As technology progresses, the evidence rules must be used to address the changing technology.
Virtually every law office has, and regularly uses, digital photographs in some form or fashion in its practice. What is interesting, however, is that digital photographs actually produce a lower quality image than traditional film. Typically, a film photo has as much as 16 times the information as a digital photograph.1
What makes digital images so different from film photos is compression. To store digital images, the camera compresses the image, permanently deleting some of the data contained in the original image. To view the image later, the decompression process makes guesses as to what the discarded data actually were.2
A second problem arises when it is necessary to enlarge digital prints. The larger the desired size, the larger the amount of guessed data that must be generated by the decompression program. In extreme cases, the enlargement comes out too grainy to be useful.
A third and perhaps most distressing issue, is the ease with which digital images can be modified or manipulated. It is possible, through the use of commercially available software, to eliminate or add images to a photograph. For example, a user can simply erase a car in the image, leaving a background virtually indistinguishable from the rest of the image. Discovering these modifications can be very difficult — and often impossible — for the untrained eye.
These issues should make the introduction of digital images as primary evidence very difficult; but is it?
Every piece of documentary or photographic evidence must be authenticated to be admissible.3 This general rule applies to both substantive and demonstrative evidence.4 To authenticate the proffered evidence, the offering party must provide sufficient evidence to support a finding that the matter in question is what its proponent claims it to be.5
In theory, a witness could simply testify that the digital image was a fair and accurate portrayal of the scene at the time. But it can be persuasively argued that this foundation is not enough in the context of a digital image.
Assume the compression of the photograph caused a slight distortion of the image so that it appeared similar to the actual scene, but the scene is exaggerated due to the decompression program used by the camera. The fair and accurate foundation, however, might not reveal these exaggerations.6 By allowing just a fair and accurate foundation, the court ignores crucial components of the digital imaging process: the camera’s settings, such as compression ratios, storage medium and the opportunity for manipulation.
This issue was addressed by Division I of the Washington Court of Appeals in State v. Hayden.7 The published opinion merely holds that the use of enhancement techniques is generally accepted in the scientific community. However, the court did not address the issue of compression and distortion of images.
But one must ask why there is no major case law challenging the admissibility of digital photographs absent evidence that the compression or decompression of the image was done with the requisite degree of scientific certainty we require of other types of scientific evidence.
Why do the reported cases fail to adequately expose the serious reliability issues raised by computerized information? Many people, including defense attorneys, prosecutors, judges, and juries, do not understand computers. As a result, people tend to suspend their healthy common sense skepticism when they deal with information technology. Computers make it possible to do some things that could not be done without computers. The mere fact that computers can do some things at all tends to mask the issue of whether the computers can do it well. The “gee whiz” quality of computers may conceal the underlying frailties of the systems.8
In light of the uncertain nature of the compression/decompression pro-cess, one court adopted requirements for the admissibility of “enhanced” digital images. The court described digital enhancement as a “process or system” governed by ER 901(b)(9) and adopted the following test for computer-generated evidence:
This standard can generally be satisfied by evidence that (1) the computer equipment is accepted in the field as standard and competent and was in good working order, (2) qualified computer operators were employed, (3) proper procedures were followed in connection with the input and output of the information, (4) a reliable software program was utilized, (5) the equipment was programmed and operated correctly, and (6) the exhibit is properly identified as the output in question.9
While in many cases evidence that the image is fair and accurate may be sufficient, the practitioner should review digital images carefully and determine whether their admission should be challenged.
n
1 Herb Blitzer, Creating the Digital Image SOP, Law Enforcement Tech. 58, 61 (June 2000).
2 Id.
3 ER 901(a).
4 ER 901(b).
5 ER 104(b).
6 Studies on witness memory support the argument that a witness may adopt the image as representative of his memory due to the simple fact it is being offered as an accurate depiction of the scene.
7 90 Wn. App. 100, 950 P.2d 1024 (1998).
8 Garbage In, Gospel Out: Criminal Discovery, Computer Reliability, and the Constitution, 38 UCLA L. Rev. 1043, 1090 (1991).
9 State v. Swinson, 847 A.2d 921 (Conn. 2004).
