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).
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.”
MRE 901(b)(1)-(10) provide a nonexhaustive list of evidence that satisfies the authentication or identification requirement of MRE 901(a), two of which are listed here:
“(1) Testimony of Witness with Knowledge. Testimony that an item is what it is claimed to be.
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(10) Methods Provided by a Statute or Rule. Any method of authentication or identification allowed by a Michigan statute or a rule prescribed by the Supreme Court.”
Authentication involves two questions. Mitchell v Kalamazoo Anesthesiology, PC, 321 Mich App 144, 154 (2017). The trial judge is solely responsible for deciding the first question, and the fact-finder is solely responsible for answering the second question. Id. at 154-156.
“[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.” Id. at 154.
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. People v Hack, 219 Mich App 299, 302, 308-310 (1996).
See also People v Riley, 67 Mich App 320 (1976), rev’d on other grounds 406 Mich 1016 (1979),43 where a photograph of the victim’s “bruised backside” was properly admitted into evidence. Riley, 67 Mich App at 322. The victim testified that the photograph accurately reflected the condition of her body at the time the picture was taken. Id. The photographer’s testimony was not necessary. Id. “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.
“‘Photographic evidence is generally admissible as long as it is relevant, MRE 401, and not unduly prejudicial, MRE 403.’” People v Brown, 326 Mich App 185, 192 (2018), quoting People v Gayheart, 285 Mich App 202, 227 (2009). MRE 401 defines relevant evidence as evidence that:
“(a) . . . 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.”
“Relevant evidence is admissible unless any of the following provides otherwise:
•the United States Constitution;
•the Michigan Constitution;
•[the Michigan Rules of Evidence]; or
•other rules prescribed by the [Michigan] Supreme Court.” MRE 402.
“Irrelevant evidence is not admissible.” MRE 402. Exceptions to the admissibility of relevant evidence appear in MRE 403, which states that “[t]he 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.”
“Because application of MRE 403 to any photographs that a party seeks to admit requires a balancing of factors, . . . sexually explicit photographs used as evidence of a sexual assault of a minor cannot be unfairly prejudicial per se.” Brown, 326 Mich App at 194. “[T]rial courts must weigh the prohibitive value against the danger of any unfair prejudice that admission might cause,” and “[a] decision on the admissibility of photographs in such cases cannot be based solely on the graphic nature of the photographs.” Id. In Brown, “shocking, indecent, and unsettling” photographs of the sexual assault of a child were properly admitted. Id. at 193. “The photographs corroborated the victim’s testimony that defendant took the photographs, given the victim’s ability to identify defendant’s hands, and that he had a sexual interest in her.” Id. at 193-194. “[A]ny prejudicial taint [was] more than overcome by [the photographs’] probative value, regardless of how lurid and despicable the photographs themselves [were].” Id. at 194.
In People v Watson, 245 Mich App 572, 575 (2001), the defendant was convicted of sexually assaulting his stepdaughter. The defendant argued that the trial court improperly admitted into evidence a cropped photograph and an 8” x 10” enlargement of the same photograph, which showed the victim’s naked buttocks. Id. at 575, 578. The defendant asserted that the photograph (the cropped one and the enlargement were of the same subject) “was inadmissible under MRE 404(b) because it was offered simply to show that defendant was a sexual pervert, which made it more likely that the victim’s allegations of sexual abuse were true.”Watson, 245 Mich App at 577. The Court of Appeals concluded that the evidence was admissible under MRE 404(b) to show the defendant’s motive to have sexual relations with his stepdaughter. Watson, 245 Mich App at 579-581. According to the Court, the evidence had strong probative value, and the defendant did not show that the danger of unfair prejudice substantially outweighed that value. Id. at 581-582.