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Archive for the ‘FRE 901(b)(9)’ Category

Case Blurb: Lorraine; Authenticating digital photographs

Posted by rjbiii on September 24, 2007

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):

  1. The witness is an expert in digital photography;
  2. 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;
  3. the witness testifies that the processes used are valid;
  4. the witness testifies that there has been “adequate research into the specific application of image enhancement technology involved in the case”;
  5. the witness testifies that the software used was developed from the research;
  6. the witness received a film photograph;
  7. the witness digitized the film photograph using the proper procedure, then used the proper procedure to enhance the film photograph in the computer;
  8. 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).

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Posted in 3d Circuit, Admissibility of ESI, Authentication, D. Md., Digital Photographs, FRE 901(b)(9), Magistrate Judge Paul W. Grimm | 1 Comment »

Case Blurb: Lorraine; How to authenticate Computer Stored Records and Data

Posted by rjbiii on September 23, 2007

“Many kinds of computer records and computer- generated information are introduced as real evidence or used as litigation aids at trials. They range from computer printouts of stored digital data to complex computer-generated models performing complicated computations. Each may raise different admissibility issues concerning authentication and other foundational requirements.”

Documents merely stored on a computer.

  • The least complex admissibility issues are associated with electronically stored records.
    • “In general, electronic documents or records that are merely stored in a computer raise no computer-specific authentication issues.”
  • That said, although computer records are the easiest to authenticate, there is growing recognition that more care is required to authenticate these electronic records than traditional “hard copy” records.
    • Manual for Complex Litigation
      • Computerized data, however, raise unique issues concerning accuracy and authenticity. Accuracy may be impaired by incomplete data entry, mistakes in output instructions, programming errors, damage and contamination of storage media, power outages, and equipment malfunctions.
      • The integrity of data may also be compromised in the course of discovery by improper search and retrieval techniques, data conversion, or mishandling.
      • The proponent of computerized evidence has the burden of laying a proper foundation by establishing its accuracy.
      • The judge should therefore consider the accuracy and reliability of computerized evidence…
    • IMWINKELRIED, EVIDENTIARY FOUNDATIONS at 4.03[2].
      • “In the past, many courts have been lax in applying the authentication requirement to computer records; they have been content with foundational evidence that the business has successfully used the computer system in question and that the witness recognizes the record as output from the computer.
      • However, following the recommendations of the Federal Judicial Center’s Manual for Complex Litigation, some courts now require more extensive foundation.
      • These courts require the proponent to authenticate a computer record by proving the reliability of the particular computer used, the dependability of the business’s input procedures for the computer, the use of proper procedures to obtain the document offered in court, and the witness’s recognition of that document as the readout from the computer.” (citation omitted).
    • Two approaches: Lenient vs. Strict
    • Lenient
      • In United States v. Meienberg, the defendant challenged on appeal the admission into evidence of printouts of computerized records of the Colorado Bureau of Investigation, arguing that they had not been authenticated because the government had failed to introduce any evidence to demonstrate the accuracy of the records. 263 F.3d at 1180-81. The Tenth Circuit disagreed, stating:
        • Any question as to the accuracy of the printouts, whether resulting from incorrect data entry or the operation of the computer program, as with inaccuracies in any other type of business records, would have affected only the weight of the printouts, not their admissibility.
      • (References Kassimu, 2006 WL 1880335 (To authenticate computer records as business records did not require the maker, or even a custodian of the record, only a witness qualified to explain the record keeping system of the organization to confirm that the requirements of Rule 803(6) had been met, and the inability of a witness to attest to the accuracy of the information entered into the computer did not preclude admissibility));
      • References Sea Land v. Lozen Int’l, 285 F.3d 808 (9th Cir.2002) (ruling that trial court properly considered electronically generated bill of lading as an exhibit to a summary judgment motion. The only foundation that was required was that the record was produced from the same electronic information that was generated contemporaneously when the parties entered into their contact. The court did not require evidence that the records were reliable or accurate)).
    • Strict
      • [I]n the case of In Re Vee Vinhnee, the bankruptcy appellate panel upheld the trial ruling of a bankruptcy judge excluding electronic business records of the credit card issuer of a Chapter 7 debtor, for failing to authenticate them. 336 B.R. 437.
      • The court noted that “it is becoming recognized that early versions of computer foundations were too cursory, even though the basic elements covered the ground.” Id. at 445-46. The court further observed that:
        • The primary authenticity issue in the context of business records is on what has, or may have, happened to the record in the interval between when it was placed in the files and the time of trial. In other words, the record being proffered must be shown to continue to be an accurate representation of the record that originally was created…. Hence, the focus is not on the circumstances of the creation of the record, but rather on the circumstances of the preservation of the record during the time it is in the file so as to assure that the document being proffered is the same as the document that originally was created.
      • The court reasoned that, for paperless electronic records:
        • The logical questions extend beyond the identification of the particular computer equipment and programs used. The entity’s policies and procedures for the use of the equipment, database, and programs are important. How access to the pertinent database is controlled and, separately, how access to the specific program is controlled are important questions. How changes in the database are logged or recorded, as well as the structure and implementation of backup systems and audit procedures for assuring the continuing integrity of the database, are pertinent to the question of whether records have been changed since their creation.
      • In order to meet the heightened demands for authenticating electronic business records, the court adopted, with some modification, an eleven-step foundation proposed by Professor Edward Imwinkelried.
    • Professor Imwinkelried perceives electronic records as a form of scientific evidence and discerns an eleven-step foundation for computer records:
      1. The business uses a computer.
      2. The computer is reliable.
      3. The business has developed a procedure for inserting data into the computer.
      4. The procedure has built-in safeguards to ensure accuracy and identify errors.
      5. . The business keeps the computer in a good state of repair.
      6. The witness had the computer readout certain data.
      7. The witness used the proper procedures to obtain the readout.
      8. The computer was in working order at the time the witness obtained the readout.
      9. The witness recognizes the exhibit as the readout.
      10. The witness explains how he or she recognizes the readout.
      11. If the readout contains strange symbols or terms, the witness explains the meaning of the symbols or terms for the trier of fact.
    • Although the position taken by the court in In Re Vee Vinhnee appears to be the most demanding requirement for authenticating computer stored records, other courts also have recognized a need to demonstrate the accuracy of these records.
      • (References State v. Dunn, 7 S.W.3d 427, 432 (Mo.Ct.App.2000) (Admissibility of computer-generated records “should be determined on the basis of the reliability and accuracy of the process involved.”));
      • (References State v. Hall, 976 S.W.2d 121, 147 (Tenn.1998 ) ( “[T]he admissibility of the computer tracing system record should be measured by the reliability of the system, itself, relative to its proper functioning and accuracy.”)).
      • In addition to their insight regarding the authentication of electronic records, these cases are also important in connection to the analysis of whether certain types of electronically stored records constitute hearsay when offered for their substantive truth.
  • Court’s statement on the trend, and counsel’s responsibilities:
    • As the foregoing cases illustrate, there is a wide disparity between the most lenient positions courts have taken in accepting electronic records as authentic and the most demanding requirements that have been imposed. Further, it would not be surprising to find that, to date, more courts have tended towards the lenient rather than the demanding approach. However, it also is plain that commentators and courts increasingly recognize the special characteristics of electronically stored records, and there appears to be a growing awareness, as expressed in the Manual for Complex Litigation, that courts “should … consider the accuracy and reliability of computerized evidence” in ruling on its admissibility. Lawyers can expect to encounter judges in both camps, and in the absence of controlling precedent in the court where an action is pending setting forth the foundational requirements for computer records, there is uncertainty about which approach will be required. Further, although “it may be better to be lucky than good,” as the saying goes, counsel would be wise not to test their luck unnecessarily. If it is critical to the success of your case to admit into evidence computer stored records, it would be prudent to plan to authenticate the record by the most rigorous standard that may be applied. If less is required, then luck was with you.
  • The methods of authentication most likely to be appropriate for computerized records are:
    • 901(b)(1) (witness with personal knowledge),
    • 901(b)(3) (expert testimony),
    • 901(b)(4) (distinctive characteristics), and
    • 901(b)(9) (system or process capable of producing a reliable result).

Lorraine v. Markel Amer. Ins. Co., 241 F.R.D. 534 (D. Md. 2007).

Posted in 3d Circuit, Admissibility of ESI, Authentication, Case Blurbs, D. Md., FRE 901(b)(1), FRE 901(b)(3), FRE 901(b)(4), FRE 901(b)(9), Magistrate Judge Paul W. Grimm | Leave a Comment »

Case Blurb: Lorraine; Authenticating ESI under FRE 901(b)(9)–description of a system or process

Posted by rjbiii on September 19, 2007

Rule 901(b)(9) recognizes one method of authentication that is particularly useful in authenticating electronic evidence stored in or generated by computers.

It authorizes authentication by “[e]vidence describing a process or system used to produce a result and showing that the process or system produces an accurate result.”

This rule was “designed for situations in which the accuracy of a result is dependent upon a process or system which produces it.”

  • (References In Re Vee Vinhnee, 336 B.R. at 446 (“Rule 901(b)(9), which is designated as an example of a satisfactory authentication, describes the appropriate authentication for results of a process or system and contemplates evidence describing the process or system used to achieve a result and demonstration that the result is accurate. The advisory committee note makes plain that Rule 901(b)(9) was designed to encompass computer-generated evidence …”)).
  • (References Weinstein at § 901.12[3] (“Computer output may be authenticated under Rule 901(b)(9)…. When the proponent relies on the provisions of Rule 901(b)(9) instead of qualifying the computer-generated information for a hearsay exception, it is common for the proponent to provide evidence of the input procedures and their accuracy, and evidence that the computer was regularly tested for programming errors. At a minimum, the proponent should present evidence sufficient to warrant a finding that the information is trustworthy and provide the opponent with an opportunity to inquire into the accuracy of the computer and of the input procedures.”)).

Lorraine v. Markel Amer. Ins. Co., 241 F.R.D. 534 (D. Md. 2007)

Posted in 3d Circuit, Admissibility of ESI, Authentication, Case Blurbs, D. Md., FRE 901(b)(9), Magistrate Judge Paul W. Grimm | Leave a Comment »