By Christina Shaw, J.D.1

In the course of most criminal investigations, photographs of the crime scene and/or victims are taken. In order for these pictures to be admissible in court, however, they must meet certain minimum standards. Among those qualifications are relevance and authenticity.2 Photographs can enhance the trial of any case by providing visual evidence of injury, crime scene or other relevant components of a criminal prosecution. The relevancy of the pictures to a case is obvious—they make the existence of the crime or injury depicted more probable than not.3 Additionally, photographs must be deemed authentic and their form must conform to evidentiary rules in order to be admissible in court.

Authentication is required to demonstrate that the evidence is what the proponent claims.4 Authenticating a traditional picture typically includes testimony regarding the basis of the witness’s knowledge of the scene depicted, that he or she recognizes the scene in the photograph, and that it is a true and accurate depiction of the scene at the relevant time.5 Assuming there are no other bars to the admission of the picture, it should be admitted into evidence.6

With the advent of digital photography, more law enforcement agencies are using digital cameras to photograph crime scenes and victims. Digital photography offers a number of benefits, including crisp detail, instant images, and decreased cost associated with development of film and maintenance. Digital photography has also been attacked as being easily manipulated and unreliable. This article discusses the issues surrounding using digital photographs as evidence in lieu of traditional photographs.

Do the same rules apply to digital photographs?

With the growing availability of technology in law enforcement, the use of digital cameras—and thus the use of digital photographs—has become more widespread, and prosecutors are being faced with having to introduce digital photographs in court. There are few published decisions that specifically discuss the admissibility of digital photographs in court. In Almond v. State, the Georgia Supreme Court affirmed an appellate court decision stating the procedure for admitting digital pictures was neither different than nor heightened over the procedure for admitting traditional photos.7 The Court stated, “We are aware of no authority … for the proposition that the procedure for admitting pictures should be any different when they were taken with a digital camera. Therefore, the trial court did not abuse its discretion by allowing the photos into evidence here.”8

A number of courts have examined the admissibility of other forms of digital evidence. Enhanced digital fingerprints9 and computer generated evidence (CGE’s)10—such as simulations, animations, and computer generated charts and graphs—have been deemed admissible in courts across the country. In deciding the admissibility of this evidence, courts have looked at factors such as whether the probative value of the digital evidence is outweighed by unfair prejudice or confusion, whether it is a fair and accurate representation of the evidence to which it relates, and whether or not it is deemed relevant and authentic.11

The highest court of Massachusetts has gone so far as to condition the admissibility of computer-generated evidence on the following factors: 1) the computer is functioning properly, 2) the input and underlying equations are sufficiently complete and accurate, and 3) the appropriate community of scientists generally accepts the program.12 At least two other states have adopted this test for the authenticity of computer-generated evidence.13 This test can be applied to the authentication of digital photographs by eliminating the second prong since “input” and “underlying equations” refer to simulations and animations and are not applicable to the technology used in digital photography.

Potential Challenges to Admissibility

  Reliability

With the availability of photo enhancement technology, the “potential to digitally create fraudulent photographic evidence presents a looming and perplexing dilemma for the legal system.”14 Yet, it is not as hard as it may seem to detect when a digital picture has been altered. In fact, traditional photographs can be altered almost as easily as digital photographs, and have been for years.15 Professionals familiar with digital photography and altering should be able to detect when an image has been manipulated or altered. Factors such as the density of the image (based on light exposure), the shadows in the picture, existence or nonexistence of splice lines, and continuity of the image should be scrutinized by a professional.16 A layperson may even be able to detect an altered image. Inconsistent shadows or lighting, discontinuity of texture in picture, or incompatible reflections on any surface in the picture—any of these details may indicate that the digital image has been altered.17

Best Evidence Rule

Evidentiary rules state that in order to prove the contents of a writing, recording or photograph, the original or an acceptable duplicate is required.18 An original photograph is defined by the Federal Rules of Evidence as including “the negative and any printout therefrom.”19 The rule goes on to state that “if data is stored in a computer or similar device, any printout or other output readable by sight, shown to reflect the data accurately, is an ‘original.’”20 The Federal Rules also state that a computer printout is acceptable so long as the original is available for examination.21 Therefore, under the Federal Rules, a digital photograph should satisfy the requirement of an original so long as it is shown to accurately reflect the data.

The best evidence rule does not always apply in every case where a photograph is admitted.22 It is important to remember that a best evidence challenge is only appropriate when the picture is offered as substantive evidence. For example, when a doctor testifies about an X-ray, the original will be required because the image itself will have independent probative value.23 However, when using the picture as demonstrative evidence the original is not required because the party introducing the picture is only using it to illustrate testimony on the matter.24 For example, if a treating physician were testifying that a child presented with two black eyes and a broken nose, a picture of the child with two black eyes and a broken nose taken when the child was at the hospital being seen by the physician would be illustrative of the physician’s testimony.

Steps to enhance admissibility

When using digital technology, prosecutors and investigators should take steps to help ensure this evidence will be admissible. Relying on standard protocol or operating procedure ensures that all image evidence—digital, photographic, or video—will be handled in the same manner.25 Original digital images should always be preserved in their original format26 by saving the image on a hard drive, a CD or with image security software.27 If a photograph must be enhanced for investigation or demonstrative purposes, the enhanced image should not replace the original, but rather should be saved as a separate image.28

A reliable chain of custody should be established in order to demonstrate the integrity of images to be introduced in court.29 Image handling procedures should be standardized and access to digital images should be strictly controlled.30 The chain of custody should be able to demonstrate: who took the picture and when, where and how the image was stored, who had access to the image from the time it was taken through the time it is introduced in court, and any details on whether or not the image has been altered and how.31 Without a reliable chain of custody and proof that an original image is available and unaltered, a defense attorney would have the opportunity to cast doubt on the authenticity and thus reliability of the photograph.

Conclusion

Digital pictures are far more pervasive in the world of law enforcement than they once were. While many courts have not addressed the specific issue of digital photographs, there are many arguments to be made for their admissibility. It is crucial to understand how your jurisdiction deals with issues of authentication, requirements for an “original” and the reliability of digital images to be able to craft the most effective argument for admitting digital photographs.

1 Staff Attorney, APRI’s National Center for Prosecution of Child Abuse
2 Wisconsin v. Schroeder, 613 NW2d 911 (Wisc. 2000)
3 FRE 401
4 FRE 901(a)
5 Bianchini, Judge Victor A. and Bass, Harvey, A Paradigm for the Authentication of Photographic Evidence in the Digital Age, 20 T. Jefferson L. Rev. 303, 318 (1998).
6 Bars to admission could include: prejudicial nature of pictures outweighs their probative value, hearsay, not accurate depiction of the scene, and unreliable among others.
7 Almond v. State, 553 S.E.2d 803 (Ga. 2001).
8 Almond v. State, 553 S.E.2d 803, 805 (Ga. 2001).
9 Washington v, Hayden, 950 P2d 1024 (Washington CT Appeals 1998); Ohio v. Hartman, 754 NE2d 1150 (Ohio 2001)
10 Clark v. Cantrell, 529 SE 2d 528 (S.C. 2000); State v. Farner, 66 SW3d 188 (Tenn. 2002) People v. Cauley 32 P.3d 602 (Col Ct. App 2001); Bray v. By-State Development Corp., 949 S.W.2d 93 (Mo. App. 1997); Gosser v. Commonwealth, 31 S.W.3d 897 (Ky. 2000).
11 Clark v. Cantrell, 529 SE 2d 528 (S.C. 2000) (finding an animation inadmissible because it did not accurately reflect the testimony); State v. Farner, 66 SW3d 188 (Tenn. 2002) (animation not admitted because it was not a fair and accurate portrayal of the event depicted); People v. Cauley 32 P.3d 602 (Col Ct. App 2001) (allowing a computer animation because it was a fair and accurate depiction of the testimony on shaken baby syndrome); Bray v. By-State Development Corp., 949 S.W.2d 93 (Mo. App. 1997) (allowing computer generated chart regarding light levels in the garage where plaintiff slipped and fell); Gosser v. Commonwealth, 31 S.W.3d 897 (Ky. 2000)(it was an error to admit computer generated diagrams because the witness testifying to them lacked personal knowledge of the subject matter)
12 Commercial Union, 591 N.E.2d at 168.
13 Kudlacek v. Fiat S.p.A., 509 N.W.2d 603 (Neb. 1994); State v. Clark, 655 N.E.2d 795 (Ohio App. 1995).
14 Bianchini, supra note 5 at 313.
15 Suggested Procedures for Preservation of Digital Crime Scene Photographs, A Police Central White Paper, as viewed on http://www.policecentral.com/wp-crimescene.htm.
16 Bianchini, supra note 5 at 318.
17 Photography in the Digital Age Part II: Photographs and Digital Images in the Courtroom, Advanced Imaging and Analysis Application Notes, Volume 2, Number 1, January 1999.
18 FRE 1002.
19 FRE 1001(3) (2001).
20 Id.
21 FRE 1006. (2001).
22 Advisory Committee Notes to FRE 1002.
23 Id.
24 Id.
25 Staggs, Steven B., The Admissibility of Digital Photographs in Court, as viewed on www.olympusamerica.com/innards/ Law_Enforcement_Casestudies.asp (viewed on March 29, 2002).
26 Id.; Berg, Eric C., Legal Ramifications of Digital Imaging in Law Enforcement, Forensic Science Communications, October 2000, Volume 2, number 4.
27 Staggs, supra note 25.
28 Id.
29 Berg, supra note 26.
30 Id.
31 Id.; Protocol for Preserving Digital Images in Connection with Case Investigation or Trial Preparation, San Diego, CA, Special Directive 2000-03.