Legal, Methodology

Can Your Digital Images Withstand A Court Challenge?

The term “digital” in law enforcement is almost immediately associated with digital forensics, i.e.; computer crimes, cyber terrorism, child porn on computer hard drives, and other areas that require special training, expertise, and equipment to investigate these types of digital threats. Media attention is widespread, grant opportunities abound, and a seemingly endless supply of resources have been made available to address the needs of our new digital world.

At the same time, the use of digital cameras for the purposes of documenting and collecting evidence at crime and accident scenes has been evolving at a similar pace — and doing so mostly “under the radar.” Digital cameras have become the norm, and it is now rare to find a film camera being used for law enforcement purposes. Digital imaging was a natural progression from film; the cameras look the same, operate the same, and produce the same results – sometimes. When the results are less than optimal, operator error is the assumed culprit.

The Problem

What hasn’t been widely recognized, however, are the vastly different steps, processes, limitations, and vulnerabilities involved when creating a digital image. While the transition from film to digital has been with little fanfare and mostly gone unnoticed, it has not been completely ignored within the law enforcement community. The National Institute of Justice (NIJ), the Scientific Workgroup on Imaging Technology (SWGIT), the International Association for Identification (IAI), the Evidence Photographers International Council (EPIC), and others have developed guidelines, standards, and training to help law enforcement make this transition. Guidelines, standards, and training that have largely been ignored.

The reason is inherent to our system of law enforcement. By necessity, law enforcement is a reactive, crisis management-oriented organization. There is little time to be proactive – and too often problems lurking in the background are unnoticed or ignored until they become a crisis. To date, a major challenge to law enforcement regarding how digital images are captured and the resultant workflow and storage of the images has yet to be realized. Predictably, SOP’s involving digital image integrity and workflow are largely unaddressed by law enforcement.

What agencies fail to realize is that lacking SOP’s and a sound workflow, images submitted for court purposes will not survive if challenged by a knowledgeable attorney. The complexities of digital have not yet been realized, and images taken by law enforcement officers today will likely fail one of three very basic criteria:

  1. The date and time setting in the camera is incorrect
  2. The wrong lens focal length was used, resulting in an inaccurate depiction of the scene
  3. Embedded information may indicate the image has been modified

We do not live in a film world anymore. These points were not an issue with film. We now live in a digital age that changes everything we once believed about how photographs are treated in law enforcement. A “true and accurate representation” is no longer the only qualifier – and is a court challenge waiting to happen. The only question is when – and where.

How are your memory cards handled, and images transferred and stored? Most digital images can be changed – modified – altered – without detection. Are your images secure? What standard operating procedures do you have in place that can guarantee your images have not been modified? Who has access to your images? Or have you provided all your personnel with “keys to the property room” by allowing the images to be accessible?

Workable Solutions

First, training for first responders in the proper use of digital point-and-shoot cameras is critical.  These cameras are anything but point-and-shoot, and have severe limitations for law enforcement applications.  Under any condition except a bright sunny day, these cameras perform poorly.  Law enforcement leaders are encouraged to view a sampling of images taken by their officers on a computer monitor; most are shocked to find that 75 to 80 percent of the images are un-useable.   Second, digital image policies and SOPs need to be developed and implemented that will maintain digital image integrity. Samples that follow national guidelines for digital image integrity are available that can be customized for any size department.  Third, those officers charged with using digital single lens reflex cameras (DSLRs) must receive training specific to those cameras.  DSLR cameras have a complex array of menus and options; most officers in the field now place the camera in automatic mode and hope the images are acceptable.  Automatic mode in law enforcement is not the right solution.

The Certified Evidence Photographer (CEP) program offered by the Evidence Photographers International Council was developed by focusing on the unique needs of photographers documenting crime and accident scenes in our new digital world. According to Claire White, Director of EPIC, 17 leaders in evidence and forensic photography throughout the country were hand-picked to create this certification program. These individuals consisted of personnel from the FBI, the Secret Service, heads of crime laboratories, educators, police officers, and others having expertise in this area. For more than a year this team worked with a psychometrician to determine what guidelines and standards should be included for an evidence photography certification, and how to then present training courses and subsequently test for a meaningful certification.

Thomas Doggett, CEP, CCSI, an officer for the Batavia Police Department outside Chicago, took the CEP education to demonstrate to his peers a level of proficiency in the field. “It’s one thing to know how to do the job, but completely another to have an Investigator trust you photographing their crime scene. So many people consider themselves photographers today because of the digital LCD screen; however, when a complicated situation arises they don’t possess the tools needed to effectively work through the problem. Certification shows that a photographer understands what is happening with light, focal lengths, depth of field, etc… to make a photograph that shows a true and accurate representation of the scene as it actually was . . . In my organization outside specialty assignments are generally 3 years in length. I have held an ancillary assignment as a Forensic Photographer with the county major crimes task force for almost 12 years. A large part of the factor keeping me on the task force and not being rotated out is the CEP.”

So Ask Yourself: Can You Images Withstand A Court Challenge?

Law enforcement agencies and others taking crime and accident scene photographs need to take a hard look at their SOPs and consider the following facts:

  1. The majority of cameras in the field have an incorrect date and time – check yours
  2. Compact point-and-shoot cameras default to a wide angle setting, which will misrepresent the accuracy of the image– and your officers don’t even realize it
  3. Digital single lens reflex cameras (DSLR) come with zoom lenses. There is only one position on that lens that will accurately represent the image – and your officers don’t know it.
  4. When images are downloaded to a computer, the simple act of rotating an image in order to view it will indicate it as “modified.” Will your court accept a modified image?

Any one of these issues will likely result in your images being disallowed if challenged – yet guaranteeing digital image integrity is not that difficult. Providing proper training, policies, and having at least one CEP in your agency is a small investment compared to losing just one important case in court.

To learn more on this subject and the Certified Evidence Photographer program (CEP), visit:


About D. Eric Johnson, CEP

D. Eric Johnson retired as a First Lieutenant from the Michigan State Police in 2009 after more than 30 years of service. He has been a professional photographer for more than 28 years; in 1983 he began providing professional portrait services and has been providing excellence in photography throughout the mid-Michigan area ever since. His prints have won numerous awards, including two "Top Ten in-the-State" awards by the Professional Photographers of Michigan (PPM), several "Best of Shows," and prints being accepted into the Professional Photographers of America (PPA) Loan Collection. He now specializes in Forensic Photography, and provides forensic photography instruction to law enforcement officers throughout the state. Eric also provides on-location services to plaintiff law firms in the areas of injury photography, product failure, hazardous conditions, and any other situations involving difficult-to-photograph subject matter. His meticulous attention to detail and years of experience, combined with specialized equipment and lighting techniques, result in his ability to provide an exceedingly accurate representation of most any subject matter. Eric is a Certified Evidence Photographer (CEP), being certified in 2010 by the Professional Photographic Certification Commission; he is one of less than 50 CEP's worldwide. His law enforcement background, combined with his professional photography experience, makes him uniquely qualified to provide exceptionally accurate images of personal injuries, hazardous conditions, and other subject matter. He regularly teaches forensic photography at the Michigan State Police Academy, as well as locations throughout the state. He has trained 779 law enforcement officers from 182 departments, including evidence technicians, accident reconstructionists, and crime lab technicians. He also teaches the evidence photographer certification course for the Evidence Photographers International Council (EPIC).

Discussion

4 thoughts on “Can Your Digital Images Withstand A Court Challenge?

  1. I have frequently –in writings, seminars, and conversations– addressed the issue of the “Best Evidence” rule and authenticity of captured Web pages and digital images. Although I am quick to call attention to the metadata (HTML code, inline links, HTML get and posts, EXIF, among other things), my practical experience has been that even lame print-outs of the evidence is ordinarily deemed admissible under Fed.R.Evid. 901 (and state equivalents), so long as the witness avers that was the image on his or her screen at the time of the capture. Challenging that evidence on “best evidence” grounds is an uphill battle, unless just cause can be shown that the witnesses credibility is in question. Perhaps, the best and (only?) opportunity to analyze that evidence is to request native production during discovery (in federal court, this would be agreed upon in a Rule 26(f) meet-and-confer).

    Posted by Sean L. Harrington | January 23, 2012, 8:45 pm
    • Good comments, thank you. However, witness credibilty is exactly the point. Time after time (in a classroom setting) I have had police officers “happy” with an image and testify it is true and accurate. I then show what it SHOULD look like had they used the proper focal length (only one example) – they don’t know what to say. Suddenly their credibilty has been shown to be unreliable – and that can have a devastating impact on their case, as well as other cases.

      Posted by D. Eric Johnson, CEP | January 23, 2012, 9:01 pm
      • Eric, thanks for the article. While I agree with the view that not getting certain details about an image right, may lead to witness credibility, I must point out, that on the practical issues of the admissibility of evidence, Sean was right on the point when he opined that challenging such “evidence on the best evidence rule is an uphill task.

        Except it can be shown that the omission is so substantial as to affect the character and probity of the evidence a challenge mounted can only go to the weight attached to the evidence and not to its admissibility. As a defence attorney and digital forensic analyst, my advice to digital expert witnesses, is that they do not through gross omission in adhering to SOP expose themselves to ridicule during cross examination.

        The moral law enforcement officials should take from your article, is that they do not assume photos, digital images of crime scene will not be challenged. When they fail to listen, they may just find a specialist attorney – like me – waiting on the other side of the divide and it won’t be pretty.

        Posted by Karl Obayi | February 2, 2012, 9:11 pm
      • Thank you, Karl. In my experience, in the US the vast majority of law enforcement officers and officials believe that simply testifying that an image is a true and accurate representation is all they need. I have demonstrated over and over that while they THINK it is true and accurate, I can prove that it is not. With someone like you challenging their images, they will be learning too late.

        Posted by D. Eric Johnson, CEP | February 4, 2012, 4:55 pm

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