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Photo and Video Evidence: Always Allowed in Court?

Use of Photo and Video Evidence in Court
Photo and Video Evidence

Photographs and video present some of the most effective evidence possible in court.  In the dark ages of photography it took a small investment to buy or rent video equipment.  But now that nearly everyone has a basic camera and video capability at their fingertips through a cell phone, it’s hard to imagine an accident case or any other legal claim without photos or video.

Is Photo and Video Evidence Always Allowed in Court?

Photos are used so often it’s easy to forget the fundamental requirements of getting evidence admitted into court.  Two basics require that photos must first be relevant to a material issue in the case, and second that they be properly authenticated.

Relevance requires that photo and video evidence must have a tendency to make the existence of any fact at issue in the case more probable or less probable than it would be without the evidence.  But even relevant evidence can be excluded where its probative value is substantially outweighed by the danger of unfair prejudice or other factors.

Photo and Video Evidence Authentication

Once the photo or video evidence passes the relevance test it’s still not allowed until it passes the authentication test.  Does the photo accurately represent its subject?  Authenticating photo or video evidence raises the issue of whether it fairly and accurately depicts the subject, for example,  as it appeared on the date of the accident.

Authentication problems can pose barriers.  There was snow in the road when the car accident in the case happened, but by the time the photos were taken it melted.  A mechanical contraption causing catastrophic bodily injury may have had a guard installed after the incident.  By the time a video could be taken, a modification changed the machine.  In both cases, an explanation by the witness may or may not make the representation admissible.

Photo and Video Evidence Credibility

All of the above summarizes admissibility, whether or not the evidence gets in to court.  Remaining issues go to the weight of the evidence.  How much significance should the court or jury give the video or photo evidence in their ultimate decision?

Photos don’t lie, right?

The ability of a photographer to skew reality remains alive and well in a world with cameras on every street corner.  Variables that distort the truth include lens type, lighting, camera position, filters and exposure.  These factors alter an image whether done consciously or not.  At its simplest, perceived distance between objects can change depending on camera angle, lighting and aperture.

Evidentiary concerns raised by video editing and retouching of still photos loom even larger.  Accident reenactments and ‘day in the life’ videos are used frequently but the editing process raises issues going back to authenticity.  When photos were on film, retouching was generally done only by skilled photo labs and photographers.  But in an era of digital photography, Photoshop has become a household word and less expensive and highly available digital photo manipulation programs bring increasing questions over the basics.

Photo and Video Evidence Challenges

Photo and video evidence raise many other issues.  Do lighting and camera angle alter a jury’s perception of a witness whose testimony is by video only, with a monotonous ‘head and shoulder’ shot?  Insurance company surveillance video captures an injured person carrying out various activities, but was the camera inactivated when movement difficulties were apparent?

Techniques used by skilled photographers including camera position, lighting and exposure can, even if on a subconscious level, make a photo or video deceptive.  When asked, courts review potentially misleading qualities to avoid problems.  Usually the issues raised go back to the basics highlighted above.

24 thoughts on “Photo and Video Evidence: Always Allowed in Court?”

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  3. Pingback: Anonymous
    1. This is true. One of the questions asked before any photo is admitted into evidence is, let’s take a car accident injury case and a photo of the street where the accident took place, does this photo fairly and accurately represent the street as it existed at the time of the accident? So, a live witness must confirm the accuracy of a photo. Digital photos are allowed in courts in America every day of the week. But a human witness must verify the accuracy of the pic or it will be tossed. This is true in a car accident injury case, a complicated piece of business litigation or any other type of litigation.

  4. Pingback: Camera Bug
    1. I don’t see a question here but your point is correct. Such footage is used all the time in court. Depending on who is offering the security camera video as evidence and what they are attempting to prove, they would simply follow the time honored rules of evidence in their jurisdiction which include authentication and laying the proper foundation for the surveillance video then this should not be a big problem from an evidence point of view. Don’t do this at home, retain an attorney experienced in trial law in your jurisdiction.

    1. Do both. Print out at least 3 copies, one for the court one for your adversary and one for you. The court may ask to see the original as it exists in your phone/camera to verify there has been no modification. Better yet retain an attorney who is familiar with all of the rules of evidence in your jurisdiction.

  5. I am trying a case in 1 week. I am counsel on behalf of a defendant accused of various crimes on the person’s of 1 civilian and a handful of police officers. There is video that was taken on a mobile phone that has since been extracted to a computer file, that I have further transferred to DVD. The individual who shot the video of the assault on my client by officers is available. I don’t have a problem creating the context and relevance, however, the steps in authentication seem complicated and easily objected to. It seems that much of the foundation with respect to the videographer herself identifying the video as hers and it being a fair and accurate representation should be done outside of the presence of the jury so as not to invade their province. If I lay the foundational questions, I will have had to start and stop the video in their presence prior to it being entered into evidence and played in its entirety. Any assistance in the method in which I should proceed and line of questioning I should use? Should I first approach with the labeled DVD and ask if the videographer has seen that DVD prior and what it entails? Open the desktop file? Any assistance is greatly appreciated.

    1. As you can tell from my website I am a civil litigation attorney. In the civil context courts nearly always want such evidentiary questions addressed before trial and out of the presence of the jury. Bring a Motion in Limine outlining the issues you have, conference it with the opposing attorneys and ask for a hearing on the matter.
      As a personal injury attorney it’s rare that a court would not want photos or video going back to the actual scene as long as they are relevant and the court is assured that the evidence has not been tampered with.

  6. If i need evidence for a traffic ticket in the front of a school bus and there was a city camera how would I get that evidence? My job is at stake if I dont find it. The bus did not have a stop sign or red lights on.

    1. Hopefully you’ve contacted the city by now both in person at the city hall and also by certified mail return receipt requested. Municipal officials by nature are very protective of information but a properly targeted right-to-know law request and persistence will likely work.
      Doing personal injury work my office runs into this frequently.

  7. Can I legally take a photo of my boss touching another coworker (aka his new girlfriend) to prove my claim of a hostile work environment? I’ve complained of him giving her a new “substantially large raise” and following my complaint am being retaliated against. They say my claims of retaliation and his behavior causing a hostile environment are not supported. How do I prove the behavior is happening without a photo?
    Please help.

    1. Taking a photo of the boss could cause problems and would backfire upon you if you took photos in an area where the parties had a reasonable expectation of privacy. On the other hand if the conduct you mention takes place out in the open especially in an area where the public has access, you should be OK snapping a pic. Anything in between and you should consult an attorney licensed in your jurisdiction.
      As for how do you prove it? Witness testimony is what court cases are all about and your best bet is to speak with others who make the same observations. Yes, I know, they’ll be reluctant to testify against the boss. But, witness testimony is the answer to your question regarding how do you prove things in court.

  8. I recently lost a case where I used a video from the point of view of the driver to show there was no contract between the driver and the car park as no signs were seen.
    The claimant claimed there were 5 signs all on lighting poles. There are in fact only 2, one on the entrance where you have to take your eyes off the road to see it and the second on the way out.
    The video clearly shows other signs visible just not the claimants.
    The incident occurred on October 10th.
    I was notified on October 20th.
    I read the notification around 11th November (I work away). By the time I drove the 2 hours to get to the car park it was November 26,
    the incident occurred in the morning (dark) the video was made in the evening (dark) the video was uploaded to you tube on 1st Jan
    The video is time and date stamped with the radio news giving the date as well.

    The judge threw it out because he thought it was made 2.5 months after the incident. It wasn’t. It was a matter of weeks.

    At present I’m trying to come up with a legal argument to the appeals court as to why the video should not have been discounted. This article has helped but I’m still struggling with it.

    1. Thank you for your experience. Issues like this are very fact specific. The other wall you are up against now is that appellate courts grant trial court judges wide latitude in exercising discretion in evidentiary rulings. At trial a proper foundation needs to be established for all evidence, video, photo, documents or other and the evidence also needs to be authenticated. It may or may not be worth your while to consult an appellate attorney in your jurisdiction. Best wishes.

  9. I just got arrested and the officers had my All Wheel Drive Subaru towed with a the wrong type of tow truck and damaged my car and I recorded the interaction on video of when they were explaining what happened to me. My father was there as a witness. They admitted that they used the “wrecker” tow truck and you can hear that in the recording. Will that be okay to use as evidence?

    1. Sounds to me like this happened after the alleged conduct that led up to the arrest. Your first priority it would seem would be to retain a defense attorney. To answer your question about evidence, it all depends whether the video is relevant, whether the proper foundation is laid and whether it is authenticated.

  10. Hi Andrew, I’m asking the judge for more parenting time with my 9 y.o. daughter. My ex spouse is alleging that the child is afraid going with me while she’s running to great me every time I pick her up and I want to show some videos with date/time stamp to the judge. Do you have any recommendations at all, maybe a court preferred date/time format?
    Thanks a lot!

    Mr.D

    1. Check with your local court or an attorney who regularly practices in that court for specific requirements. Opposing counsel or opposing unrepresented party can always object to a video. But, if the proper foundation is laid and the video is authenticated to the satisfaction of the court, then the video can be admitted.

  11. I am a safety spec. with CDL drivers. I have always been taught that a disposable camera is necessary because digital pictures taken from our phones can be altered and not allowed in court. Is this still true or, if I understand what I have read, digital pictures from a phone would be allowed. Would not want to occur the cost of disposable cameras when digital serves the same purpose. Not to mention disposable cameras are becoming less available at reasonable prices.

    1. Dear Kevin; I would check with the court clerk or an attorney who regularly practices in your jurisdiction with this question. Sure, when digital photography was in its infancy the quality was low and courts had legitimate questions regarding photoshopping or other messing around with the images. At this time in my jurisdictions digital photos are used every day in court, for example in car accident cases to show the intersection or other location of a car crash, and the damages to the vehicles and personal injuries. Before any photo is admitted in court a proper foundation must be laid and it must be authenticated. As referenced in the blog article these basic evidentiary requirements allow the court to question the photo. One of the questions the court and the opposing attorney raise is whether any photo truthfully and accurately represents the accident scene or other subject. I remember those old disposable cameras. I used to give them to my clients to take pictures. I have not used them for many years.

  12. I have been subpoenaed as a witness in an accident. I was the one hit and the individual is fighting his ticket. I had my car equipped with a dual-dash-cam. The video clearly shows who was at fault (the individual ticketed blamed me for the whole incident).

    The original video(s) are 10 minutes long, I clipped the end of the videos to the last 17 seconds prior to the accident and moments after.

    How do I submit these videos (I have them on a thumb drive) and to whom? I was told I can submit them to the Bailiff on the day I go into the court room. Is this correct? (I live in Florida)

    1. I am licensed to practice law in Massachusetts and New Hampshire only and so I can not advise you on Florida’s evidentiary requirements. I would contact the court clerk well in advance to determine (1) if the court has the hardware required to project the video in the courtroom and (2) what advance notice is required. You might also check with the attorney who subpoenaed you.

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Attorney Myers is a member of the American Trial Lawyers Association, Massachusetts Academy of Trial Lawyers, and New Hampshire Trial Lawyers Association. The Law Offices of Andrew D. Myers offer a broad range of legal services in personal injury cases in Massachusetts (MA) and New Hampshire (NH) areas.

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