A Picture Is Worth…a Winning Case?

crash_117459024Photographs are an important tool in personal injury cases. Photos can have a great impact on the jury—they may even help jurors understand the issues more clearly than any words you can speak.

In personal injury cases, photos are used primarily to show accident scenes, damage to vehicles, and injuries to the person. Because they show so much detail, they substantiate testimony effectively and give variety to evidence. Photos can be used very successfully in closing arguments and can often go to the jury room during the jury’s deliberation.

Under California Evid C §250, a photo is considered a writing and must be authenticated before it can be received in evidence (Evid C §1401(a)), unless the opposing parties otherwise agree to its admission.

A photo may be authenticated by any of the following:

  1. a nonphotographer witness who can testify from personal knowledge that the photo correctly represents what it purports to depict;
  2. a professional photographer who took the photo and can show the ability to make fair and accurate legal photos and impartiality in the case; or
  3. an amateur photographer, e.g., a bystander who took a photo at the time of the incident.

Photos are common and effective way to show the scene of the accident (including any change in the scene), changed circumstances, accident reconstructions, damaged vehicles, and injured people.

But with every great piece of evidence is an equally strong objection. Objections to admission of a photo include:

  • Insufficient foundation. There’s no foundation if the photo wasn’t properly authenticated by a witness with personal knowledge of what’s depicted in it testifying that it’s a “correct representation.”
  • Prejudicial or unduly inflammatory. If the photograph is gruesome or shocking, the opposing party may object on the ground that its admission would be prejudicial.
  • Misleading. A photo can be misleading if, e.g., distance is distorted, height is exaggerated, or perspective is affected by the use of a wide-angle or telephoto lens.
  • Cumulative. The judge can exclude cumulative evidence if its probative value is substantially outweighed by the probability that its admission will consume an undue amount of time or create undue prejudice. Evid C §352.
  • Irrelevant. If liability and property damage aren’t in issue, the opposing party will object to a photo of a badly damaged car as irrelevant and thus inadmissible. But note that this photo might still be relevant to show the severity of impact in substantiation of the personal injuries claimed.

Using photos in a personal injury case can make your case to the jury effectively and persuasively, but don’t push it. Photos shouldn’t be overused, particularly to show the plaintiff’s injuries. You don’t want it to appear to the jury as if you’re trying to distract their attention from a weak case on the liability issue.

Learn about using photos as evidence in personal injury cases in CEB’s California Personal Injury Proof Book, chapter 15. And for everything you need to know about authenticating evidence and using evidence generally, turn to the book all the judges have—CEB’s Jefferson’s California Evidence Benchbook.

Related CEB blog posts:

© The Regents of the University of California, 2013. Unauthorized use and/or duplication of this material without express and written permission from this blog’s author and/or owner is strictly prohibited.

3 Responses

  1. Julie I wholeheartedly agree that demonstrative evidence and/photographs are critical in today’s society to win cases. In the age of the information highway, the old fashioned way of presenting evidence is simply not enough.
    I had a case recently where a passenger in my client’s car took I Phone photos of the scene as it was unfolding. Rescue trucks with lights, a photo of rescue personnel wheeling a gurney to where my client was lying by the street; the severity of the impact and position of each car, etc.
    I firmly believe that the photographs were a main reason why I got a bigger verdict than expected.
    Recently I sent to past and present clients an email suggesting that they carry a digital camera or phone with a camera with them at all times, to capture the scene in the event of an accident.
    This is especially true of trip/slip and fall cases where the condition is typically cleaned very quickly.

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