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Digital Photographs as Evidence in Utah Courts

 

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Wesley M. Baden

 

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Articles

 

Article

 

This past holiday season, you were not alone if you purchased or received a digital camera as a gift. Digital cameras were in great demand, reflecting the 28 percent increase in sales that occurred in the period January to August 2003. In contrast, analog cameras, such as the 35mm single lens reflex (SLR), were not as popular. Sales of analog cameras declined by 37 percent in January to August 2003.1 The general public is using digital cameras more and more often, and analog cameras less so. Law enforcement agencies are doing so as well. Increasingly, agencies are relying on digital photography to preserve a visual record of crime scenes, physical evidence, and victims' injuries. The Orange County (California) Sheriff's Office is making the transition from conventional film to digital photography. The Pittsburg (Kansas) Police Department now takes just five percent of its photographs using 35 mm or Polaroid film. Ninety-five percent of photographs are digital.2 The New York City Police Department uses only digital photographs as evidence in domestic violence cases.3 Among Utah agencies, too, the clear trend is away from film and toward digital technology. Some are worried about police using digital cameras. There is fear - totally unjustified - that digital photography represents novel scientific evidence that is not generally accepted or inherently reliable. There is also fear - largely exaggerated - that digital photographs can be manipulated to fabricate evidence for improper purposes. Basic Difference Between Analog and Digital Photography In analog photography, the camera captures an image on film. The film is developed using chemicals. This process creates a negative. The negative is turned into a positive and printed on paper stock, again using chemicals. In digital photography, there is no roll of film. There is no negative. The camera uses a charge coupled device (CCD) to capture an image, converting it to a series of pixels (picture elements). As a rule, more pixels produce higher picture resolution and color quality. Pixels are stored in a memory device of some kind, located inside the camera. When it is time to create a print, data from the device is loaded into a personal computer. The computer, using specialized software, reconstructs the image and displays it on a monitor. The computer then routes the image to a printer where a print is actually made. No chemicals are used, aside from what is in ink cartridges in the printer. Two Legislative Reactions to Digital Photography A potential problem in digital photography is that the software used to make pictures also allows those pictures to be altered. At worst, objects that were not in the original image can be added and those that were there can be removed. The photograph of President Bush, on the cover of the December 1, 2003 issue of Time magazine, is an example of the first kind of digital manipulation. To illustrate the story, "Love Him! Hate Him!," the photograph shows the President with a lipstick kiss on his right cheek and a black left eye. Reportedly, a Wisconsin state legislator became upset when high school students manipulated a digital photograph by putting heads on bodies of the opposite sex. If students can do that, he concluded, then police could do worse, that is, fabricate photographic evidence against innocent criminal defendants. The legislator sponsored Wisconsin Assembly Bill 584 (introduced October 2003, currently in committee). AB 584 "prohibits the introduction of a photograph ... of a person, place, document ... or event to prove the content ... if that photograph ... is created or stored by data in the form of numerical digits." If the bill is passed and signed into law, digital photographs would not be admissible in Wisconsin courts for purposes of proving content. A number of legislators in Hawaii are also concerned about digital photography, though they have taken a more muted and sensible course of action. They sponsored Hawaii House Bill 1309 (introduced January 2003, currently in committee). It amends Hawaii Rule of Evidence 1001 by defining "photographs" to include "electronic pictures including digital pictures...." At the same time, HB 1309 directs the Hawaii Supreme Court to establish, within one year, written procedures governing police use of digital photography. The bill observes, "Although current rules do not preclude the admission of digital photographs as evidentiary material, such admissibility is contingent upon the basic data and collection technique meeting a threshold requirement of reliability that has not yet been established by the Hawaii Supreme Court's Standing Committee on the Rules of Evidence." Digital Photography and Utah Law To date, the Utah Legislature has not concerned itself with the issue of the admissibility of digital photographs. Utah Rule of Evidence 1001 gives no clear indication regarding whether such photographs are admissible. Also, Utah appellate courts have dealt with the matter only obliquely in one case. Utah Rule of Evidence 1001(2) defines "photographs" to include "still photographs" but draws no distinction between analog and digital photographs. It could be argued that, absent a distinction, "still photographs" means photographs of all kinds, analog and digital. On the other hand, section (3) of the rule suggests that only analog photographs are described, because of reference to a "negative." Subsequent language about "data" appears to relate exclusively to "magnetic impulse, mechanical or electronic recording, or other form of data compilation," all examples of "writings and recordings," in section (1). In State v. Powell, 2003 UT App 127, defendant argued that the manner in which police conducted a pretrial photo array was impermissibly suggestive and therefore violated due process. Defendant did not object to the fact, however, that the array was composed of six digital photographs, including his. The Court of Appeals affirmed defendant's conviction, holding that no due process violation occurred, but it did not address the issue - not raised in the first place - of whether the photographs were admissible. The matter is open for debate. Especially in the absence of a footnote in Powell, of the kind that former Chief Justice Zimmerman was famous for writing in his opinions, it is anyone's guess whether Utah appellate courts regard the admissibility of digital photographs as a serious issue worth examining or a complete and total non-issue. Likely Result in Utah Appellate Courts My own best guess, given case law elsewhere, is that Utah courts would have little or no trouble holding that digital photographs are generally admissible. A line of Utah cases also supports this hunch. Of course, whether a specific photograph is admissible will continue to depend on usual considerations, e.g. adequate foundation including a showing that the photograph is an accurate and fair representation of the scene, object, or person portrayed. The seminal case in this area is State v. Hayden, 950 P.2d 1024 (Wash. 1998). Defendant, convicted of murder, claimed that the trial court erred in admitting enhanced fingerprint evidence after conducting a Frye hearing. Police obtained latent fingerprints from the victim's bed sheet. The fingerprints were digitally photographed, after which software was used to filter out background patterns and colors to enhance the images. All this, defendant argued, involved a novel process that had not received general acceptance in the scientific community and did not satisfy the Frye standard. The Washington Supreme Court rejected defendant's argument and affirmed. The court expressly held that enhanced digital imaging is generally accepted in the scientific community. Recent cases upholding the admissibility of digital photographs, some of them enhanced, include Almond v. State, 553 S.E.2d 803 (Ga. 2001) (crime scene), State v. Hartman, 754 N.E.2d 1150 (Ohio 2001) (fingerprint), and People v. Perez, 2003 WL 22683442 (Cal. App. 4 Dist.) (shoe print). Even Utah's more restrictive admissibility test, set forth in Phillips v. Jackson, 615 P.2d 1228 (Utah 1980), Kofford v. Flora, 744 P.2d 1343 (Utah 1987), and State v. Rimmasch, 775 P.2d 388 (Utah 1989), should not present a problem. The test, one of inherent reliability, has been broadly satisfied already in light of the origins of digital photography in the U. S. space program. The technology used in today's digital cameras is essentially the same as found in space applications. Beginning in the late 1960's, satellite cameras captured and stored images digitally, the images were radioed back to earth as data, and then computers assembled the data to create pictures. The computers also enhanced pictures, restoring true color, sharpening detail, and the like. In short, the reliability of digital photography, including computer enhancement, is largely self-evident given nearly forty years of accurate, highly detailed pictures of the earth, the solar system, and a myriad of objects in the visible universe. At this point, common types of digital manipulation, for instance image sharpening, may not even trigger application of the inherent reliability test. More complex or not well-known manipulations will raise the question of reliability. But, in time, as reliability becomes less of an issue, most forensic evidence in the form of digital photographs promises to become routinely accepted in court, with little or no need for expert testimony. Analog Photography's Forgotten Secret Forensic digital photography is generally accepted in the scientific community. Also, it is inherently reliable in its applications. Fear about manipulation of digital images is exaggerated, perhaps because of the perceived novelty of the technology. We often fear what is or seems new. Certainly, this fear has made many forget a secret of analog photography, namely that conventional photographs also may be manipulated to alter reality and at worst to fabricate false evidence. In 1882 a Georgia trial court enthused, "We cannot conceive of a more impartial and truthful witness than the sun, as its light stamps and seals the similitude of the object on the photograph put before the jury; it would be more accurate than the memory of witnesses, and as the object of all evidence is to show the truth, why should not this dumb witness show it?" Franklin v. State, 69 Ga. 39, 42 (1882).4 The passage of time, however, has shown that this view was sadly naive. All kinds of manipulation - some artistic, others deliberately devious in nature - are possible in analog photography. Anyone who has spent time in the darkroom knows that picture sharpness, contrast, and even mood may be varied dramatically by simple changes in the type of developer, development time, and paper stock used. Undesirable objects may be removed by cropping. The physical appearance of individuals may be changed using techniques such as burning in and dodging. That is, hair may be darkened or lightened, a beauty mark highlighted, a mole removed, teeth whitened. Double exposure or cutting and splicing of negatives may be used to create prints of supposedly real objects like ghosts and flying saucers. Even more manipulation is now possible. Conventional film negatives and prints may be scanned, converted into pixels, and put into a computer. Then, using digital imaging software, new prints may be made, manipulated in all the same ways as digital prints. Types of Photographic Manipulation There is good and bad, acceptable and unacceptable manipulation of photographs intended to be introduced into evidence in court. The following categories of manipulation are proposed, beginning with the Unmanipulated Image.5 Examples of manipulated images are merely illustrative and only hint at the many types of manipulation possible, especially in digital photography. The Unmanipulated Image - Type 0 In analog photography, the Type 0 Unmanipulated Image is the full negative, made using generally accepted equipment, chemicals, and techniques. In digital photography, the Type 0 Unmanipulated Image is the full digital image stored in an appropriate memory device, not necessarily the actual device used in the camera, without software adjustment of any kind, and viewed on a color-calibrated monitor. The Manipulated Image - Type 1 In analog photography, the Type 1 Manipulated Image is a print made of the full negative, on appropriate paper stock, using generally accepted equipment, chemicals, and techniques, without manual adjustment of any kind. In digital photography, the Type 1 Manipulated Image is a print made of the full digital image, on appropriate paper stock, using generally accepted computer equipment, software, and techniques, without software adjustment of any kind. The Manipulated Image - Type 2 In analog photography, the Type 2 Manipulated Image is a print that has been manipulated in some generally accepted manner, using manual adjustment, and for legitimate forensic reasons. Examples: Portion of picture greatly enlarged to show serial number on gun; dodging used to heighten contrast, to better show license plate number on vehicle. In digital photography, the Type 2 Manipulated Image is a print that has been manipulated in some generally accepted manner, using software adjustment, and for legitimate forensic reasons. Examples: Sharpening used to better see robbery suspect's face on bank surveillance photo; frequency filters used to isolate backlit fingerprint off drinking glass. The Manipulated Image - Type 3 The Type 3 Manipulated Image is a print that has been manipulated, using either manual or software adjustment, in some manner that is not generally accepted, or for illegitimate forensic reasons. Examples: burning in used to darken an African-American's skin in a photo, in a deliberate effort to appeal to a viewer's prejudice;6 morphing used to change facial features on suspect's picture in police photo array, resulting in picture being suggestive; copy and paste used to place individual in picture of others engaged in illegal activity, fabricating evidence of criminal liability. General Rules The categories just described suggest a number of general rules concerning the production of photographic evidence for court purposes, as well as whether specific photographs should be actually admissible in court. Whenever possible, all unmanipulated images, in either negative or memory device form, should be preserved and made available for examination by interested parties. The absence of unmanipulated images should raise questions about prints. Prints should be rigorously compared with their original, unmanipulated images, plus other prints that have been or now may be made from them. The less manipulation used to make a print, the better. Manipulation should occur only for legitimate forensic reasons. All manipulations should be generally accepted as appropriate for their intended purposes. Any manipulation that is not generally accepted as appropriate should trigger heightened scrutiny. The possibility of fabricated evidence and fraud upon the court never should be overlooked. From General Rules to Universally Accepted Standards At present, there are no universally accepted standards concerning the forensic use of digital imaging. In the near future, there may well be such standards. A number of groups, agencies, and individuals are at work creating standards or already have proposed them. Five years ago, the Federal Bureau of Investigation established the Scientific Working Group on Imaging Technologies (SWGIT), composed of approximately 25 representatives from federal, state, and local law enforcement agencies and imaging scientists from academia. The mission of SWGIT is "to facilitate the integration of imaging technologies and systems in the criminal justice system by providing definitions and recommendations for the capture, storage, processing, analysis, transmission, and output of images." The group in fact has published a number of recommendations and guidelines for the use of digital imaging in the criminal justice system. All publications, dating from 1999 to 2002, are available on the FBI's web site, www.fbi.gov. The publications carry considerable weight, given their source and history. The recommendations and guidelines that they contain may come to be regarded, in time, as universally accepted standards for forensic digital photography. To ensure admissibility, one prosecutor has recommended that (1) original images should be recorded in unalterable form as soon as possible, e.g., on a writable CD; (2) every manipulation of an image should be saved as a separate photograph to create a photographic trail; and (3) custody control and access limitations should be established.7 Another prosecutor has similarly recommended that (1) a protocol always should be adopted for handling image evidence; (2) the original image always should be preserved; (3) manipulations of an image should be kept in a separate file; and (4) a reliable chain of custody should be established.8 A private attorney and the Executive Director of the Indiana Crime Lab Institute have recommended that all written standard operating procedures concerning digital imaging technology should include the following: "(1) Images must be recorded in an unalterable, archival form soon after the records are created; (2) The images should include information regarding their creation; (3) The agency must control custody of all image records at all times; (4) All agency personnel who prepare exhibits for court should be trained in digital imaging processing and should understand which images might require a special notation to show that the changes are not prejudicial; and (5) The agency must establish rigorous procedures for entering work-in-progress into proper file systems."9 Recommendations to Utah Bar, Judiciary, and Law Enforcement Digital photography is a fascinating modern technology. As in the case of other such technologies, however, the law has not caught up with it, at least not fully. In this context, the following recommendations are respectfully offered up to the Utah bar, judiciary, and law enforcement. 1.Both criminal and civil attorneys who use or encounter digital photographic evidence have a special obligation to study and understand the underlying technology, along with related legal issues such as admissibility. At a minimum, appropriate self-study is necessary and should take place. 2.Forensic digital photography is a highly suitable subject for formal continuing legal education. The Utah State Bar, as well as organizations like the Utah Prosecution Council and the Utah Association of Criminal Defense Attorneys, should actively assist members by sponsoring CLE about digital imaging and issues raised by its use in Utah. 3.The Utah Supreme Court, through its already existing advisory committee, should review and consider amending Utah Rule of Evidence 1001, possibly along with other rules, for the purpose of governing the admission and use of digital photographs in Utah courts. 4.All Utah law enforcement agencies should adopt and put in place written policies and procedures regarding the collection and preservation of digital imaging evidence, specifically in order to ensure the successful introduction of such evidence into court. FOOTNOTES 1. PMA Processing Survey: Highlights and Overview through August 2003, Photo Marketing Association International News Release (October 27, 2003). 2. Police Department - Digital Cameras Make the Difference, Pittsburg, Kansas Police Department, available at http://www.pittks.org/departments/police/technology/ cameras.asp. 3. Sarah Kershaw, Digital Photos Give the Police A New Edge in Abuse Cases, N.Y. Times, Sept. 3, 2002, at A1. 4. Quoted in Thomas Thurston, Hearsay of the Sun: Photography, Identity, and the Law of Evidence in Nineteenth Century American Courts, American Quarterly (1999), available at http://chmn.gmu.edu/aq/photos/index.htm 5. Here I have deliberately chosen not to call some forms of manipulation "enhancements." Some writers on the subject of digital photography do distinguish between "enhancement" and "manipulation" of images. This is certainly attractive for court purposes. Trial courts typically are less worried about "enhancement" as opposed to "manipulation" of photographic evidence. But even something as simple as enlarging a portion of a negative or stored digital image and causing it to be printed on paper stock is, arguably, a form of manipulation. "Manipulation" does not necessarily have negative connotations in my view. Only what I call Type 3 Manipulated Images are objectionable and should not be admitted as evidence in court. 6. O. J. Simpson's skin was darkened in a police photograph. See John C. Russ, Forensic Uses of Digital Imaging 125 (CRC Press 2001). 7. Penny Azcarate, Digital Imaging: The Technology and the Prosecutor, 34 The Prosecutor Magazine (Jan./Feb. 2000), available at http://www.paamtrafficsafety.com/ Hot%20Topics/Digital%20Pictures/digital.htm. 8. Christina Shaw, Admissibility of Digital Photographic Evidence: Should it be Any Different Than Traditional Photography?, 15 AMERICAN PROSECUTORS RESEARCH INSTITUTE NEWSLETTER (2002), available at http://www.ndaa.org/publications/ newsletters/update_volume_15_number_10_2002.html. 9.Richard Kammen and Herbert Blitzer, Ensure Admissibility of Digital Images, available at http://www.iowaiai.org.