Intro to the Federal Rules of Evidence - 30

3. Only writings and other recorded communications

a. Photographic evidence
The FRE explicitly expand the best evidence rule to include all photographs (photographs, x-rays, movies, etc.) whose contents are to be proved.

Photos are generally not offered to prove their contents, so the best evidence rule usually does not apply regardless of when the item is deemed to be a writing. But occasionally, photos are offered to prove their contents.

Pictorial evidence – photos, x-rays, movies.
i) “illustrative of what witness saw” method
A foundation for the admissibility of photographs is generally laid by establishing that the photograph is an “accurate and faithful representation” of the scene or object.

ii) “Silent Witness” theory
In cases of x-rays, surveillance tapes, and ATM photographs and the like, the process that produces the photo is authenticated (FRE 901(9)). It is called the silent witness theory of admission, because once the process is shown to be reliable, the picture or movie speaks for itself as to its contents.

The content of a photographer is being proved, for example, to establish its obscene nature or to identify a person in a photo taken by a bank surveillance camera. In such cases, FRE 1002 bars testimony or other evidence of content in lieu of producing the photograph itself. (§10.3, p.1505)
X- rays
The best evidence rule is applied, but in a limited extent that FRE 703 allows an expert to give an opinion based on matters not in evidence, and that hospital records admissible under FRE 803(b) commonly contain reports interpreting X-rays by the staff radiologist, who qualified as an expert. (ACN. 1002)

b. Sound recordings
When a sound recording is introduced for the purpose of proving the recording’s content, the best evidence rule applies.