4.4Photographic Evidence

A brief discussion on admissibility of photographic evidence is contained in this section. For a detailed discussion, see the Michigan Judicial Institute’s Evidence Benchbook, Chapter 6.

The admissibility of photographic evidence, which includes digital and analog images, concerns two issues that commonly arise when such evidence is introduced at trial:

•Authentication (MRE 901).

•Relevancy questions (MRE 401 and MRE 403).

A.Authentication

Authentication of photographic evidence is governed by MRE 901(a), which states:

“To satisfy the requirement of authenticating or identifying an item of evidence, the proponent must produce evidence sufficient to support a finding that the item is what its proponent claims it is.”

To lay a proper foundation for the admission in evidence of a photograph, a person familiar with the scene or object photographed must testify that the photograph accurately reflects the scene or object photographed. People v Riley (Montgomery), 67 Mich App 320, 322 (1976), rev’d on other grounds 406 Mich 1016 (1979).¹ See also Werthman v Gen Motors Corp, 187 Mich App 238, 241-242 (1990). The photographer need not testify. Riley (Montgomery), 67 Mich App at 322. “All that is required for the admission of a photograph is testimony of an individual familiar with the scene photographed that it accurately reflects the scene photographed.” Id. (photograph of the victim’s “bruised backside” was properly authenticated by the victim’s testimony that the photograph accurately reflected the condition of her body at the time the picture was taken). See also People v Hack, 219 Mich App 299, 308-310 (1996) (a videotape depicting a three-year-old girl and a one-year-old boy who were forced to engage in sexual acts was properly authenticated under MRE 901(a) by the testimony of two witnesses who stated that it reflected events they had seen on the day in question).

“[C]hallenges to the authenticity of evidence involve two related, but distinct, questions. The first question is whether the evidence has been authenticated—whether there is sufficient reason to believe that the evidence is what its proponent claims for purposes of admission into evidence. The second question is whether the evidence is actually authentic or genuine—whether the evidence is, in fact, what its proponent claims for purposes of evidentiary weight and reliability.” Mitchell v Kalamazoo Anesthesiology, PC, 321 Mich App 144, 154 (2017).

The first question, whether the evidence has been authenticated, “is reserved solely for the trial judge.” Mitchell, 321 Mich App at 154. The proponent of the evidence bears the burden of presenting evidence “sufficient to support a finding that the matter in question is what its proponent claims.” Id. at 155 (quotation marks and citation omitted). The proponent is not required “to sustain this burden in any particular fashion[,]” and “evidence supporting authentication may be direct or circumstantial and need not be free of all doubt.” Id. at 155. The proponent is required “only to make a prima facie showing that a reasonable juror might conclude that the proffered evidence is what the proponent claims it to be.” Id. at 155. “Once the proponent of the evidence has made the prima facie showing, the evidence is authenticated under MRE 901(a) and may be submitted to the jury. Mitchell, 321 Mich App at 155. Authentication may be opposed “by arguing that a reasonable juror could not conclude that the proffered evidence is what the proponent claims it to be[;]” however, “this argument must be made on the basis of the proponent’s proffer; the opponent may not present evidence in denial of the genuineness or relevance of the evidence at the authentication stage.” Id. at 155.

“[T]he second question—the weight or reliability (if any) given to the evidence—is reserved solely to the fact-finder[.]” Mitchell, 321 Mich App at 156. “When a bona fide dispute regarding the genuineness of evidence is presented, that issue is for the jury, not the trial court.” Id. at 156. “Accordingly, the parties may submit evidence and argument, pro and con, to the jury regarding whether the authenticated evidence is, in fact, genuine and reliable.” Id. at 156.

MRE 901(b)(1)-(10) provide a nonexhaustive list of examples of evidence that satisfies the authentication or identification requirement of MRE 901(a).

B.Relevance

A brief discussion of relevant evidence is contained in this subsection. For a detailed discussion, see the Michigan Judicial Institute’s Evidence Benchbook, Chapter 2.

“Evidence is relevant if:

(a) it has any tendency to make a fact more or less probable than it would be without the evidence; and

(b) the fact is of consequence in determining the action.” MRE 401.

In general, “[r]elevant evidence is admissible,” and “[i]rrelevant evidence is not admissible.” MRE 402. However, exceptions to the admissibility of relevant evidence may exist in the federal and state constitutions, the Michigan Rules of Evidence, and the Michigan Court Rules. See MRE 402. For example, MRE 403 sets out an exception to this general rule of admissibility:

“The court may exclude relevant evidence if its probative value is substantially outweighed by a danger of one or more of the following: unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence.”

As with all evidence, the trial court has discretion to admit or exclude photographs. People v Mills, 450 Mich 61, 76 (1995).

“Photographs are not excludable simply because a witness can orally testify about the information contained in the photographs. Photographs may also be used to corroborate a witness’[s] testimony. Gruesomeness alone need not cause exclusion. The proper inquiry is always whether the probative value of the photographs is substantially outweighed by unfair prejudice.” Mills, 450 Mich at 76 (internal citations omitted).

In Mills, the victim was intentionally set on fire by the defendants, and the prosecution sought to introduce color slides depicting the extent of the victim’s injuries. Mills, 450 Mich at 63, 66. The Michigan Supreme Court found that the photographs were relevant under MRE 401 because they “affect[ed] two material facts: (1) elements of the crime, and (2) the credibility of witnesses.” Mills, 450 Mich at 69. Additionally, the probative value of the slides was not substantially outweighed by unfair prejudice because, despite their graphic nature, they were an “accurate factual representation[] of the [victim’s] injuries” and they “did not present an enhanced or altered representation of the injuries.” Id. at 77-78.

The trial court did not abuse its discretion by admitting photographs of the victim lying in a hospital bed with a severely bruised face and wearing a neck brace during the defendant’s trial for aggravated domestic assault and assault with intent to do great bodily harm less than murder. People v Davis (Joel), 320 Mich App 484, 487-489 (2017), vacated in part on other grounds 503 Mich 984 (2019).² The photographs were “highly relevant and probative to establish an essential element of aggravated domestic assault,” and “were not so prejudicial as to warrant exclusion under MRE 403” because “the nature and placement of [the victim’s] bruises and lacerations corroborated her testimony about the assault and depicted the seriousness of her injuries.” Davis (Joel), 320 Mich App at 488-489. Further, “[e]ven if the neck brace was ‘precautionary’ only, as argued by defendant, this precaution was required by defendant’s actions,” and “was part and parcel of the medical treatment [the victim] received for injuries sustained after defendant repeatedly punched her in the face.” Id. at 489.