Photographs, Slides, Films and Videos

• Author: Ashley S. Lipson
• Pages: 479-514

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C 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

§44.100 Is It Admissible? 44-2

§44.100 Introduction

We might paraphrase a cliché by stating that a

picture can be worth a thousand dollars. However,

in light of today’s verdicts, that can be quite an

understatement. 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. Moreover, 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 different purposes. It may highlight a key

point of the controversy or provide important

background information. 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, animated 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. Cameras 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 creation of the images, particularly motive

and timing. Nevertheless, with respect to

admissibility, there is a general tendency to favor

photographic evidence.2

§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 “clarification” 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. 10013).

All photos and videos are not alike. Their

foundation 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

evidence,4 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, specifically

for use during the litigation?” If so, you can stop there;

it’s demonstrative.5 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 recording,

which would be considered real6 Surveillance

films, such as those set in liquor stores, banks,

Burger Kings, and highway rest stops, should be

considered as real; so too are those “candid” amateur

offerings that capture fires, quakes, presidential

assassinations, police beatings, and weddings.7

If photographs or films are created, handled, or

archived, along with accompanying documents, they

may be classified as documentary.8 For example,

those photographs that accompanied the Warren

Commission Report on the Assassination of President

Kennedy should be considered as documentary.

Closely related, but far less newsworthy,

are the most common types of litigation-related

photographs; 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

44-3 Photographs, Slides, Films and Videos §44.301

do not become troubled by the formal distinctions

among the different “types” of evidence.9

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

particular, 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.10

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.11

§44.300 Photographs and Slides

Visual images provide an excellent way to

illustrate or emphasize a particular point clearly

during trial, regardless of whether the subject image

relates to a static or dynamic scene.12 Photographs

and slides are, ordinarily, inexpensive, convenient

to produce, and easy to authenticate.

Photographic evidence is widely accepted.13

Generally, as long as a photograph is relevant14 and

properly authenticated,15 it should be admitted.16

In fact, there is no legitimate reason to prohibit the

admission of a blowup of a properly authenticated

photograph,17 or a photograph that was made from

the still frame of a videotape.18

When photographic evidence is mentioned, we

normally think of a device for clarifying images in

the minds of the jurors; but in reality, photographs

can be used to show or present a wide range of

matters.19 But there are limits; admissibility may

be denied where a photograph is unnecessarily

cumulative,20 confusing, or misleading;21 or used to

create improper inferences,22 or where its prejudicial

impact out-weighs its probative value.23

And, of course, let’s not forget relevance,24 and

the ever-present possibility that the evidence might

fall within the scope of the work-product doctrine

or some other privilege.25

A common problem in the “prejudicial” versus

“probative” equation involves photographs that

are particularly graphic or gruesome.26 Autopsy,

morgue and other post mortem photographs can

be particularly problematical.27 Sexually explicit

photographs raise their own issues.28 However, as

with all photographic evidence, the decision whether

or not to admit them lies within the discretion of

the district court.29 An abuse of that discretion could

result in reversal in cases where the court’s error

was not merely harmless.30

With the advent of the relatively inexpensive

camcorder, videos are, likewise, becoming less

costly, easier to produce, and consequently, more

common in the courtroom. It might be noted, even

as we speak of photographs, that a motion picture

or videotape is, generally, more effective than a

photograph or slide when it comes to leaving a

lasting and vivid impression on the jury.31

The cases cited in the footnotes are reflective

of the courts’ general attitude with respect to the

admissibility of photographic evidence. In particular,

it is more likely than not that a given photo will be

admitted. But admissibility should never be taken

for granted; there are several methods of attack.32

§44.301 Foundation Requirements

The decision of whether or not to admit

visual evidence is within the sound and relatively

broad discretion of the trial court.33 And, a lower

court’s decision will rarely be disturbed on appeal;

however, it may, nevertheless, be reversed if the

court has abused that discretion.34 It is not always

necessary to produce the photographer or laboratory

technician to authenticate a photograph or slide,

but someone must be prepared to authenticate

the exhibit, nevertheless.35 If the authenticating

witness has personal knowledge of the scene or

image represented in the photo, then he or she need

only testify that the photo fairly and accurately

represents what it purports to represent.36 But the

photographer should be produced if there is any

doubt as to whether the photograph technically

provides a fair and accurate representation of the

scene or image depicted.37

Poor lighting alone may not be a problem,

but altered or deceptive lighting could render the

evidence inadmissible. A lapse of time between

the subject occurrence and the shooting will not,

per se, render the evidence inadmissible.38 But if

material changes have occurred, the evidence may