Chapter 2 - §5. Photographs & recordings

• Jurisdiction: United States

§5. Photographs & recordings

Photographs and video and audio recordings are commonly introduced in criminal proceedings as demonstrative evidence to illustrate evidence that has already been offered or as substantive evidence of what is being depicted or heard in the photograph or recording. See "Demonstrative evidence," ch. 2, §4. Generally, when offered for these purposes, the proponent has the burden to prove that the evidence is a reasonable representation of the real evidence it is depicting. People v. Goldsmith (2014) 59 Cal.4th 258, 267; see Evid. C. §§250, 1400. But when photographs and recordings are offered as evidence of an experiment—such as a photograph or video recording of a reconstructed crime scene—the proponent of the evidence must meet the additional foundational burden required for introducing experimental evidence. See "Experimental evidence," ch. 2, §7.

§5.1. Foundational requirements.

1. Photographs. A photograph is admissible when the proponent shows that it is a reasonable representation of what it depicts. People v. Goldsmith (2014) 59 Cal.4th 258, 267; see Evid. C. §§250, 1400. The proof that is necessary to authenticate a photograph varies with the specific nature of the photographic image being offered and the purpose for which it is being offered. Goldsmith, 59 Cal.4th at 267, 272 n.8. As long as there is sufficient evidence for the trier of fact to find that the photograph is what it purports to be, the photograph will be admissible. Id. at 267. Any alterations made to the photograph should be explained by the proponent if the part that has been altered is material to the question in dispute. Evid. C. §1402. See "Altered writings," ch. 2, §2.1.1(2)(a).

(1) Common methods of authentication. Because a photograph is considered a writing under Evid. C. §250, the same methods for authenticating a writing apply to a photograph. See "Methods of authentication," ch. 2, §2.1.1(1). Some of the most common ways of authenticating a photograph are the following:

(a) Stipulation. See "Authentication by stipulation," ch. 2, §2.1.1(1)(f).

(b) Admission. See "Authentication by admission," ch. 2, §2.1.1(1)(g).

(c) Testimony. A photograph can be authenticated by a witness who has personal knowledge that the photograph is a reasonable representation of the evidence that it is portraying. People v. Arguello (1967) 65 Cal.2d 768, 776; see Evid. C. §1413. This is accomplished by the witness testifying that she is familiar with the image in the photograph, how she acquired her familiarity (e.g., she was there when the photograph was taken), and that the photograph is a reasonable representation of what it purports to illustrate. See People v. Chism (2014) 58 Cal.4th 1266, 1303; see, e.g., People v. Dworak (2021) 11 Cal.5th 881, 897-98 (in prosecution for rape and murder D failed to lay sufficient foundation for victim's booking photograph taken at time of her juvenile arrest because it failed to depict victim on night of the murder as being under the influence of narcotics); People v. Beckley (2d Dist.2010) 185 Cal.App.4th 509, 515 (photograph from website that was downloaded and printed by detective was not authenticated because detective could not testify from his personal knowledge that photograph truthfully portrayed defendant's girlfriend making gang signs and no expert testimony was presented to show that photograph was not fabricated, manipulated, or adulterated). It is not essential that the photographer testify personally for authentication; only testimony from a witness with personal knowledge is required. E.g., Chism, 58 Cal.4th at 1303 (officer authenticated photograph printed from store surveillance camera when she testified that it accurately depicted her conduct and conduct of another officer immediately after shooting).

(d) Presumption. Photographs can be authenticated in part by the presumption in Evid. C. §1553. Under Evid. C. §1553, a printout of images stored on a video or digital medium is presumed to be an accurate representation of the images. But the presumption under Evid. C. §1553 does not by itself operate to establish the foundation for the images. See Goldsmith, 59 Cal.4th at 271. Evid. C. §1553 works "preliminarily" to establish that content errors were not introduced in the printing process; it does not by itself fully supply the necessary foundation for the admission of the evidence. See Goldsmith, 59 Cal.4th at 269, 271. Thus, it still must be shown that the image is a fair and accurate representation of the scene depicted. See id. at 271-72. See "Printouts of images stored on video or digital medium," ch. 2, §2.1.2(2)(a)[1][a].

(e) Silent-witness rule. If no witness is able to testify that the scene in the photograph is a reasonable representation of the evidence that it is portraying (i.e., because no witness was present when the photograph was taken), the photograph can be authenticated under the silent-witness rule. See Evid. C. §1410; Goldsmith, 59 Cal.4th at 267-68; People v. Bowley (1963) 59 Cal.2d 855, 860-61; South Santa Clara Valley Water Conserv. Dist. v. Johnson (1st Dist.1964) 231 Cal.App.2d 388, 397; People v. Doggett (4th Dist.1948) 83 Cal.App.2d 405, 410. See "Offered as substantive evidence," ch. 2, §4.1.2. Under the silent-witness rule, a photograph can be independent evidence of what it shows. Goldsmith, 59 Cal.4th at 267. To authenticate a photograph under the silent-witness rule, the following evidence should be considered:

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