In a civil rights action, the Eighth Circuit affirmed the exclusion of a photograph depicting the plaintiff’s tattoo where the affiant lacked personal knowledge of the depiction and based on discrepancies between the allegations and photograph, in Schmidt v. City of Bella Villa, 557 F.3d 564 (8th Cir. March 2, 2009) (No. 07-3053)
The authentication of a photograph normally is fairly routine. The proponent must show that the photograph fairly and accurately depicts the matter on the date in question. However, there are some cases in which the proponent is unable to authenticate a photograph. The Eighth Circuit recently reviewed a civil rights case involving the exclusion of a photograph.
In the case, in June 2005, plaintiff Schmidt was a passenger in a vehicle which was stopped by the chief of police for moving violations. During the traffic stop, the police chief learned that she gave a false name, date of birth and social security number when her identification was requested. She was arrested, and the driver was given a citation and allowed to leave. Schmidt was interviewed at the police station concerning her identity using a booking sheet. On the question to list any “scars/marks/tattoos/deformities,” Schmidt noted that she had a butterfly tattoo which was about two inches long located about two inches from her hipbone. The tattoo was covered by her clothing. The chief stated a photograph was needed for identification purposes.
The defendant was given a Polaroid camera and asked to take a picture of the tattoo in the bathroom. When she returned with a photograph, the chief claimed it was insufficient. Upon the chief’s request, “Schmidt unbuttoned her jeans partway and folded them inwards to permit him to take a photograph. He again rejected this photograph as being incomplete or otherwise unacceptable. To permit [Chief of Police] Locke to take an acceptable photograph, Schmidt further unbuttoned her jeans and folded them inwards again. Locke took a second photograph, which he apparently found to be acceptable. Schmidt was later released on her own recognizance.” Schmidt, 557 F.3d at 568. Schmidt then filed a civil rights action claiming the chief violated her Fourth and Fourteenth Amendment rights and the state strip search law.
In support of her claims, plaintiff Schmidt submitted a photograph taken around January 2007 which was offered “to show the location of her tattoo and the position of her clothing when Chief Locke took his photos.” Schmidt, 557 F.3d at 568. The district court granted the defendant’s motion to strike the photograph exhibit as lacking sufficient foundation, under FRE 901. The court noted that the legal secretary for the defendant’s counsel, who provided an affidavit to authenticate the photograph, “had no personal knowledge of whether the tattoo depicted in the photograph was in the same location and condition on June 3, 2005, as depicted in the station photographs.” Schmidt, 557 F.3d at 569.
The trial court also found discrepancies between the allegations in the complaint and plaintiff’s deposition and the submitted photograph that cast doubt on the authentication of the photograph. In particular, the plaintiff claimed “that she ‘unbuttoned’ her jeans and ‘cropped’ them inward to permit [Police Chief] Locke to take the photographs.” Consequently, the jeans in the proffered photograph were “not the same jeans worn by Schmidt during the photographing, nor are they arranged in the same manner.” Schmidt, 557 F.3d at 569.
The Eighth Circuit affirmed the exclusion of the photograph. As the opinion explained:
“In order to be admissible, a photograph must be shown to be an accurate representation of the thing depicted as it appeared at the relevant time. See United States v. Stierwalt, 16 F.3d 282, 286 (8th Cir. 1994). Schmidt contends that the photographic exhibit accurately depicts her tattoo and, thus, should be admitted. However, Schmidt’s argument shows that her purpose is not to show the condition and location of the tattoo on the date it was photographed in her attorney’s office. Rather, Schmidt submits the exhibit for the purpose of showing not only the tattoo, but the location of her clothing and her state of undress in the station photographs. We evaluate the authenticity of the exhibit in that context.”
Schmidt, 557 F.3d at 569. The circuit agreed with the reasoning of the trial court and that the plaintiff had failed to establish the foundation to introduce the photograph. Alternatively, any error in excluding the photograph was harmless since the plaintiff’s substantial rights were not affected. The location of the tattoo was undisputed.
The Schmidt case highlights the need to authenticate a photograph. The witness taking the photograph lacked personal knowledge of the matter depicted. Also, discrepancies in the photograph and allegations in the case cast further doubt on the authentication.
Illustration: Lower back tattoo, also known as a tramp stamp. (Tattoo-back.jpg)
Photo Credit: Dennis Mojado
License: Creative Commons Attribution 2.0 License
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