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Do you want to win your case? First, win the hearts of your audience (whether judge or jury); then win their minds. And nothing sways the passions and prejudices of human beings like a good visual image.
A PICTURE IS WORTH A THOUSAND WORDS
In personal injury cases, attorneys frequently debate with insurance adjusters about whether property damage is a reliable indicator of potential bodily injury. However, provide a personal injury attorney with striking crash photos showing twisted metal and shattered glass, and watch how they argue that the injury must have been significant because it was a “major collision.”
Consider another example in a completely different scenario. I once represented a buyer of a multi-unit apartment complex. In this transaction, the sellers took back paper, meaning they provided the buyer with the down payment as a loan, secured by a second trust deed on the building.
Soon after, the buyer began missing payments on the second deed of trust, and the sellers pursued judicial foreclosure. At one point in the litigation, the sellers requested the court to appoint a receiver to oversee the rental income and apply it directly to their loan.
To prove “irreparable harm,” which is required for appointing a receiver, the sellers argued that the defaulting buyer would likely neglect the property, putting the value of their trust deed at risk. After all, he was already two months behind on payments.
In response, I presented compelling photos of the building’s recent upgrades. Vibrant flowers and Malibu lights highlighted tastefully designed flagstone walkways. A new Spanish tile roof replaced the worn, sun-bleached shingles. Ornate iron gates led to serene gardens and a sparkling turquoise pool. As a result, the motion for a receiver was denied.
It’s clear that high-quality images can significantly impact the outcome of a case. In one instance, I was able to settle a wrongful death case with questionable liability largely due to disturbing and graphic photos of the decedent. The defense attorney simply did not want those images anywhere near a jury.
WHAT TYPE OF PHOTOGRAPHS CAN YOU USE IN COURT?
Photographs used as evidence can be classified as either “originals” or “duplicates.” According to Evidence Code §255, “original photographs” include not only the negative but also any print derived from it.
For digital photographs, Evidence Code §255 clarifies that “[i]f data are stored in a computer or similar device, any printout or other output readable by sight, shown to reflect the data accurately, is an ‘original.’” Meanwhile, a duplicate is defined under Evidence Code §260 as a “counterpart produced by the same impression as the original… or by means of photography, including enlargements and miniatures… which accurately reproduces the original.”
The primary requirement for the admissibility of photographs as evidence is authenticity. Authentication of a photograph no longer requires the testimony of the photographer themselves. It is now sufficient to have a witness testify that:
They are familiar with the object or scene depicted in the photograph.
- The basis for their familiarity with the object or scene.
- They can recognize the object or scene in the photograph.
- The photograph is a “fair,” “accurate,” “true,” or “good” depiction of the object or scene at the time in question.
This allows photographs to be authenticated through the testimony of someone familiar with the subject matter, streamlining the process of establishing their validity in legal proceedings.
AN EXAMPLE OF DIRECT EXAMINATION MIGHT LOOK LIKE THE FOLLOWING
Attorney: “Where are you employed?”
Witness: “At Hemet Memorial Hospital.” Attorney: “What is your position there?”
Witness: “I am a registered nurse.”
Attorney: “How long have you been a registered nurse at Hemet Memorial?”
Witness: “Five years.”
Attorney: “Were you working at Hemet Memorial during the period of February through March of 2004?”
Witness: “Yes.”
Attorney: “During that timeframe, did you provide nursing care to a patient named Daniel Decedent?”
Witness: “Yes, I did.”
Attorney: “Do you recall Mr. Decedent?”
Witness: “Yes, I do.”
Attorney: “I request permission to approach the witness, your Honor.”
Judge: “Permission granted.”
Attorney: “Allow the record to reflect that I am handing the witness a document previously marked as Plaintiff’s 17 for identification.”
Judge: “The record will so reflect.”
Attorney: “What is Plaintiff’s 17?”
Witness: “It’s a photo of Daniel Decedent taken on February 16, 2004.”
Attorney: “How do you know that?”
Witness: “I recognize Mr. Decedent from caring for him in the hospital. In this picture, he is in his hospital bed at Hemet, which I recognize from working there. And all patient photos at Hemet are date stamped. As you can see, this photo is stamped February 16, 2004, right here.”
Attorney: “During February and March of 2004, how much time would you estimate that you spent caring for Mr. Decedent?”
Witness: “Probably two to four hours every day. He was in the intensive care unit with thermocutaneous burns covering more than 60% of his body before he died in the hospital. One of my main areas of responsibility at work during that time was caring for Mr. Decedent.”
Attorney: “So you would say that you were ‘familiar’ with Hemet Memorial’s intensive care unit – the scene depicted in Plaintiff’s 17 – and with Mr. Decedent himself – the subject of Plaintiff’s 17?”
Witness: “Yes I would.”
Attorney: “Is Plaintiff’s 17 a fair and accurate depiction of Daniel Decedent as he appeared in or around February and March of 2004?
Witness: “Yes.”
Attorney: “Your Honor, I request that Plaintiff’s 17 be admitted into evidence, and I request permission to hand the exhibit to the jury for their inspection at this time.”
Judge: “Plaintiff’s 17 shall be so admitted, and you may now hand it to the jury.”
In cases like the one described, the typical objection raised is not authenticity, but rather an argument that the photograph should be excluded under Evidence Code §352, which allows the court to exclude evidence that is substantially more prejudicial than probative.
For instance, if the photos are graphic or disturbing, and you represent the plaintiff in an injury or wrongful death case, you may want these images admitted to demonstrate the severity of the harm your client suffered. On the other hand, the opposing party will likely seek to have the photos excluded, arguing that they are too prejudicial.
However, appellate courts have consistently upheld the admission of gruesome photographs in certain circumstances. They have ruled that such images can be used to:
- Clarify the testimony of a medical examiner (as in People v. Coleman (1988) 46 Cal.3d 749, 776).
- Corroborate the manner of death or intent (as seen in People v. Williamson (1985) 172 Cal.App.3d 737, 747).
- Illustrate facts otherwise presented through testimony (as in People v. Farnam (2002) 28 Cal.4th 107, 185).
These decisions illustrate that, despite being graphic, photographs can be deemed relevant and admissible if they provide critical context to the case, help clarify testimony, or visually reinforce key facts.
WHAT TYPES OF CASES COULD YOU USE PHOTOGRAPHS?
In civil lawsuits, photographic evidence can play a crucial role in supporting various issues such as the manner or extent of harm, pain and suffering, emotional distress, or even specific factual disputes that arise on a case-by-case basis. If the defense raises an objection based on the best evidence rule, this can typically be overcome by referencing Evidence Code §§255 and 260 (as discussed earlier). As a result, in most cases, whether the defense agrees or not, the photographs will likely be admitted.
If your case involves photographic evidence, it is important to plan ahead. Be prepared for any objections your opponent may raise, including motions in limine aimed at excluding the photos. It’s also essential to determine in advance who will testify to the foundational elements of the photographs, especially if a stipulation cannot be reached with the opposing party.
If the photos are compelling and pivotal to your case, they will likely become the central focus during your case-in-chief. Therefore, it’s vital to treat them with the care and attention they deserve, ensuring that they are presented effectively to support your arguments.
MEET THE AUTHOR
Gordon Levinson is a seasoned attorney with extensive experience in both insurance defense and personal injury law. Having represented some of the largest insurance companies across North America, Mr. Levinson has successfully handled over 3,000 unique cases throughout his career.
Today, he is the proud owner and operator of Levinson Law Group, a law firm dedicated to advocating for victims and their families in the aftermath of life-altering tragedies.
If you’re in need of expert legal representation, Mr. Levinson and his team offer free consultations. Contact us today at 760-642-5475 to discuss your case.