More and more of the law enforcement agencies in my counties are using digital photography for their crime scene and investigative photographs. What type of policies do any da/ca offices have for the use of digital photography as evidence? Has anyone had problems with admissibility at trial? What do you require to be turned in with the case file - a printed copy of the photographs or a diskette with the photographs on it or both or something else? Any suggestions would be appreciated...... I hope to put together a policy for all agencies in my jurisdiction to follow. Thanks.

The most recent newsletter of the APRI's National Center for Prosecution of Child Abuse consists of an article entitled "Admissibility of Digital Photographic Evidence: Should it be Any Different Than Traditional Photography?". If you do not have a copy of it, I will be happy to fax you one. Based on Almond, 553 S.E.2d 803 (Ga. 2001), Ms. Shaw concludes the answer to the question is "no", but also gives some "steps to enhance" admissibility (and persuasive value) of such photos.

Our policy for now is to request the diskette or a copy. The defense attorney can view them on screen. It is just too expensive for us to print all images in all cases in color. And I have found the resolution to be better on screen anyway, unless you use the best paper and printing techniques.

In digital photography, where is the original photograph kept?

At the risk of biting at a trick question I think the digital age blurs the significance of the word orginal and I have always assumed that the word has no significance for "photographs". (What would the objection to a non-orginal photo be? Objection your honor the State is offering a "reprint"?)

I suppose the first disk the photos are transferred to might be called the original?
I have not read the article suggested earlier but I have always thought the scare about digital photos is somewhat overblown. Traditional negative prints vary in quality depending on where the picture is developed and can't they also be altered? I suppose the concern is that digital images are more easily altered but has anyone encountered or heard of a case where that was done effectively?

Of course I may change my mind about the power of digital images once I see "The Two Towers".

If a digital image is created and then transferred from the camera's chip to another medium (a hard drive, a CD, or some more temporary floppy or zip disk), nothing is changed from the original. The digital file is merely duplicated onto the other medium.

When the digital file is opened, some software is making decisions about color, etc., but isn't yet making any changes to the actual file. If the operator then decides the picture is in need of some "fixing", there are many automatic and manual settings that can "improve" the picture." If any of those settings are executed, then the original file has been altered.

Admittedly, there isn't necessarily anything wrong with those changes. It may simply lighten the photograph, change the contrast, or even just crop the picture to delete irrelevant material.

But how many police officers could sit on the witness stand and explain what alterations took place and how they were accomplished? Again, not necessarily anything done wrong, but it could make for some embarrassing testimony.

We still resist the use of digital photographs as a substitute for film photography. But more and more agencies are doing it anyway (mostly to drop the cost of development and for ease of use on the scene). We try avoid transferring that cost to the DA's office by requiring the agency to print the digital photographs or burn them onto a CD or some other permanent media.

You should never, ever, offer ditigal pictures into evidence in a digital form. How is the jury and appellate court going to look at the image? Not everyone is computer savvy, and we still don't really know how long this stuff lasts, although CD's look pretty good.

Instead, we offer a printed copy into evidence and display the digital version through a laptop, Powerpoint, and a projector. That way, the entire jury gets to see it at one time and follow the witness' testimony at the same time.

John, I bow to your superior knowledge of digital photography, but is the following argument not correct?

At its most basic level a photo like a diagram has no relevance till a live witness says it fairly and accurately depicts what is represented so why does it matter, from an admissability standpoint if it is digital, film, or crayon, so long as it is supported by testimony? Is there some idea that the science of photography is going going to have to be subjected to a Kelly analysis?

We receive about half of our pictures in digital form. Ideally, these arrive with the file or soon after. It has worked well so far in that the images are easily viewed (through a good viewing program like ACDSee) and allows us to decide which images we will want to put into evidence. We do not print all of them unless we anticipate needing all of them. Copies can be easily burned to CD for the defense. This works much better than the defense attorney coming to my office and looking at 35mm photos for an hour. Those selected photos are printed into 5 X 7's and those are the photos shown to the witnesses and defense attorney and placed into evidence at trial. We then show the jury the photo through a projector. The 35mm pics we get are scanned, placed in a powerpoint presentation and shown with a projector also.
One note on the subject of enhancing. Very seldom have I seen a photo taken with a digital camera that didn't look fine in PowerPoint. This may not be true for lower end cameras but as a rule I have not seen much need to change anything on these pictures. Scanning a 35mm print is much more likely to result in an image that is not suitable for use. The main problem is an image that appears too dark. If I make any adjustment at all to an image, it is limited to the brightness adjustment in the PowerPoint program itself. This is easily explained and can be re-created if neccessary.

No, Richard, you are exactly right about the predicate for the admission of the photograph. If someone says, "Yep, that's what the scene looked like to me," then the photograph should be admitted.

(If you have trouble remembering that predicate, get a copy of Predicate Questions Manual from TDCAA. It is available under the Publications link listed above. This message has been brought to you as a public service of TDCAA.)

But, for photographs, there has historically been little involvement of the police in the transfer of an image from a negative to a print, although I suppose some agencies have their own photo development department. Now, police take the picture, transfer it to another medium, open it, perhaps alter it with software, and print it. If color is important, there may be many changes to the image. Who can explain those changes, in terms of the software?

Now, I haven't actually seen anyone challenge a digital photo in this manner, and maybe it won't happen, but, hey, we've got to talk about something on this user group, and I was getting a little tired of talking about law.

While it is true that software or users may make "alterations" to digital images to lighten, enhance color, etc., it is also true that most "automated" film developing equipment does the same thing in "traditional" developing. You can send the same negative to five different processing labs and get back 5 different prints. So, it does not appear that there is really any more "alteration" in digital images than in negative and film images. A good example - eliminating "red eye". If a photo (digital or film) is offered that shows a person with "red eye" does the photo "truly and accurately depict...? - of course NOT. So eliminating red-eye might be altering the image, but the alteration makes the image MORE accurately depict reality. The predicate just has to be "does this truly and accurately depict..."

The law enforcement agencies in my county provide a copy of the digital photos printed out in color on "regular" paper to save money. The photos are generally in a small size format. We photocopy these (non-color) for the defense. If the case is set for trial, we request a disk or CD from the agency and print out a larger size color photo on our printer for the jury's consideration and also use PowerPoint to display the photos during the trial.

There have been no problems with admissibility as long as the magic predicate of "fairly and accurately depicts" is met.

Additionally, "regular" photographs, are always going to be a different "shade" from the true colors that existed at the scene based on the manner they are developed or the inability of the camera to capture the correct "shade" of color. The fact that the contrast is corrected or altered in a darkroom instead of on a computer does not make the photo more reliable as evidence.

If authenticity ever becomes an issue for the digital image, technology exists so that courts can be assured that there is an unaltered original image. TIFF format images can't be altered. Civil lawyers already use TIFF images in place of paper copies in those big, document intensive civil cases. That way, they know the image they are dealing with is unaltered. TIFF swallows alot of memory for each image, but storage devices are rapidly decreasing in size and increasing in capacity so that, in the forseeable future, we should have devices that can take unalterable original images much like traditional negatives. Once that technology is practicable, we should encourage agencies to do things this way (or in some similar way) to avoid authenticity problems.

My office recently purchased a Sony digital camera that uses a "mini-disc" in a CDR and CDRW format. The CDRW can be changed, copied over and altered. For crime scene, my investigator uses CDR. Once the image is on the disc, it acts as an original and can not be modified (copies, however can be altered). As noted above, If your witness can ID the photo, they should be admitted but the CDR "original" should shut down any allegations of tampering or altering photgraphs. Mini-discs are nice in that the will work on any PC with a CDROM and can be easily copied to another CDR to give to defense attorneys. With this camera at the highest resolution and the largest picture, we can get about 75 pictures per disc. My little county has had three homocides in six weeks and the camera has got a great testing at these crime scenes. It has been nice to have my investigator walk in, pop out the disc, stick it in my laptop, and immediately view the crime scene. We also use it for taking pictures of search warrant locations to attach to our search warrants. It is one of the best investments we have made. We also bought a digital vioce recorder that has worked very well in taking statements. I am looking at purchasing both for the local law enforcement agencies.

Our SO crime scene unit just switched to a digital camera with a dedicated custom-built computer and printer that can do 13" x 17" They get better results with luminol looking for blood and ultraviolet light for fingerprints. If you have any questions, call crimescene@smith-county.com - They burn a CD and print a set for us with the case.

During the holidays my daughter showed me a digital photo that my cousin (who is advertising) made. It was a photo of all three of my kids on the couch together. She was so impressed because one of my kids wasn't really there but had been spliced in with a computer program.I looked closely and couldn't believe it. I can't imagine law enforcment misusing the program but I can think of instances where it could be used by Defendants. "We were all at a party together the night of the murder and here is a photo to prove it." I can't imagine the expense of trying to check the digital photos nor would you have time if the Defense attorney did this in trial. How does one protect the State from a Defendant/ Lawyer who is smart enough to create such evidence for a jury?

We recently had a case in which the defendant claimed he received an award from the victim. He claimed he received it in connection with the company he was working for, and provided the plaque and a photo of the victim handing him the plaque to prove it.

We digitized the photo and could easily see that it wasn't the same plaque. The jury convicted and we are looking at charging the defendant with Tampering with Physical Evidence and Aggravated Perjury.

John, I am impressed. How does one digitize a photo?

You place the photo on a scanner, scan it, open the new digital file on your computer with photo management software (such as Photoshop), and then zoom in on the part you really want to see. If you get a high resolution scan, you can see all kinds of things.

Of course, photographers can do the same thing through developing, but it takes longer. Scanning makes it available instantly (well, almost instantly).

Then, you take the scanned, zoomed image, insert it into a Powerpoint slide, and project it onto a wall, six feet tall, to show what a big, fat lie the witness told.