Bar Association Article

 

The Importance of Using Photography for Demonstrative Evidence in Civil Litigation

THE DREADED BLANK STARE

One thing that no attorney wants to see from one or more jurors is that blank stare that says “I have no idea what you’re talking about”. We live in a visual world and sometimes you just have to show people to get them to understand a concept, object or situation. The well-known Weiss-McGrath study shows that people retain only ten percent of what they hear and twenty percent of what they see but sixty-five percent of what they both hear and see. The reason for this, according to Witten and Knudsen, is that the brain integrates information in a statistically optimal way and visual information tends to be interpreted as more reliable.

DEMONSTRATIVE EVIDENCE CONNOTES VISUALS

Demonstrative Forensic Fhotography in civil litigation is used to discover, document and preserve evidence, and can describe a complicated scene. It can show various views of an accident scene, communicate information that makes a persuasive point. This may help an attorney to educate a mediator, judge or jury and determine cause, liability and damages. Someone photographing must know how to discover evidence and to visually demonstrate, through photographs, the conditions and detailed visual description of a specific scene or event. Demonstrative evidence is only limited by the imagination, skill and creativity of the attorney handling the case, and the photographer who photographs the evidence. Therefore, it is important for the photographer to understand the case dynamics and the attorney’s theories about the case. Memories fade, scenes change and evidence is lost. So, evidentiary photography should be considered early in the case.

IMAGE QUALITY

Owning a Steinway Piano does not mean that you can play beautiful music. And, forensic photography involves more than just having good equipment and “pushing the button”. To create excellent evidentiary images takes the right training, experience, skills and special equipment to shoot photography for litigation. Evidence photography requires the use lenses that duplicate the view of the human eye to eliminate distortion.. When shooting evidence, it is important to walk the viewer through the scene. That requires an overall scene shot, a mid-range shot and various close-up images. Measurement scales are used to help the viewer understand the size of the object that was photographed. Just a simple polarizing filter can remove the glare from a roadway to two better show skid marks. Shooting a scar with off-camera flash or studio lighting at an oblique angle can illustrate the indentations of the scar far better than shooting with no flash or on-camera flash. Most objects are best shot with a contrasting background. Almost all evidentiary photography should include images with the camera sensor on the same plane as the subject. Lenses should not be not wide angle or telephoto, these lenses create distortion. Shooting time exposures at night and using specific software can render an image to show exactly the amount, quality and color temperature (Kelvin) of the light at a particular scene or intersection. This replicates exactly what the human eye sees. Photographing it an accident scene correctly may involve matching lighting conditions, weather, sun and/or moon angles and color temperatures. Finally, the when creating digital images or prints, it is imperative to use a calibrated monitor and printer to reproduce proper total values for the image.

JPEG vs RAW

Most photographers shoot JPEG. This is an image format that doesn’t take much space on the memory card. However, RAW is a superior and unalterable file format that is especially useful in evidence photography. When one shoots in JPEG, the file is processed and compressed in the camera, which degrades the image. If the photographer tries to adjust a JPEG image in post-processing on the computer, the image quality is deteriorated more every time the image adjusted or resaved. It is best, however, to always convert all images to TIFF because a TIFF does not deteriorate every time it is resaved. A RAW file, on the other hand, is a file that is not processed in the camera. It can be adjusted to show exactly what the scene or object looked like to the human eye at the time of capture without any loss of quality to the image. This is done by adding Metadata to the file that does not change the original file. What is acceptable in evidentiary photography is outlined by an organization called SWIGIT (The Scientific Working Group on Image Technology) For example; adjusting the color temperature, exposure, contrast is acceptable. As a general rule, one can use valid procedures to adjust the quality of an image, but not change the content of the image, or by over-adjusting the image. Valid procedures must be repeatable, and need be documented with an audit trail within the procedure or in written notes. The cardinal rule is that the image must “accurately depict a scene or object”. ALL editing is done on a copy, not the original image. Also, it imperative to have the original image saved on two separate locations.

PHOTOGRAPHING INJURIES

Just after injury, wounds, scabs and stitches are very evident. However, once healing has taken place, scars are more difficult to photograph. Off-camera flash or special studio lighting set at a particular angle may be necessary in order to capture the depth of the scarring and indentations in the skin due to loss of muscle. Burns, after healing, require special studio type lighting and filters to truly show the scars and the effects of grafting remaining on the skin. These injuries can be photographed in a studio or in plaintiff’s home using portable studio lights.

SLIP AND FALL

It is important to illustrate the condition and layout of the accident scene. The photographer must look for the conditions that contributed to the accident. Images of the overall scene, medium shots and close-ups are used to document exactly what the scene looks like and what contributed to the accident. Sometimes special lighting is necessary to show depressions and imperfections in sidewalks, stairs or entryways to show exactly how the plaintiff fell. Also is it important to show the exact lighting conditions at the time of the accident.

AUTOMOBILE ACCIDENT SCENES

Just standing in the middle of an intersection at an accident scene and taking shots at all four directions is not sufficient. In cases of serious accidents, the photographer might study the police reports, eyewitness statements and other information pertaining to the case. Many of the images of an accident scene are shot from the eye level of witnesses or the drivers involved. Sometimes multiple image panoramic shots of the intersection can be used to show the entire view of what the approaching car could see at an intersection. In the case of skid marks, it is often necessary to use a polarizing filter to offset the effects of sunlight reflections on asphalt or cement. Photography, if done properly, will help explain to the jury the exact dynamics of the accident. As always the photos lead the viewer thru the scene.

VEHICLE DAMAGE

The entire vehicle is photographed, usually from eight different positions, plus from above if necessary. Paint transfer, scrapes and dents, tire treads and crush damage must be documented because in many cases the automobile has been destroyed by the time a trial takes place. Specific lenses are used to eliminate any distortion that might be questioned by the opposing counsel. Several interior shots are also advised.

NIGHT PHOTOGRAPHY

Night and Low-light photography or videography can be used to duplicate what the human eye sees. This can be done by using camera RAW and time exposure photography; then adjusting the color temperature (Kelvin) and the exposure, in post production, to exactly match the relative brightness and color temperature what the human eye saw at the time and location of the incident. Weather conditions are also an important consideration.

PRODUCT LIABILITY

Product photographs need to show the general nature and condition of a product, as well as portray the intended use. When photographing working equipment in a factory or shop, the distance, medium and close up shooting method is always used. It is important to document the type of equipment, show its intended use, portray all safety warnings and switches and any other visual evidence that may show liability, misuse, damage or malfunction. These images must be numerous and detailed so that the attorney and the Trier of fact are able to understand as many facts about the accident is possible.

Forensic Photography

Forensic Photographers are trained in both civil and criminal evidence photography. The majority of forensic photographers work for law enforcement agencies. However, forensic photography for civil litigation is becoming more commonplace. PRESENTING THE IMAGES (AND PLAN B)
Images can be shown using a projector on a screen, on the monitor through a laptop computer or with large display boards with mounted photographs. If a projector is used, the colors in the projected image are often dissimilar to those of the actual image. Therefore, a large monitor brought into the courtroom or mediation session is better. Investment in a large monitor is really cost effective. Also, if you have your own monitor, your IT tech can make sure it is calibrated to replicate the colors of the images. However, when presenting photographic evidence at trial, equipment can malfunction. This can be embarrassing and detrimental to the case. If you’re using digital imagery, it is a good idea to have, at minimum, 8 x 10 prints of your imagery as a backup, just in case. There is another advantage of printed images. A mounted image can be left up, in front of the jury for a substantial amount of time. More importantly, digital presentations cannot be taken into the jury room. However, printed images, whether they are just the 8 x 10’s, or 30 x 40 mounted images, can be taken into the jury room and viewed at length why the jurors. If you use digital images for mediation, you can have mounted images prepared if a trial becomes necessary. Weiss-McGrath,1963, “Technically Speaking: Oral Communication for Engineers, Scientists and Technical Personnel” Witten & Knudsen, 2005, “Why Seeing Is Believing: Auditory and Visual Worlds”

BIO For Bob Jacobson

Bob Jacobson has been a commercial photographer for over 20 years. He is trained in and specializes in evidence photography for litigation.. He worked for the San Diego as a Level III Reserve Photographer and Crisis Interventionalist. (suicides, deaths, murders, accidents, and major injuries.) He graduated from San Diego State University with a degree in psychology, sociology and communications. Previous to starting in evidence photography he shot all genres of photography and taught photography workshops throughout San Diego County.

 

*Some corrections have been made in this article to update information