Photographs, Slides, Films and Videos
| Author | Ashley S. Lipson |
| Pages | 448-480 |
44-446
chApter 44
Photographs, Slides,
Films and Videos
§44.100 Introduction
§44.200 Major Types of Photographic Evidence
§44.300 Photographs and Slides
§44.301 Foundation Requirements
§44.302 Sample Foundations for Slides and Photographs
§44.400 Films and Videos
§44.401 Sample Foundation for Videotapes or Films
§44.500 Day-in-the-Life Videos
§44.600 General Opposition to Photographic Evidence
44-447 Photographs, Slides, Films and Videos §44.200
1 Caution: Despite its potency, a photograph should not be mistaken for a prima facie case; in particular, a photo by itself
may be insufficient. See, for example, Seeley v. Kreitzberg Rentals, LLC, 157 P.3d 676, 337 Mont. 91 (2007). In a slip-
and-fall action, evidence supported a jury finding that the property owner’s negligence did not cause the pedestrian’s fall;
although there was photographic evidence depicting a snowy walkway and some ice formation at the bottom of a rain-gut-
ter downspout, the pedestrian admitted that she was not paying attention to the walkway’s conditions when walking.
Mnookin, Jennifer L. The Image of Truth: Photographic Evidence and the Power of Analogy. 10 Yale J. L. & Human. 1 (1998).
2 See The Best Evidence Rule in Chapters 2 and 20.
3 Testimonial, Documentary, Real, and Demonstrative (See Foundation Chapter).
4 See Chapter 36.
§44.100 Introduction
We might paraphrase a cliché by stating that a pic-
ture can be worth a thousand dollars. However, in light
of today’s verdicts, that can be quite an understate-
ment. Photographic evidence permits each juror to see
for himself or herself what so many confusing words
otherwise try to convey; perhaps, that is why it has
long been a recognized means for increasing the size
of jury verdicts. And, few will dispute that it presents
a very powerful method for strengthening arguments
and clarifying issues during the course of trial. More-
over, it remains one of the most potent weapons in the
practitioners’ arsenal of jury-convincing devices.1
Photographic evidence can assume a variety of
shapes and forms, and it can be used for many dif-
ferent purposes. It may highlight a key point of the
controversy or provide important background infor-
mation. It is difficult to conceive a presentation that
would not be augmented by photographic displays.
Films and videos generally have a greater number
of uses than still photos or slides. For example, a candid
surveillance video can show an allegedly injured person
doing hard, physical labor. In contrast, a self-serving,
“day-in-the-life” video may show a seriously injured
plaintiff struggling through a daily routine. And, ani-
mated motion pictures may permit us to view the inner
workings of a complex piece of machinery.
The term “photographic,” as used in this chapter,
applies to any medium that is capable of recording
and storing visual images. The most common are, of
course, photographs, slides, films, and videotapes;
but, those media are by no means exclusive. Camer-
as can now record directly onto compact discs, and
computer hard drives. Moreover, it would be foolish
to pretend that we might predict the different forms
that such evidence might assume in the future. Nor
is there any need.
As we shall see in the section that follows, for
evidentiary purposes, the physical characteristics of
the particular photographic medium are not nearly
as important as the elements surrounding the cre-
ation of the images, particularly motive and timing.
§44.200 Major Types of
Photographic Evidence
If we mention the word “photograph,” or
“film,” many would quickly jump to the conclusion
that we are referring exclusively to demonstrative
evidence, thereby implying that only a “clarifica-
tion” type of foundation would be required. But
such a conclusion would be no more correct than
assuming that all photographs and videos should
be treated as documentary evidence (a blatant error
committed by the drafters of Fed. R. Evid. 10012).
All photos and videos are not alike. Their foun-
dation requirements and opposition strategies differ
radically. And, those differences do not depend
upon their physical structure or make-up. Rather,
the foundation requirements and strategies depend
upon their “type.” Of the four major types of evi-
dence,3 we can eliminate only testimonial. Then,
we need to inquire as to the motive or purpose for
which the photographic evidence was created. The
time of its creation will further assist that inquiry.
First, focus on the event which is the subject of the
litigation. Then ask, “Was the photographic evidence
created after the occurrence of that event, specifical-
ly for use during the litigation?” If so, you can stop
there; it’s demonstrative. This chapter applies.
If the photo, video, or film was recorded or
created simultaneously with the subject event, the
evidence may be classified as an on-site record-
ing, which would be considered real4 Surveillance
films, such as those set in liquor stores, banks,
Burger Kings, and kinky highway rest stops,
should be considered as real; so too are those
“candid” amateur offerings that capture fires,
§44.300 Is It Admissible? 44-448
5 See Chapter 36.
6 See Chapter 20.
7 See infra, §44.301 and §44.302.
8 Scarlett v. Ouellette, 948 So.2d 859 (Fla., 2007) involved a medical malpractice action against various medical facilities and
a doctor who had recommended carpal tunnel release surgery. Following the subject surgery, the plaintiff suffered a swell-
ing of the extremities. Photographs which depicted an abnormal swelling of another person’s extremities (other than those
of the plaintiff) were properly allowed as demonstrative exhibits for the defense in order to show to the jury an example of
a factitious, self-inflicted injury. The photographs helped illustrate the defense theory that the plaintiff’s abnormal swelling
was the result of self-infliction, rather than the result of a breach of care by the doctor performing the surgery. An expert
witness provided the necessary foundation for the photo by testifying that he had previously observed swelling similar to
the plaintiff’s and had diagnosed it as a self-inflicted injury. Moreover, photographs are admissible to illustrate or explain
the testimony of a witness even though those photographs may depict persons unrelated to the litigation.
9 People v. Cash, 2010 WL 4596859 (Cal.App., 2010). A jury convicted the defendant of eight felony counts, including
lewd acts upon a child. Over a defense objection, the court ruled that certain nude photographs of the defendant were
admissible, but required the prosecutor to cover the defendant’s genitals with tape. The photographs along with two DVDs
found in the defendant’s apartment demonstrated that he was “visually sexually aroused” and, in addition, they refuted an
anticipated defense that a Compaq laptop computer containing child pornography did not belong to the defendant.
10 Zolber v. Winters, 109 Idaho 824, 712 P.2d 525 (1985). Photographs and videotapes taken approximately five years
after an automobile accident helped a reconstruction expert demonstrate the impact on the plaintiff’s forward visibility
of other vehicles in the oncoming lane of traffic. See also Fahringer v. Rinehimer, 283 Pa. Super. 93, 423 A.2d 731
(1980); City of Louisville v. Yeager, 489 S.W.2d 819 (Ky. 1973); Anderson v. Lippes, 18 Mich. App. 281, 170 N.W.2d
In re Katrina Canal Breaches Consolidated Litigation, 647 F.Supp.2d 644 (E.D., La., 2009). Local residents brought an
action against the United States under the Federal Tort Claims Act seeking compensation for damages incurred in the
aftermath of Hurricane Katrina. Allegedly, the damage resulted from certain misappropriations by the U.S. Army Corps of
Engineers with respect to the maintenance and operation of the Mississippi River Gulf Outlet (MRGO) navigational chan-
nel. An expert in the field of surveying and mapping compiled technical data in the nature of land surveys of the MRGO
and its levee using bathymetric information which he used to form a technical database. He also checked for consistency
by performing ground surveys. His computer generated report provided detailed findings concerning the heights of the
levees involved and the length of the berms prior to Katrina, as well as the height and length of the breaches. He also
provided the elevation of the property involved in the plaintiffs’ claims. The most stunning visual evidence was provided
in the form of photographs that showed MRGO and its design width superimposed on its width at the time of Katrina.
quakes, presidential assassinations, police beat-
ings, and weddings.5
If photographs or films are created, handled,
or archived, along with accompanying documents,
they may be classified as documentary.6 For exam-
ple, those photographs that accompanied the Warren
Commission Report on the Assassination of Presi-
dent Kennedy should be considered as documentary.
Closely related, but far less newsworthy, are
the most common types of litigation-related pho-
tographs; they are the ones whereby investigators
attempt to “document” the scenes of accidents or
incidents, or photograph the injuries that litigants
suffer. As long as the photographs are relevant and
represent what they purport to depict, most courts
merely consider them to be “photographic” and
do not become troubled by the formal distinctions
among the different “types” of evidence.7
A distinction should be drawn between those
photographic images that depict an accident scene,
object, injury or other view that directly pertains to
the subject litigation, and those that do not. In par-
ticular, a photograph that does not depict a specific
scene involving the subject incident or accident, may,
nevertheless, be used to illustrate or clarify a relevant
issue. A photograph of a human body, for example,
might permit a medical expert to clarify a point for the
jury even though the person depicted has no relation
to the litigation. Such a depiction would constitute the
purest type of demonstrative photographic evidence.8
Where the photograph itself, as opposed to the
matters depicted therein, becomes the focal issue, that
photograph may then assume the role of real evidence.
This is a common occurrence in criminal matters.9
§44.300 Photographs and Slides
Visual images provide an excellent way to illus-
trate or emphasize a particular point clearly during
trial, regardless of whether the subject image relates
to a static or dynamic scene.10 Photographs and
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