The Spite Fence: A Reprise

 

Suppose that in the previous problem P testifies to ownership of his property and other background matters. Instead of having the jury take a view of the fence, however, on direct examination P's counsel shows P a photograph marked Plaintiff's Exhibit A for identification. In response to counsel's questions P states that he recognizes the photograph as a fair and accurate representation of D's fence as it appears from the living room of P's house. P's counsel offers the photograph into evidence as Exhibit A. D moves to examine the witness on voir dire for the purpose of making an objection to this exhibit. The court allows the examination. On voir dire the following colloquy takes place:

Q: Did you take Exhibit A?

A: No.

Q: Do you know who did?

A: No.

Q: Well, did you develop or print it?

A: No.

Q: Do you know who did?

A: No.

Q: Have you ever seen this picture before?

A: No.

Defense counsel objects to the photograph on grounds of inadequate foundation. What result and why? What are the general conditions of admissibility of photographic evidence? What is the status of a photograph introduced as an exhibit? Is it evidence in and of itself? Is everything it reveals evidence?



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