Authenticating Digital Photographs

"Original" is honored more in breach than to the letter
  • Under Evidence Rule 901 and its state analogues, photographs are typically admitted as demonstrative evidence to illustrate testimony.

  • When used purely as demonstrative evidence, legal issues regarding authentication and chain of custody are somewhat relaxed as long as a competent witness can testify that the photograph fairly and accurately depicts the scene about which he or she is testifying.

  • The authenticating witness need not be the photographer or even a competent person who observed the making of the photograph. United States v. Clayton, 643 F.2d 1071, 1074 (C.A. 5, 1981).

  • Videos are typically authenticated in the same manner as a still photograph. Saturn Manufacturing, Inc. v. Williams Patent Crusher and Pulverizer Company, 713 F.2d 1347, 1357 (C.A. 8, 1983).

  • Under Evidence Rules 1001 through 1004, the definition of an "original" has been greatly expanded over many years and is honored more in the breach than to the letter. Duplicates, including electronically made prints or digitally identical electronic file duplicates are typically admissible to the same degree as an original document, unless admitting the duplicate would prove inaccurate or unfair.

  • Authentication requirements are somewhat stiffened where there is a strong argument that a photograph does not accurately reflect the scene or that the use of a duplicate is inaccurate or unfair.

  • Common sense, a reasonably objective evaluation of the intended use of the proposed photographic evidence and some trial experience generally are an adequate guide to the allowable demonstrative or evidentiary uses of a photograph.

  • When photographs are to be used as the basis for expert witness testimony or to prove the existence of an allegedly depicted condition, they will be held to a higher standard and a lawyer must be much more cognizant of subtle technical and photographic parameters.

  • Courts generally are willing to tolerate some inaccuracies in a photograph as long as these are explained to the trier of fact so that they may be taken into account.

  • Where a photograph is used as a basis for establishing critical ultimate facts or as the basis for expert testimony, courts are less willing to overlook major gaps.

  • Where a photograph is offered to prove that some condition did not exist, a court will look closely at the timeframe during which the photograph was purportedly taken but still use a common sense case-by-case analysis.

  • Where direct evidence of a condition provided by an otherwise authenticated photograph is only one link in a logical fact structure, the photograph will likely be admitted to prove the depicted condition.

  • Where there is sufficient countervailing testimony, the admission of photographs with a shaky time frame may be harmless error. FA

Joseph Kashi is an attorney and litigator in Soldotna, Alaska, who is active in the Law Practice Management Section and a technology editor for Law Practice Today. He has written regularly on legal technology for the ABA Law Practice Management Section, Law Office Computing magazine, and other publications since 1990. A version of this article was published in Law Practice Today (Sum. 2006) ABA LPM.

Published in Family Advocate, Volume 29, No. 3, Winter 2007. © 2007 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.