Photographs have been authenticated for decades under Rule 901(b)(1) by the testimony of a witness familiar with the scene depicted in the photograph who testifies that the photograph fairly and accurately represents the scene.
Calling the photographer or offering exert testimony about how a camera works almost never has been required for traditional film photographs.
Today, however, the vast majority of photographs taken, and offered as exhibits at trial, are digital photographs, which are not made from film, but rather from images captured by a digital camera and loaded into a computer.
Digital photographs present unique authentication problems because they are a form of electronically produced evidence that may be manipulated and altered.
Indeed, unlike photographs made from film, digital photographs may be “enhanced.”
- Digital image “enhancement consists of removing, inserting, or highlighting an aspect of the photograph that the technician wants to change.”
Examples of enhancement:
- [S]uppose that in a civil case, a shadow on a 35 mm photograph obscures the name of the manufacturer of an offending product. The plaintiff might offer an enhanced image, magically stripping the shadow to reveal the defendant’s name.
- Or suppose that a critical issue is the visibility of a highway hazard. A civil defendant might offer an enhanced image of the stretch of highway to persuade the jury that the plaintiff should have perceived the danger ahead before reaching it.
- In many criminal trials, the prosecutor offers an ‘improved’, digitally enhanced image of fingerprints discovered at the crime scene. The digital image reveals incriminating points of similarity that the jury otherwise would never would have seen.
There are three distinct types of digital photographs that should be considered with respect to authentication analysis:
- original digital images,
- digitally converted images, and
- digitally enhanced images.
Original digital images
- An original digital photograph may be authenticated the same way as a film photo, by a witness with personal knowledge of the scene depicted who can testify that the photo fairly and accurately depicts it.
- If a question is raised about the reliability of digital photography in general, the court likely could take judicial notice of it under Rule 201.
Digitally Converted Images
- [A]uthentication requires an explanation of the process by which a film photograph was converted to digital format.
- This would require testimony about the process used to do the conversion, requiring a witness with personal knowledge that the conversion process produces accurate and reliable images, Rules 901(b)(1) and 901(b)(9)-the later rule implicating expert testimony under Rule 702.
- Alternatively, if there is a witness familiar with the scene depicted who can testify that the photo produced from the film when it was digitally converted, no testimony would be needed regarding the process of digital conversion.
Digitally Enhanced Images
- For digitally enhanced images, it is unlikely that there will be a witness who can testify how the original scene looked if, for example, a shadow was removed, or the colors were intensified. In such a case, there will need to be proof, permissible under Rule 901(b)(9), that the digital enhancement process produces reliable and accurate results, which gets into the realm of scientific or technical evidence under Rule 702.
- Recently, one state court has given particular scrutiny to how this should be done.
- In State v. Swinton, the defendant was convicted of murder in part based on evidence of computer enhanced images prepared using the Adobe Photoshop software. 847 A.2d 921, 950-52 (Conn.2004).
- The images showed a superimposition of the defendants teeth over digital photographs of bite marks taken from the victim’s body.
- At trial, the state called the forensic odontologist (bite mark expert) to testify that the defendant was the source of the bite marks on the defendant.
- However, the defendant testified that he was not familiar with how the Adobe Photoshop made the overlay photographs, which involved a multi-step process in which a wax mold of the defendant’s teeth was digitally photographed and scanned into the computer to then be superimposed on the photo of the victim.
- The trial court admitted the exhibits over objection, but the state appellate court reversed, finding that the defendant had not been afforded a chance to challenge the scientific or technical process by which the exhibits had been prepared.
- The court stated that to authenticate the exhibits would require a sponsoring witness who could testify, adequately and truthfully, as to exactly what the jury was looking at, and the defendant had a right to cross-examine the witness concerning the evidence.
- Because the witness called by the state to authenticate the exhibits lacked the computer expertise to do so, the defendant was deprived of the right to cross examine him.
Because the process of computer enhancement involves a scientific or technical process, one commentator has suggested the following foundation as a means to authenticate digitally enhanced photographs under Rule 901(b)(9):
- The witness is an expert in digital photography;
- the witness testifies as to image enhancement technology, including the creation of the digital image consisting of pixels and the process by which the computer manipulates them;
- the witness testifies that the processes used are valid;
- the witness testifies that there has been “adequate research into the specific application of image enhancement technology involved in the case”;
- the witness testifies that the software used was developed from the research;
- the witness received a film photograph;
- the witness digitized the film photograph using the proper procedure, then used the proper procedure to enhance the film photograph in the computer;
- the witness can identify the trial exhibit as the product of the enchantment process he or she performed.
The author recognized that this is an “extensive foundation,” and whether it will be adopted by courts in the future remains to be seen. Id. However, it is probable that courts will require authentication of digitally enhanced photographs by adequate testimony that it is the product of a system or process that produces accurate and reliable results. Fed.R.Evid. 901(b)(9).
Lorraine v. Markel Amer. Ins. Co., 241 F.R.D. 534 (D. Md. 2007).