Art Forensics #9:

Forensic Photography - Digitally Enhanced Imaging

Read previous articles in the Art Forensics Series

Background

Forensic photography or legal photography pertains to the taking of photographic images to provide evidence of facts or data surrounding an event. In providing appraisals to the Internal Revenue Service a photo of the appraised object is used not only to describe the nature of the object but also to substantiate that the object exists. In a court of law, photographs are used to verify oral statements and actions. Digitally enhanced imaging pertains to the use of a computer program to take an image and change it. With the program one may subtract from the original image or add to it to make the image more distinct. In subtracting one uses the program to remove detritus obfuscating the image to make it clear; in adding one may, for example magnify the image to clarify. One may also add additional images to clarify and in so doing change the original image so as to make it unlike the original. Here, the operator may add a scar to a face when no scar was apparent before. Courts accept subtraction, but have serious problems with addition or enhancement proclivities since the potentiality exists that the enhanced image fails to represent the authenticity of the original image (Levy-Sachs,2004). The new scar developed from the enhancement falsifies the original image of an absence of the scar. It is an inauthentic image, unacceptable to Federal Rules of Evidence (FRE) 702, 703, and 901:

Introduction

Over the last few years Fine Art Registry® members were introduced to forensic photography when it was featured in reports of various escapades such as the truck driver's find of a Pollock, the Long Island Pollock, and the new Da Vinci discovery (Fine Art Registry). The truck driver's find became the subject of a full length movie; a photo of a fingerprint was the star of the Long Island Pollock; and a picture of the alleged Da Vinci complete with fingerprint attached was the most recent. The self-proclaimed forensic expert regaled audiences with supposed scientific explanations of why and how his forensic methodology warranted his conclusions. The consequence of this methodology was that when the standard verification protocols were applied by a trained forensic examiner, the earlier conclusions rendered turned out to be false or significantly questionable. The problem underlying such bad conclusions was that the so-called forensic methodology utilized to drive the conclusions was neither proper nor forensically grounded. Standards of image clarity, exemplars, type of camera and photographic paper used, chain of custody, proof of date taken, size of image, and so on were inconsequential.

What exactly are the proper procedures and standards to be followed in the taking and presenting of photographic images as evidence?

Standards and Procedures

The standards and procedures grounding the taking of and processing digital photos to be used as evidence are currently in flux, since case law and legal rules are in the process of being developed to respond to this relatively new technology. The court system is taking steps following the Federal Rules of Evidence 702, 703, 901 and via various case law decisions. In point, although not clearly flushed out, standards are available and are followed based on the judge as the gatekeeper and previous cases decided on by appeals to FRE criteria. One who takes photos as evidence is at risk by not following these past decisions (Daab, 2009). The Pollock photographer found this out when a trained forensic expert concluded that the fingerprint photographed was bogus, much to the embarrassment of the photographer.

Certification of the Forensic Photographer

As we have seen, the current image of the forensic photographer is one of self-proclamation presented with a camera with a huge lens hanging off the neck, conducting even the most mundane non-photographic daily activities. While the mass media may buy into this presentation, the International Association of Identification, IAI, an organization providing education and certification designations for trained forensic specialists does not. IAI following the dictates of FRE 702 and 703 requires that to become a certified forensic photographer one must be employed as one. The applicant must have 40 hours of training in forensic photography and three years of work experience. Two letters of reference must be provided and one of the two must be from the immediate supervisor of the candidate. The candidate must pass a written test and provide 10 samples of work projects regarding forensic photography. The certification provided is good for five years. The IAI process of certification satisfies the requirements of serving as an expert witness in terms of training, peer review, education, and work experience. It has no requirement that the camera must be worn at all times (IAI, 2009).

Issues and Problems Surrounding the Certified Forensic Photographer

The use of forensic digital photography has as its main problem the fact that images can be manipulated by use of a computer. Photographic software programs are somewhat simple to operate and as such allow even a novice photographer to take an existing image such as a scar or fingerprint and change it dramatically or even remove or add it to a another digital image. Courts and laws take issue with the manipulation of evidence and have looked to establish foundation factors to remove or ameliorate the threat of tainted photographic evidence. In the State of Connecticut v. Swinton the court handed down some rules to satisfy foundation factors for using digital images as evidence. The court first established that the individual providing the evidence must be knowledgeable about the process used to create the image. Note here that the court is focused on those images manipulated to make evidence clearer than it would be without manipulation. In the recently found "New DaVinci" the image used as evidence for a Da Vinci fingerprint was a smudged fingerprint enhanced by a new process leading to a non-smudged print. The court would expect those presenting the enhanced print to be able to explain how the computer and the enhancement software work. In particular the expert witness should be the person who was involved in the enhancement and is capable of presenting the details of the process. The court is not looking for a computer programmer but someone with some degree of computer expertise who is capable of responding intelligently to court questions.

The court used not only the FRE 702 and 703, but added 901 to test for authenticity of evidence. Here computer enhancement is a process or system and evidence generated must satisfy the factors of:

1. The process and system is accepted as a standard and had no defects while in operation.
2. The process must be carried out by qualified or trained operators.
3. Qualified operators followed accepted protocols while processing the evidence from start to finish.
4. The program used was reliable in that its error rate was not egregious.
5. The output evidence was produced by a correct operation and identified.

The production of the image evidence parallels earlier Daubert court considerations of proper training, supervision, experience, and education, in providing expert testimony. This is not to say that creating digitally enhanced images in general is governed by FRE regulations - but if such images become evidence in a court of law such images should satisfy FRE standards. Failing to ground the images on such standards leaves the evidence easy prey for challenges from the opposition. Digital images may not upset a family gathering if they are inaccurate; providing such images as forensic evidence without following specific rules and protocols may result in reliability issues forcing the images to be removed from consideration by the court. In point, digital imaging such as provided in "La Bella Principessa" would not normally require strict standards of processing since it has not entered the courtroom. If it eventually does, questions may arise as to the legitimacy of how the smudged print was enhanced to create a non-smudged Da Vinci fingerprint.

Forensic Photography Evidentiary Principles

Cambell, (2007) notes that if expert testimony is to be provided using digital imaging the following principles should guide the process:

1. Provide the opposition with notification of the use of enhanced photographs.
2. Keep the hard copy of the original image.
3. Track the changes made to the original image through enhancements.
4. Use a certified person to work with the photo.
5. Make sure the process or program is reliable in changing the original photo.
6. Keep all equipment used.
7. Follow the standards developed in previous Daubert rulings related to the use of expert testimony.

References

1. Cambell , J.2007. Evidentiary Requirements for the Admission of Enhanced Digital Photographs, Defense Counsel Journal. Retrieved on January 17, 2010 from http://www.allbusiness.com/public-administration/justice-public-order-safety/4062233-1.html
2. Cornell Law School, 2008. Retrieved on January 17, 2010 from http://www.law.cornell.edu/rules/fre/rules.htm
3. IAI,2009. Retrieved on January 17,2010 from http://www.theiai.org/certifications/imaging/index.php
4. Rebecca Levy-Sachs, Melissa Sullivan Robinson & Cole, 2004. Using Digital Photographs in the Courtroom - Considerations for Admissibility. Retrieved on January 17,2010 from http://www.securitymanagement.com/archive/library/feature/August2004.pdf

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— by John Daab Ph.D.  |  February 1, 2010

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