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47. Is the photograph admissible?
At trial, to prove her injury, the plaintiff offers a photograph for admission into evidence. A witness will testify that he took the photograph with his cell phone and that the photograph accurately portrays what he saw. The photograph shows the plaintiff lying on the sidewalk, bleeding from a gash on her head, with a spilled paint can nearby.
A plaintiff has sued a defendant for negligently causing her injury. The plaintiff alleges that the defendant, who was standing on a scaffold while painting a building, dropped a paint can that struck the plaintiff on the head while she was walking under the scaffold.
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A is incorrect. Under FRE 403 the unfair prejudice from the photograph must substantially outweigh its probative value. Here, the probative value of the photograph is considerable, it shows the plaintiff's injury and supports the claim that the defendant dropped the paint can. Additionally, the potential to inflame or distract the jury is low.
B is incorrect. FRE 901 requires proof that the photograph «is what the proponent claims it is.» The witness's proffered testimony satisfies that requirement because he will testify that the photograph accurately portrays the scene as he saw it. Furthermore, given the witness's testimony, proof that cell phone technology produces accurate photographs is unnecessary.
D is incorrect. The photograph is not self-authenticating. It does not fall under the categories of self-authenticating documents listed in FRE 902. Accordingly, a witness is required to authenticate the photograph for it to be admissible.