Photo and video evidence can be extremely effective in legal proceedings. Potential evidence is everywhere and readily available with the proliferation of surveillance cameras and smartphones in everyone’s pockets. With this availability, every legal claim seems to incorporate photos or video. But is photo and video evidence always admissible in court? What are the pitfalls to be aware of when using such evidence?
Admissibility
In order for photo and video evidence to be admissible in court it must meet two basic requirements: relevance and authenticity. In order for evidence to be relevant it must have probative value. In other words, it must either support or undermine the truth of any point at issue in the legal proceedings.
In order for evidence to be authenticated, it must accurately represent its subject as related to the legal claim. For example, a photo or video used as evidence in an accident case must truthfully represent the conditions of the road at the time and date of the accident.
Objection Tactics
While photos and videos may seem like concrete, immutable representations of reality, the fact is that this evidence can be manipulated in order to skew that reality. Lighting, position, perception, filters and editing can be strategically used to misrepresent the facts. Attorneys know this and will use objection tactics to claim that the evidence should be inadmissible. The following are some of the most common objections to photo and video evidence:
- Undue Prejudice: An attorney can argue that the photo or video evidence is not a reasonable representation of its subject and may result in undue prejudice.
- Hearsay: If there is no witness present who can be cross-examined, an attorney can argue that the substance of the photo or video evidence is hearsay.
- The Best Evidence Rule: If the photo or video is secondary evidence (a copy or facsimile), an attorney can argue that the original copy is superior evidence.
- Lack of Foundation: When visibility, the time of day, the weather or some other factor is at issue in the litigation, an attorney can question a substantial similarity between the occurrence in question and the photo or video evidence.
Photos and videos can serve as valuable evidence in litigation proceedings. In order to ensure that such evidence is admissible in court, it is important to establish a formal policy for the collection and preservation of the evidence, to adhere to the requirements of relevance and authenticity and to prepare for the objection tactics of the opposition.
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