E-Newsletter Edition: April 24, 2008

Response Provided By: Brian S. Batterton

Always note that state law may be more restrictive on police power than the U.S. Constitution.


Are original photographs considered documentary evidence? and should the “Chain of Custody” for these photographs be preserved with documentation?



A photograph of a crime scene would be considered “documentary evidence.”

The ultimate purpose of a “chain of custody” with evidence is to provide “authentication” of that evidence so that it is admissible in court.  The Federal Rules of Evidence state, “the requirement of authentication or identification as a condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims.” (USCS Fed. Rules Evid.  R 901).  This means that the person introducing the evidence must provide sufficient proof that the evidence is what that person claims.  Thus, the chain of custody is typically used to ensure that evidence is not tampered with or altered and that the “identity and integrity” of the evidence remains intact.  This “authenticates” the evidence in court so that it is admissible.

Photographs are typically authenticated by a person who is familiar with the scene that was photographed providing testimony that the image in the photograph “fairly and accurately depicts the scene as it was at the time in question.”  Anyone familiar with the scene can authenticate a photograph and it does not necessarily have to be the photographer.  That being said, the “chain of custody” is not usually part of “authenticating” a photograph, rather, authentication of a photograph leans more towards a person being able to testify that the photograph “fairly and accurately depicts the scene as it was at the time in question.”

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