Thursday, June 11th, 2020 — In the past couple of years, the increased prevalence of first responder body cam and dash cam audio and video has raised new and evolving evidentiary issues when it comes to accident scene photographs used in claims and litigation.

Typically, accident scene photographs—if they are not likely to mislead or confuse the jury—will be admissible.

Even if they are graphic, the court may issue a curative instruction and potentially limit their number and how they are used, but it will often allow at least some of the graphic photographs to reach the jury. (See Fed. R.E. 403. See also, Leon v. FedEx Ground Pkg. Sys., 2016 U.S. Dist. LEXIS 30279).

The trial court will typically use its discretion to balance the possible unfair prejudice against the prohibitive value, but the courts have found that simply evoking a shocking response, or admitting evidence that is unfavorable to one party, does not constitute undue prejudice under Fed. R.E. 403.

Graphic photographs can be relevant for purposes of showing the cause and manner of death, and even on the issue of conscious pain and suffering.