Federal Evidence Review

The Second Circuit recently noted a problem after counsel failed to satisfy the foundational requirements for admission of a photograph through a witness familiar with the scene depicted in the photograph, in Zerega Ave. Realty Corp. v. Hornbeck Offshore Transp., LLC, 571 F.3d 206 (2d Cir. July 6, 2009) (No. 08-0639-cv)

Do the proper terms to admit evidence matter? In some circumstances, the failure to use the proper foundational terms may result in exclusion of the evidence. In a recent case, the Second Circuit considered the appeal of defendant Hornbeck who had incurred a judgment of over $1.5 million in liability after the trial court determined damages based on the collision ("allision") between Hornbeck's barge and the bulkhead on plaintiff Zerega's property abutting Westchester Creek in Bronx County, New York. See Zerega Avenue Realty Corp. v. Hornbeck Offshore Transportation, LLC, No. 04 Civ. 9651, 2007 WL 3125318 (S.D.N.Y. Oct. 23, 2007). The circuit reversed the judgment, vacated the award, and remanded for further proceedings because of errors in applying a presumption of fault normally applicable in maritime law (the “Oregon rule”). One error that the circuit did not find was the trial court’s exclusion of a photograph proffered by the defendant.

The Second Circuit found no error in the trial court's exclusion of photographs purportedly showing sinkholes in the bulkhead that defendant's barge allegedly hit. The defendant sought to introduce this photograph through a witness, Christopher Todino, who was the principle of one of the plaintiffs, Todino & Sons. Apparently the witness was in a meeting in an office located at the southern end of the plaintiff's property on the day and time of the allusion. He had testified to feeling a strong jolt and when he went to the window, he observed a barge being pulled away from the bulkhead by a tug. At his pretrial deposition, Todino testified that the photographs showed the Zerega property before the allision. At trial, the defendant sought to admit this as evidence of the condition of the property before the accident.

The effort failed when, according to the circuit, although the witness:

“identified the photographs as ‘pictures of the relieving platform at 1000 Zerega Avenue,’ counsel failed to follow up with the customary question as to whether the photographs fairly and accurately portrayed the area shown. The objection for lack of a proper foundation was therefore properly sustained.”

Zerega, 571 F.3d at 214 (emphasis added).

The circuit also noted that the trial judge failed to offer help in the situation:

“It would have been preferable for the District Court, when discussing the foundation issue with counsel at sidebar, to have offered the helping hand of a properly framed follow-up question.”

Zerega, 571 F.3d at 214 n.5.

The foundation under FRE 901 for photographic evidence when laid by an examination of a witness familiar with the scene depicted (and who is not the photographer), is that the proponent of the photograph show that the witness the photograph and ask if the witness:

1. Recognizes and can identify the object depicted in the photograph; and
2. Can testify that the photograph is a fair representation of what it purports to portray.

Zerega, 571 F.3d at 214 (citing Kleveland v. United States, 345 F.2d 134, 137 (2d Cir. 1965) (“The witness qualifying a photograph, however, does not need to be the photographer or see the picture taken. It is only necessary that he recognize and identify the object depicted and testify that the photograph fairly and correctly represents it.”)