Laying A Foundation to Admit a Photograph into Evidence

The trial of virtually every personal injury or wrongful death case involves the use of one or more photographs. 

The recent decision in Zerega Ave. Realty Corp. v. Hornbeck Offshore Transp., LLC, __ F.3d __ (2d Cir. July 6, 2009) (No. 08-0639-CV) reminds us that the failure to lay a proper foundation will result in exclusion of photographs at trial.   The opinion reminds us that the "standard for admissibility of photographs requires the witness to recognize and identify the object depicted and testify that the photograph is a fair representation of what it purports to portray." The witness attempting to authenticate the photographs identified the object but was not asked whether the photograph was a fair and accurate representation of the object.  The exclusion of the photograph was affirmed on appeal.

Recall that "[t]he witness qualifying a photograph … does not need to be the photographer or see the picture taken. It is only necessary that he recognize and identify the object depicted and testify that the photograph fairly and correctly represents it.” Kleveland v. United States, 345 F.2d 134, 137 (2d Cir. 1965)

There are so few trials that it is easy to forget the rules concerning the admissibility of evidence.  In addition, many of our adversaries don’t know the rules either, and thus the "right" way of doing things slips from memory.  But, as this case tells us, there are some adversaries and judges who are sticklers on the law of evidence, and thus it is necessary to refresh our recollection of the evidence law relevant to our case just in case we face an adversary or judge who forces us to follow it.

Thanks, once again, to the Federal Evidence Blog for informing me about this opinion.