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Laying the Foundation of Photographic Evidence


Photographs make good evidence as they illustrate what a witness is testifying about or conveying.  

I want to show the witness a relevant photograph, but the witness did not take the photograph.   How do I get this photograph into evidence?  No different than any other evidence, the proper foundation needs to be laid to admit a photograph into evidence. Metropolitan Dade County v. Zapata, 601 So.2d 239, 244 (Fla. 3d DCA 1992). “[A]ny witness with knowledge that the photograph is a FAIR and ACCURATE REPRESENTATION may lay the necessary foundation for admission of a photograph.” Scarlett v. Ouellette, 948 So.2d 859, 863 (Fla. 3d DCA 2007).

The key is that the photograph must be a fair and accurate representation of what it is attempting to depict.   The witness laying the foundation of the photograph does not need to have taken the photograph to lay the appropriate foundation. Again, the witness just needs to be able to testify that the photograph fairly and accurately represents what is depicted in the photograph (or of the subject matter at the time of the event or condition at-issue).

“If a photograph is a correct representation of a physical object to which testimony is adduced, it is admissible in evidence for the use of witnesses to explain their testimony and to enable the jury to understand the case.” Simmons v. Roorda, 601 So.2d 609, 611 (Fla. 2d DCA 1992)


Example of laying foundation of photograph:


Question: I am showing you a photograph that has been marked as (plaintiff’s / defendant’s) exhibit number 5. Do you recognize this photograph?

Witness Answer: Yes.

Question: What is depicted in this photograph?

Witness Answer: (Witness describes what is depicted in photograph.)

Question: Does the photograph fairly and accurately depict “X” (scene or object the witness described / subject matter of the photograph at the time of the event or condition at-issue).

Witness Answer: Yes.

Easy, right?

Now say your case concerns a specific event or condition at-issue and the witness is being shown a photograph, but the photograph shows changed events or conditions that were not present during the specific event or condition at-issue. That’s ok if you are using the photograph to fairly and accurately depict an object or scene in the photograph (such as the location of “x”, the condition of “x”, the view of “x”, etc. ) at the time of the condition or event at-issue.

Question: Is there any changed condition between the time the photograph was taken and the date of the (event or condition)?

Witness Answer: Yes. The changed condition is “Y”.

Question: Excluding “Y” (the changed condition), does the photograph fairly and accurately depict “X” at the time of the (event or condition) at-issue? (Note: this same question can be asked if the witness testifies as to the changed condition or event when describing what the photograph depicts).

Photographs are an important form of evidence. Getting photographs introduced into evidence is not challenging and applicable in most trials.  As the adage goes, “a picture is worth a thousand words!”


Please contact David Adelstein at [email protected] or (954) 361-4720 if you have questions or would like more information regarding this article. You can follow David Adelstein on Twitter @DavidAdelstein1.

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