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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 angles 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? With technology improving as well as becoming easier to use (sometimes) there could be many other challenges to face as well, we’ve already touched on the use of Photoshop, but what about people using the likes of an app to speed up video, or even slow a video down that’s incredibly easy to use, could this also alter the perception of a jury somehow?

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.

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

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  2. What if a video was taken at a massage parlor inside a room where “questionable practices” occur? In many states, recording someone in a place where they expect privacy is a felony (unless person gives consent or is told of video). Since the video itself is illegal and person filming is subject to prosecution, is this video still admissible in court (assuming law enforcement legally confiscated such video?In other words, can it be used to charge clients for solicitation?

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    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.

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    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.

  7. 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.

  8. 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.

  9. 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.

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  11. 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.

  12. 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.

  13. 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.

  14. 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.

  15. 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.

  16. Hi, I’ve just been dismissed from my employment of 3 years as I injured myself at work and they are accusing me of falsifying my statement in regards to the injury. And have now an image from a website of a similar injury and have used this as evidence to dismiss me for gross misconduct. I haven’t provided any images of my injury to them as I didn’t deem it necessary. I sent a picture to a Facebook messenger group which is very similar can they use this in court if I’m not visible in the image they have and I haven’t given it to them as evidence. Thanks

    1. There are many layers to the fact pattern you posted and so I suggest that you consult with a workers compensation attorney in your jurisdiction right away. First, you absolutely have a duty to fully cooperate with the employer and its insurance company in making a claim for workers compensation benefits. Second, using a photo of a different injury is fraud. Third, attorneys and the courts have been using social media posts as evidence for years and so a determination would need to be made by your attorney as to how to handle the photo, depending on the context of the posting. Hard to say without seeing it and the post in its entirety. Best of luck with it.

  17. Are photos obtained illegally while trespassing admissible in court to prove someone’s guilt for a misdemeanor crime?

    1. Issues like this are driven largely by the specific facts and circumstances so a simple “yes” or “no” answer is not going to help either one of us. My gut wants to say no in accordance with the Sixth Amendment to the U.S. Constitution but I am duty bound to tell you to seek counsel from a qualified criminal defense attorney in your jurisdiction. I wish you the best.

  18. I have a trial coming up whereby my client was hit by a car as he was closing his trunk. He testified at his ebt that he never saw the other vehicle as he was out of it, though he does say it is a ford escape (says unconscious but he was not). Some fellow drivers took photos of the offending vehicles license plate and driver and they came into my clients possession. The defendant never appeared for a ebt and is precluded and the police report was lost. Client doesn’t recall who gave him photos. Can I simply have him testify to the photo and say that this is the vehicle that hit him?

    1. (a) I would be asking the client a lot of questions about how he “came into possession” of the photos but does not remember who supplied them. That sounds a bit off. (b) If they are digital photos take them to a digital photographer who knows their stuff enough tolook into the “properties” files and that may identify who took the digital photos and on what camera. (c) As long as your client can thoroughly authenticate the photos stating that they are a fair and accurate portrayal of the other vehicles at the time of the accident, etc., they should go in under most of the rules, which at least in my jurisdictins, abandoned the old requirement of who took the photos.

  19. I was recently in a motions hearing and the prosecution brought in photos of footprints at the scene. They took my shoes as evidence the day of the crime. the time stamp on the photos shows a date 2 days after the day of the crime. The officer claims he never checks the time stamp on his camera. i feel like they could have staged the footprints since they had my shoes.. and i would think when police collect evidence more care would be taken to avoid this situation and no excuse for not checking the cameras time stamp. What are my options if any. Kern county california felony motions hearing? thanks

    1. Your criminal defense attorney needs to address this. Without all of the context I don’t think any attorney would want to jump in on just this one issue. Please have your criminal defense attorney review this and the entire case, and if you don’t have one you would be wise to hire one sooner rather than later. I wish you the best.

  20. My wife is a defendant in a case in which she allegedly was involved in a car accident. She took iphone pictures that clearly show no damage. Based on these pictures our insurance company has supported her case and defended us. Now she will repeat the story in court. We are afraid this is a scam case where the plaintiff claims neck injuries (as our insurance company told us), but the plaintiff had no pictures to prove any accident. How do we authenticate our pictures for the court? Is date and time on them sufficient?

    1. In that you have indicated that your insurance company is supporting you, they are carrying out their obligation under your insurance policy to defend you. Tell the insurance company’s attorneys as soon as possible about your wife’s picture. They will know how to authenticate the photos under your local rules of court and rules of evidence. Make them aware of these pics right away before anything happens to them and so the insurance company attorneys can properly preserve them.

  21. I have been accused of a simple assault. I was pushed by another and I pushed her back. we scrambled around a bathroom bar for about 8 seconds and that was that. The police video shows no injury after the incident. However, this person is now claiming a multitude of injuries. She went to the emergency room 13 hours after the incident. She took PERSONAL photos of herself (None from the ed visit) and now is suing me for injuries. How can these photos be used against me in my court case. ?

    1. Your attorney can object to the photos taken later as not reasonably representing her injuries at the time of the scuffle or even as not reasonably representing her injuries at the emergency room. If the court allows the photos anyhow you can certainly testify and explain your position. Please hire an attorney in your jurisdiction. Do you know how many times I’ve had people indicate to me that oh, they thought is was nothing, and after they lost, said they should have hired an attorney. Please don’t make that mistake. I’m a personal injury attorney you need a criminal defense attorney.

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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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