Photographs, Slides, Films and Videos

• Author: Ashley S. Lipson
• Pages: 495-528

44-1

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

§44.100 Is It Admissible? 44-2

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-gutter 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).

§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 argu-

ments 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 back-

ground 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, 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. 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 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

foundation requirements and opposition strate-

gies 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,3 we can eliminate

only testimonial. Then, we need to inquire as to

the motive or purpose for which the photograph-

ic 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 photograph-

ic evidence created after the occurrence of that

event, specifically for use during the litigation?”

44-3 Photographs, Slides, Films and Videos §44.300

4 See Chapter 36.

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 swelling of the extremities. Photographs which depicted an abnormal swelling of another per-

son’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, includ-

ing 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.

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

recording, which would be considered real4 Sur-

veillance 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, quakes, presidential assassinations, police

beatings, and weddings.5

If photographs or films are created, handled,

or archived, along with accompanying docu-

ments, they may be classified as documentary.6

For example, those photographs that accom-

panied 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 inves-

tigators 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 acci-

dent 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 demonstra-

tive 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

illustrate or emphasize a particular point clearly