epresenting today's trend in photography, digital cameras continue to rapidly replace traditional film-based models. As prices keep dropping, consumer ownership will become even more prevalent. Similarly, law enforcement agencies have begun to favor digital cameras--just the latest in a long line of technological innovations used by departments to collect and document evidence. Digital photography offers law enforcement numerous benefits, including instant access to images, rapid transportability of pictures within a department or to outside agencies, and decreased cost and time as these cameras require no film development.
Of course, photographs--which generally hold substantial weight--serve as one of the most effective forms of evidence in court. However, many individuals in the legal community fear the potential abuse and manipulation of digital images. Therefore, they consider these pictures inadmissible under current evidentiary rules.
To this end, an examination of the admissibility of film-based photographs and an analysis of cases, legislation, and legal commentary pertaining to digital pictures can provide valuable insight. Further, agencies can follow recommendations as to how they can help ensure the admissibility of their digital photographs under the law as it develops in the United States.
People can manipulate film-based pictures. Throughout the photographic process, an individual skilled in photography can alter the image. (1) For instance, while taking a picture, a person can use a narrow f-stop and a fast shutter speed to make a photograph taken during the day appear as if someone took it at night.
Individuals also can alter a photograph during the development stage. "Through the judicious selection of exposure times for the paper emulsions and filters to screen selective color wavelengths, a skilled photographer can produce a different image from the one ... viewed through the camera's eyepiece. This image could appear to the untrained eye to be ... perfectly legitimate ... yet in subtle ways could be misleading in the jurisprudential context." (2) Also, during development, a technique known as crop and splice can change the picture. Using this method, a person combines two negatives by cropping out a portion of one and splicing in its place part of another. (3)
Modifications of film-based photographs have presented problems for years. (4) "The forensic ramifications ... are obvious. A skilled photographer could artfully assemble through either pre- or postphotographic processing a photograph that could either be highly incriminating or exculpatory. Litigants could then offer that photograph as evidence in support of their cause. Under the Rules of Evidence, to authenticate a photograph, a witness need only to say that the photograph accurately depicts the scene, object, or person. In this scenario, if a witness were willing to deceive the court with a manipulated photograph, discovery of such perjurious intent would be problematic." (5) However, someone suspecting manipulation of a picture always can ask for the negative to trace its origin.
Any party seeking to introduce a film-based photograph into evidence must demonstrate its relevancy (i.e., add to the likelihood that an event did or did not occur) and authenticity (i.e., a knowledgeable person must verify the image's accuracy). (6) For example, a detective photographs a drug deal. The picture depicts two individuals exchanging a package. The prosecutor wants to enter the photo into evidence at the criminal trial of the individual who received the drugs. The picture is relevant because it shows the person present at the scene where the deal occurred and in receipt of the package. To authenticate the photograph, the prosecutor can place on the stand the detective who took the picture or any officer who witnessed the transaction and elicit that the image actually represents the person, package, place, and time. After establishing the photograph's relevancy and authenticity, the prosecutor can move to admit it into evidence.
As of 2012, over 2.5 billion people worldwide own a digital camera of some sorts, according to Samsung. Where photography used to be a bit elitist, it is now widely available to the masses through camera phones. Instead of photo albums, photos are now more often stored on computers and displayed in online photo galleries. This development has caused many photo labs to close down, as they are simply not making enough profit to keep running.
Planning Your Shot
Before digital photography, people were limited to a maximum 36 photos per roll of film. Unless you had a Polaroid, there was no way to see the photo immediately after taking it. Developing and printing all the photos on the film was fairly expensive, so you had to take care not to waste shots. The advantage of a digital camera is that you can immediately see your images on-screen, and you don't have to develop a roll of film. Every failed shot can be deleted on the spot, so you can take a whole bunch of photos and then select the best ones. The disadvantage of this technique, however, is that you tend to not focus on getting the perfect shot as much, exercising quantity over quality when composing your image.
Number of Photos
As of 2013, camera memory cards come with capacities of up to 64 gigabytes. This means one memory card can store thousands of photos. This is in stark contrast with film photography, where you were limited to 36 photos on a roll of film. When film got damaged, the photographer would lose 36 photos. However, if your memory card gets corrupted before you have had a chance to download the photos, you could potentially lose thousands of images at once.
Digital technology is developing rapidly, so much so that digital cameras become outdated very quickly. The models are updated continually, each with a larger number of megapixels and a better capacity to store large images quickly. The other problem with rapid technological advancement is that smart phones' cameras have improved to such an extent that their photo quality is virtually indistinguishable from that of many compact digital cameras. The convenience of having the phone with you at all times, its multi-functionality and the fact that you can upload photos and videos to social media sites immediately, make it a real threat to the point-and-shoot digital camera.
Digital photography allows you to edit your images after uploading them to a computer. This allows for very creative effects, and gives you the freedom to correct faults in photos that are, for instance, underexposed. It is now possible to turn an image to grey scale digitally or to remove elements from the background. The downside of this is that, once again, people tend to be less critical about their photos because it could be corrected through editing. Instead of getting the shot right from the start, a lot of time is spent editing away mistakes. Photos are also often over-edited, taking away from their natural beauty.
Previously, film had to be developed and printed in a darkroom or with a special photo processing unit. It required a lot of chemicals and was an expensive process, making photography an expensive hobby. Today, images shot with a digital camera can easily be printed at home with a standard inkjet printer, which is a lot cheaper and gives you more control over the final result.
When I first contemplated this article, the issue of authenticating digital photographs for evidentiary purposes seemed fraught with arcane complexity and uncertainty. However, that�s not actually true in practice. In fact, the metadata stored in any JPEG or RAW photographic file may help you authenticate that photograph and contradict the popular view that digital photographs can be easily and undetectably altered. Certainly, it is harder to undetectably fake a print made from a film negative than a digital file, but current digital cameras contain enough non-evident metadata to detect most alterations.
In this article, I will discuss some general evidentiary issues that arise when a party wishes to use photographic evidence, propose a standard procedure to ease the authentication of your own digital photographic evidence and offer a test as to whether or not you are receiving discovery of authentic photographic evidence from the other side. Surprisingly, this may be as easy to do with digital photographs as with photographic prints made from film negatives.
Photographic Authentication and Admissibility: Evidence Rules 901 and 1001
Under Evidence Rule 901 and its state analogues, photographs are typically admitted as demonstrative evidence to illustrate testimony. When used purely as demonstrative evidence, legal issues regarding authentication and chain of custody are somewhat relaxed so long as a competent witness can testify that the photograph fairly and accurately depicts the scene about which he or she is testifying. In these situations, it is generally not necessary that the authenticating witness be the same as the photographer or as a competent person who observed the making of the photograph. United States v. Clayton, 643 F.2d 1071, 1074 (C.A. 5, 1981. Videos are typically authenticated in the same manner as a still photograph. Saturn Manufacturing, Inc. V. Williams Patent Crusher and Pulverizer Company, 713 F.2d 1347, 1357 (C.A. 8, 1983). I will illustrate some portions of this discussion using a series of decisions by the Alaska Supreme Court whose evidentiary rules and interpretations typically closely follow majority federal views.
Under Evidence Rules 1001 through 1004, an �original� document (including a photograph) is required to prove the truth of the facts for which any document is offered. However, over many years, the definition of an �original� has been greatly expanded, particularly with regard to electronically stored information, and the requirement for an �original� is honored more in the breach than to the letter. Indeed, duplicates, including electronically made prints or digitally identical electronic file duplicates, are typically admissible to the same degree as an original document unless admitting the duplicate would prove inaccurate or unfair.
Authentication requirements are somewhat stiffened where there is a strong argument that a photograph does not accurately reflect the scene or that the use of a duplicate is inaccurate or unfair. Generally, a trial court�s admission or exclusion of proffered photographs is reviewed under an abuse of discretion standard. (See End Notes 2 and 4, below) Common sense, a reasonably objective evaluation of your intended use of the proposed photographic evidence and some trial experience are usually an adequate guide to the allowable demonstrative or evidentiary uses of a photograph. A trier of fact�s evaluation of �non-demeanor� evidence like photographs (as contrasted with live witness testimony) is theoretically subject to a less deferential standard of appellate review but this more stringent approach is often not strictly applied. (See End Note 5, below). However, when photographs are to be used as the basis for expert witness testimony or to actually prove the existence of an allegedly depicted condition, then they will be held to a higher standard and you will need to be much more cognizant of subtle technical and photographic parameters.
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