National Camera Day: A Perfect Day to Review Photographs as Evidence

Today is National Camera Day, making it a perfect time to review how photographs are handled under the rules of evidence for bar exam preparation.

Photo by Chris Lawton on Unsplash

1. Relevance (FRE 401)

Under FRE 401, evidence is relevant if it has any tendency to make a fact of consequence more or less probable than it would be without the evidence. A photograph must connect to an issue in the case and assist in proving or disproving a fact in dispute.

✅ Example where the rule is met: A photograph showing a store’s icy sidewalk on the day of a slip-and-fall accident helps establish the condition at the time of the fall.

❌ Example where the rule is NOT met: A photograph showing the sidewalk months later during summer does not make it more or less probable that the sidewalk was icy on the day of the incident.

2. Rule 403 Considerations

Even relevant evidence can be excluded under FRE 403 if its probative value is substantially outweighed by the risk of unfair prejudice, confusion of the issues, or misleading the jury. Courts will balance the evidence’s usefulness against its potential to inflame or mislead.

✅ Example where the rule is met: A photo of a damaged vehicle is admitted to show the severity of a crash in a negligence case.

❌ Example where the rule is NOT met: A highly graphic autopsy photo is offered in a murder case where the cause of death is uncontested, risking unfair prejudice that outweighs its limited probative value.

3. Authentication (FRE 901)

Before a photograph can be admitted, it must be authenticated under FRE 901, which requires evidence sufficient to support a finding that the photograph is what the proponent claims it is. This is usually satisfied through witness testimony confirming that the photo accurately depicts the scene.

✅ Example where the rule is met: A witness testifies, “I took this photo of the accident scene moments after the crash, and it accurately depicts what I saw.”

❌ Example where the rule is NOT met: A party tries to introduce a photograph with no witness who can testify about when, where, or what the photo depicts, and no other evidence establishes its accuracy.

4. Best Evidence Rule (FRE 1002)

The Best Evidence Rule under FRE 1002 requires that when the contents of a writing, recording, or photograph are at issue, the original or a reliable duplicate must be produced to prove its content unless an exception applies. This ensures accuracy by requiring the truest form of the evidence. For large items like signs or billboards, a properly authenticated photograph is typically acceptable to prove contents because producing the actual item in court is impractical, aligning with the Rule's purpose while maintaining evidentiary integrity.

✅ Example where the rule is met: A clear, original photograph of a contract on a whiteboard is introduced to prove the exact wording of the agreement.

❌ Example where the rule is NOT met: A party tries to prove the wording of a sign from memory without presenting an available photograph, violating the Best Evidence Rule because the original or a duplicate should be presented when contents are at issue.

5. Hearsay Concerns (FRE 801)

Photographs themselves are not statements and generally do not constitute hearsay under FRE 801. However, statements within or on photographs (captions, notes, or timestamps) can constitute hearsay if offered for the truth of the matter asserted, requiring an applicable exception to be admissible.

✅ Example where the rule is met: A photo without captions or annotations is offered to show the condition of a property.

❌ Example where the rule is NOT met: A photo with a handwritten note stating, “This was taken right before the owner confessed,” is offered to prove the timing of the confession; the note is hearsay if offered for its truth.

Summary:

1️⃣ Relevance: Is the photograph relevant? Does it make a fact more or less probable?

2️⃣ Balancing Test: Should the photograph be excluded because its probative value is substantially outweighed by unfair prejudice?

3️⃣ Authentication: Has the photograph been properly authenticated to confirm it accurately depicts what it claims to show?

4️⃣ Best Evidence Rule: Is the original photograph or a reliable duplicate available if the contents are at issue?

5️⃣ Hearsay: Does the photograph contain statements offered for their truth, raising hearsay concerns?

Before you assume a photograph will easily prove your point, remember: A picture is worth a thousand words—but only if it meets the rules of evidence.