Chapter 11 - § 11.5 PHOTOGRAPHS AND VIDEOTAPES

• Jurisdiction: Colorado

§ 11.5 PHOTOGRAPHS AND VIDEOTAPES

Colorado

➢ General Rule of Admissibility; Photographs. The foundation for admissibility of a photograph is that it is a correct likeness, or "fair, accurate and truthful representation," of the objects it purports to represent. See, e.g., Ross v. Colo. Nat'l Bank of Denver, 463 P.2d 882, 885 (Colo. 1969) (citation omitted). This foundation may be shown by the person who took the photograph or any other competent witness. Dolan v. Mitchell, 502 P.2d 72, 75-76 (Colo. 1972) (citation omitted). A photograph, otherwise admissible, may not be refused as evidence merely because there is no evidence as to who took it. Id. Likewise, it is error to refuse to admit photographs on the grounds they are not in all respects accurate. In Dolan, the trial court erred in refusing to admit photographs of a car that were intended to show the absence of "metal smearing." Id. at 76. The photographs accurately portrayed these aspects of the car, and it was error to refuse to admit them merely because they showed the vehicle without an engine and wheels. Id. (citations omitted).

➢ General Rule of Admissibility; Videotapes. "A videotape is ordinarily admissible to illustrate or explain anything a witness may describe in words. The law and policy governing the admissibility of photographs and motion pictures applies to videotapes." People v. Avery, 736 P.2d 1233, 1238 (Colo. App. 1986) (citation omitted).

➢ Sufficiency of Foundation. The sufficiency of the preliminary proof of foundation is a matter within the discretion of the trial court, and the trial court's determination in this regard will only be reversed in case of a clear abuse of discretion. Ross v. Colo. Nat'l Bank of Denver, 463 P.2d 882, 885 (Colo. 1969).

➢ Foundation of Substantial Similarity. Photographs may be admitted into evidence to show anything about which a witness may testify, so long as "the conditions depicted are substantially unchanged from the time of the event at issue." Summit Cnty. Dev. Corp. v. Bagnoli, 441 P.2d 658, 665 (Colo. 1968) (citations omitted). "However, a variance in conditions not material to the purpose for which the photographic evidence is offered, and which does not unduly prejudice the objecting party, should not preclude its admissibility." Id. "In order to prove substantial similarity of conditions, a foundation must be laid by the party seeking admission of the photograph, showing it to be a true representation." People v. Thiery, 780 P.2d 8, 10 (Colo. App. 1989). Under these standards, the Bagnoli trial court did not abuse its discretion in refusing to admit a movie depicting skiers boarding a ski lift in good snow conditions, since, at the time the plaintiff was injured getting onto a ski lift, the conditions were muddy and slushy. Id. at 665. Moreover, there was no evidence to show that at the time of the accident the lift was being operated at the same speed as at the time of the movie. Id. Hence, admission of the movie may have been unduly prejudicial to the plaintiff. Id.
➢ Foundation by Direct Testimony. Testimony by the plaintiff, who claimed loss of hair after a beauty treatment, that certain photographs were accurate representations of her head and hair after the loss was sufficient to support the admission of the

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