Day on Torts
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)