You Won't Believe Your Eyes: Digital Photography as Legal Evidence

(Notes)


Citation form conforms to "A Uniform System of Citation (The Bluebook)" except that text normally set in large and small capitals is indicated herein by bolding.


1. 72 Conn. 244 at 250, 43 A. 1047 at 1049.

2. Mark Maremont, Kodak’s New Focus, Business Week, Jan. 30, 1995, at 62.

3. The invention of photography is usually said to have occurred in 1839, when Louis-Jacques-Mandé Daguerre and William Henry Fox Talbot independently announced inventions to fix visual images. See John Tagg, The Burden of Representation: Essays on Photographies and Histories 40-48 (1993); William J. Mitchell, The Reconfigured Eye: Visual Truth in the Post Photographic Era 1 (1992).

4. See infra Part II, Section 2.

5. See infra Part II, Section 3.

6. 72 Conn. 244, 43 A. 1047.

7. See infra Part III, Section 1.

8. See infra Part II, Section 4.

9. Many of the potential dangers associated with digital photography are also becoming relevant to conventional photography. Conventional photographs may be "scanned" into a digital form, manipulated or altered in some way, and reprinted on paper. Although this possibility raises some risks, they are mitigated by the fact that the photograph once existed in a conventional form. Thus, the integrity of the image is assured to some degree by the existing rules of evidence as applied to photographs. See infra Part III, Section 1; Christine A. Guilshan, Note, A Picture is Worth a Thousand Lies: Electronic Imaging and the Future of the Admissibility of Photographs Into Evidence, 18 Rutgers Comp. & Tech. L.J. 365, 374-75 (1992).

10. These other types of visual records may be captured and stored in a digital format from the beginning, or "scanned" into a computer after being captured in a traditional manner.

11. Again, some of the problems raised within are also applicable to live action records (e.g., videotape), but the subject is beyond the scope of this Note. See Don E. Tomlinson, One Technological Step Forward and Two Legal Steps Back: Digitalization and Television Newspictures as Evidence and as Libel, Loyola Ent. L.J. 237 (1989).

12. Mikkel Aaland with Rudolph Burger, Digital Photography 7, 80 (1992) [hereinafter Aaland].

13. Id. at 80.

14. Id.

15. An analog representation is one that shares some physical analogy to the information represented. A good example is a phonograph record, which consists of physical grooves which are analogous to the compressions and rarefactions in the air (i.e., sound) recorded on the disk. In contrast, sound recorded on a compact disk is digitally represented by microscopic pits, laser etched onto a metal disk, each representing a number. A conventional photograph is an analog representation; see infra Part II, Section 4.

16. Aaland, supra note 12, at 7; Ron White, How Computers Work 28 (1993).

17. Nicholas Negroponte, Being Digital 14 (1995).

18. Id.

19. Id. at 188; White, supra note 16, at 35.

20. A byte consists of eight bits, each of which may be in one of two states (on or off). Mathematically, this results in 2 to the eighth power, or 256, different combinations.

21. Negroponte, supra note 17, at 14.

22. White, supra note 16, at 35, 50.

23. CD-ROM is an acronym for "compact disk -- read only memory." As the name implies, a CD-ROM may only be read from, not written to. Thus, it differs from other forms of digital storage in that it may not be altered once written.

24. See supra note 18 and accompanying text.

25. Mitchell, supra note 3, at 4-6 (discussing the analog nature of conventional photography, and the implications of that nature).

26. Aaland, supra note 12, at 7-8; Mitchell, supra note 3, at 6 (". . . a digital image that is a thousand generations away from the original is indistinguishable in quality from any one of its progenitors.")

27. Mitchell, supra note 3, at 6.

28. Aaland, supra note 12, at 8, 22-24.

29. Id. at 81.

30. Id. at 82.

31. Id. at 8-9.

32. Id. at 58.

33. Joseph Meehan, Advances in Digital Imaging: An Update for Users and Nonusers, Camera and Darkroom, Feb. 1995, at 59-61 (describing the use of digital "backs" on regular production camera bodies).

34. Mitchell, supra note 3, at 6.

35. Aaland, supra note 12, at 9 ("In 1957 a scientist at the National Bureau of Standards, Russell A. Kirsch, scanned the first photograph into a computer. It was an image of his baby son. . . .")

36. Jon Lawrence Dartley, Note, Lost Horizons?: Tortious and Philosophical Implications of Computer Imaging, 19 Rutgers Comp. & Tech. L.J. 199, 201 (1993).

37. Aaland, supra note 12, at 9 ("In the early 1020s, digital photographs were regularly sent between London and New York using a Bartlane cable picture transmission system. This system employed some very basic ideas of converting image data into numbers but the picture quality was extremely crude and the transmission took three hours.")

38. Id. at 11.

39. Become a Digital Shutterbug, PC Magazine, Apr. 11, 1995, at 62.

40. Meehan, supra note 33, at 60-61.

41. John Holusha, Kodak is Planning All-Electronic Cameras, New York Times, Feb. 16, 1995, at C3.

42. Stewart Brand et al., Digital Retouching: the End of Photography as Evidence of Anything, Whole Earth Review, July 1985, at 42.

43. Guilshan, supra note 9.

44. Mitchell, supra note 3, at 11.

45. Meehan, supra note 33, at 58.

46. John E. Jessen, Electronic Data as Evidence: A Litigation Tool, Washington State Bar News, Oct. 1992, at 40 ("One of the key differences that separates electronically stored data from data held on other media, such as paper or microfiche, is its ability to be easily manipulated. . . . Material can be added, deleted or changed . . . with little time or material expense.")

47. Warnings against this danger are typically found on the boxes in which computer disks are purchased, usually in the form of an indecipherable pictogram.

48. Aaland, supra note 12, at 48 ("In recent years, sophisticated image processing software has become widely available for as little as $100.")

49. Mitchell, supra note 3, at 19.

50. Id. at 70.

51. Id. at 94.

52. Id. at 148.

53. Id. at 150.

54. Id. at 16; Dartley, supra note 36, at 202-03.

55. See infra Part III, Section 1.

56. Dartley, supra note 36, at 220; Tomlinson, supra note 11, at 239 (describing digital editing of videotape as "scientifically undetectable"); Brand, supra note 42, at 44 (quoting Loren Carpenter, a visual technician at Lucasfilm).

57. Mitchell, supra note 3, at 196 (describing a posed photograph of Walt Whitman in which he held a butterfly on an outstretched finger, presumably to demonstrate his claim that he "always had the knack of attracting birds and butterflies and other wild critters." A small cardboard butterfly on a fine wire loop, matching the one in the photograph, was found among his personal effects after his death.)

58. Id. at 200-10.

59. M.L. Cross, Annotation, Authentication or Verification of Photograph as Basis for Introduction in Evidence, 9 A.L.R.2d 899, 900 (1950).

60. See, e.g., id. at 906 (citing Hupfer v. National Dist. Co., 90 N.W. 191 (Wis. 1902)); id. (1985 supp.) at 117 (citing Casson v. Nash, 370 N.E.2d 564 (Ill. 1977)).

61. Tagg, supra note 3, at 76-77.

62. Guilshan, supra note 9, at 365-66.

63. Mitchell, supra note 3, at 29 (quoting philosopher Roger Scruton).

64. Id. Emphasis in the original.

65. Or, as in the case of photocollage, several originals.

66. Aaland, supra note 12, at 80. But see Meehan, supra note 33, at 58 ("[T]he purists among us . . . stand ready to point out that there is a different look to all the electronically produced forms of printing which is quite obvious under a magnification loupe.")

67. Mitchell, supra note 3, at 30-37.

68. Id. at 7 ("[E]xtensive reworking of photographic images to produce seamless transformations and combinations is technically difficult, time consuming, and outside the mainstream of photographic practice"); Guilshan, supra note 9, at 374.

69. Aaland, supra note 12, at 10.

70. Guilshan, supra note 9, at 375.

71. Id. at 367; Fed. R. Evid. 401, 402, 403.

72. Guilshan, supra note 9, at 368; Cross, supra note 59, at 900.

73. Cross, supra note 59, at 915.

74. Id. at 901.

75. See, e.g., Fed. R. Evid. 1004 (4).

76. Cross, supra note 59, at 900.

77. Id. at 901.

78. Id.

79. Guilshan, supra note 9, at 369.

80. Id.

81. Cross, supra note 59, at 900.

82. Fed. R. Evid. 1001 (3).

83. See supra note 75 and accompanying text.

84. Michael D. Rostoker and Robert H. Rines, Computer Jurisprudence: Legal Responses to the Information Revolution 349 (1986).

85. Michael D. Scott, Scott on Computer Law, §18.08 at 18-17 (2d ed. 1993 supp.) (quoting Anne Wells Branscomb, Common Law for the Electronic Frontier, Scientific American, Sept. 1991, at 154).

86. Id. (quoting Perma Research and Dev. Co. v. Singer Co., 542 F.2d 111, 121 (2d. Cir.), cert. denied, 429 U.S. 987 (1976) (van Graafeiland, J., dissenting)).

87. Id. at 18-16; Rostoker & Rines, supra note 84, at 349; Donald M. Zupanec, Annotation, Admissibility of Computerized Private Business Records, 7 A.L.R.4th 8 (1981).

88. Fed. R. Evid. 801 (c).

89. Fed. R. Evid. 801 (a).

90. Or, under Fed. R. Evid. 803 (6), a "regularly conducted activity." But see S. Rep. No. 1277, 93d Cong., 2d Sess., p. 16 (1974) and Conf. Rep. No. 1597, 93d Cong., 2d Sess., p. 11 (1974) (expressing an intent to limit the definition to only a few non-business activities).

91. Advisory Committee’s Note, 56 F.R.D. 183, 307 (1974).

92. Negroponte, supra note 17, at 5.

93. See supra note 75 and accompanying text.

94. 222 So. 2d 393 (Miss. 1969).

95. Id.

96. Fed. R. Evid. 1001 (3).

97. Id.

98. That is, translated to analog form.

99. Although it is true that many computer operating systems label all files with the time and date when storing the file to disk, it is a simple matter to reset the time or date within the system (as is often necessary when first setting up a new computer), and not inconceivable that a user could have a system clock negligently set to the wrong time or date.

100. Barring data loss through physical or magnetic trauma.

101. See supra Part II, Section 3.

102. And one presumes, by extension, "hard" copies of digital data generally.

103. Dartley, supra note 36, at 215.

104. One is reminded of the practice of identifying color television programs in published schedules years ago; ultimately, color programming became the norm and it was black and white broadcasts which needed to be identified.

105. Guilshan, supra note 9, at 379.

106. Id.

107. For instance, one can readily imagine a photograph that is relevant to the investigation of a homicide in which the photographer ultimately becomes the victim.

108. As in the case of automated security cameras.

109. See, e.g., Alois Valerian Gross, Annotation, Criminal Liability For Theft of, Interference With, or Unauthorized Use of, Computer Programs, Files, or Systems, 51 A.L.R. 4th 971 (1987).

110. Tomlinson, supra note 11, at 256 (relating specifically to videotaped evidence, but with reference to still photographs), Guilshan, supra note 9, at 378 (suggesting that the risk of unfair prejudice might result in exclusion under Fed. R. Evid. 403, but allowing that such a result would be "drastic . . . at least for the present time.")

111. Negroponte, supra note 17, at 18.

112. Digital Notary to Sign In: Bell Spinoff Ready to Time Stamp Data, The [Bergen] Record, Mar. 23, 1994, at D3 ("At the core of the time-stamping technology is software that generates a characteristic digital fingerprint for any document. Because of the cryptographic strength of the process, it is virtually impossible for anyone to produce backdated certificates.")

113. Id.

114. Negroponte, supra note 17, at 90 ("In 1972 there were only 150,000 computers in the world, whereas five years from now, the integrated circuit manufacturer Intel alone expects to be shipping 100 million each year. . . .")

115. Gregory E. Perry and Cherie Ballard, A Chip By Any Other Name Would Still Be a Potato: The Failure of Law and its Definitions to Keep Pace With Computer Technology, 24 Texas Tech L.Rev. 797, at 800 (1993).


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