So how, if photos are offered against you, can you ensure they are accurate?

Let's start with some background on the rules of evidence. Every photo, whether it has been recorded electronically or the old fashioned way, must meet two tests before it can be admitted as evidence in court.

First, the party offering the photo as evidence must show that it is relevant to the proceedings. That is, does the photo advance our understanding of the issues or the facts of the case? A picture of you rescuing a kitten, no matter how cute the kitten, will not be relevant to whether you robbed the Denver & Rio Grande Railroad.

Second, the proponent must offer evidence that the photo is an accurate representation of what it purports to show. This is called "authenticating" the photo. Authentication is usually accomplished by introducing the testimony of someone familiar with the photo's subject matter and who can confirm the photo's accuracy. The authentication requirement applies to all photographs how ever they have been captured or stored.

To ensure that a photo has been properly authenticated you must first determine why the photograph is being offered. In other words, what is the photograph supposed to prove? Is it offered to show and action, the color or size of an object, the distance between two objects?

Once you have determined the purpose, literally look closely at the photograph. Does it in fact accurately reflects its content? We are not suggesting that it is common practice (or a practice at all) to "doctor" photographs. In fact, "doctored" photographs should be fairly easy to spot and are not our biggest concern. Other, more subtle, characteristics of photographs which can mislead the viewer include lighting, shadows, angles and depth perception. These are easy to overlook and can be far more damaging to your case if the photograph misrepresents the condition or activity that it is offered to prove.

The Division frequently offers photos to establish distance, size or some other measurement. Because of variables including lighting, angle and position, a photograph should never be allowed to stand as an accurate measure of distance without close questioning.

Ask all the questions you can think of: What time of day was it? Was it the same time of day as the incident? Where was the photographer standing? Where is that in relation to, say, where the injured employee was standing? Why that particular angel? Why not another? What kind of camera? What kind of lens? Each can affect the reliability of the image. How was the picture developed? Who had the film/CD/memory stick? Did they do anything with the image? The list can be endless.

Now a caveat: Whether you plan to introduce evidence or are preparing to object to evidence introduced by the Division, you must remember: Traditional rules of evidence do not apply in a Cal/OSHA hearing.

California Labor Code section 6612 specifically states that an OSHA decision will not be invalidated "...because of the admission of evidence even if that evidence would not have been admitted under statutory rules of evidence or procedure." In other words, the hearing judge is allowed to, and usually does, accept in evidence irrelevant and improperly authenticated evidence. In an effort to appear fair to all sides Cal/OSHA judges usually let everything in, trusting to their legal training to rely only on the most reliable evidence.

That does not mean that you or your attorney should not be diligent in questioning the propriety of offered evidence and objecting if any questions remain. Demanding that a photo be authenticated is not just a procedural formality. An objection may be upheld. Even if it is not, you have warned the judge to be careful in relying on that evidence. And you may have created a basis for reconsideration if you lose.

So, back to the original question. Digital photographs are as admissible as any other photo if they are relevant to the proceedings and have been properly authenticated. A picture is worth a thousand words. Just be sure the photos in your case are saying only what they should be saying.