Can Your Digital Images Withstand A Court Challenge?
Digital technology in general is almost immediately associated with digital forensics, including computer crimes, cyber terrorism, child pornography on computer hard drives, and other “digital threats” that require special training, expertise, and equipment to investigate. 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 photography for documenting and collecting evidence at crime scenes has been evolving at a similar pace and doing so mostly under the radar. Digital cameras have surpassed film to become the norm; it is now rare to find a film camera being used for law enforcement purposes. 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.
What hasn’t been widely recognized, however, are the vastly different steps, processes, limitations, and vulnerabilities involved when creating a digital photograph. While the transition from film to digital happened with little fanfare and has mostly gone unnoticed, it has not been completely ignored within the law enforcement community. The National Institute of Justice (NIJ), the Scientific Working Group on Imaging Technology (SWGIT), 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 yet to be fully grasped and appreciated.
The reason for that is inherent in our law enforcement system. By necessity, law enforcement is a reactive, crisis management-oriented organization. There is little time to be proactive, so the problems lurking in the background too often go unnoticed or are ignored until they become a crisis. A major challenge regarding how digital images are captured and the resultant workflow and storage of the images has yet to be realized. Predictably, standard operating procedures (SOPs) involving digital image integrity and workflow are largely unaddressed by law enforcement.
What most agencies fail to realize is that the lack of SOPs and a sound workflow means images submitted for court purposes may not survive if challenged by a knowledgeable attorney. These digital complexities have not yet been realized, so images taken by photographers will likely fail one of three very basic criteria:
- The date and time setting in the camera is incorrect.
- The wrong lens focal length was used, resulting in an inaccurate depiction of the scene.
- Embedded information may indicate the image has been modified.
“These points were not an issue with film, but we do NOT live in a film world anymore. We now live in a digital age, and it changes everything we once believed about how photographs are treated in law enforcement,” says D. Eric Johnson, CEP (Certified Evidence Photographer instructor and retired First Lieutenant, Michigan State Police). A strong advocate of digital image integrity, education, and certification, he feels it is crucial for all who work in law enforcement to understand the following: “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.”
Johnson continually asks the hard questions to all those taking digital images at crime and accident scenes:
- How are your memory cards handled?
- How are images transferred and stored?
- Most digital images can be changed—modified—altered—without detection, so, 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?
A Possible Solution
One way to get the necessary guidelines, standards, and training needed to shore up credibility in evidentiary images is the Certified Evidence Photographer (CEP) program.
The CEP program was developed by focusing on the unique needs of photographers documenting crime and accident scenes in our new digital world. Seventeen leaders in evidence and forensic photography throughout the country were hand-picked to create this certification program. They consisted of personnel from the FBI, the Secret Service, heads of crime laboratories, educators, police officers, and others with 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 evidence photography certification, and how to then present training courses and subsequently test for a meaningful certification.
“It’s one thing to know how to do the job, but completely another to have an Investigator trust you when photographing their crime scene,” says Thomas Doggett, CEP, CCSI, an officer for the Batavia Police Department outside Chicago who took the CEP program to demonstrate to his peers a level of proficiency in the field. “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. On the other hand, certification shows that a photographer understands what is happening with light, focal lengths, depth of field, etc…all needed to make a photograph that shows a true and accurate representation of the scene as it actually was.”
Doggett credits much of his proficiency to his CEP education. “In my organization, outside specialty assignments are generally three years in length. But I have held an ancillary assignment as a Forensic Photographer with the county major crimes task force for almost 12 years,” he explains. “A large part of the factor keeping me on the task force and not being rotated out is the CEP.”
So Ask Yourself: Can Your Images Withstand a Court Challenge?
It is time for those taking crime and accident scene photographs to take a hard look at their procedures and consider the following facts:
- The majority of cameras in the field have an incorrect date and time—check yours!
- Compact point-and-shoot cameras default to a wide angle setting, which will misrepresent the accuracy of the image—and most officers don’t even realize it.
- 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 most officers don’t know it.
- When images are downloaded to a computer, the simple act of rotating an image in order to view it will indicate it was “modified.” Will your court accept a modified image?
Any one of these issues will likely result in the 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.
D. Eric Johnson, CEP retired as a First Lieutenant from the Michigan State Police in January 2009 after more than 30 years of service. Following his retirement, his background in law enforcement and photography motivated him to submit photography training courses for the police to the Michigan Commission on Law Enforcement Standards (MCOLES). Eric currently provides such instruction at the state police academy in Lansing, as well as throughout Michigan’s Lower and Upper Peninsula. In addition to his instruction, he also provides specialized injury photography to plaintiff law firms throughout Michigan. Eric is a Certified Evidence Photographer (CEP) and a member of the International Association for Identification (IAI), Professional Photographers of America (PPA), and the National Association of Photoshop Professionals (NAPP).
Claire W. White is the Association Director for the Evidence Photographers International Council (EPIC).