record reflect that I am showing the exhibit to the opposing counsel.

J The record will so reflect.

P I request permission to approach the witness.

J Permission granted.

P Mr. Mcintosh, I now hand you plaintiff's exhibit number five for identification. WHAT is it? (8)

W It's the DVD of the video of the experiment.

P HOW do you recognize it? (8)

W I recognize my handwriting on the label on the DVD.

P HOW did the DVD get from your files to the courtroom today? (6)

W I took it out of my files this morning and brought it here myself.

P WHAT...