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, almost everyone has a basic camera at their fingertips through a cell phone. So, it’s hard to imagine an accident case or any other legal claim without photos or video.
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.
After photo or video evidence passes the relevance test there’s another hurdle. Courts require photographic evidence to be authenticated. Does the photo accurately portray its subject? Authenticating photo or video evidence raises the issue of whether it fairly and accurately depicts the subject. For example, does the photo represent the scene 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.
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 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.
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.
More on authentication of photos and other evidence.
After an accident always take pictures.
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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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Do i need to print my pics or can i just show the pics on my phone /camara?
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.
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.
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.
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.
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.
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.
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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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.
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.
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?
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.