Authentication of Digital Photographs Under the “Pictorial Testimony” Theory: A Response to Critics
In the past few years, numerous articles have been published challenging the reliability and admissibility of digital photographs.1 Initially, these articles attacked digital photographs on the ground that their quality was inferior to traditional photographs.2 As time and technology progressed, the criticism focused on the ease with which digital photographs can be manipulated.3 Adobe Photoshop and other software applications make it much easier to alter a digital photograph.4 However, software applications cannot modify a photograph without human assistance. That individual or another must take the witness stand and testify to a judge or a jury that the altered photograph is a true and accurate representation of what he or she saw. This is referred to as the “pictorial testimony” theory.5 As has been the case throughout history, the courts rely upon the adverse party to expose any altered evidence as that witness can be extensively cross-examined by the opposing party.6
Advent and Science of Digital Photography
NASA invented digital photography in the 1960s as a way of transmitting photographs from space.7 Today, we still receive digital images from Voyager 1, 27 years after it was launched from earth.8 However, as with many technologies used by NASA or the military, it took a considerable period of time for digital photography to filter into the mainstream, and even longer for it to make its way into the courtroom.
The first digital camera was not available to the public until 1981, when Sony manufactured and released “Mavica.”9 the time digital photographs were introduced into evidence in a courtroom, they were well known and no longer considered new or novel pieces of evidence. No court ever subjected the process by which digital photographs are taken to either the Daubert or Frye tests.10 The science of digital photography at that point was within the common knowledge of the courts and the populace, and, therefore, its accuracy was not questioned.
The science behind digital photography is very similar to traditional photography. Both digital photographs and traditional photographs are created using a camera equipped with a lens and a shutter.11 The shutter acts as a barrier to light between the lens and the recording medium.12 In both digital and traditional photography, the recording medium is exposed to light for a short period of time and memorializes the image. In both digital and traditional photography, the recording medium must be “processed” to produce a viewable picture. Most importantly, in both digital and traditional photography, that medium can be copied, enhanced, and manipulated.
In a digital camera, once the shutter opens, light pours onto a silicon chip referred to as a CCD13 (charge-coupled device).14 The chip is divided into millions of picture elements or pixels.15 These pixels are arranged in rows and columns, and each pixel is assigned a particular location.16 Each pixel records a numerical value for the light falling on it.17 Those numerical values are then transferred, in order, to a storage device.18 Asoftware program then reads each of those values and assigns a dot of the appropriate color in the same location as the pixel that originally recorded it.19 Once all of the dots are put back together in their appropriate places, the picture appears either on the screen or in whatever other medium the user wishes to produce.20
Most software that is capable of interpreting and displaying digital photographs is also capable of manipulating those same photographs. Pictures may be cut and cropped to make them fit a particular size frame.21 Colors may be adjusted, as can brightness and contrast.22 Items can be removed from the pictures or superimposed onto them.23 If the person performing these tasks is talented enough, the altered picture will look very convincing. An excellent example of this occurred in 1994 when a New York Newsday cover depicted Nancy Kerrigan and Tonya Harding skating beside each other.24 The cover was released several days before the event actually occurred; however, the skilled artists at New York Newsday managed to make the cover photograph look truly realistic.25
In traditional cameras, the recoding medium is film. Film is a thin strip of celluloid coated with a light-sensitive chemical, such as silver halide.26 When the shutter of the camera is opened, light pours in through the lens onto the film. This, in turn, affects the chemical and creates a negative (or a positive in the case of transparency film).27 Opponents of the admissibility of digital photography cite this process as the key difference between digital and traditional photographs.28 These opponents propound that the traditional process creates a true original that one can always refer to in order to verify the authenticity of the photograph.29 However, opponents fail to recognize that raw film can only be viewed in a dark room, as light will destroy it.
Traditional film must be subjected to a process commonly referred to as developing.30 Photographs will almost always be developed before an adverse party sees them. During this developing process, photographs may be enhanced and manipulated by a skilled technician, in much the same way digital photographs may be enhanced by a computer and a skilled user.31 At the end of the process that same skilled technician can produce a negative of his or her final product.32 If adversaries blindly accepted that negatives are always accurate, they would be doing a disservice to their clients and the adversarial system.
Indeed, there has been no lack of altered photographs and negatives depicting the Loch Ness Monster,33 Big Foot or UFOs,34 created with film-based cameras. Given the well-known history of hoaxes and manipulations of traditional photographs, it is unreasonable to suggest that digital photographs should be treated differently because they are more easily altered.
“Pictorial Testimony” Theory
Photographs have long been deemed admissible in Florida courts.35 A photograph may be admissible, under the “pictorial testimony” theory,36 “if relevant to any issue required to be proved in a case.”37 The courts have determined that “[p]hotographs can be relevant to a material issue either independently or by corroborating other evidence.”38 Once the relevancy hurdle has been overcome, the predicate for authenticity must be established.39
As the law stands today, the offering party need only provide prima facie evidence of authenticity for admission into evidence.40 In the courtroom, this authenticity requirement has evolved into a one-sentence predicate: “Does this photograph fairly and accurately depict [the subject of the photograph]?”41 At that point, the court permits the entry of the proffered photograph into evidence and leaves it up to the adverse party to challenge its authenticity.42 The “pictorial testimony” theory of admissibility is based on the notion that “[a]ny witness with knowledge that [a photograph] is a fair and accurate representation may testify to the foundational facts.”43 There is no requirement that the person who took the photograph testify in order to authenticate the photograph.44 There is no requirement that the person testifying about the photograph was present when the photograph was taken.45 There is no requirement that the person testifying about the photograph even knows who took the photograph.46 It is enough that the individual testifying recognizes the subject that is depicted in the photograph.
Opponents of digital photography would like a heightened requirement for establishing authenticity.47 These opponents suggest that due to the malleable nature of digital photographs, the predicate for authenticity should place more stringent foundational requirements on the offering party.48 However, this does not address the spirit of the rule. The rule does not suggest that evidence is accurate once admitted; rather, the rule permits the introduction of evidence with the expectation that the accuracy and veracity of the evidence will be tested by the adverse party.
The authenticity of a photograph is established in the same manner as that of a map or a chart: “A map, plan, or picture, whether made by the hand of man or by photography, if verified as a true representation of the subject about which testimony is offered, is admissible in evidence to assist the jury in understanding the case.”49 Documents are authenticated in the same way.50 A witness offers prima facie evidence that the document is what it purports to be and the document is admitted. Often, these are typewritten business records. Typed documents or hand-drawn pictures can be reproduced or forged with much less effort than a convincingly altered digital photograph. However, the rules do not require the offering party to prove that a document is authentic.51 Instead, the offering party is merely required to offer prima facie evidence of authenticity, and then be prepared to defend against an adversary’s attack.52 In short, the rule allows evidence of questionable veracity to be admitted secure in the knowledge that the adversarial system will bring to bear any discrepancies.
This rule stood the test of time and technology when the Florida courts were met with the challenge of addressing the admissibility of more advanced methods of photography. In 1974, the Second District Court of Appeal was confronted with setting forth the proper evidentiary predicate for a “Regiscope” camera.53 A Regiscope camera automatically yields photographs that simultaneously capture the image of a check offered for cashing and the image of the individual presenting the check. In Oja v. State, 292 So. 2d 71 (Fla. 2d DCA 1974), the defense appealed the admission of such a photograph.54 The offering party proceeded under the “pictorial testimony” theory, first establishing relevance and then calling witnesses to testify that the images in the photographs fairly and accurately depicted the check and the defendant.55 Appellant contended that prior to the admission of the photograph into evidence, it was necessary to call “experts or persons responsible for installation and maintenance of the camera.”56 The Second District Court of Appeal rejected this argument, concluding that a traditional predicate was sufficient for admissibility.57 The Regiscope photograph was admitted under the “pictorial testimony” theory.58 The court reasoned that because there was a witness present who had personal knowledge of that which was depicted in the photograph, the Regiscope’s photograph was merely illustrative of the witness’s observation.59 This reasoning was adopted by the Third District Court of Appeal shortly thereafter.60
Courts have employed similar reasoning when confronted with technological advances such as X-ray films,61 videotapes,62 motion pictures,63 and color photographs.64 With each new advance, adverse parties raised the same objection.65 The parties argued that this new technology required a new rule of admissibility. Time and again, the courts found that X-rays, movies, and photographs were merely illustrations of a witness’s testimony.66 Consistent with this reasoning, courts repeatedly overruled these objections.67 The courts admitted all of these technological breakthroughs under the “pictorial testimony” theory.68
The most recent advance in photography, the digital camera, should be treated no differently. There is still a requirement for a live witness to testify to events that he or she personally observed. That live witness is still subject to cross-examination. In fact, when confronted with the issue of whether digital photographs should be subjected to a more stringent predicate, the Supreme Court of Georgia responded: “We are aware of no authority, and appellant cites none, for the proposition that the procedure for admitting pictures should be any different when they were taken by a digital camera.”69
Silent Witness Theory
There is one situation in which courts have found it appropriate to change the predicate for the admission of a photograph into evidence. Under certain circumstances, there may be no witness to testify to the contents of a photograph and, thus, no way for an adversary to verify or challenge its accuracy.70 This occurs frequently in cases involving surveillance cameras; often, a surveillance camera may capture a crime that no live person was present to witness. However, the photograph is still relevant and often critical to the case. In these situations, courts have embraced the “silent witness” theory.71 In these instances, a photograph or videotape “speaks for itself.”72 Courts have further found that “proof of surrounding circumstances may ‘be sufficient for the court to find that the photograph is a fair and accurate representation of a material fact.’”73 Proving these surrounding circumstances requires much more than admission under the “pictorial testimony” theory.
Under the “silent witness” theory, “photographic evidence may be admitted upon proof of the reliability of the process which produced the photograph or videotape.”74 Several factors are taken into account to determine reliability. These factors include:
(1) evidence establishing the time and date of the photographic evidence; (2) any evidence of editing or tampering; (3) the operating condition and capability of the equipment producing the photographic evidence as it relates to the accuracy and reliability of the photographic product; (4) the procedure employed as it relates to the preparation, testing, operation, and security of the equipment used to produce the photographic product, including the security of the product itself; and (5) testimony identifying the relevant participants depicted in the photographic evidence.75
In situations in which there is no live witness to testify as to what a photograph depicts, courts have recognized that they must impose adequate safeguards to ensure that foundational requirements will expose tampering and manipulation of evidence.76 Absent such safeguards, the altered contents of a photograph would not necessarily be brought to light. Thus, the courts impose a burden upon the offering party to prove authenticity above and beyond merely offering prima facie evidence as is required pursuant to the “pictorial testimony” theory.
The requisite rules of admissibility for photographs, whether digital or traditional, are relevance and a prima facie offering of authenticity. Thereafter, it is left to the adverse party to challenge the authenticity of a given photograph. These rules have endured through various technological advances since 1891. Both adherence to and deviation from an established rule provide insight as to how courts will respond in the future. With regard to photographs, courts consistently adhere to the “pictorial testimony” theory provided that a given photograph is illustrative of a witness’s testimony.
Courts rely on the adverse party to test the veracity of a witness and the authenticity of a photograph. The only time the courts deviate from this time-honored rule is in those situations in which a witness is no longer available. In those limited circumstances, the courts impose a greater burden on the proponent of photographic evidence to offer specific testimony as to the method by which a picture was taken and processed. This is not the case with digital photographs. Digital photographs, just like their black and white, color, and Regiscope predecessors, are merely illustrative of testimony.
It is true that digital photographs have the capacity to be manipulated, just like their technological predecessors. It is true that manipulation is even easier than it was before. It is also true that, as in the past, the courts will continue to rely on the adversarial system to expose tampering. Photographs are no different than testimony. The courts do not disallow a witness because he or she is capable of lying. Rather, they allow that witness to take the stand and the adverse party is permitted to cross-examine the witness.
However, the “pictorial testimony” theory only governs the admissibility of evidence; it does not govern the weight afforded to a photograph by a fact finder. A party who wishes for digital photographs to be taken seriously by a jury must be prepared to meet the challenges presented by opposing counsel. Thus, the offering party should preserve a verifiable, historical record tracking the life of the photograph.
While the law, as it stands today, permits the admission of digital photographs into evidence and the current trend suggests that digital photographs will continue to be introduced under the “pictorial testimony” theory, parties have every reason to believe that a digital photograph can and will be subjected to a withering cross-examination. It is important that any party intending to introduce a digital photograph be prepared to meet such an attack with solid corroborating evidence. The most significant attacks may come in the form of questions as to chain of custody. A cautious party should be prepared to prove that a photograph is an unedited original. In those cases in which enhancement or editing is appropriate, each step taken in producing the final product should be recorded and repeatable from a copy of that original.
A digital photograph, once taken and stored on the memory device of a camera, must be downloaded to a computer. This is the critical juncture in which careful documentation and logging may mean the difference between the later presentation of a convincing piece of evidence or the advent of tampering concerns. downloading the photograph shortly after it is taken and logging any changes or movements the photograph goes through thereafter, the authenticity of the photograph is supported.
The Scientific Working Group on Imaging Technologies has created recommendations for law enforcement agencies preparing to make the transition to digital photography.77 The issues addressed in those recommendations are invaluable to any party anticipating litigation. These recommendations, when utilized in conjunction with one of the many available software applications that create accurate logs of a photograph and a history of changes involving the photograph, will prepare any litigator for an eventual challenge to the authenticity of a digital photograph.78 q
1 Jill Witkowski, Can Juries Really Believe What They See? New Foundational Requirements for the Authentication of Digital Images, 10 Wash. U. J. L. & Pol’y 267 (2002); Mark Hansen, ‘Digitally Enhanced’ Evidence Draws Challenges from Defense, 88-AUG A.B.A.J. 24 (2002); Michael Cherry, Informal Opinion, Reasons to Challenge Digital Evidence and Electronic Photography, 27-JUL Champion 42 (2003); David Beckman & David Hirsch, Imaging Software can Help your Pictures Tell the Story, 89-AUG A.B.A. J. 62.
2 Witkowski, supra note 1, at 268–69.
3 Hansen, supra note 1,at 25.
4 Beckman, supra note 1.
5 Wagner v. State, 707 So. 2d 827, 830 (Fla. 1st D.C.A. 1998).
6 Hannewacker v. City of Jacksonville Beach, 419 So. 2d 308 (Fla. 1982).
7 Julie A. Robinson et al., Astronaut-Acquired Orbital Photographs as Digital Data for Remote Sensing: Spatial Resolution, 23 Int. J. Remote Sensing 4403 at 4410, 4422 (2002).
8 Voyager, Interstellar Mission Web site., http://voyager.jpl.nasa.gov/.
9 Mikkel Aaland, Witness to History: The Digital Camera, Take a Look at the First Digital Cameras, Feb. 11, 2004. www.techtv.com/callforhelp/print/0,23102,03473780.html.
10 Daubert v. Merrell Dow Pharmaceuticals, Inc., 516 U.S. 869 (1995); Frye v. U.S., 293 F. 1013 (D.C. 1923). It should be noted that some of the processes used to enhance digital photographs have been subjected to tests of admissibility for scientific evidence but that is beyond the scope of this article. Kennedy v. State, 853 So. 2d 571 (Fla. 4th D.C.A. 2003); State v. Hayden, 950 P.2d 1024 (Wash. Ct. App. 1998).
11 Erik C. Berg, Legal Ramifications of Digital Imaging in Law Enforcement 3 (2000).
13 The CCD is a collection of tiny light-sensitive diodes, which convert photons (light) into electrons (electrical charge). These diodes are called photosites. In a nutshell, each photosite is sensitive to light—the brighter the light that hits a single photosite, the greater the electrical charge that will accumulate at that site. Karim Nice & Gerald Jay Gurevich, How Digital Cameras Work, http://electronics.howstuffworks.com/digital-camera.htm.
14 International Center of Photography, Encyclopedia of Photography 145 (1984).
15 A pixel is an electronically encoded picture element. International Center of Photography, Encyclopedia of Photography 145 (1984).
16 Erik C. Berg, Legal Ramifications of Digital Imaging in Law Enforcement 3 (2000).
18 The storage device is either an optical or magnetic storage medium. Examples are a laser disc or some variation of a hard or floppy disc. Id.
21 Product overview, www.Adobe.com.
24 New York Newsday, February 16, 1994, cover.
25 Mitchell Stephens, What’s Fair in Changing Photos?, Newsday, February 24, 1994, at 115, available at www.nyu.edu/classes/stephens/Let%20Pictures%20Speculate%20page.htm.
26 Berg, supra note 11, at 4.
28 Witkowski, supra note 1, at 272.
31 Michael Langford & Alfred A. Knopf, The Dark Room Handbook 138, 183 (Dorling Kindersley Limited 2002).
32 Tom Grim, The Basic Darkroom Book 319 (Plume 1999).
33 James Langton, Revealed: the Loch Ness Picture Hoax Monster Was a Toy Submarine, The Sunday Telegraph Limited, March 13, 1994, www.urbanlegends.com/animals/locn.ness.monster/nessie_photo_hoax_1.html.
34 Robert Novella, Photographic Fakery, The New England Journal of Skepticism 1 (1988). www.theness.com/articles/photographfakery-nejs0101.html.
35 Adams v. State, 10 So. 106 (Fla. 1891), modified in part by Hannewacker v. City of Jacksonville Beach, 419 So. 2d 308 (Fla. 1982) (recognizing limited exception to pictorial testimony theory where photographs speak for themselves. See note 51 and accompanying text).
36 Wagner, 707 So. 2d at 830.
37 See Bryant v. State, 810 So. 2d 532, 537 (Fla. 1st D.C.A. 2002).
38 Straight v. State, 397 So. 2d 903 (Fla. 1981).
39 Charles W. Ehrhardt, Florida Evidence §901.1 (2003 Edition).
41 Id. at §401.2.
42 Id. at §901.1.
43 Bryant, 810 So. 2d at 535.
44 Hillsborough County v. Lovelace, 673 So. 2d 917 (Fla. 2d D.C.A. 1996).
45 See City of Miami v. McCorkle, 199 So. 575 (Fla. 1940).
47 Witkowski, supra note 1, at 282–83.
49 Adams, 10 So. 106 at 113.
50 Ehrhardt, supra note 39.
53 Oja v. State, 292 So. 2d 71 (Fla. 2d D.C.A. 1974).
56 Id. at 73.
57 But see Kindred v. State, 524 N.E.2d 279, 298 (Ind. 1988) (“[I]n cases involving photographs taken by automatic cameras, such as Regiscopes or those found in banks, there should be evidence as to how and when the camera was loaded, how frequently the camera was activated, when the photographs were taken, and the processing and chain of custody of the film after its removal from the camera”).
58 Oja, 292 So. 2d at 73.
59 Id. at 72.
60 See McNair v. State, 353 So. 2d 176 (Fla. 3d D.C.A. 1977); Metropolitan Dade County v. Zapata, 601 So. 2d 239 (Fla. 3d D.C.A. 1992) (applying reasoning to reenactment photograph).
61 Grant v. State, 171 So. 2d 361 (Fla. 1965).
62 Paramore v. State, 229 So. 2d 855 (Fla. 1969), rev’d on other grounds, 408 U.S. 935 (1972).
64 State v. Wright, 265 So. 2d 361 (Fla. 1972).
65 Grant, 171 So. 2d 361; Paramore, 229 So. 2d 855; Wright, 265 So. 2d 361.
69 Almond v. State, 553 S.E.2d 803, 805 (Ga. 2001).
70 Hannewacker, 419 So. 2d 308.
71 John Henry Wigmore, 3 Evidence in Trials at Common Law §790 (219–20) (1970).
73 Bryant, 810 So. 2d at 535.
74 Wagner, 707 So. 2d at 830.
76 Wigmore, supra note 71, at 220.
77 Scientific Working Group on Imaging Technologies (SWIGT): Definition and Guidelines for the Use of Imaging Technologies in the Criminal Justice System, June 6, 2002, www.theiai.org/swgit/.
78 More Hits, www.more-hits.com/index.shtml; Adobe Photoshop CS uses the “histogram palette” to track changes, http://www.adobe.com/products/photoshop/newfeatures.html?newfeaturesgif#nf3.
Brian Barakat is a commercial litigation associate at WermuthLaw P.A. He received his J.D. from Temple University in 2000. Formerly Mr. Barakat was an assistant state attorney in the 11th Judicial Circuit of the State of Florida where his focus was in computer crime. Mr. Barakat is a founding member of the Miami Electronic Crimes Task Force and has been a featured speaker at several classes on digital evidence and computer crime.
Bronwyn Miller is a training director at the 11th Judicial Circuit Office of the State Attorney. She received her B.A. from Columbia University in 1994 and her J.D. from the University of Miami in 1997. Ms. Miller has lectured numerous times on issues ranging from closing arguments to evidentiary foundations and has served as an adjunct professor at Florida International University.