A trial attorney holding a photograph in his hand and approaching a witness with it will undoubtedly catch the attention of the jury, opposing counsel and the judge. All present will tend to lean forward as the lawyer shows the photograph to the witness. Photographs tend to be extremely powerful pieces of evidence. After all, “one photograph is worth a thousand words.” Before a photograph may be used in a trial, it must first be admitted in evidence. The purpose of this article is to discuss the admissibility and use of photographs in evidence. Photographs are admissible in civil trials if they are relevant. Relevancy means that the photograph tends to prove or disprove a material fact in the case, Rule 90.401, Fla.R.Evid. and Rule 401, Fed.R.Evid. Nevertheless, before a photograph is admitted as evidence, it must first be authenticated; thus, the proper foundation must be established. Contrary to the belief of many practicing attorneys, the photographer does not need to be called as a witness before a photograph may be allowed in evidence. All that is necessary is that a witness with knowledge testify that the photograph fairly and accurately represents the condition, product, person or scene that it depicts. City of Miami v. McKorkle, 199 So.2d 575 (Fla. 1940). Once the witness authenticating the photograph establishes that the photograph correctly and accurately depicts what the witness has previously seen, then the photograph is admissible. If more than one photograph is shown to the witness for purposes of authentication, the lawyer must ask the witness to identify and authenticate each and every photograph before showing the photographs to the jury. The following questions should be asked to establish the proper evidentiary foundation so that a photograph may be admitted in evidence: I am showing you what has been marked as Exhibit “1” for identification. Do you recognize this photograph? Are you familiar with what is depicted in this photograph? How is it that you are familiar with what is depicted in this photograph? Does the photograph marked as Exhibit “1” fairly and accurately represent what is depicted as you recall it or know it to be at the relevant time and date in question? At that point, show the photograph to opposing counsel and move for its admission. Another way of authenticating a photograph is by simply asking the following: “Does Exhibit “1” truly and accurately represent the [person, place, subject, scene, product, image, area] as it appeared at [relevant time, date]?” Once the witness answers “yes,” the photograph has been authenticated and should be admitted in evidence. If the photograph was taken long after the incident in question, this does not mean that the photograph is inadmissible; however, the witness must establish that the conditions depicted in the photograph did not change from how they appeared at the time at issue. If the conditions in the photograph depict something different than what appeared at the time in question, then the photograph may be declared inadmissible if it lacks probative value as a result of the changes, or if the probative value is out-weighed by prejudice to the jury. Pensacola Inn, Ltd. v. Tuthill, 404 So.2d 1173 (Fla. 1st DCA 1981). Questions regarding who took the photograph, how it was taken, from what angle it was shot, what the lighting was like, the film quality and other matters do not go towards the admissibility of the photograph. Those matters are directed towards the weight and credibility of the evidence offered. Those types of questions are proper subjects for cross-examination. Channewacker v. City of Jacksonville Beach, et al., 419 So.2d 308 (Fla. 1982). Gruesome photographs showing grotesque scenes, severely injured and bloody people, etc., are generally admissible on the same grounds as photographs depicting other matters if they are relevant. See Wilson v. State, 436 So.2d 908 (Fla. 1983). Gruesome photographs are admissible if they truly and accurately depict a material fact in question at the trial. Id. For example, cause of death, type of injury, location of injury, extent of injury, intent of the defendant and/or similar things. See Lewis v. State, 566 So.2d 270 (Fla. 2d DCA 1990). Nevertheless, pursuant to Rule 90.403, Fla.R.Evid. and Rule 403, Fed.R.Evid., a defendant may move to exclude a gruesome photograph on the basis that its probative value is greatly out-weighed by prejudice to the defendant. If it appears that the only reason the photograph is being used is to inflame, shock, or excite the jury, then the photograph should be excluded as more prejudicial than probative. Id., Gore v. State, 475 So.2d 1205 (Fla. 1985). Evidentiary photographs are extremely effective tools that will greatly assist the trial attorney in presenting his case. In order to ensure the admission of the desired photographs in evidence, the lawyer should decide early in the legal proceedings what photographs he intends to use during the trial, what order he intends on introducing them, and what witnesses will authenticate the photographs. The trial practitioner should also review all photographs that may be introduced at trial against him and, if possible, prepare a written motion in limine on the basis of prejudice to prevent the damaging photographs from being introduced at trial.
