Brenman v. Demello, 191 N.J. 18 (2007) (JUSTICE RIVERA-SOTO; A-13-06; Decided May 30, 2007):

Picture by Sarah G...

Like any other evidence tendered at trial, photographs must be relevant; that is, they must “hav[e] a tendency in reason to prove or disprove any fact of consequence to the determination of the action.” N.J.R.E. 401. Once deemed relevant, the evidence is admissible “[e]xcept as otherwise provided in these rules or by law[.]” N.J.R.E. 402. However, even if relevant, evidence nonetheless “may be excluded if its probative value is substantially outweighed by the risk of (a) undue prejudice, confusion of issues, or misleading the jury or (b) undue delay, waste of time, or needless presentation of cumulative evidence.” N.J.R.E. 403.

In addition to proving the evidence’s relevance and that its probative value is not substantially outweighed by the risk of undue prejudice, the persuasive representational nature of photographs demands that the foundation for the admission of photographs must be properly laid. The Court has stated the rule as follows: “[t]he authentication of photographic evidence prior to its admission seems to contemplate proof that the photograph is a substantially correct representation of the matters offered in evidence, and this includes an identification or statement as to what the photograph shows.” State v. Wilson, 135 N.J. 4, 14 (1994).

The admissibility of any evidence cannot be dependent on whether that evidence is “definitive,” a concept that speaks to the weight of the evidence and not its admissibility. In order for evidence to be presumptively admissible, the Court requires only that the evidence be relevant. Relevance is measured in terms of reasoned probabilities, not hardened certainties, and is properly gauged as “having a tendency in reason to prove or disprove any fact of consequence to the determination of the action.” N.J.R.E. 401. Once evidence is deemed relevant, it is admissible, N.J.R.E. 402, unless “its probative value is substantially outweighed by the risk of [] undue prejudice,” N.J.R.E. 403, or some other bar to its admission is properly interposed. Nothing more is required.

The determination made by the trial court concerneing the admissibility of evidence is judged by the palpable abuse of discretion standard. Green v. N.J. Mfrs. Ins. Co., 160 N.J. 480, 492 (1999) (holding that “[t]he trial court is granted broad discretion in determining both the relevance of the evidence to be presented and whether its probative value is substantially outweighed by its prejudicial nature” and that “[d]eterminations pursuant to N.J.R.E. 403 should not be overturned on appeal unless it can be shown that the trial court palpably abused its discretion, that is, that its finding was so wide off the mark that a manifest denial of justice resulted”).

[See: "The admissibility of digital photographs in criminal cases" by Nagosky, David P., published in The FBI Law Enforcement Bulletin, and republished in The Free Library]

[Also, see: "Photographs as Evidence" by Sumner Kenner, published in 60 Central Law Journal 406 (May 26, 1905), and republished by The Center for History and New Media]

See also my Post: Photographs as evidence

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