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:
- a nonphotographer witness who can testify from personal knowledge that the photo correctly represents what it purports to depict;
- 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
- 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:
- Movie Time for the Jury
- Find a Theme to Guide the Jury
- 10 Questions to Ask Yourself Before Presenting Evidence at Trial
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