court question

This http://www.crime-scene-investigator.net/admissibilityofdigital.html site says yes in the United States. But you should check with the State where the crime is being tried.

Simple answer is yes.

Longer answer is that it depends. For example, crime scene photographs, where the investigating officer testifies that they are a true and accurate copy, would be admitted without objection.

But if the picture is being introduced to prove something happened, where the picture is the sole evidence of the issue, then it becomes a little bit more complicated.

Let's say that Aunt Bea is taking a picture of a bridge over a river with the beautiful fall foliage in the background. As Aunt Bea snaps the picture, two vehicles collide on the bridge. Each driver says the other driver was over the yellow line. Police investigation is not able to reach a conclusion as to which vehicle was at fault.

Then Aunt Bea comes forward with her pictures, which clearly show one of the vehicles was over the yellow line. Aunt Bea, at the time of the taking the picture, did not even notice the accident. Therefore, the only "testimony" about the accident that matters is the picture. Everything else is either a wash or inconclusive.

Aunt Bea, not being terribly technically inclined, takes her camera to Wal-Mart to develop the digital picture. To get this picture into evidence, you'd need Aunt Bea to testify that she took the picture, and that she had made no alterations to the picture. But you also need the Wal-Mart technician to testify that he or she developed the pictures that Aunt Bea brought in, that he or she had not tampered with the pictures, and that the pictures were a fair and accurate representation of the pictures that Aunt Bea had taken.

However, in this situation, if you used film, you'd probably need to use the same level of proof to get the pictures into evidence. And there are some chain of custody issues involved here.

Best of luck,

Jim Clark-Dawe

In most jurisdictions recorded evidence (photos, audio or video) must be accompanied by witness statements as to how and why the evidence was collected etc. If, for example someone mailed an incriminating photo anonymously to a district attorney it would be inadmissible.

Digital is considered equal to other media though, it doesn't really matter, especially since you could print out your digital photo as a hard copy. Why would they make a distinction between a digital photo and a chemical one?

Drachen Jager said:

In most jurisdictions recorded evidence (photos, audio or video) must be accompanied by witness statements as to how and why the evidence was collected etc. If, for example someone mailed an incriminating photo anonymously to a district attorney it would be inadmissible. Depends on the purpose for which it is being admitted. If it is being admitted to show that as a result of receiving the picture, the DA did certain things, not an issue. If it is being admitted to show that when the police arrived at the scene, the scene was consistent with the picture that the DA had received, it would probably be admitted. If the picture is the sole evidence that something occurred, I agree that it would not be admitted.

Digital is considered equal to other media though, it doesn't really matter, especially since you could print out your digital photo as a hard copy. Why would they make a distinction between a digital photo and a chemical one? The distinction is in how they are made. With film, a shutter to the camera opens capturing an image at that time on a negative. Although it is possible to fiddle with a negative, it is extremely difficult to do without being obvious. On the other hand, a digital photo is not recorded on an unchangeable medium at the time it is shot. It is merely a collection of 1 and 0 randomly put together to form the picture. It is easy to manipulate those 1s and 0s to change the picture (think Photoshop here). Although the probability is that some tracks will be left in changing it, it's alot harder to find them, and to explain them to a judge.

Click to expand...

Best of luck,

Jim Clark-Dawe

For once in my life, I'm going to disagree (very slightly) with Jim here.

As long as the person who took the photo, or someone else who was actually there, testifies that the picture is a fair and accurate representation of the scene at the time to photo was taken, it will be admissible.

The developer wouldn't have to testify for a film-photo, nor any other technician because the whole point is to make sure that you are showing the jurors what the scene looked like. And the simple testimony of a reliable witness does that.

For example, I just tried a murder case in which a detective testified that a photo of the defendant, taken when he was booked in, was a true and accurate representation of what he looked like when he was booked in. Someone else had taken the picture.

I should add the proviso that my opinion is derived from practicing under Texas law, and in my district's courts. Your jurisdiction may vary.

MarkEsq said:

For once in my life, I'm going to disagree (very slightly) with Jim here. Ah, but were you paying attention to all the minor points?

As long as the person who took the photo, or someone else who was actually there, testifies that the picture is a fair and accurate representation of the scene at the time to photo was taken, it will be admissible. Absolutely, but notice what I said about Aunt Bea

Then Aunt Bea comes forward with her pictures, which clearly show one of the vehicles was over the yellow line. Aunt Bea, at the time of the taking the picture, did not even notice the accident. Therefore, the only "testimony" about the accident that matters is the picture.

Click to expand...

Aunt Bea cannot testify that the picture is a "fair and accurate representation of the scene" as she did not notice the accident. All she can testify to is that she took the picture, and that she did not even know an accident had occurred. Because she did not observe the accident at the time she took the picture, she could be asked on voir dire to determine whether the picture would be admissible whether it was possible someone added the accident to the picture.

Because she did not witness the accident, she would have to testify that is definitely possible. Because the picture is the only evidence of the accident, a judge could admit it with a warning to the jury that the picture needs to be viewed with some skepticism because it is possible that it was tampered with. Better judicial practice would be to require the presenting party to verify that the picture hadn't been tampered with. Less likely to be a problem with appeals.

Realize that this is going to be the exception to normal rules. Normally pictures are not much of an issue for admissibility.

The developer wouldn't have to testify for a film-photo, nor any other technician because the whole point is to make sure that you are showing the jurors what the scene looked like. And the simple testimony of a reliable witness does that. Agreed, but as stated, Aunt Bea cannot testify what the scene looked like.

For example, I just tried a murder case in which a detective testified that a photo of the defendant, taken when he was booked in, was a true and accurate representation of what he looked like when he was booked in. Someone else had taken the picture. From the point of view of a defense attorney, it usually isn't worth the effort to object. There's a couple of ways this comes in, but if it the picture is worth the effort, you can force the prosecutor to bring in the booking officer.

I never object to the crime scene or booking photos, other than as to quantity. Just not worth the effort.

I should add the proviso that my opinion is derived from practicing under Texas law, and in my district's courts. Your jurisdiction may vary.

Click to expand...

Best of luck,

Jim Clark-Dawe