Digital Capture

Admissibility

In order to be admissible as evidence, a photograph must be relevant and a “fair and reasonably accurate representation” of what the photographer observed. Before we discuss the advantages of digital imaging, we should look at how this admissibility requirement pertains to any type of photography.

I’m sure the “relevant” requirement is clear. A “fair representation” addresses the subjective aspects of image making. It requires the photographer to make proper judgments in lens selection so that the observed scene is represented as a normal observer would observe it. Extremely wide-angle and long telephoto lens do not present a fair representation, although they may have a place in overall coverage of the scene.

In outdoor scenes, time of day is important in presenting a “fair representation”. Similarly, in studio and especially macro photography, lighting and focus must be carefully chosen so that it does not misrepresent the subject.

The “accurate representation” requirement addresses the technical aspect of photography. These include camera and lighting technique, exposure, color balance, white balance and a myriad of other factors. The photograph should be neither overly lighter nor darker than the photographer observed, whether by ambient light or lighting used by the photographer. “Blown out” highlights and deep shadows could hide important information and seldom present an accurate representation of the subject or scene. Similarly, a color balance that differs widely from the observed colors, or a white balance that does not properly render neutral tones would not be considered an “accurate representation”.

The word “representation” itself acknowledges that the courts understand that a photograph can never duplicate or be an exact copy of the scene it depicts. It is, after all, a two-dimensional representation of a three-dimensional world.

These considerations apply to conventional silver halide-based photography as well as digital imaging.

Some History

Early in the history of digital capture two principle objections were made to the admission of digital photographs as evidence. One, the Kelly-Frye test attempted to halt the admission of digital images as a scientific technique, discovery or invention novel and unproven at the time. Both the original court and the appeals courts dismissed this argument against digital photography.

The other objection was that digital images could be easily altered. However, a silver-halide image can be scanned, altered and printed just as easily, and the Federal Rule of Evidence states that “An ‘original’ of a photograph includes the negative or any print therefrom”. So a print from a film negative can be as suspect as a print from a digital capture.

The decision in State of Washington v. Eric Hayden effectively dismissed this objection to digital capture. It imposed the same requirements on digital imaging as those on conventional photography, including the need for a documented and secure chain of custody of the “original”, be it film or digital capture. Any enhancement technique used must be reproducible and documented. Alterations that enhance the quality of the image or improve its clarity are permissible.

Our Approach

California Legal Photography archives all original captures as well as those altered to improve the quality of the image in order that the image more accurately represent what the photographer observed. If objection is raised to the photograhic prints, these original captures can be recalled and shown to match the prints output from them.

At present, digital capture can actually be more secure than film photography. For the Nikon cameras used by California Legal Photography, clients can specify the use of Nikon Image Authentication Software. This product permits verification via a personal computer as to whether an image has been processed or edited after it was taken. Nikon Image Authentication Software removes any trace of question regarding changes made to a digital capture. However, the used of digital capture is so widely accepted by the courts that the additional cost of using Image Authentication Software is rarely justified.

California Legal Photography understands the requirements for images to be accepted as evidence, and has the knowledge, technique and digital equipment required to meet your evidence photography needs.