Picture Perfect - How to Lay the Proper Foundation for Photographic Evidence
Do you want to win your case? First, win the hearts of your audience (whether judge or jury); then win their minds. And nothing sways the passions and prejudices of human beings like a good visual image.
In auto cases, personal injury attorneys argue all day long with insurance adjusters that property damage is irrelevant for predicting the potential for bodily injury. But give a personal injury attorney spectacular crash photos with twisted metal and broken glass, and watch him or her argue that the injury was substantial because this was a “big hit.”
Let me give you another example in an unexpected context. I once represented a buyer of a multi-unit apartment complex. The sellers had taken back paper in the transaction, meaning they lent the buyer his down payment and took a second trust deed on the building to secure their note.
Before long, the buyer started missing payments on the second deed of trust, and the sellers initiated a judicial foreclosure. At one point in the litigation, the sellers moved the court for the appointment of a receiver to control the intake of the rent and apply it directly to their note. To establish “irreparable harm” – a prerequisite to receivership – the sellers argued that the defaulting buyer would probably allow the building to dilapidate, thus endangering the value of their trust deed. After all, he was already two months in arrears.
In opposition, I submitted glorious photos of the building’s recent improvements. Multicolor annuals and Malibu lights adorned tasteful flagstone walking paths. A new Spanish tile roof had replaced yesterday’s sunbleached shingles. Decorative iron gates opened to sanctuary-like gardens and a turquoise swimming pool. The motion for a receiver was denied.
There is no question that good pictures will affect the outcome of a case. I once settled a wrongful death case with doubtful liability largely on the strength of horribly bloody photos of the decedent. The defense attorney simply did not want those photos anywhere near a jury.
Photographs may either be “originals” or “duplicates.” Evidence Code §255 defines “original photographs” as including “the negative or any print therefrom.” In the case of digital photographs, Evidence Code §255 states that “[i]f data are stored in a computer or similar device, any printout or other output readable by sight, shown to reflect the data accurately, is an ‘original’.” A duplicate, according to Evidence Code §260, is a “counterpart produced by the same impression as the original, . . . or by means of photography, including enlargements and miniatures . . . which accurately reproduces the original.”
The main foundational requirement for the admissibility of photographs is authenticity. Authentication of a photograph no longer requires the testimony of the actual photographer. It is sufficient to examine a witness who testifies (1) that they are familiar with the object or scene in the photograph; (2) the basis of the familiarity with the object or scene; (3) that they recognize the object or scene; and lastly (4) that the photograph is a “fair,” “accurate,” “true” or “good” depiction of the object or scene at the time in question.
An example of direct examination might look like this:
Attorney: “Where are you employed?”
Witness: “At Hemet Memorial Hospital.” Attorney: “What is your position there?”
Witness: “I am a registered nurse.”
Attorney: “How long have you been a registered nurse at Hemet Memorial?”
Witness: “Five years.”
Attorney: “Were you working at Hemet Memorial during the period of February through March of 2004?”
Attorney: “During that timeframe, did you provide nursing care to a patient named Daniel Decedent?”
Witness: “Yes, I did.”
Attorney: “Do you recall Mr. Decedent?”
Witness: “Yes, I do.”
Attorney: “I request permission to approach the witness, your Honor.”
Judge: “Permission granted.”
Attorney: “Allow the record to reflect that I am handing the witness a document previously marked as Plaintiff’s 17 for identification.”
Judge: “The record will so reflect.”
Attorney: “What is Plaintiff’s 17?”
Witness: “It’s a photo of Daniel Decedent taken on February 16, 2004.”
Attorney: “How do you know that?”
Witness: “I recognize Mr. Decedent from caring for him in the hospital. In this picture he is in his hospital bed at Hemet, which I recognize from working there. And all patient photos at Hemet are date stamped. As you can see, this photo is stamped February 16, 2004 right here.”
Attorney: “During February and March of 2004, how much time would you estimate that you spent caring for Mr. Decedent?”
Witness: “Probably two to four hours every day. He was in the intensive care unit with thermocutaneous burns covering more than 60% of his body before he died in the hospital. One of my main areas of responsibility at work during that time was caring for Mr. Decedent.”
Attorney: “So you would say that you were ‘familiar’ with Hemet Memorial’s intensive care unit – the scene depicted in Plaintiff’s 17 – and with Mr. Decedent himself – the subject of Plaintiff’s 17?”
Witness: “Yes I would.”
Attorney: “Is Plaintiff’s 17 a fair and accurate depiction of Daniel Decedent as he appeared in or around February and March of 2004?
Attorney: “Your Honor, I request that Plaintiff’s 17 be admitted into evidence, and I request permission to hand the exhibit to the jury for their inspection at this time.”
Judge: “Plaintiff’s 17 shall be so admitted, and you may now hand it to the jury.”
The classic objection you will face in situations like the one above is not lack of authenticity, but that the photograph should be excluded under Evidence Code §352 as substantially more prejudicial than probative of any issues in the case. Obviously, if the photos are gory and you represent the plaintiff in an injury or death case, you want them admitted to show what your client suffered and your opponent wants them excluded. But the appellate courts have consistently allowed gruesome photographs to “clarify the testimony of a medical examiner” (People v. Coleman (1988) 46 Cal.3d 749, 776); to corroborate the manner of death or intent (People v. Williamson (1985) 172 Cal.App.3d 737, 747); or to “illustrate facts otherwise presented through testimony” (People v. Farnam (2002) 28 Cal.4th 107, 185). Issues in civil lawsuits suitable for photographic support might include the manner or extent of the harm, pain and suffering, emotional distress or specific factual disputes on a case-by-case basis. An objection based on the best evidence rule should easily be overcome by reference to Evidence Code §§255 and 260 (above). So in most cases, whether the defense likes it or not, the photos are coming in.
If your case involves photographic evidence, plan ahead. Anticipate and prepare for your opponent’s objections and motions in limine and decide who can testify as to the foundational elements in the event that no stipulation can be reached. If the pictures are good, they will probably be the center of your case-in-chief. Treat them accordingly.
Meet the Author
Gordon Levinson is a former insurance defense and personal injury attorney. He has represented some of the largest insurance companies in North America. Over the course of his career, Mr. Levinson has successfully represented more than 3,000 unique clients. Now, he owns and operates the Levinson Law Group, a practice specializing in representing the victims and family members of life-changing tragedies. In 2015, he published an eBook on how to deal with the aftermath of a vehicle collision. Mr. Levinson enjoys spending time with his wife and children. He also spends much of his free time traveling and coaching youth basketball.